[2014] FWC 1497 [Note: An appeal pursuant to s.604 (C2014/4126) was lodged against this decision - refer to Full Bench decision dated 8 October 2014 [[2014] FWCFB 6662] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adan McIntosh
v
Australian Federal Police
(U2013/2420)

COMMISSIONER DEEGAN

CANBERRA, 4 MARCH 2014

Application for relief from unfair dismissal.

[1] On 19 July 2013 Adan McIntosh (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment with the Australian Federal Police (the AFP) on 2 July 2013 was unfair.

[2] The matter was unable to be successfully conciliated and on 17 September 2013 Directions were issued for the filing of submissions and witness statements by the parties in preparation for a conference/hearing of the matter.

[3] The application was the subject of a number of interim applications for directions and orders. One of the interim applications related to permission for the respondent to be represented at the hearing of the substantive application by a lawyer. After hearing the submissions of both parties at a directions hearing on 9 January 2014, I was satisfied that representation would enable the matter to be dealt with more efficiently, taking into account the applicant’s proposal to call six witnesses from the respondent who had not provided witness statements. Accordingly, pursuant to s.596 of the Act, permission was granted for Mr Anthony Reilly of HWL Ebsworth Lawyers to represent the respondent at the hearing of the matter, which took place on 16 and 17 January 2014.

Background

[4] Much of the factual background to this matter is not in dispute.

[5] The applicant commenced employment with the AFP as a graduate on 21 March 2011, having returned to Australia from Canada to take up the employment.

[6] The applicant:

• Rotated through various roles in the AFP as part of his graduate training;



• Was permitted to undertake a graduate rotation in Washington D.C in early 2012 as his wife and children had returned to Canada in October 2011;



• Was granted 6 months leave without pay from 30 April 2012 (at the cessation of his Washington rotation) to allow him to pursue legal proceedings in Canada to have his children returned to Australia;



• Was granted an extension of his leave without pay as the legal proceedings were not completed after the initial period.

[7] The applicant returned to his employment at the AFP in Canberra on 17 December 2012.

[8] On 10 April 2013 the applicant’s team leader (Christopher Trunz) issued the applicant with a formal directive to work the AFP core hours of 8.00am until 4.00pm.

[9] On 12 April 2013 the applicant commenced three weeks leave (including two weeks of sick leave).

[10] The applicant returned to work on 6 May 2013 and was issued with a directive from the national manager of his work area (Assistant Commissioner Rudi Lammers) to report for duty between 9am and 5pm each day.

[11] On 17 May 2013 the applicant was directed by the National HR manager, Assistant Commissioner Leanne Close, to work core hours.

[12] On 27 May 2013 the applicant attended a meeting with, amongst others, the Acting Manager HR, Mr Dave Turner, and was handed a letter advising that the AFP was considering terminating his employment. He was suspended with pay on that date.

[13] On 5 June 2013 the applicant responded, in writing, to the letter from Mr Turner.

[14] On 2 July 2013 the applicant was notified that his employment with the AFP had been terminated with effect from that date.

The Applicant’s evidence

[15] The applicant filed a statement of evidence 1 and gave oral evidence at the hearing and was cross-examined. On his application six witnesses were issued with orders to attend the hearing to give evidence in support of his application. These witnesses were at the time of the applicant’s termination, employees of the AFP in the following positions:

• Ms Carissa Briant - Acting Team Leader HR Advisory



• Mr Stuart Crome - Manager ICT Infrastructure



• Assistant Commissioner Rudi Lammers - Chief Information Officer



• Mr Leo Vasiliadis - Co-ordinator ICT Support



• Assistant Commissioner Leanne Close - National Manager Human Resources



• Mr Dave Turner - Performing the duties of Manager, Human Resources Strategies

[16] The applicant’s evidence detailed his employment with the AFP and highlighted the difficulties in his personal life which affected that employment.

[17] It was the applicant’s evidence that:

• He is 34 years old and has three children aged one, three and five years as at the date of his statement;



• He arrived in Canberra from Canada on the day he commenced employment with the AFP;



• His wife and children joined him but returned to Canada in October 2011;



• He applied for a compassionate transfer to Brisbane following his extended period of leave without pay, which, according to the applicant, was refused on operational grounds and on the basis of an old CV supplied by an area of the AFP;



• His need to deliver his oldest child to school at 9am, his unreliable car and difficulties with the mother of his three children meant that he was unable to keep regular start and finish times for his work;



• He disputed a claim made by the AFP that he had accrued a large flex debit and that (due to the commencement of a new enterprise agreement) the AFP had had to absorb over 87 hours of flex debit he had accrued;



• The demand by his team leader that he work standard hours amounted to bullying as it did not take account of his need to take his son to school at 9am;



• The new direction that he report for work between 9am and 5pm was ambiguous, and, when clarified, did not allow for his need to take his son to school; and



• The new direction was not permitted under the applicable enterprise agreement.

[18] In essence the applicant alleged that his employment was terminated after he had made claims of bullying against his team leader, lodged a grievance against the an officer working in the HR area (who was responsible for the initial recommendation that the AFP consider terminating his employment) and as a result of factors beyond his control which prevented him from working clearly defined hours. The applicant also noted that he had complained about the conduct of the delegate considering whether his employment should be terminated, and had requested that he be removed from that role. This request was denied.

[19] It was also the evidence of the applicant that, on 4 June 2013, he had responded to the letter from the AFP notifying him that consideration was being given to terminating his employment. That response set out the extenuating circumstances which he believed should be taken into account, conceded that his actions ‘may have been misguided’, and indicated that due to a change in his circumstances and the attitude of the mother of his children, he would be able to meet his commitments to the AFP. His response was accompanied by a letter from the mother of his children supporting his claims.

[20] Under cross-examination the applicant agreed that, by May 2011, it had become clear to him that the job he commenced in late March was not as he had expected it would be. He had raised this with the AFP, which had accommodated his concerns by allowing him to find his own graduate rotations. 2 He also conceded that in early 2011 he had difficulties attending for work regularly due to personal issues, and was told to attend more regularly, which he did until about December that year.3 The applicant claimed that for the first few months of 2012 his attendance was regular but that when he returned to work in late 2012 he had his son with him and was told by his supervisor that it was unnecessary for him to attend.4 He claimed that he had difficulties in 2013 due to personal circumstances.5

[21] The applicant conceded that he may have had difficulties in attending for work in his first week in Washington due to jetlag, but believed he was quite regular after that. He was referred to written comments made by his team leader in Washington on his PDA form that his ‘personal circumstances and the burden of frequent and lengthy travel between post and his family in Toronto had an impact on his performance in the office. This was particularly the case with his attendance and reliability which at times could have been better’. 6 The applicant stated that he took exception to those comments and had disputed them at the time. He noted that he caught the bus to Toronto each Friday night and returned by bus overnight on Sunday, arriving in the office about 9.30 or 10 o’clock in the morning, but claimed that his team leader had agreed to that.

[22] It was the applicant’s evidence that after his posting to Washington he took leave without pay for about six months which was extended ‘two, or maybe three times’. 7 When it was put to him that during this leave he had (due to an administrative oversight) been overpaid about $16,000 he replied that he ‘didn’t know’, had ‘not gone over the bank statements’ and did not ‘explicitly’ recollect an overpayment.8 He conceded that he had been told he had been overpaid and assumed ‘there’s some basis’ for the claim. It was also the applicant’s position that he simply didn’t notice that he had received $16,000 he was not entitled to.9

[23] When asked about his attendance at work in early 2013 the applicant;

• Agreed that on 14 January about 9.54 he had informed his workplace that he would not be in until after lunch as he had to work on his car that morning;



• Claimed that he had told Ms Whitman, his supervisor, that he had to take his son to school each morning and his partner to play groups so that it was difficult for him to arrive at work before 9.30 or 10am;



• Usually emailed rather than phoned to advise he would be late;



• Advised at 12.35pm on 4 February that he wouldn’t be in that day.

[24] When asked about the personal issues that made it difficult for him to attend for work the applicant stated that it had been difficult for his former partner when she had been made to return to Australia with the children, and that he had tried to accommodate her as much as possible. It was also his evidence that there were issues regarding the children that had to take priority, and sometimes these ‘went on for hours’ and there was no opportunity for him to contact anyone as it ‘would’ve been seen as some sort of act of disrespect if I took a moment to pause or whatever else’. 10

[25] The applicant denied ever telling his team leader that he was happy to work 8am until 4pm or 9am until 5pm and assumed she was confused when she wrote this in the notes of a PDA discussion.

[26] According to the applicant he had asked permission to undertake secondary employment to alleviate some of his financial problems but this request was denied. The applicant did not dispute a note made by his team leader in March 2013 that he had started work between 8 and 9 am only 12 per cent of the time between 1 January and 13 March 2013, was on leave 20 per cent of the time and arrived after 9am 68 per cent of the time. He conceded that it had been brought to his attention that a concern noted by that team leader was that ‘Adan is failing to notify me or a senior team member when he leaves the office during business hours. He frequently disappears from one hour up to several hours without notification’. According to the applicant, after this was brought to his attention he started telling the person who sat next to him when he was leaving. He stated that the cause of his frequent absences was ‘usually something to do with the mother requiring me to pick up my son from school or just needed something’.  11

[27] The applicant did not deny a claim in his team leader’s notes that he was not using flex appropriately and was not submitting his time sheets daily. 12 Nor did he deny the claim made by his team leader that he was not submitting sick leave requests as soon as possible on his return to work.13 The applicant did not recall being told by Ms Whitman that he should call her on her mobile number rather than email if he was going to be late or not come to work.14

[28] It was also the evidence of the applicant that in March 2013 he had applied for six months leave without pay but indicated that he wished to take that leave a month at a time as he had failed to receive a pay rise because of his earlier leave without pay. 15

[29] The applicant was then taken to the statement 16 of Christopher Trunz, who became his team leader on 18 March. It was put to him that Mr Trunz had made detailed notes of the applicant’s attendance and absences. When asked whether he agreed that these had been recorded accurately the applicant replied that he had not checked the accuracy of Mr Trunz’s statement.17

[30] The applicant was cross-examined at length about a claim made by the AFP that he had accrued a significant flex debit, which had resulted in the AFP having to absorb some 87 hours he owed it when only a limited debit could be carried over when the new enterprise agreement took effect. The applicant disputed this claim and it was clear that he did not accept the figures that the AFP based the claim upon. It was his view that the figures were incorrect due to some parental leave he had applied for failing to be correctly accounted for in a timely manner.

[31] When asked about his refusal to perform particular work requested of him by Rachel Cuthbert ( his acting team leader at the time) the applicant agreed that he had refused and had advised her, essentially, that the work was not where his ‘interest lies.’ 18 He was also taken to the following observation by Ms Cuthbert;

‘His lack of work ethic, sporadic attendance and his lack of respect for senior team members has become more apparent to me sitting near him over the last several weeks and I really think that something needs to be done immediately to put a stop to this behaviour and place him somewhere where his skill-set being used may actually inspire him to work.’ 19

[32] When asked whether he accepted that the observation was accurate the applicant prevaricated for some time and then responded;

‘---Yes, I mean, to be honest, I was contemplating doing a stop work – I’m not sure what it is, something – the stop work suggests to me you can make under the Fair Work Act where your role has significant health impacts that you can decide to stop work. I was contemplating doing that’. 20

[33] The applicant conceded that when directed by Mr Trunz, his new team leader, to work standard hours as he had a significant flex debit he had responded that he refused to do so and believed that it was ‘a primitive approach to a complex problem’. 21 Further he agreed that on 9 April he had informed Mr Trunz that ‘on Thursday and Friday I will not be in until midday’ with no reason given or indication of the type of leave being sought. The applicant also agreed that his approach probably did not help the situation.22

[34] It was the applicant’s evidence that following Mr Trunz’s direction he:

• Made a bullying claim against Mr Trunz because the direction caused him undue difficulties;



• Received a second direction to work core hours;



• Made an application for paid study leave; and



• Made an application for secondary employment.

[35] When it was put to the applicant that his attendance was causing a problem for the workplace, that Mr Trunz’s response was to ask him to work core hours and that his response was to accuse Mr Trunz of bullying him, the applicant denied this. He claimed that Mr Trunz’s direction was going to cause him ‘undue difficulties’ (in dropping his son to school) and that the Australian Human Rights Commission characterised this as workplace bullying. He also noted that an application he had made to be allowed to undertake secondary employment had been rejected.

[36] The applicant conceded that at the meeting held on 11 April (which he considered he had initiated to discuss the workplace bullying issue) he was informed that the issue of bullying would not be discussed in that forum and that he should pursue that issue through other channels. The applicant also claimed that the minutes of the meeting were not correct.

[37] It was the applicant’s evidence that on 13 April he had sent an email stating that he would refuse to come to work while Mr Trunz remained his team leader given that he had made a bullying complaint against Mr Trunz. 23

[38] The applicant agreed that on 6 May he had received a direction from Assistant Commissioner Lammers directing him to report for duty between 9am and 5pm Monday to Friday. He conceded that he had a ‘long and tortuous’ conversation with Mr Crome (who hand-delivered the direction to him) about what the direction actually meant. According to the applicant he initially thought it meant that he should report to work at 9am and finish at 5pm each day but then determined that it meant he could report to work any time between 9am and 5pm each day as he did not believe Assistant Commissioner Lammers would give him a direction that meant he could not drop his child at school. He noted that Assistant Commissioner Lammers had sent an email clarifying the intent of the direction but the applicant took the view that he could not direct him to work between 9am and 5pm as under the enterprise agreement he could only be directed to work core (8am to 4pm) hours. He agreed that he had emailed Assistant Commissioner Lammers suggesting that he was either ‘ignorant or mean’. 24

[39] According to the applicant, upon his return to work on 6 May he was told by his team leader that he did not have to perform his regular work for a week, but could concentrate on his problems with the direction given by Assistant Commissioner Lammers. However, he was unable to explain why in an email 25 sent by his supervisor during that time complained about his failure to perform his normal work during that period. Similarly he was unable to explain the following email of 10 May from Ms Cuthbert (the person he claimed gave him the permission) to Ms Briant:

‘Just to let you know that while Adam McIntosh has been in attendance this week Monday, away Tuesday, then Wednesday to Friday, he’s undertaken no actual service-delivery work for second-level support. I’ve asked him each morning what he’s working on, plus Simone Hopper, his mentor and SPOKES’ senior team member, and Alison Murphy has asked him on Monday, Thursday and Friday to undertake the assigned SPOKES job. He said he’s busy and he is unable to assist. 26

...He’s working on preparing for today’s meeting. He has been doing this all week. He’s reading the enterprise agreement and always on the Internet when I’ve been round his desk; not that he’s submitted his time sheets but I wouldn’t be comfortable approving his hours as he’s not undertaken any of the SPOKES band 3 as per his current role description.’ 27

[40] The applicant agreed that at the dispute resolution meeting with Stuart Crome on 10 May (which was transcribed) Mr Crome was trying to establish that he would be able to comply with Assistant Commissioner Lammers’ direction. It was put to the applicant that, during the meeting, Mr Crome tried multiple times to come up with an agreement as to hours that would in fact work for him but that the applicant did not meet him in that endeavour. The applicant responded ‘my request was for flexibility in my starting time’. 28 When asked if what the AFP wanted was a set time that could have been as late as 9.30am to allow him to drop his child at school, the applicant replied ‘I understood that, but with the unpredictable nature of the car the days I caught the bus I couldn’t make it to work by 9.30’.29 The applicant explained further;

‘I think Mr Crome wanted – what I could understand he wanted a set time and he wasn’t willing to enter into any flexible starting times and, given the history of the problems I had, I knew that any set time that I made there was - inevitably something was going to come up that was going to prevent me from appearing at that time and I didn’t want to have to do these constant emails, “I’m going to be late. I’m going to be late,” every second day.’ 30

[41] The applicant conceded that even after Assistant Commissioner Lammers clarified his required starting time he continued to arrive later than 9am, arriving at 9.35am or 10.00am on the following workdays. He agreed that he did not follow the direction given by Assistant Commissioner Lammers.

[42] The applicant also conceded that on 17 May, Assistant Commissioner Close informed him that she was prepared to negotiate a flexibility agreement with him to allow him to work from 9.30am until 5.30pm but until that agreement was made he was to work the standard hours of 8am until 4pm. He agreed that on the same day he was absent from the workplace for around 40 minutes in the afternoon and that his absence was not authorised. The applicant was then referred to his own statement concerning his timekeeping in the week immediately following Assistant Commissioner Close’s direction that until he negotiated an individual flexibility agreement he commence work at 8am and cease at 4pm:

‘20/5/13 started at 10.40 am after having to drop my son to school by bus due to the car not starting; 21 May started at 11.50 am after dropping my son to school and meeting with the bank to try to apply for a loan to relieve my financial burden; 22/5/13 started at 9.30 am after dropping [my son] to school; had a late lunch at 4.15 to get some legal documents signed; the meeting went over and I didn’t return till 5.30; advised my team leader retrospectively; 23/5 started at 9.45 after dropping my son to school; worked late to make up time; 24/5 had the day off sick; 27/5 advised my team leader that I was in arbitration as I had a 10 am hearing at ACAT.’ 31

[43] The applicant conceded that he was late arriving for work that week, despite the direction given by Assistant Commissioner Close, but stated that there was an ‘issue’ about whether the ‘agreement’ he had with Assistant Commissioner Lammers was still in effect.

[44] When asked whether there were any inaccuracies in the minute 32 prepared by Ms Briant recommending that his suitability for employment with the AFP be reviewed, the applicant disputed the number of hours that he had owed the AFP at the time the new enterprise agreement took effect. He also raised the matter of the ‘outstanding complaint’ he had against Ms Briant. Under further questioning he conceded that he had only announced his intention to make a complaint against Ms Briant but had never actually made any complaint. When pressed for the details of the complaint he intended to make he claimed that he had been told by another employee that Ms Briant had been overheard making disparaging comments about the applicant. When pressed further he could not recall the nature of the comments but believed the word ‘idiot’ was mentioned.

[45] The applicant was then taken to the letter 33 to him, issued under s.28 of the Australian Federal Police Act 1979, from Mr Turner headed “Consideration of Termination of Employment” (the s.28 letter). It was noted that Mr Turner stated that he was considering terminating the applicant’s employment because of his failure to comply with the direction to attend core business hours 8am to 4pm, failure to comply with Assistant Commissioner Lammers’ direction to commence 9am to 5pm and failure to comply with the terms outlined in the dispute resolution letter. When asked whether he disputed any of the facts contained in the letter the applicant again raised his understanding of the direction given by Assistant Commissioner Lammers. He also claimed that the work ‘got done’ even with his pattern of attendance.

[46] Finally the applicant was questioned about his complaint against Mr Turner. He claimed that initially it was a result of Mr Turner allowing Ms Briant to attend the meeting at which he was given the s.28 letter despite his complaint about her. He conceded that there was only the potential for a complaint rather than an actual complaint. According to the applicant that decision showed poor judgement on Mr Turner’s part. In addition, he also had concerns about the role played by Mr Turner in denying his request for a compassionate transfer. He believed Mr Turner should have excused himself as delegate on the basis of these matters.

[47] Carissa Briant appeared by video in response to the order to attend issued on the application of the applicant. No statement of evidence was lodged but the applicant gave a summary of the evidence he wished to adduce from Ms Briant a few days before the hearing.

[48] It was Ms Briant’s evidence that she took part in a meeting on 11 April 2013 with the applicant, Mr Chris Trunz, Mr Leo Vasiliadis, Ms Emma Hardy and Ms Katie Melville. She was invited to the meeting by Mr Trunz and Mr Vasiliadis and understood it to be in relation to employment conditions. She was the scribe for the meeting.

[49] According to Ms Briant she recalled bullying and harassment being raised at the meeting and that the applicant was told that it would not be discussed in ‘this forum’. 34 She also believed time recording and the applicant’s hours were discussed. It was also Ms Briant’s evidence that the question of the accuracy of the flex debit owed by the applicant at the end of the previous enterprise agreement was discussed, and that she believed the figures as supplied by the SAP team were accurate.

[50] Ms Briant agreed that she had made a recommendation to Assistant Commissioner Rudi Lammers that he direct the applicant to attend work between 9am and 5pm. She agreed that the core hours under the enterprise agreement were 8am until 4pm but stated that the hours were altered to meet the applicant’s claim that he could commence work between 9am and 10am.

[51] According to Ms Briant the applicant had failed to enter into the AFP system some paternity leave which he was entitled to apply for and, as a result, the system showed that there was a large amount of hours owed by the applicant to the AFP.

[52] Under cross-examination Ms Briant noted that as soon as the AFP was made aware of the discrepancy in the applicant’s records they were fixed. She also denied that she had any sort of bias against the applicant.

[53] Stuart Crome appeared by telephone in response to the order to attend issued on the application of the applicant. It was his evidence that he attended a meeting in May 2013 at which time the applicant was issued with a letter advising him that the AFP was considering terminating his employment. It was also his evidence that both Mr Turner and Ms Briant were at the meeting. He stated that the applicant had objected to Ms Briant’s attendance at the meeting and that this objection was rejected by Mr Turner, who advised that Ms Briant was the case manager and should stay. Mr Crome also agreed that the applicant had noted that he was waiting for a response to some questions he had put to Assistant Commissioner Close.

[54] It was Mr Crome’s evidence that on 29 May he received a request from the applicant and that he had responded that the applicant should raise his request directly with HR as it was a matter within their responsibility.

[55] When cross-examined Mr Crome agreed that he had attended a meeting with the applicant on 10 May 2013 following the direction given to the applicant that he was to work 9am to 5pm. The purpose of the meeting was to confirm the applicant’s ability to comply with that direction. According to Mr Crome it was a circular discussion. The applicant had originally agreed to comply with the directive, which he interpreted as a requirement to attend at any time between 9am and 5pm. The meaning was clarified with the applicant. It was Mr Crome’s view that the directive was given in response to the applicant’s statement at an earlier meeting that he while he was unable to attend work at 8 am he could be at work between 9am and 10am so he was directed to attend at 9am. Mr Crome noted that it was always ‘on the table’ for the applicant to enter into a flexible working hours arrangement. He stated that ‘nothing was excluded but we had to set some core hours.’ 35

[56] According to Mr Crome the applicant did put in a request for a flexible hours agreement. His request was, essentially, that he be allowed to arrive and leave anytime he wished over any of the seven days in a week. Such an arrangement was not permissible.

[57] So far as reinstatement of the applicant was concerned Mr Crome noted that there had not, to his knowledge , been a complaint about the applicant’s ability to do his work but only about him turning up to do it. He noted that the applicant would need a security clearance and a very definite understanding about work hours. He also believed that there would need to be a significant amount of professional relationship building with his peers.

[58] Assistant Commissioner Rudi Lammers appeared by telephone in response to the order to appear issued on the application of the applicant. It was his evidence that on 29 April 2013 he had given the directive to the applicant that he report for work between 9am and 5pm Monday to Friday. He had given the directive on the recommendation of Ms Briant. Before he gave the directive he had spoken to members of HR, the AFP IR area and to Mr Crome. He understood the hours were to be 9am to 5pm to take account of the applicant’s child care considerations. It was also his evidence that he understood that the applicant, at a meeting with HR, had agreed to attend work between 9am and 5pm and that these hours would allow him sufficient flexibility to drop his child to school. In addition the applicant had sent him an email indicating he was happy to comply with the directive. He was later informed that the applicant had treated his directive as a requirement to start work at any time between 9am and 5pm Monday to Friday.

[59] It was the evidence of Assistant Commissioner Lammers that, having given the direction to the applicant, he was later informed that the applicant was not arriving at work until 10 am on some days, lunch time on others and sometimes arrived in the afternoon.

[60] When asked if he had had any concerns about the accuracy of the information supplied to him by Ms Briant, Assistant Commissioner Lammers responded that he had the utmost confidence in all the HR and IR staff. He also stated that he had no idea when the applicant took his son to school but had been informed by his staff that requiring the applicant to attend work at 9am would allow him to attend to his childcare commitments.

[61] Leo Vasiliadis, appeared in person in response to the order to appear issued on the application of the applicant. Mr Vasiliadis was the applicant’s coordinator from December 2012 until June 2013.

[62] The witness agreed that he applicant had, by email, made a bullying claim against Mr Trunz. Mr Vasiliadis had responded by advising the applicant that he would ‘get back to (him)’ and then had a conversation with him. He also agreed that he had a responsibility to deal with the applicant’s complaint within a reasonable time frame. He noted that there were other issues occurring at the time between the applicant and Mr Trunz regarding the applicant’s time-keeping. The witness stated that he was trying to resolve that issue and organised a meeting with representatives of HR and IR for the purpose. He believed the bullying complaint arose from that wider issue, although he was not fully aware of the basis of the bullying complaint at the time.

[63] At the meeting the applicant raised the bullying question but was informed that the purpose of the meeting was to attempt to clarify the time recording issue and not to deal with the bullying complaint, which would need to be dealt with through other mechanisms. Mr Vasiliadis agreed that the applicant may not have realised that the meeting was not to discuss the bullying complaint.

[64] Mr Vasiliadis acknowledged that he had sent an email 36 to Mr Trunz praising his handling of the matter of the applicant’s time keeping.

[65] It was the evidence of Mr Vasiliadis that the applicant had stated that he was ‘not challenged’ by the work he was performing with the team he was working for at the time. He also agreed that the applicant had sought and performed additional work outside the team.

[66] According to Mr Vasiliadis the applicant made a number of requests for leave without pay, including one in which he intended to take six months leave without pay in one month increments, with a very short period at work between each month of leave so as to not ‘create an issue’ with his pay increments. He agreed that the request was denied.

[67] Assistant Commissioner Leanne Close appeared in person in response to the order to appear issued on application by the applicant. She stated that she had given a directive to the applicant on 17 May 2013 that he work standard hours from 8 am until 4 pm. She also offered to enter into a flexible working agreement with the applicant to allow him to work from 9.30 am until 5.30 pm each day. She had chosen those hours because the applicant had advised her that he needed to drop his child to school at 9 am. The applicant’s response thanked her and raised a concern about her reference to s.70, dispute resolution, of the enterprise agreement.

[68] Assistant Commissioner Close agreed that the applicant was given notice of intention to terminate his employment (in the s.28 letter) about 10 days later.

[69] It was also Assistant Commissioner Close’s evidence that she received a complaint from the applicant about Mr Turner’s suitability as delegate for the s.28 process. Assistant Commissioner Close stated that she understood the applicant to be claiming that Mr Turner was not a suitable decision-maker because he had failed to deal with a complaint the applicant had made about Ms Briant, but the Assistant Commissioner determined that Mr Turner should remain as decision-maker.

[70] Under cross-examination Assistant Commissioner Close noted that about 6, 900 people worked for the AFP and the vast majority of them have children. She believed there would be single parents among those persons. She stated that the AFP expected its employees to make child care arrangements so that they can come to work and that they are generally expected to come to work at a particular time.

[71] Dave Turner appeared in person at the hearing in response to the order to attend issued on application by the applicant. Mr Turner was the delegate who took the decision to terminate the applicant’s employment.

[72] It was the evidence of Mr Turner that he had been at a meeting with the applicant, Ms Briant and Mr Crome on 27 May 2013 when he had provided the applicant with a letter notifying him that the AFP was considering terminating his employment. He confirmed that the applicant had objected to Ms Briant’s presence but that Mr Turner had decided she should remain as she was the HR person working on the applicant’s case, was aware of the history and was responsible for maintaining the file. Additionally, her role was only to take notes of the meeting.

[73] According to Mr Turner the AFP terminated the employment of about six people each year for employment issues (employment terminated for integrity reasons is not handled by HR). He had been the delegate for a number of terminations.

[74] Mr Turner was aware that the applicant had made a complaint about him to Assistant Commissioner Close and that this had been considered and a decision made that he should remain as the delegate considering the termination of the applicant’s employment. It was also the evidence of Mr Turner that he had received a number of emails from the applicant requesting information to assist him in preparing his response to the s.28 letter.

[75] According to Mr Turner he read the response provided by the applicant a number of times when making his decision about the applicant’s employment. He noted that it was quite a detailed response. In a response to a request from the applicant Mr Turner replied:

‘The majority of your response was around the context and the history of your employment with the AFP. You addressed your view of how your hours were calculated, but, frankly, they were in conflict with the evidence. You made some statements that gave me a degree of comfort that if I were to terminate you, you wouldn’t be destitute. One of my considerations was that you were the sole provider of three children and their mother, and that weighed heavily on me, but you did state that you were about to come into a sum of money and that gave me a degree of comfort that those people wouldn’t be destitute. You stated - and I think I can quote accurately - that you don’t come to work when you want, you come to work when you can. That gave me no comfort that your behaviour was going to change. What I was looking for was evidence that you had an ability to come to work 40 hours a week between the core hours and I did not see that in your submission at all. I saw a very long history. I saw a letter from your children’s mother. I saw some referees which were very scant, literally a couple of lines, but I did not see anything that indicated your behaviour would change. In taking the decision, I also considered could we - if we could negotiate flexibility, could the organisation accommodate that, noting that I’d formed the view that you had to be supervised in your work. The evidence, as I saw it, indicated that you were slipping away from work for long periods of time and I took the view that if you were to remain an employee, you had to be supervised. I walked down to your work area at about 6.30 one evening and at about 6.15 another evening just to satisfy myself if we could negotiate work hours for you, there was somebody there to supervise you, and there wasn’t. There was nobody there, so I formed the view that if you came to work, it would have to be whilst your supervisor was there and there was no evidence to suggest that you could do that in your submission to me. That’s one of the fundamental reasons that I took the decision to terminate your employment.’ 37

[76] The applicant then noted that in his response he had stated as follows:

‘I am confident that recent changes in the attitude of the mother of my children and my increased knowledge of my professional responsibilities will enable me to meet any and all of my commitments to the AFP.’  38

Mr Turner replied as follows:

‘To be frank, Adan, I didn’t believe you. I did not believe you. You have a history of negotiating through this process, in my view, not in good faith. I didn’t believe that you could meet those obligations.’ 39

[77] When asked by the applicant if he was comfortable that the directives issued to the applicant by Mr Trunz, Assistant Commissioner Lammers and Assistant Commissioner Close were lawful Mr Turner responded that ‘on evidence that (he) saw and the context around your attendance, very comfortable, yes’. 40

[78] When cross-examined about his views on reinstatement of the applicant Mr Turner addressed his reply to the applicant as follows:

‘The AFP would abide by any direction from the Commission and we would reinstate Mr McIntosh. However, there are some practical difficulties that have now arisen as a result of this case. One is, for instance, in your submission, Mr McIntosh, you indicated that you had been sleeping in a tent and in your car. You’d also indicated that you’re under severe financial difficulty. That concerns me from a personal security perspective and I am not convinced - and it’s a matter for others to decide - whether you could maintain a security clearance adequate enough to work in the Australian Federal Police, which is a national security agency, under those circumstances. Another issue that comes to mind is if your circumstances changed such that you commenced sleeping in a tent or in your car, did you meet your obligations as an employee and report that to the personal security organisation? These are side issues, but they’re issues that would become important if reinstatement was required. I think it’s also reasonable to raise the fact that through the course of this case, I’ve taken the view that you were less than honest and open in your communications with a number of people in the organisation and that’s not consistent with the AFP values.’ 41

The Respondent’s evidence

[79] Only one witness was called to give evidence for the respondent. Christopher Trunz, the applicant’s team leader in March and April 2013. Mr Trunz filed a witness statement 42 and was cross examined at the hearing.

[80] It was the evidence of Mr Trunz that he had supervised the applicant from March until July 2011 in his first graduate rotation and again in March and April of 2013. He stated that during the time he worked with or supervised the applicant there was a persistent issue with him being absent from work with no, or inadequate, explanation. Mr Trunz often had to contact the graduate co-ordinator to find out the applicant’s whereabouts. During the handover by the previous team leader in March 2013 she informed Mr Trunz that there was an issue with absenteeism with the applicant.

[81] Noting that the applicant’s attendance was sporadic and irregular, Mr Trunz asked the applicant to record his time on a daily basis (known in the AFP as ‘releasing time’). About the same time Mr Trunz asked the applicant what his usual hours were and was told that he came in between 9am and 9.30am for about 8 hours. He responded ‘Okay’ but commenced monitoring the applicant’s hours.

[82] During the period 18 March-25 May2013:

• Mr Trunz regularly recorded the applicant’s times;



• Mr Trunz noted that the applicant’s attendance pattern affected other team members and their workload;



• The applicant refused to complete tasks required of him which he appeared to perceive to be beneath him;



• The applicant acknowledged that his use of leave and the problems he encountered were his own doing;



• Mr Trunz tried to assist the applicant to be a productive member of the team; and



• Mr Trunz encouraged the applicant to reduce his negative hours balance and assisted him to correct some anomalies in his leave.

[83] It was also Mr Trunz’s evidence that he refused an application for study leave only after the applicant had requested leave to attend appointments for the same period which had been refused. He also stated that he had never agreed a flexible work arrangement with the applicant or seen a copy of such an arrangement agreed with another supervisor.

[84] Mr Trunz stated that he made and recorded multiple attempts to contact the applicant to determine his whereabouts and formally notified other concerned areas of the AFP, and requested their assistance in monitoring the applicant’s attendance patterns. He also formally directed the applicant to work core hours but was then made aware of an accusation by the applicant that he was bullying him. This accusation surprised Mr Trunz, who had been attempting to help the applicant reduce his negative hours. He then removed himself from direct contact with the applicant.

[85] At the meeting on 11 April Mr Trunz and the applicant agreed to limit their direct dealings with each other, and that the applicant would take leave for the remainder of Mr Trunz’s period as team leader. Despite this agreement the applicant continued to attempt to contact Mr Trunz directly about the applicant’s leave calculations.

[86] It was the evidence of Mr Trunz that his actions were never about the applicant’s work performance or the inaccuracy of entered times in his timesheets. He claimed that his sole purpose was to encourage the applicant to attend work and provide him with every opportunity to rectify missing or unsubstantiated hours.

[87] When cross-examined by the applicant Mr Trunz agreed that on becoming the applicant’s team leader in March 2013 he had observed some ‘gross inaccuracies’ in the applicant’s recorded times on the computer system (Insight) used by the AFP for this purpose. He also agreed that the times were difficult to make sense of, and after some investigation he had determined that the applicant had not entered on the system periods of leave without pay that he had taken. He had explained to the applicant how to rectify the problem.

[88] According to Mr Trunz it was about the same time that the applicant had mentioned to him that he dropped his son at school at 9am each day. He had also determined that at one point the applicant had owed the AFP about 130 hours and that some 87.4 of those hours were necessarily absorbed by the AFP. The figures were given to Mr Trunz by the payroll and HR people. He believed those figures to be correct.

[89] It was also the evidence of Mr Trunz that he felt uncomfortable after the applicant made an allegation of bullying against him. It was for this reason that he had asked the applicant’s coordinator to advise the applicant to only contact him through appropriate channels. In addition, the applicant had indicated that he no longer wished to have Mr Trunz as his team leader or have him involved in his day to day work. It was Mr Trunz’s evidence that he believed he was being bullied by the applicant when, in all the circumstances, the applicant continued to request responses from him directly.

[90] Mr Trunz agreed that, having sought advice from the appropriate area of the AFP, he had given the applicant a direction to work core hours. It was his evidence that he believed he had counselled the applicant about his working patterns and provided him with an opportunity to ‘work back’ some of his negative hours. He made the direction because of the applicant’s inability to work within the hours he had cited and reduce the negative hours.

[91] When asked if he had not wanted the applicant to do work for other areas of the AFP Mr Trunz agreed, noting that there was sufficient work within the team to allow the applicant to complete additional work outside core hours. According to Mr Trunz no extra work was given to the applicant as he was never able to complete the core hours. The applicant maintained that he was working forty hours per week. Mr Trunz could not recall if this was so.

Submissions

[92] In order to allow the applicant, who was unrepresented, every opportunity to present his case as fully as possible, directions were given for the filing of written submissions. Both parties were provided with the transcript of the hearing for this purpose.

[93] In his written submissions the applicant indicated that it was his view that the validity of the termination of his employment must be determined in light of the reasons given in the s.28 letter and the actual letter of termination. He then raised what he considered to be a number of ‘questions of law’ concerning the directions he had been given and the actions of certain AFP employees.

[94] The applicant questioned the fairness and legality of the direction given by Mr Trunz. He claimed that Mr Trunz relied on inaccurate and misleading information in his calculation of the hours the applicant was in debit. The applicant disputed that he was in debit to the number of hours claimed by Mr Trunz and claimed that it was unfair of Mr Trunz to use the ‘false data’ in directing the applicant to work the core hours. Further the applicant claimed that Mr Trunz was not in a position to make the directive as he had not counselled the applicant as required by s.21 (15) of the Enterprise Agreement. Additionally it was the applicant’s submission that Mr Trunz should not have made his directive on 10 April given that the applicant had complained about his earlier request that the applicant commence work at 8am.

[95] Similarly, the applicant submitted that the directive made by Assistant Commissioner Lammers on 29 April, which referred to s.21(15) of the Enterprise Agreement, was not preceded by the necessary counselling. In addition he queried the legality of the directive to report for duty between 9am and 5pm given that the enterprise agreement allowed only for a direction to work standard hours (8am - 4pm). The applicant also disputed the claim made by Assistant Commissioner Lammers that he considered that the applicant had agreed to work from 9am until 5pm. Essentially, the applicant submitted that the directive given by Assistant Commissioner Lammers was not lawful and he was not therefore required to follow it. Additionally, according to the applicant, Assistant Commissioner Lammers misunderstood the meaning of the phrase ‘report to duty’ and the applicant was within his rights to interpret the directive as a requirement that he commence work at any time between 9am and 5pm each day.

[96] So far as Assistant Commissioner Close’s involvement in the lead up to his termination was concerned, the applicant submitted that her reference to the ‘dispute resolution process’ under the enterprise agreement was misconceived as he was unaware such a process had commenced. He considered that the lack of compliance with the requirements of the dispute resolution process was such that it rendered the termination procedurally unfair.

[97] In his submissions the applicant detailed a number of complaints against the handling of the termination of his employment by Mr Turner. These included Mr Turner relying on an outdated CV to refuse his request for a compassionate transfer and denying knowledge of the origins of the CV; failing to facilitate the provision of information to the applicant requested when preparing his response to the show cause letter, failing to give sufficient weight to matters contained in the applicant’s response and failing to remove himself as delegate for the termination process when complained about by the applicant.

[98] It was the applicant’s submissions that each of the directions given to the applicant was given based on recommendations of Ms Briant. It was put by the applicant that the information about the applicant’s hours provided by Ms Briant to Mr Trunz was incorrect. He also claimed that Ms Briant was aware he dropped his son at school at 9am but advised Mr Trunz to direct the applicant to work from 8am until 4pm despite this knowledge. He also submitted that Ms Briant advised Assistant Commissioner Lammers to direct that the applicant commence work at 9am knowing that it was impossible for him to do so and drop his son at the same time. The applicant submitted that it was unfair that Ms Briant had such a major role in the termination of his employment.

[99] It was the applicant’s submission that his dismissal was unfair and that he should be reinstated subject to a security clearance being granted.

[100] It was submitted on the respondent’s behalf that there was a valid reason for the applicant’s dismissal as he failed to comply with directions that he attend work at specified times. It was put that Mr Turner had identified that the applicant’s pattern of attendance was having a detrimental effect on operational continuity and placing pressure on the work area, and that this did not improve despite the meeting with Mr Crome on 10 May and Assistant Commissioner Close’s letter of 17 May. In deciding that the applicant’s employment should be terminated Mr Turner had taken into account directions given to the applicant by his supervisor, the direction given by Assistant Commissioner Lammers and the letter sent to the applicant by Assistant Commissioner Close. He had also taken into account the applicant’s personal circumstances.

[101] In response to the applicant’s submission that the only reason given for his dismissal was his failure to follow directions, that he was not notified of any other reason for his dismissal and that he was not required to follow the directions as the directions were unlawful the respondent submitted;

• That the reason for termination need not be the reason given by the employer 43 and that Commission may rely on the actual reason for the termination;



• The applicant was well aware that his failure to attend work reliably was a critical aspect of the termination decision;



• To the extent that the directions of Mr Trunz and AC Lammers were relied upon for the decision to terminate the applicant’s employment the respondent did not conceded these directions were unlawful, as alleged by the applicant.

[102] In support of the submission that there was a valid reason for the termination the respondent relied on the evidence indicating that the applicant had a significant history of erratic attendance which had been the subject of correspondence and discussions. The applicant accepted that there were periodically issues about his attendance. The AFP relied on the attendance records in evidence 44, which were not seriously challenged by the applicant, to support the submission that the applicant’s pattern of attendance was a cause for concern.

[103] It was put for the respondent that the applicant’s challenge to the direction given to him by Mr Trunz on the ground that it was based on misleading data was ‘incomprehensible” and that the applicant’s complaint of bullying against Mr Trunz was a ‘red herring,’ as Mr Trunz was attempting to assist the applicant to resolve his attendance issues. The applicant’s belligerent reaction to Mr Trunz, and refusal to come to work while Mr Trunz remained his supervisor, was typical of his reaction to any person that he considered was not sympathetic to the outcomes he sought.

[104] Similarly, it was put by the respondent that the applicant’s reaction to Assistant Commissioner Lammers attempt to alter the hours he was directed to attend to better suit his childcare arrangements was to both challenge the direction as being unlawful and to deliberately misinterpret the effect of the direction. The AFP submitted that the direction was open to Assistant Commissioner Lammers under the terms of the enterprise agreement and, given that the applicant had indicated an ability to commence work between 9am and 10am each morning, his direction was not unreasonable. It was also put that even had Assistant Commissioner Lammers known that the applicant dropped his son at school at 9am, it was not ‘unreasonable’ for him to make a direction that the applicant commence work at that time. It was for the applicant to arrange his affairs to comply with the direction.

[105] So far as Assistant Commissioner Close’s direction was concerned it was submitted that the applicant persistently and wilfully refused to comply, insisting on arriving for work when he felt like it and continued with his failure to give notice of his absences.

[106] In reply to the respondent’s submissions the applicant disputed the claims concerning the facts made by the AFP in its submissions and reiterated his evidence about each of those matters. The applicant also indicated that there had been a significant change in his circumstances which had reduced his personal and financial burden and would allow him to pay for before and after school care for his children if he were reinstated.

Consideration

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

[108] In determining whether the applicant has been unfairly dismissed I must take account of those matters set out in s.387 of the Act which is as follows:

387 Criteria for considering harshness etc.

(1) In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[109] The majority of the pertinent facts in this matter are not in dispute.

[110] There must be a valid reason for the dismissal of the applicant related to his capacity or conduct. The reason should be ‘sound, defensible and well founded’ and should not be ‘capricious, fanciful, spiteful or prejudiced. ’  45 I am satisfied that there was a valid reason for the applicant’s dismissal.

[111] The applicant was given a lawful direction by his supervisor Mr Trunz that he work core hours. I am satisfied that Mr Trunz had counselled the applicant about his attendance patterns and the unacceptable number of hours he was carrying as a debit. I am satisfied that Mr Trunz raised this matter with the applicant in good faith after the hours debit was revealed in an audit. Despite the applicant’s protestations, I have no reason to believe that a mistake was made about the number of hours, other than any debit that might have been attributable to the applicant’s own failure to properly record, in a timely manner, leave to which he may have been entitled due to the birth of a child. Otherwise I accept that the calculations set out by the payroll team were correct. Even if the calculation was incorrect the applicant’s approach to resolving the matter was unnecessarily confrontational. Mr Trunz was acting in good faith to help the applicant rectify the problem and was much maligned by the applicant for his trouble. I should indicate that I found Mr Trunz a compelling and honest witness who made a valiant attempt to give clear answers to questions not always so clearly put by the applicant. I accept that Mr Trunz was badly affected by the applicant’s claim that he was bullying him when he considered that he had made every effort to assist the applicant correct his leave records and reduce his outstanding hours.

[112] Similarly, I am satisfied that when Assistant Commissioner Lammers gave the applicant the direction to work from 9am until 5pm he did so in an attempt to take account of the applicant’s claim that the direction given by Mr Trunz did not provide for his child care commitments. I also accept Ms Briant’s evidence that she understood the applicant to advise at the meeting on 11 April, that while he was unable to meet the direction to commence work at 8am he was in a position to commence work between 9am and 10am. I believe that it was for this reason that Ms Briant recommended, and Assistant Commissioner Lammers issued, the direction to the applicant that he commence work at 9am. There is no excuse for the applicant’s unreasonable reaction to this direction. A simple email from the applicant to Ms Briant or to Assistant Commissioner Lammers asking if the hours could be changed to 9.30am to 5.30pm should have been sufficient to resolve the applicant’s concern but this was not his approach. This is clear from the applicant’s reaction when Assistant Commissioner Close gave him the option to negotiate a 9.30am to 5.30pm work pattern upon issuing her direction on 17 May.

[113] I do not accept that the applicant’s attitude was justified by his belief that the direction given by Assistant Commissioner Lammers was in some way inconsistent with the terms of the applicable enterprise agreement. Nor do I accept that the applicant ever believed that the interpretation he gave to the direction (that he could commence duty at any time between 9am and 5pm) was the correct interpretation. To defy the direction on this basis was not a reasonable response.

[114] The applicant met every concession made by the AFP with an unreasonable, demanding attitude. He made it clear that no set pattern of hours would suit him and that he should be permitted to work the hours that suited him and his personal circumstances, whether or not those hours suited the AFP. The applicant wilfully and deliberately defied the direction given to him by Assistant Commissioner Close. Not only did he not work the hours he was directed to work, he continued to arrive at work at a time that suited him and to absent himself from the workplace, without any authorisation or proper excuse. This is apparent on the evidence of the applicant (see [41] above).

[115] Clearly there was a valid reason for the termination of the applicant’s employment. I do not accept that the direction given to him by Assistant Commissioner Close is in any way affected by her reference to the dispute settlement procedures of the enterprise agreement. The applicant disputed the direction given to him by Mr Trunz and accused him of bullying. He then disputed the direction given by Assistant Commissioner Lammers directed at resolving the problem. As a consequence, Assistant Commissioner Close attempted to resolve the dispute by directing the applicant to adhere to core hours and offering a negotiated flexibility agreement. In response the applicant’s behaviour was unchanged.

[116] The applicant was notified of the reason for his dismissal in both the s.28 letter and in the letter of termination itself. I accept the submission of the respondent that while the stated reasons of the employer concerned the applicant’s failure to follow directions given by the employer about his attendance, the history of his attendance that led to the need for the directions to be issued was also a relevant factor in the decision to terminate. Clearly the applicant understood this as he went into great detail in his response to the letter of 26 May 2013 concerning the reasons for his erratic attendance.

[117] The applicant was given ample opportunity to respond to the reasons for his dismissal. He put a lengthy response to Mr Turner having received the letter notifying him that consideration was being given to terminating his employment. That letter was provided on 26 May and the applicant was given paid leave in order to prepare his response.

[118] There was no unreasonable refusal by the AFP to allow the applicant to be accompanied by a support person at the discussions relating to the dismissal. No such claim was made by the applicant.

[119] The dismissal did not relate to unsatisfactory performance by the applicant. Generally the evidence was that the standard of the work he actually did was good.

[120] The AFP is a large organisation and no submission was put that the size of the enterprise was likely to affect the procedures followed in the dismissal.

[121] It was apparent from the evidence that the AFP has dedicated human resource management expertise and that this expertise was utilised in effecting the dismissal of the applicant.

[122] Other matters that I consider relevant to the question of the fairness or otherwise of the decision to terminate the applicant’s employment are:

• The applicant’s personal circumstances;



• The measures taken by the AFP over the entire period of the applicant’s employment to accommodate the applicant’s personal problems;



• The applicant’s attitude to the AFP’s attempts to have him attend for work on the same basis that it expected the majority of its workforce to attend;



• The inordinate resources necessarily expended by the AFP to deal with the applicant’s failure to abide by the most basic of workplace expectations.

[123] I accept that the applicant was subjected to difficult circumstances in his family life. This does not excuse the applicant’s attitude, particularly in light of the consideration shown to him by the employer so as to assist him to deal with his problems. The AFP facilitated the applicant (a graduate at the time) to undertake an overseas posting to be close to his family and immediately thereafter allowed him to take extended leave without pay, despite the fact he was an employee with only twelve months service at the time. In those circumstances, the applicant’s apparent resentment at being denied, on operational grounds, a compassionate transfer to Brisbane on his return from his extended period of leave without pay was unwarranted.

[124] The applicant made much of the difficulties he endured in attempting to provide for his children and their mother. While the applicant’s personal situation was unfortunate, the attitude of the applicant towards his employer is almost incomprehensible. It was readily apparent that the applicant expected the AFP to provide him with every possible concession to assist him with managing his personal circumstances, though conversely he seemingly deemed it unnecessary to honour even the most basic work requirements such requesting authorisation for his absences, notifying his supervisor of his repeated late attendances or attending work in a regular manner. The applicant seemed to operate under the misapprehension that he was in a position to determine his own hours of work and was able to refuse to do work if he had no interest in it.

[125] I am unable to find one redeeming feature of the applicant’s conduct or any aspect of his personal circumstances which would render the termination of his employment, in any way, harsh, unjust or unreasonable.

Conclusion

[126] The applicant’s dismissal was not harsh unjust or unreasonable. As the dismissal was not unfair, the application is dismissed.

Appearances:

The applicant in person.

Mr Anthony Reilly, of HWL Ebsworth Lawyers, for the respondent

Hearing details:

2014.

Canberra:

January 16,17.

Final written submissions:

Applicant: 31 January 2014; 13 February 2014.

Respondent: 7 February 2014.