Note: An appeal pursuant to s.604 (C2012/3754) was lodged against this decision - refer to Full Bench decision dated 24 August 2012 [[2012] FWAFB 6949] for result of appeal.

[2012] FWA 1352

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

The Applicant
v
Australian Federal Police
(U2011/6601)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 19 APRIL 2012

Application for unfair dismissal remedy, breaches of the AFP Code of Conduct, allegations of inconsistent treatment of employees, valid reasons for dismissal found, dismissal not harsh, unjust or unreasonable

Introduction and procedural matters

[1] This decision concerns an application made under s.394 of the Fair Work Act 2009 (the Act). I will not refer to the Applicant by name for reasons I refer to in the following paragraph. The respondent to the application is the Australian Federal Police (AFP).

[2] The Applicant sought an order that her name not be published. She said that this was to prevent further victimisation and harassment from “the initial complainant and his partner”. 1 This is a reference to the Applicant’s ex-husband who I will refer to as Mr B, and his current partner. The role Mr B plays in this matter is referred to later. The application was made at the commencement of the first day of the arbitration and counsel for the AFP indicated it was unlikely it would be opposed but would obtain specific instructions. The matter was not raised again. I have decided that the transcript of proceedings and these reasons for decision should not identify the Applicant by name nor her mother and ex-husband. An order made under s.594 of the Act to this effect is to be found in PR522424.

[3] In the week prior to the date set for the arbitration I called the matter on to deal with an application by solicitors for the AFP for them, and counsel, to be granted permission to appear. I considered I should deal with that application in advance of the first day set for the arbitration. I also decided to deal with an application by the Applicant for the issue of a summons. I regret that this hearing, which was conducted on the telephone, was not transcribed. I indicated at the end of the hearing that I would grant permission for the AFP to be legally represented and also made rulings about documents that were to be produced. I was persuaded that the arbitration would proceed more efficiently if the AFP was legally represented. By the time of this hearing I had received the Applicant’s statement, one from her mother and numerous statements filed by the AFP. It was clear the arbitration was to be one in which I would need to make a number of rulings both about procedural matters and as to contested evidence. If every matter the parties disagreed about was to be tested the arbitration would proceed for many days. The documentation of the Applicant suggested it had been prepared with legal assistance. In any event it reflected a good grasp of the relevant sections of the Act and court procedure. However, much of it also dealt with matters of a personal nature which would be unlikely to be relevant to the application of the considerations in Part 3-2 of the Act. I noted that the Applicant was not taken by surprise that the AFP wished to be legally represented. At all times the AFP had been legally represented and had indicated it intended that to continue. I also noted that the Applicant had earlier been represented by solicitors at the conciliation conference and had then indicated she would continue to be legally represented.

[4] On the first day of the arbitration the Applicant sought an adjournment indicating she did not realise that the AFP would be legally represented. She said she believed the permission for counsel and solicitors to appear, which I had granted at the previous hearing, was only for that day and that a fresh application was needed at the commencement of the arbitration. I did not grant this application. Notice that it would be made was not given until late in the afternoon of the previous day. It was too late for the AFP to cancel the arrangements it had made for two interstate witnesses to attend in Sydney. At the time the application was made, being the commencement of the arbitration, I had expected some part of the evidence of these witnesses would be reached during that day. As it transpired that was not the case.

[5] I was not persuaded by the Applicant’s submission that she had misunderstood the effect of the ruling I had made the previous week granting permission to solicitors and counsel for the AFP to appear. In light of the explanation given by the AFP’s solicitors when making the written application to hear the question of permission to appear, indicating that it would be best for the parties to know the fate of that application before the first day set for the arbitration, it was difficult for me to accept that the Applicant could have genuinely been under any misunderstanding. The Applicant relied on her misunderstanding of the effect of the earlier grant of permission to demonstrate that she was in no position to represent herself and that she should have an adjournment to obtain counsel. 2 This was a disingenuous comment particularly in light of the exchange later in the proceedings.

[6] Immediately after the luncheon adjournment on the first day of the arbitration the Applicant indicated that she had “just heard back from the New South Wales Bar Association” which had informed her that a barrister was willing to represent her but could not do so on that day. The Applicant indicated that she had made her application to the Bar Association for “pro bono counsel” on the previous Friday when the AFP’s application for permission to be represented by counsel was granted by me. She accepted that she knew then that the AFP would be represented in the proceedings. I ruled that the matter would proceed for so much of the remainder of the day to allow for the cross-examination of the Applicant to be completed as well as the evidence of her mother. I indicated that the Applicant would not be required to cross-examine any of the AFP’s witnesses. Those two who had attended were excused for the remainder of the day.

[7] When the matter was next listed for hearing the Applicant was represented by Mr Bolger, a barrister. The AFP was represented throughout the arbitration by Mr Saunders who is also a barrister.

Reasons for the dismissal - a summary

[8] The reason for the termination of the Applicant’s employment was her failure to comply with the AFP’s professional standards and aspects of the AFP Code of Conduct. I will later detail the nature of the breaches relied upon by the AFP but for present purposes it is adequate to summarise them. I take these from the letter terminating the Applicant’s employment. 3 In this respect I also here note that the issue about whether the letter fully and accurately set out the grounds relied upon by the AFP was an issue in this arbitration. I note that the letter records that the Applicant had made improper use of information obtained indirectly as a result of her employment in order to gain a benefit or advantage, contrary to section 8.7 of the AFP Code of Conduct, that she had failed to use Commonwealth resources in a proper manner contrary to section 8.8 of the AFP Code of Conduct and that she had failed to act with honesty and propriety in that she provided false and misleading information to Professional Standards investigators whilst under direction contrary to section 8.2 of the AFP Code of Conduct.

Witnesses and documentary evidence

[9] The Applicant gave evidence as did Ms T who is the Applicant’s mother. For the AFP evidence was given by Commander Walters who, at the relevant time, was the Manager AFP Professional Standards, Mr Walker who, at the relevant time, was the National Manager Human Resources, Superintendent Houghton, Co-ordinator of the Operations Monitoring Centre, Professional Standards and Federal Agent Lea, an investigator in the Professional Standards team. Each of these witnesses had also filed a written statement.

A general comment about the evidence of the Applicant

[10] It was apparent in the Applicant’s written statement and throughout her oral evidence that her opinion of having been dealt with unfairly is underpinned by at least two considerations. The first is her poor opinion of her ex-husband whose role in her dismissal I refer to later. The second is her belief as to what motivated employees of the AFP in the manner in which they dealt with her. Much of which she believed was motivating them and which led to her dismissal was not made out in the evidence. Illustrative of this I reproduce the following submission made by the Applicant as to why she believed she had been dismissed:

“...Understood, thank you. Just to wrap things up, having said that - yes, I’ll wrap it up, I’ll quickly read this and whatever category falls in I’ll be content with the fact I’ve stated what I’m about to state. I believe that the AFP decided to expediently terminate my employment for the following reasons instead of nominating the lesser sanction as was kindly offered to [Supt X] before he was pardoned. I believe because I am a young female unsworn staff member, I’m not a member of the union, I’m not a commissioned police officer with 35 years of policing experience. I’m not part of the boys club, known in police circles. The AFP protects those who form part of that circle. Law enforcement agencies are driven to operate on a statistical outcome. I have been made a statistic to justify the extensive and considerable amount of tax payer funded resources invested in this investigation. It has been a gross invasion of my privacy, encapsulating a biased investigation whereupon the penalty is disproportionate to the crime. The AFP believes it is in a position where it cannot back down from its findings...”. 4

Other than the relevance of the sanction imposed on the employee referred to as “[Supt X]” by comparison to that imposed on the Applicant none of this was established by the evidence. For the reasons I will later come to I have found that the dismissal of the Applicant was not harsh, unjust or unreasonable.

My findings on the evidence

[11] Before I record my findings I note that there was a great deal of documentary evidence filed by the parties and much cross examination about those documents. I have taken it all into account but have not considered it necessary to refer to all of the matters raised. I will hereafter refer to and make findings as to the key matters necessitated by the relevant provisions of the Act. Recording the relevant findings in a strict chronological order is difficult in this matter due to the way in which the allegations against the Applicant arose and were investigated. I will record my findings in the following order. First I will refer to details about the Applicant’s qualifications, appointment and positions held and about an investigation into certain actions taken by her. I will then refer to the course that investigation took and the decision made by the AFP to terminate the Applicant’s employment. I will then refer to the actions of the Applicant, which had occurred between January 2007 and November 2009, which were the basis for her dismissal. In several places in these reasons I have adopted the written submissions of the AFP as to factual findings that I should make. I have not reproduced each of the large number of footnotes which accompany that submission. These can all be identified in Exhibit R9.

[12] The Applicant commenced employment with the AFP in June 2005 in the position of Financial Analyst in the Finance Team. She was based in Sydney.

[13] The Applicant has a Degree in Policing and in Commerce and a Masters in Business Administration. She is a certified practising accountant. Prior to commencing employment with the AFP she worked as a police officer with the New South Wales Police Force.

[14] The Applicant understands from her qualifications, and work experience, she was required to act honestly, to pay close attention to detail in work related matters and take care in the manner in which she used confidential information. The Applicant has a practice of reading documents when she receives them. 5 In this respect she received, read and understood a document entitled “Acknowledgement of Information Handling and Secrecy Obligations” provided to her during her employment with the Respondent.6 It contained the following obligations:

[15] This document, with the highlighted words, was provided to the Applicant and signed by her in both 2005 and 2006.

[16] The Applicant had access to the AFP intranet during her employment. She went onto the intranet from time to time and was aware that it contained documents such as the AFP National Guideline on the use of Information and Communications Technology and the AFP Code of Conduct. 7 She was aware there was a guideline on the use of email which she knew was on the intranet but said she had not read it until after her dismissal. She accepted that if she misused or inappropriately used the email system that may result in disciplinary action.8

[17] At all times the Applicant was required to conduct herself in accordance with the AFP Code of Conduct. 9 Relevant extracts from it are as follows:

[18] During her employment the Applicant was aware that she was not to send, forward or exchange inappropriate material by AFP email. She knew she could send unclassified, in-confidence, restricted, protected and highly protected emails to an AFP email address but there were constraints on sending such emails outside the AFP. She was under an obligation not to purposefully under-classify an email message to get around the AFP security email filter. She knew she was under an obligation not to use the AFP information technology systems to create, access, distribute or store inappropriate material. 10

[19] At one time the Applicant was married to a Mr B. They separated in 2004 and later divorced. They had one child. Subsequent to their separation there were numerous proceedings in the Family Court, Federal Magistrates Court and the Child Support Agency. It seems from time to time the police were involved. It was the poor relationship between the Applicant and Mr B which formed the trigger for investigations into actions taken by the Applicant which ultimately led to her dismissal. The Applicant believed Mr B to be a person who evaded paying both an appropriate level of child support and taxation. Mr B did not give evidence but some documentation prepared by him was produced pursuant to a summons issued at the request of the Applicant. It seems he did not have a favourable assessment of the Applicant and believed her to have misused her AFP position to her advantage and to his disadvantage.

[20] The Applicant’s mother, Ms T, was a party to the Family Court proceedings. Her status in that respect arose due to a dispute between the Applicant and Mr B concerning property owned at one stage by Ms T and about which there was an argument as to whether she had gifted it to the Applicant and Mr B. Ms T read every document relevant to those proceedings, discussed them with her daughter and ways in which she may obtain further information about Mr B which might be of assistance.

[21] With effect from 12 March 2007 the Applicant was transferred into a Team Leader position in the Investigations Group. 11 The relevant team was described as the Regional Austrac Team. She was then under the supervision of Superintendent X (Supt X). Other employees in this team were a Ms Smith and a Ms Ellis. The Applicant knew, and had contact previously with Supt X, but had only met the other two employees at the time of her transfer. She discussed her view of her ex-husband with the superintendent on a number of occasions.12

[22] The Applicant had access rights for work purposes to AFP data bases which go by the acronyms of AUSTRAC, COPS, DIAC, MASCOT and PROMIS.

[23] In May 2009 Mr B, together with a private investigator he had retained, attended the AFP offices in Sydney and made a complaint to the Operations Monitoring Centre (OMC) about the Applicant and requested it be investigated. In short, it was alleged that the Applicant had illegally obtained information concerning Mr B and had used it in Family Court and Child Support Agency proceedings.

[24] On 5 and 6 November 2009 a tape-recorded interview was held between the Applicant and Federal Agents Lea, Wilton and Boland. The first two federal agents were in attendance for each of the days and Federal Agent Boland for the first day only. The transcript of the interview was provided to the Applicant and a full copy of it was in evidence. 13 This interview was described as part of the PRS investigations. I understand PRS stands for Professional Standards.

[25] The Applicant had Federal Agent Boland as her support person. The Applicant said that she had wanted to speak to her family lawyer as her support person as he was situated nearby. 14 She said that Federal Agent Lea said that these were not criminal proceedings and she could have a colleague as her support person or a union representative but not her solicitor. Federal Agent Lea said she did not make a request for her solicitor to participate in the interview and had she wanted him to attend she would not have objected to that request. In this respect I prefer the evidence of Federal Agent Lea.15

[26] The Applicant concedes that she did speak to her solicitor in relation to the PRS interview. She was not prepared to identify specifically the time or times when she had done so but I find it that she did so at least at some time after the first day, and before the commencement on the second day, of the PRS interview. Further, I do not accept the Applicant’s evidence that she was told she could not discuss any part of the interview or investigation with a legal practitioner.

[27] The transcript of the interview on the second day reflects that Federal Agent Boland was not present. The Applicant was asked if she was happy to continue with the interview in her absence. The Applicant said she was. 16

[28] On 10 November 2009 the AFP sent a notice to the Applicant informing her of her suspension from duty. The suspension was justified on the basis that there was a belief, on reasonable grounds, that she may have failed to comply with the professional standards of the AFP. Particulars of the complaints were set out in that notice as was advice that the suspension was to be on the basis that her remuneration would continue to be paid. 17

[29] On 10 May 2010 the Applicant was advised of proposed findings arising out of the PRS investigation and was asked if she wanted to put any information before the Manager PRS as to why those findings should not be accepted. 18 The advice comprised a list of the various complaints that had been investigated together with a document titled “Professional Standards Investigation Report” which sets out the evidence relied upon to make the findings that were being proposed. An extension to the deadline for a response was sought by the Applicant and granted.

[30] On 9 July 2010 the Applicant sent her letter of response to the Manager of PRS. 19 She denied having committed any of the alleged breaches. She referred to her relationship with Mr B and noted that “we have been embroiled in family law proceedings since the second half of 2006”. Thereafter, allegations are made about Mr B and her belief that he had manipulated his taxable earnings. The role of Ms T in Family Court proceedings was also referred to. The Applicant records that she thought her ex-husband’s practices were worthy of referral to relevant agencies for investigation and that she believed that was the basis for Supt X’s enquiries. She criticised the superintendent. She said information she received was either openly available, she already knew it or if it was new it was of limited assistance to her. She invited the AFP, in conjunction with the Australian Tax Office, to consider a possible case referral in relation to Mr B’s finances. She did not concede any irregularities in any of her actions. She did not accept as inappropriate material on her computer (these were some photos which I refer to later) and she described them as “jovial”. She accepted she had accessed the MASCOT data base to conduct searches of companies associated with Mr B. She said these searches would be available to any member of the public. She criticised the PRS interview and the indication that she may be found to have given misleading information. Numerous documents were annexed to the response. They principally concerned Mr B and proceedings in the Child Support Agency.

[31] On 3 November 2010 Commander Walters made an adjudication in relation to the allegations against the Applicant. 20 He concluded that a number of the allegations had been established and recorded that her conduct warranted serious consideration as to her suitability to remain an employee of the AFP. He indicated he had taken into account all of the aggravating and mitigating factors and recommended certain actions be taken including a recommendation to the National Manager of Human Resources (NMHR) to consider termination of the Applicant’s employment. The adjudication is detailed and addresses the course the enquiry had taken, the explanations given by the Applicant in respect to the allegations that were made against her and the reason why the Commander was satisfied the Applicant had breached the AFP Code of Conduct. The Commander had not met the Applicant at any time she was employed by the AFP.

[32] Commander Walters was also the person responsible for determining whether Supt X had breached the AFP Code of Conduct and made recommendations as to the action which should be taken. Although he found breaches of the AFP Code of Conduct by the superintendant he also found that he had not provided misleading information to PRS investigators whilst being interviewed. He took into account the superintendent’s acknowledgement of what he had provided to the Applicant and his acceptance that his actions were wrong. He took into account the superintendent’s “distinguished 33 year career” with the AFP. 21 It was not appropriate, in his opinion, to recommend termination of his employment; other disciplinary action was recommended and taken.

[33] On 5 November 2010 the Applicant was provided with a notification of the outcome of the PRS investigation. The details of the breaches that Commander Walters had found established were referred to as was advice that he had recommended that the NMHR consider her suitability for continued employment. He recorded that the NMHR had options in relation to what should be the sanction applied of which termination of employment was one.

[34] On 24 November 2010 Superintendent Houghton (Supt Houghton) reviewed the documentation in relation to the Applicant’s conduct and provided a document to the NMHR. 22 It contained details about the allegations found to be established, mitigating and aggravating factors. It noted the Applicant had no complaint history with the AFP. Her professional development assessments are referred to. The recommendation Commander Walters had made that the Applicant not remain in ongoing employment is referred to and a draft show cause notice was attached. The alternative of remitting the matter back to the Commander for consideration of a lesser sanction was also referred to.

[35] On 29 November 2010 a letter was sent to the Applicant informing her that consideration was being given to terminating her employment. 23 This was signed by Ms Dantan who was acting NMHR (Mr Walker was working on another assignment). The letter detailed the breaches of the AFP Code of Conduct which had been established and the responses given by the Applicant which included her personal circumstances. It advised that consideration would now be given to whether she should remain an AFP employee. There were several annexures to this letter including the AFP Code of Conduct, the document prepared by Supt Houghton dated 24 November 2010 and details of the Applicant’s employment history and performance development assessments. The Applicant was invited to provide a response.

[36] Mr Walker returned from his secondment in around mid-December 2010. He was made aware of the investigation and reviewed all the relevant documentation.

[37] On 21 January 2011 the Applicant provided a response. 24 The fact the AFP was considering termination of her employment was described as being “completely unwarranted and unsubstantiated”. She said she was dissatisfied with the manner in which the AFP investigation team have established the alleged breaches against her. She complained of the fact Supt X had resumed duties, criticised a number of his actions and his poor judgement in forwarding information to her. She gave reasons why her actions should not be considered to be in breach of the AFP Code of Conduct and asked that consideration be given to further discussions prior to any final decision being made.

[38] Mr Walker considered the Applicant’s response and again reviewed the relevant files. He formed the view that the Applicant’s employment should be terminated. On 8 February 2011 he prepared a minute for Supt Houghton concerning this conclusion. 25 He referred to the breach of the AFP Code of Conduct relating to false and misleading information given in the PRS interview. The Applicant’s description of the PRS interview on 5 and 6 November as confusing was considered and not accepted. Her explanation about her handling of emails was also considered. Mr. Walker was of the view her explanations were not acceptable particularly given the training she had been given and her previous work experience. He was critical of her actions in attempting to recruit staff to assist her in her family law proceedings. He noted the Applicant’s challenge to the finding she had improperly used information to gain a personal benefit and identified reasons as to why that charge was made out. In this respect he referred to the email traffic from the Applicant both internal and external. He noted the attempts to reclassify emails contrary to security protocols. He confirmed that consideration was given to the appropriate sanction for Supt X by reference to the sanction of termination recommended for the Applicant. He noted that the Applicant would not accept any blame and that he did not believe any further conferences would be appropriate.

[39] Supt Houghton had drafted the terms of a termination letter to be sent to the Applicant. 26 That draft had been review by the AFP legal department.

[40] On 9 March 2011 Mr Walker sent a letter to the Applicant in which she was informed that her employment was terminated. 27 It recorded the breaches of the AFP Code of Conduct that had been established. The letter indicated that the Applicant’s mitigating and aggravating factors had been taken into account but had not been sufficient to persuade Mr Walker that termination of employment was not appropriate. Reference was made to the Applicant’s attempt to impute blame on another employee and her failure to accept any of the established findings. The Applicant’s attempt to recruit staff to assist her in relation to her family law matters, the gaining, use and on-forwarding of information (including the reclassification of material) and the misuse of Commonwealth resources were also referred to. The letter concludes that the Applicant’s failure to accept responsibility and attempt to shift responsibility to other employees had resulted in his considering an alternative sanction to not be appropriate. The Applicant’s employment was terminated effective 18 March 2011.

[41] Mr Walker accepted that the Applicant had shown some remorse for her actions contrary to his comment in the termination letter that she had not. In particular, he accepted that in her response of 21 January 2011 she did indicate that she was genuinely regretful for forwarding the email in March to her mother. I note she also made a similar comment in her response of 9 July 2010 where she said she was genuinely sorry for forwarding the AUSTRAC information to her mother. Mr Walker said no remorse was shown for any other actions she had taken. I accept that as an accurate assessment.

[42] Upon termination the Applicant was paid all accrued leave entitlements and, as can be seen from the terms of the 9 March letter, was paid 9 days notice. The AFP submits however that even though a period of paid notice was given it maintains that the Applicant’s actions justified her being summarily dismissed. 28

[43] I will here refer to a submission made by the Applicant that I should draw a Jones and Dunkel 29 inference from the AFP’s failure to call Supt X, Federal Agent Bertrand (who interviewed Supt X) and Federal Agent Nelson. The inference I should draw and the particular issues in respect of which it should be drawn were not detailed. I am not persuaded to draw any inference. In this respect I note that the Applicant accepted that she had approached Federal Agent Nelson and the evidence about what she had asked him to do. In my opinion the AFP not calling Federal Agent Bertrand does not necessitate any adverse inference being made. For the reasons given by the AFP I am not persuaded to draw any adverse inference in respect of the fact Supt X and Federal Agent Bertrand were not called.30

[44] I now refer to the actions and conduct of the Applicant which formed the basis of the findings she had breached the AFP Code of Conduct. These were the actions relied upon by the AFP in the hearing before me as establishing a valid reason to terminate her employment and that the termination was not harsh, unjust or unreasonable.

The first ground

[45] I refer to the first reason for the Applicant’s dismissal which concerns her improperly using information she had obtained in her AFP employment. This relates to actions she had taken between January 2007 and March 2007 which concern firstly her requesting (the AFP refers to it in final submissions as enlisting) another employee to assist her in legal proceedings against Mr B and secondly the use she made of certain emails.

[46] I am satisfied that on 16 January 2007, the Applicant attempted to enlist Federal Agent Ian Nelson to attend the work premises of Mr B to obtain information for her personal purposes. The Applicant conceded that she engaged in this conduct. She attempted to first describe her actions in this respect as trivial and that she had only wanted him to “just grab a business card” to or from his way to work or whenever it was convenient. In fact she had asked Federal Agent Nelson to meet with her ex-husband at his office in North Sydney for half an hour or so to discuss a possible loan application and then to obtain Mr B’s business card and any information about any other business he was involved in. The Applicant attempted to justify this action by saying she was not trying to obtain information on false pretences because Federal Agent Nelson could have used the chance to enquire about obtaining finance for a loan. 31 This explanation is implausible and a further attempt to trivialise her actions. I later refer to the question of whether this action comprises a breach of section 8.7 of the AFP Code of Conduct as relied upon by the AFP.

[47] The second part of this breach of the AFP Code of Conduct relates to actions first taken by the Applicant on 13 February 2007. On that day, after receiving information from Supt X relating to Mr B, the Applicant forwarded it to her mother by email, after altering the security classification on the relevant email from “SEC=IN-CONFIDENCE” to “SEC=PERSONAL”, I interpose here to indicate that hereafter I will refer to these classification settings as “In Confidence” or “Personal” respectively. On 14 February and 5 March 2007, after receiving “In Confidence” material from Supt X, the Applicant forwarded the material to her mother by email, after altering the security classification of the email from “In Confidence” to “Personal”. This email transmission was only successfully sent after the Applicant had first received a rejection email notifying her that her initial attempt to forward the material to her mother had failed because the initial email had been classified as “In Confidence”. The Applicant concedes that she did take these actions. She tried to down play the significance of these actions which does not reflect well upon her.

[48] The Applicant responded to the first email she had received from Supt X by an email in which she wrote “It’s a start...thanX!” She said she had done so in haste. She believed that Supt X had commenced an inquiry into her husband’s tax affairs.  32 As I have earlier noted the Applicant then changed the classification on the email from being security “In Confidence” to “Personal” and forwarded it to her mother. Her mother was a party to Family Court proceedings between the Applicant and Mr B. I find that this was done as the Applicant did believe the information provided might be of assistance in the Family Court proceedings. She did so after taking specific action to get around the AFP security settings and changing the classification on the emails in order to be able to send them outside the AFP email system.

[49] The second email sent to the Applicant contained information from the AFP AUSTRAC (Australian Transaction Reports and Analysis Centre) database, which was classified as “In Confidence” and is only accessible by some AFP employees. The purpose of the AUSTRAC database is to monitor suspicious financial transactions or activities of persons that may be connected to tax evasion, money laundering or other criminal activity. The Applicant was aware that the AUSTRAC information in the email was confidential and that she should not have been seeing it. 33 She responded to the second email by an email in which she stated:

“Most of it I was aware of, but the AUSTRAC find is GOLD as well as a few add’l Companies (as Director) I wasn’t.

Thanks Again !”

[50] I find that the Applicant did not previously know all the information in the second email. She tried to forward the second email to her mother without changing the security classification from “In Confidence”. The result was that she was unable to do so and she received an email from “IT Security” to inform her that “This email will NOT be released”. I find it unlikely she did not read that warning from “IT Security”. Contrary to the warning she changed the security classification to “Personal”.

[51] On 5 March 2007 the Applicant sent Supt X an email to which a letter she had drafted to go to the Child Support Agency was attached. 34 The email message was “Can you have a very quick squeeze please.” On that same day she sent the letter to the agency. She used information obtained in the email from Supt X in the letter to the agency.

The second ground

[52] I turn to the next ground relied upon by the AFP to terminate the Applicant’s employment. It is that she failed to use Commonwealth resources in a proper manner. These allegations are not contested by the Applicant. She does however assess them as of minor significance. The first part of this ground relates to the storage of two images on her work computer, one showing two men’s buttocks and the other showing a partially exposed female nipple. She conceded that it was inappropriate of her to retain the image of two men’s buttocks.

[53] The next part of this ground is that the Applicant used the AFP Sydney mail room to forward two pieces of correspondence without paying for the price of the postage. The Applicant conceded this. The Applicant accepts it would have been easy to buy some stamps for the mail but she did not do so was because it was more convenient for her to use the AFP mail room resources than to pay for the postage herself. She said the letters were to Mr B and were urgent. 35

[54] The final part of this ground is that the Applicant used the MASCOT system approximately half a dozen times and accessed the land titles system to conduct personal searches in relation to Mr B. 36 The Applicant conceded that she engaged in this conduct. The Applicant was asked during her interview on 5 and 6 November 2009 whether she had sought any approval from anybody to use the AFP databases to conduct these personal searches. She said she had not. In the arbitration she said that she had a brief discussion with Supt X in which he told her it should be fine for her to make the searches.37 It is surprising she did not say that earlier in the PRS interview.

The third ground

[55] The third ground relied upon by the AFP to terminate the Applicant’s employment was that she failed to act with honesty and propriety in that she provided false and misleading information.

[56] I have earlier indicated that on 5 and 6 November 2009, the Applicant was interviewed by PRS investigators. I set out below my findings in relation to this ground. In this respect I note that I have taken (and summarised) these findings from those urged upon me by the AFP in its final submissions. 38

[57] The first is that during the interview the Applicant denied that Supt X supplied her with information to assist her with her family law dispute. Secondly, she stated that she did not feel comfortable receiving certain information supplied to her by the superintendent, that she was aware of the information and it was of no benefit to her. Thirdly, she denied requesting colleagues to help her gain information in relation to her family law or child support matters.

[58] The first representation made by the Applicant is inconsistent with her receipt of the February 2007 and March 2007 emails and her responses to those emails, namely:

[59] Her representations are inconsistent with her forwarding the emails from Supt X to her mother, who was involved in the Family Court proceedings and the fact that the Applicant used some of the information provided in the emails in preparing her letter to the Child Support Agency.

[60] Much was made of one question of the Applicant in the PRS interview. It was referred to as question 436 and was as follows:

I do not accept the Applicant’s explanation that her answer to this question was truthful. At best it was evasive.

[61] The second representation made by the Applicant in the interviews is inconsistent with the email responses to Supt X I refer to above. It is also inconsistent with her forwarding the emails on to her mother and the fact the Applicant was not aware of the AUSTRAC information about the money transfer and that Mr B was a director of some of the companies referred to the emails. I have earlier also found that the Applicant used some of the information in the emails in preparing her submissions to the Child Support Agency.

[62] The third representation is inconsistent with the Applicant’s evidence which I have earlier referred to that she had asked Federal Agent Nelson to meet with her ex-husband at his office for half an hour or so to discuss a possible loan application and then for Federal Agent Nelson to obtain Mr B’s business card and any information about any other business he was involved in.

Considerations in s.387 of the Act

[63] Section 387 lists matters I must take into account in considering whether the dismissal of the Applicant was harsh, unjust or unreasonable. I now turn those considerations.

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);

[64] I am satisfied the AFP had a valid reason to terminate the Applicant’s employment. I will refer again to each of the grounds it relied upon. Firstly, I am satisfied that her actions were in breach of section 8.7 of the AFP Code of Conduct. The information contained in the emails from Supt X was obtained directly or indirectly as a result of her AFP duties or employment. She made improper use of the information by altering the security code on the emails so that she could forward them to her mother who was a party to the Family Court proceedings. I accept the AFP submission that this comprised use to either gain, or seek to gain, a benefit or advantage for herself and/or her mother. The alternative was that it was used for some other improper purpose, namely to cause some detriment to Mr B. The Applicant used the information obtained from Supt X to her letter to the Child Support Agency and such a use was an improper one.

[65] In respect to this breach of the code I accept that it is not necessary for the AFP to establish that the Applicant actually obtained a benefit or advantage or that her ex-husband actually suffered a detriment. The object of section 8.7 of the AFP Code of Conduct is on the improper use of information obtained at work. It is also, in my opinion, established that the Applicant did seek to gain a benefit or advantage.

[66] I note the emphasis the Applicant puts on the fact the letter of termination refers to her gaining a benefit or advantage rather than seeking to gain such a benefit or advantage. It may in hindsight have been better to reproduce the whole of the words of the section. I note in this respect that the letter had been considered by the AFP legal department. I accept the oral evidence of Commander Walters that he had in mind the seek to gain consideration. It is an oversight that he did not use that word in his written statement or adjudication. 39

[67] In my opinion the evidence establishes that the Applicant did seek to gain a benefit or advantage etc. Accordingly, I indicate that if it was considered that section 8.7 required the AFP to establish that an actual benefit or advantage was gained then that breach was not made out. However, in that event, I would find despite the breach relied on in this respect not being made out, nonetheless, the actions of the Applicant did constitute a valid reason for her dismissal. I was not persuaded the Applicant had any reasonable explanation for changing the classification levels of the emails and then forwarding them on to her mother. Nor was there an explanation for the encouraging terms she used in her reply emails. They are not consistent with a person who was uncomfortable seeing the emails or wanted to make clear she did not support any inquiry being made into Mr B’s business affairs.

[68] The AFP also submitted there are other reasons why the actions of the Applicant constituted a valid reason to terminate her employment although it accepts the termination letter did not specifically identify these reasons. It submitted that the Applicant’s conduct in changing the security classification on the emails and forwarding them to her mother also constituted a breach of the AFP National Guidelines on the Use of Email, the AFP National Guideline on Information Technology (IT) Security and AFP National Guidelines on the Use of Information and Communications Technology. None of these were referred to specifically in the letter of termination but were relied on in the arbitration before me. Each of these is at least arguable but, in light of the other findings I have made that there was a valid reason to dismiss the Applicant, I do not intend to deal with this additional submission further.

[69] The AFP also relies on the actions taken in respect of Federal Agent Nelson as constituting a breach of section 8.7 of the AFP Code of Conduct and submits this too founds a valid reason for the Applicant’s termination. The Applicant says the elements of a breach of that section are not made out. It submits there is no evidence that the Federal Agent gave the Applicant any information so the part of the section which relates to paragraph (a) cannot apply. I accept this submission. Nonetheless, I am persuaded that in making the requests she did of the Federal Agent the Applicant acted contrary to paragraph (b) of the section. Although not specifically expressed in these terms in the letter of termination I do note that it refers to the Applicant’s actions in attempting to recruit staff to assist her in her family law proceedings. I am satisfied the request by the Applicant to engage the assistance of Federal Agent Nelson to obtain information about her ex-husband was in breach of section 8.7. In the event that was not established, I would nonetheless have found her actions, together with the other actions she had taken, to have constituted a valid reason to terminate her employment. It was unacceptable for her to request a work colleague to engage in this charade.

[70] I turn to the second ground relied upon by the AFP as to why it had a valid reason to terminate the Applicant’s employment. It is to be recalled that the Applicant accepts she did take the actions which constitute this breach.

[71] I accept the AFP submission that in storing the photographic images the Applicant acted contrary to the AFP National Guidelines on the Use of Information and Communications Technology. In respect of her use of the mail room to post items without paying for the postage and the use of the MASCOT and lands titles databases I accept the Applicant was in breach of section 8.8 of the AFP Code of Conduct which provides that an AFP appointee must use and manage Commonwealth resources in a proper manner.

[72] Finally, and for the reasons I have earlier given, I am satisfied that AFP had a valid reason to terminate the Applicant’s employment in that she breached section 8.2 of the AFP Code of Conduct, which provides that an AFP appointee must act with honesty and propriety in the course of their duties. In the alternative, and in the event the strict requirements of the code are not made out, I am satisfied her actions constituted a valid reason to terminate her employment.

[73] In my opinion the actions in grounds 1 and 3 are the most serious. If ground 2 was the only one established that may not have constituted a valid reason and, if it did, would not have justified dismissal. This also accords with the evidence of Mr Walker. He said that he placed little weight on the fact that the Applicant had stored two inappropriate images on her AFP computer and that the other matters were much more serious and significant.

Whether the person was notified of that reason

[74] I find that the Applicant was notified of the reasons the AFP relied upon to constitute a valid reason to terminate her employment. I note that she did not receive the allegations in advance of the commencement of the PRS interview. Subsequently she received details of the evidence the AFP intended to rely upon by the AFP to ground each of the breaches alleged against her.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[75] The Applicant was given an opportunity to respond. She was given adequate time and opportunities to do so, although I accept this occurred subsequent to the PRS interview. I note that in respect to this consideration the Applicant submits it was unfair that she was given no notice of the PRS interview nor details of what it was she was being investigated for. The incidents had occurred more than two years earlier and she only received the document titled “Complaint-Direction to furnish information-Australian Federal Police Act 1979” at the commencement of the interview. 40

[76] There is merit in the concerns identified by the Applicant. I have weighed them against the evidence of Federal Agent Lea who said that with PRS interviews it was common practice not to notify the person prior to the interview taking place. In this particular matter there were concerns about the actions that Supt X had taken and the AFP wanted to coordinate the times that the interviews were being held so he and the Applicant did not have an opportunity to confer with each other. 41

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[77] I have earlier made findings about this consideration. I am not satisfied there was any refusal, unreasonable or otherwise, to allow the Applicant to have a support person (including a lawyer) to assist in discussions relating to her dismissal.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[78] The dismissal did not relate to unsatisfactory performance in the sense in which I read this consideration. Neither party submitted this consideration was relevant.

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 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

[79] I can deal with ss387(f) and (g) together. Little needs to be said about them. The procedures adopted by the AFP were commensurate with the nature of its business and the high standards it demands of its employees. It viewed the allegations as being of a serious nature. Being the AFP the formal way it went about its investigations is not surprising. It was required to do so in accordance with its own legislation and procedures. In another employment relationship it may be seen to be intimidating or unduly formal. The delay between the actions of the Applicant in 2007 to the time she was interviewed is unfortunate but a product of the timing when Mr B raised them with the AFP. On balance, I find the procedures adopted by the AFP to be proper and fair. It is not necessary I make any other comment by reference to these provisions of the Act.

Any other matters that FWA considers relevant.

[80] Several matters should be mentioned by reference to this consideration. I have taken into account the fact the Applicant had no history of any complaints or warnings for performance related matters. The AFP did not rely on any such history when deciding to terminate her employment.

[81] I have considered the Applicant’s comments about the role of Supt X in the matters which led to her dismissal. She attributes fault to him and is critical of him. An example is her assessment of transcript extracts from a PRS interview with him which she said were “guarded and untruthful”. 42 She maintained that as Supt X was aware that she and her ex-husband had been embroiled in family law proceedings and she had informed him that she considered her ex-husband had avoided paying appropriate tax. It was not untoward, in her opinion, for him to be making enquiries for a possible tax referral. I am not too sure why this is said to absolve the Applicant of any wrong doing. In my opinion, it reflects her efforts to gain his assistance in work time and with work resources so as to assist her with her personal issues. They are both properly to be criticised.

[82] A very significant part of the Applicant’s case was the treatment of Supt X as compared to hers. She submits he had been treated far more favourably in circumstances which could not be distinguished from those which led to her dismissal. Although he had been suspended for a period of time whilst enquiries were being undertaken he was not then dismissed. I am persuaded the AFP gave earnest consideration to the appropriate sanction to impose upon Supt X. His wrongdoings were not considered to be as serious as those of the Applicant. His reaction to the allegations and participation in the interviews was seen to have been more commensurate with an acceptance of his wrongdoing. It was not accompanied with an attempt to deflect blame. It was appropriate to take into account his very long and unblemished service. I am not persuaded a case for criticism of the AFP for inconsistency of treatment is made out.

[83] I refer to the issue about the Applicant’s expression of remorse for her actions not being as fullsome as Supt X’s. I note that in her natural justice responses she said she was regretful she had sent her mother the emails. Despite that she still contended, for example, that just because a document was marked “In Confidence” does not mean it is confidential. 43 The remorse the Applicant expressed was limited and somewhat unconvincing. She did not accept at any time any fault in respect of her part in any of the other actions which constituted the breaches relied upon by the AFP.

[84] The Applicant also raised the “Aggravating damage caused by the AFP’s “notice of investigation” letter to Mr B. 44 In this respect she criticised the AFP releasing to Mr B a notification of the outcome of the PRS investigation. The AFP had done this in a letter dated 17 November 2010.45 The Applicant said that Mr B had misused the letter by using it in legal proceedings between the Applicant and himself. The Applicant criticised the AFP for not taking into account the possibility he would do so and the impact it would have on her. I accept this criticism of the AFP. From my perspective it was unfair to the Applicant to release this information to Mr B. I have weighed this consideration against the evidence of Mr Houghton that the AFP is of the opinion that it is obliged to notify a complainant of the outcome of an investigation and in doing so it was acting consistently with the recommendation of the Commonwealth Ombudsman. I do not have sufficient information to comment further about this submission. I do however indicate that the regrettable result of releasing the information to Mr B is that it was put to use in an unacceptable manner.

Conclusion

[85] I have taken all of the evidence and submissions into account. I am not persuaded the dismissal of the Applicant was harsh, unjust or unreasonable. The s.394 application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr C. Bolger of counsel for the Applicant

Mr T Saunders of counsel for the Australian Federal Police

 1   PN17

 2   PN110

 3   Exhibit A1 annexure A

 4   PN773

 5   PN194 - 210

 6   Exhibits R1 and R3 PN 230-236 and 283-285

 7   Exhibit R2 and PN 245 - 250

 8   PN276

 9   Exhibit R6 annexure A

 10   R9, pages 4 and 5, references contained in that exhibit

 11   Exhibil A1 annexure B

 12   PN 295 - 305.

 13   Exhibit R7 annexure Z

 14   Exhibit A1 paragraph 52

 15   PN1436 - 1449,1534,1535,1559

 16   Exhibit R8 annexure B

 17   Exhibit R7 annexure P

 18   Exhibit R7 annexure Q

 19   Exhibit R7 annexure R

 20   Exhibit R7 annexure S

 21   Exhibit R5 paragraph 14

 22   Exhibit R7 annexure U

 23   Exhibit R7 annexure V

 24   Exhibit R7 annexure W

 25   Exhibit R6 annexure D

 26   PN1048

 27   Exhibit A1 annexure A and Exhibit R6 annexure E

 28   PN1745

 29   (1959) 101 CLR 298 and see the discussion of this rule in Huang and Rheem Australia Pty Ltd PR954993 and Tamayo and Alsco Linen Service Pty Ltd P1859

 30   PN1759-1760

 31   PN520 - 532

 32   PN357

 33   PN396-404

 34   Exhibit R7 annexure I

 35   PN 629-636

 36   PN583

 37   PN619 - 628

 38   Exhibit R9 pages 12-14

 39   PN1431-1442

 40   Exhibit A1 annexure J and PN 1433

 41   PN1560

 42   Exhibit A1 paragraph 19

 43   Exhibit A1 paragraph 24

 44   Exhibil A1 paragraph 109 to 121

 45   Exhibit A1 annexure M

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