Fair Work Act 2009
s.604 - Appeal of decision

Appeal against decision [[2014] FWC 1497] of Commissioner Deegan at Canberra on 4 March 2014 in matter number U2013/2420 - no denial of procedural fairness - no apprehension of bias - no significant error of fact.

Introduction

[1] This decision deals with an appeal by Mr Adan McIntosh against a decision 1 of Commissioner Deegan of 4 March 2014 in which the Commissioner dismissed an unfair dismissal remedy application (UDR application) made to the Fair Work Commission (FWC) by Mr McIntosh. Mr McIntosh commenced employment with the Australian Federal Police (AFP) on 21 March 2011 and was dismissed from the AFP on 2 July 2013.

[2] At the hearing of the appeal, we granted the AFP permission to be represented by a lawyer pursuant to s.596(2)(a) of the Fair Work Act 2009 (Cth) (FW Act). We were satisfied it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter as the appeal grounds raised procedural fairness issues. Further, we considered we should exercise our discretion to grant the permission notwithstanding Mr McIntosh’s objection. The AFP was represented by a lawyer in the proceedings at first instance.

[3] We also decided to grant Mr McIntosh an extension of time for the making of his appeal as his delay was associated with processes of the FWC.

[4] We turn then to set out background to the dismissal, relevant provisions of the FW Act and the Commissioner’s consideration of Mr McIntosh’s UDR application as set out in her decision. We go on to outline Mr McIntosh’s grounds of appeal and deal with the appeal, before concluding.

Background to the dismissal

[5] Mr McIntosh was initially employed by the AFP in its Graduate Program with terms and conditions of employment as contained in the Australian Federal Police Collective Agreement 2007 - 2011 2 (the 2007 AFP Agreement).

[6] On 8 March 2012, the 2007 AFP Agreement was replaced by the Australian Federal Police Enterprise Agreement 2012 - 2016 3 (the 2012 AFP Agreement). The 2012 AFP Agreement covered, and applied to, Mr McIntosh’s employment with the AFP.

[7] After commencing employment in Canberra and whilst still employed by the AFP, Mr McIntosh undertook a graduate rotation in the United States of America. Subsequently, he went on leave and returned to his employment with the AFP in Canberra in December 2012. On his return to Canberra, he was employed in “Second Level Support” in the Information and Communications Technology (ICT) area of the AFP.

[8] Clause 11 of the 2012 AFP Agreement concerns “Hours of Attendance” and relevantly provides as follows:

“11 Hours of Attendance

(1) In accordance with Part 2-2 Division 3 of the Fair Work Act 2009, the Normal Working Hours of Employees will be:

(a) 38 ordinary hours per week; and

(b) not less than two reasonable additional hours per week.

(2) Accordingly, Employees will work an average of 40 hours per week, inclusive of an average daily 24 minute paid meal break. An Employee is considered to be on duty during a meal break. A meal break should be taken, wherever possible, between each fourth and fifth hour of continuous duty…

(4) An Employee's Normal Working Hours, based on the working pattern to which the Employee's role is determined, are averaged over a Six Calendar Month Averaging Period or a Roster Period…

(6) When scheduling the attendance of an Employee in any of the three AFP working patterns detailed in Part Ill of this Agreement, a Supervisor will have regard to the Work Health and Safety obligations of the AFP.

(7) The AFP will provide a flexible working environment to meet the genuine operational requirements of the AFP and to accommodate, wherever possible, Employee preferences to achieve a healthy work-life balance.”

[9] The “Six Calendar Month Averaging Period” referred to in clause 11 is defined in the definitions clause of the 2012 AFP Agreement as follows:

“Six Calendar Month Averaging Period means two annual periods of:

1 March up to and including 31 August; and

1 September up to and including the last day in February.

However, the first averaging period to which this Agreement applies will be a longer or shorter averaging period (as the case may be).”

[10] Part III of the 2012 AFP Agreement concerns “The AFP Working Patterns”, with the “Support Working Pattern” being relevant to Mr McIntosh. Clause 21 of the 2012 AFP Agreement relevantly provides the following in respect of the “Support Working Pattern”:

“21 Support Working Pattern

(1) For the purposes of this section, the term ‘Employee’ is limited to an Employee working in the Support working pattern.

(2) An Employee will work 40 hours per week averaged over a Six Calendar Month Averaging Period with an employee’s normal pattern of attendance being eight hours per working day.

(3) Where an agreement exists between the Supervisor and the Employee/s they may be able to work these hours flexibly within a bandwidth of 0600 to 2000 Monday to Friday. Where there is no agreement, an Employee's normal hours of work will be 0800-1600 Monday to Friday, excluding public holidays…

Flex-time

(6) Employees working in the Support working pattern will have access to flex-time.

(7) Flex-time may be accrued during the bandwidth of 0600 to 2000 Monday to Friday.

(8) All flex credit or debit hours must be:

(a) based on the genuine operational requirements of the AFP; and

(b) approved by a Supervisor prior to the hours being accrued or taken.

(9) Supervisors and Employees have a shared responsibility to manage flex-time during a Six Calendar Month Averaging Period.

(10) A flex credit is the accumulation of time worked in addition to an Employee's required hours of attendance over a Six Calendar Month Averaging Period.

(11) Supervisors must ensure Employees are granted opportunities to utilise any flex credit within a reasonable period. Where possible, the majority of flex credits should be utilised within a current Six Calendar Month Averaging Period.

(12) A flex credit of up to 24 hours in a Six Calendar Month Averaging Period can be carried over from one Six Calendar Month Averaging Period to another averaging period. Flex credits in excess of 24 hours cannot be carried over from one Six Calendar Month Averaging Period to another averaging period, and will be lost if not taken by the Employee in the relevant Six Calendar Month Averaging Period.

(13) The Commissioner may, in exceptional circumstances, approve an Employee to carry over these excess Flex credits, to the next Six Calendar Month Averaging Period. In this case, these hours must be used in that Six Calendar Month Averaging Period.

(14) A flex debit up to a maximum of 24 hours can be carried over from one Six Calendar Month Averaging Period to another averaging period.

(15) Where a Supervisor has, within the previous six months, warned or counseled an Employee about the inappropriate use of Flex-time, the Supervisor can direct the Employee to work regular hours without access to Flex-time for a specified period of time.

(16) Prior to cessation of employment Supervisors should provide opportunities to enable Employees to balance any flex credits or debits. Employees should also take all reasonable steps to balance their flex debit or credit. Where any flex credits are outstanding at cessation of employment with the Agency, these should be paid to the Employee at ordinary rates.

(17) Nothing in this section prevents a Supervisor approving a request from an Employee to work outside the core hours or general bandwidth on a short term or ad-hoc basis in accordance with the Flexibility Arrangement in section 53 of this Agreement.”

[11] Clause 53 of the 2012 AFP Agreement concerns an “Individual Flexibility Arrangement” and provides as follows:

“53 Individual Flexibility Arrangement

(1) In accordance with Division 5, Section 202(1) of the Fair Work Act 2009, the AFP and an individual Employee may agree to enter into an Individual Flexibility Arrangement to vary the effect of certain terms of this Agreement to meet the genuine operational requirements of the AFP and the needs of the individual Employee.

(2) The terms of this Agreement that the AFP and the individual Employee may agree to vary pursuant to an Individual Flexibility Arrangement are section 11 ‘Hours of Attendance’.

(3) The AFP must ensure that the Flexibility Agreement:

(a) is confined to a variation of matters contained in section 11 of this Agreement;

(b) states each term of this Agreement that the AFP and the individual Employee have agreed to vary;

(c) details how the application of each term has been varied by agreement between the AFP and the individual Employee;

(d) does not disadvantage the individual Employee in relation to the individual Employee's terms and conditions of employment;

(e) is about matters that would be permitted matters if the arrangement were part of an enterprise agreement;

(f) does not include a term that would be an unlawful term if the arrangement were part of an enterprise agreement;

(g) results in the Employee being better off overall than the Employee would have been if no Flexibility Agreement were agreed to;

(h) is genuinely agreed to by the Employee without coercion or duress;

(i) is in writing, names the parties to the Flexibility Agreement and is signed by the AFP and the individual Employee and, if the Employee is under 18 years of age, the Employee’s parent of guardian;

(j) is given (or a copy is given) to the Employee, and a copy kept on file by the AFP;

(k) is able to be terminated by the AFP or the individual Employee giving four weeks notice of termination in writing to the other party, or at any time by agreement in writing by the AFP and the individual Employee; and

(l) states the date the Flexibility Agreement commences to operate.”

[12] Clause 72 of the 2012 AFP Agreement which concerns “Transitional Provisions” from the 2007 AFP Agreement to the 2012 AFP Agreement relevantly provides as follows:

“72 Transitional Provisions…

(10) The following will apply in relation to the working patterns as defined in the Collective Agreement:…

(g) flex debits or credits, to a maximum of 16 hours, an Employee in the Support working pattern has accrued under the Collective Agreement will carry over into the first Six Calendar Month Averaging Period in this Agreement.”

[13] On 26 March 2013, Mr Christopher Trunz, A/Team Leader Second Level Support in ICT at the AFP was provided with a table on Mr McIntosh’s hours of work since his commencement with the AFP. The table was developed by the Financial and Commercial area of the AFP. The table was formulated from Mr McIntosh’s timesheet and attendance records. The table was as follows:

[14] The above table did not take into account 80 hours of paternity leave taken by Mr McIntosh in April 2012 but not applied for by Mr McIntosh and not acquitted until May 2013.

[15] On 26 March 2013, Mr Trunz sent the following email to Mr McIntosh:

“Adan,

Through consultation with HR and SAPAdmin Help & Support an audit has been conducted on time recording to assist in determining your current balance of hours remaining to acquit as well as identifying a more accurate view of your current negative flex balance.

The result of this audit has identified a concerning 130.49 hours of unsubstantiated time since engagement. This means that your current flex balance is negative 130.49 hours since you commenced your employment with the AFP. This also includes the possible inaccurate recording of times we previously identified and discussed on the first two days of your employment (where inadvertently 20 hours were recorded for each of the 2 days - when more probable times would have been 8 hours [800 - 1600])

Unfortunately since the commencement of the new Enterprise Agreement we have been advised that only the carry forward balance as at the commencement date of the new Enterprise Agreement can be reviewed.

Therefore the AFP will absorb the 87.4 hour attributed to times previous to the commencement of the new Enterprise Agreement.

This leave a negative flex balance of 43.09 hours from commencement of the EA up till the end of the last period (08/03/2012 - 28/02/2013).

Currently this period, your times (at the time of this audit) already stand at negative 10.25 giving a total of 53.34 negative flex hours since commencement under the new Enterprise Agreement.

Your Enterprise Agreement requirements outline a responsibility to manage your times flexibly such we adhere to a managed +24 to -24 flexible working arrangement. Given that you are well over this outlined requirement, in consultation with Employee Relations, Human Resources and Coordinator ICT Support, we see fit to formally manage this situation such AFP can recover hours through active engagement and direction to formally require you to return to core hour support working pattern. Those being 0800-1600. This will better enable you to recover those negative flex hours in a managed situation whereby you can be better supported by your Team Leader and Coordinator.

Please feel free to discuss with me any issues relating to this direction to return to core hours in response to fulfilling your obligations with respect to the Enterprise Agreement and its requirements.

Regards

CHRISTOPHER TRUNZ

A/TEAM LEADER SECOND LEVEL SUPPORT

INFORMATION & COMMUNICATIONS TECHNOLOGY”.

[16] Mr McIntosh responded by email on 27 March 2013 as follows:

“Chris

Thank you for your email.

With all due respect, working the core hours is a very primitive approach to a complex situation and does not even provide an opportunity for the AFP to recover any hours owing, presuming this is your intent. Given any flex debt I may have incurred would have been done so largely outside of my current role, there should be no need to recoup these hours in my current role. If you wish to rectify any perceived imbalance in my flex, there are many solutions which recovered these hours within the organisation, but possibly not within the team. Irrespective, my flex balance is completely reasonable and has been managed as well as can be expected for someone in the similar circumstances noting that this responsibility is shared between the supervisors and myself.

Under s21(14) of the EA, a maximum of 24 hours of flex debit can be carried over from one average period to another. There is no stipulation that no more than this can be accrued, simply that no more can be carried over. Taking this into consideration my current flex balance is very close, if not more, than -24 pending approval of leave requests. I further note that we entered into an agreement under s21(3) of the EA on 19/03/12 which is still in effect and one which I expect to be honoured.

Personally I don’t and never had any intention of defaulting on a debt of any kind. I work in a role that does not require an FTE which I have openly stated many times. On my own volition, I have actively sought additional work from other areas of the organisation in an attempt to maximise the value of my employment. I would rather incur a flex debt, and work these hours when there is a worthwhile task to complete rather than being paid to sit idle, simply to maintain a level flex balance. I hope this is a quality exhibited at large within the organisation as per the AFP core values.

Furthermore, I have recently requested to go on LWOP but have still volunteered to work for certain areas of the organisation during this period without the prospect for remuneration. There should be no doubting my ongoing commitment to the AFP.

I hope this has allayed any concerns you may have on this issue although channels for communication remain open. Respectfully, I will remain working the hours as agreed as unfortunately your request does not seem to be supported by the EA in the current circumstances and I ask that any further requests be made in accordance with this.

Regards

Adan”.

[17] From 27 March 2013 to 9 April 2013, according to his time records, Mr McIntosh regularly commenced work at the AFP at 10.00 am or later.

[18] On 10 April 2013, Mr Trunz sent the following email to Mr McIntosh:

“Subject: RE: Time Recording Audit...

Adan,

Thank you for your response. Upon seeking advice from HR and Industrial Relations, with respect to your below email, would like to reiterate that I, Christopher Trunz, AFP14436, A/Team Leader ICT Level Two Support, direct you under Section 21(15) of the EA to return to regular support pattern working time, Sec 21(3), core hours of 0800-1600 hours without access to flex time until such time whereby your current large negative flex balance is rectified to a manageable level as per your EA requirement. This direction should commence forthwith and note that my initial direction dated the 26/03/2013 has not yet been adhered to.

Section 21 of the EA states the hours and band width for support working pattern. Flexibility outside the normal working pattern (0800-1600) is covered and agreed upon under section 53 of the EA. Any agreement entered into under section 53 must be in writing and reviewed bi-annually or annually and can be ceased by either party with 28 days’ notice. Section 21(3) of the EA clearly states where there is no flexible working arrangement (section 53) in place the hours of duty are 0800-1600. Section 21(15) also clearly articulates that, a supervisor can direct a member to work regular hours without access to flex time. This includes both debit and credit flex. Please understand that any flexible working agreement is subject to review and cancellation at any time and additionally subject to renewal, as indicated above, and upon changing business areas. I am unaware of any current formalized agreement to this regard hence the direction to return to regular Support Working Pattern core hours of 0800-1600.

Please understand that the commencement of this direction is to begin on Thursday 11 April 2013 and that any leave for period outside the directed core hours of 0800-1600 will be viewed as unapproved leave. Any unapproved leave will require action to recover times through exhausting any available leave provisions. Subsequent to this, you will be required to submit applications for leave without pay pending approval noting that further advice will need to be sought for ICT Business Support, HR and Industrial Relations in these instances.

In response to the flex carry over balance, please note policy advice direct from Industrial Relations and HR:

Section 9 of the Flex Policy … clearly articulates any debit over 24 hours will be recorded as LWOP and only to the maximum of 24 hours will be carried over into another averaging period.

I will be looking into this further on your behalf and will provide further advice asap.

In response to your thoughts on your position itself (paragraph 3 - FTE), thank you. Please be aware that your role within the team, is in support of not only other members of Level Two Support, but the to further support the organization subject to necessity as dictated by business. My understanding is that there is enough work to facilitate the FTE requirements in this area and as such there should be sufficient work, responsibilities and or duties to this regard. You do not have the capacity to determine the FTE requirements of this area based on your knowledge of one role. To this regard, at no time should you be seeking additional works, duties or responsibilities outside your current role, team or area without the knowledge, support or approval of both your Team Leader and Coordinator. Consider this a directive to stop all works for other business areas without pre­arranged approval going forward form Thursday 11 April 2013.

I trust this matter has now been resolved and hope that through continued communication we (you, myself, your current Coordinator and future TL’s) can go forward in achieving results in furtherance of ICT Level Two Support goals and objectives to better support the AFP.

Regards

CHRISTOPHER TRUNZ

A/TEAM LEADER SECOND LEVEL SUPPORT

INFORMATION & COMMUNICATIONS TECHNOLOGY”.

[19] On 11 April 2014, Mr McIntosh commenced work after 10.00 am and there was a meeting between the AFP and Mr McIntosh in respect of Mr Trunz’s directive of 10 April 2014.

[20] Later on 11 April 2014, Mr Leo Vasiliadis, Coordinator ICT Support in the ICT area of the AFP sent the following email to Mr McIntosh:

“Adan,

As briefly discussed, I invite you to work with me to put a flexible working agreement and PDS in place. We will discuss further tomorrow.

Thanks again for your time today to outline your concerns and please do not hesitate to contact me if you have anything else that you require.

cheers

LEO VASILIADIS

COORDINATOR ICT SUPPORT

INFORMATION & COMMUNICATIONS TECHNOLOGY”.

[21] Mr McIntosh responded by email on 13 April 2013 as follows:

“Leo

On the advice on legal counsel, I will not be attending work while this matter remains under investigation and Chris remains leader of this team. I respectfully request to be stood down for this period.

While I acknowledge your effort, I am not satisfied the response to my concerns has been appropriate. The response from my perspective seems to be a recommendation to create a flexible working agreement and while I may need to consider this in the future, it does not address any of the concerns I have made regarding workplace bullying. I further note that I was the only person at the meeting on Thursday that even said the words or used the term ‘workplace bullying’.

I will make due consideration in determining the appropriate course of action through external functions and should this matter be escalated, I ask that it does not impact on my workplace environment.

Regards

Adan”.

[22] On 17 April 2013, Mr Vasiliadis telephoned Mr McIntosh about his absence from work at the AFP. On 19 April 2013, Mr McIntosh sent the following email to Mr Vasiliadis:

“Leo

I apologise for the delay in getting back to you sooner but I am yet to receive clarification on my legal position.

Without access to any further information, I can only direct you to s.l8 of the current EA, which allows a supervisor to stand down and employee for operational requirements. This is defined as the requirements of the role of an AFP Employee so there is definitely a provision for you to act under this premise and I respectfully request for you to reconsider this. Ideally I would not be the individual to be stood down, but there seems to be a reluctance for the AFP to act in this instance. However it would have been inappropriate for me to remain in my role this past week given the circumstances.

I will endeavour to provide you more information as it becomes available but I have no intention of not fulfilling my obligation under s.11 of the EA.

Regards

Adan”.

[23] Mr Vasiliadis responded to Mr McIntosh later on 19 April 2013 by email as follows:

“Adan,

I will also call and confirm this email.

Currently your leave for next week has not been approved as the initial understanding at the meeting on Thursday the 11^th April with HR (and others) was that you would be away this week (15^th 19^th April). I am not authorised to approve any stand down time for you as you are working under a Support pattern agreement. I have held off approving any leave for next week as you may need to cover this week’s absence or be on unauthorised leave.

I asked you to let me know what was happening and you agreed to do so via email after our conversation on Wednesday the 17^th April. This has not happened as yet and I am unsure what you intend to do.

With the rest of your area (Simone and Alison) also being away on a course all this week (approved and booked some time back), you being on leave has left me in a difficult position with no one to do the required work. I was happy to approve leave for this week after our meeting on the Thursday as you raised your concerns and I took them on-board. Now that there is a different Team Leader in place, I was hoping that you could return to work and we could start working on helping you with your hours of attendance by putting a flexible working agreement in place that would help with your personal situation. So as it stands, you are required to be here on Monday the 22^nd April.

I hope that is has made the current leave situation clear, if not please contact me.

Cheers

Leo”.

[24] On 21 April 2013, Mr McIntosh sent the following email to Mr Vasiliadis:

“Leo

Thank you for you email. I think there has been some misunderstanding which is probably not easily resolved via email.

1 have tried to work with the business and while this has been difficult from my end, I will do my best to continue that in the future circumstances permitting.

Regarding next week/tomorrow, I am currently in Brisbane and having driven here I would have to leave about now to make it back to work for Monday. I also have important appointments here next week I need to attend. The best I can offer to facilitate the business requirements is to come into the Brisbane office this week. If you wish to utilise this please call me as soon as you get this as I do not have regular internet access.

Regards

Adan”.

[25] Mr McIntosh was subsequently provided with a direction by Assistant Commissioner Rudi Lammers, Chief Information Officer at the AFP, as follows:

“29 April 2013

Mr Adan McIntosh

[Address]

Dear Mr McIntosh,

I hereby direct you under Section 40 of the AFP Act 1979, in accordance with Section 21 (3) of the AFP Enterprise Agreement 2012-2016, to report for duties between the core business hours of 0900 to 1700 Monday to Friday commencing Monday 29 April 2013. Consideration of these hours has included the requirement to provide support for school aged children.

Under Section 21 (2) hours of attendance will be 40 hours per week averaged over a six calendar month averaging period with a normal pattern of attendance being eight hours per day. There will be no ability to work split shifts and there will be no access to flex time under Section 21 (15).

Failure to comply with this direction could result in a review of your suitability for employment with the Australian Federal Police under Section 28 of the AFP Act 1979.

[Signed]

Assistant Commissioner Rudi Lammers

CIO”.

[26] Section 40 of the Australian Federal Police Act 1979 (Cth) (the AFP) Act provides that an AFP appointee must not disobey or fail to carry out a lawful direction, instruction or order, whether written or oral, given to him or her by the Commissioner or the AFP appointee under whose control, direction or supervision he or she performs his or her duties.

[27] An AFP appointee includes an AFP employee.

[28] On 6 May 2013, Mr McIntosh sent the following email to Assistant Commissioner Lammers and Ms Carissa Briant, A/G Team Leader in HR Advisory at the AFP:

“Good Morning

I met with representatives of the AFP on the 11^th April regarding an issue of workplace bullying stemming from a supervisor’s directive to work the core hours of 8am-4pm and associated conduct. The Australia Human Rights Commission includes ‘deliberately changing your works hours or schedule to it make difficult for you’ as workplace bullying. I had iterated on numerous previous occasions that it is difficult for me to work the core hours as I drop my son to school at 9am and there was an agreed understanding of this with multiple supervisors.

I had not returned to work since that meeting until today and before I could even log into my computer I was taken to a meeting where I received another directive to work from 9am to 5pm. This new directive has come from the CIO with a very thinly veiled threat of threat of termination should I not comply. This is despite the meeting on the 11^th April where this exact conduct was raised in relation to work place bullying. I reiterated to an even larger audience on that day that I drop my son to school at 9am and it is difficult for me to attend work at this time.

Once, you could say it was ignorance, twice and the intent cannot be ignored. I find this behaviour completely inappropriate especially from such senior members of staff and completely undermines my ability to work confidently and comfortably in the workplace.

Regards

Adan McIntosh”.

[29] Ms Briant subsequently sent the following email to Mr McIntosh and Associate Commissioner Lammers on 6 May 2013:

“Good afternoon,

The outlined directive hours of 0900 to 1700 took into consideration school age children commitments and the organisation requirement to have the job performed with supervisory support. The time frame Mr McIntosh outlined in the meeting with HR/IR and ICT held on 11^th April was between the period of 0900-1000 and as such we considered this and applied 0900 to 1700 instead of the core hours of 0800 to 1600.

In accordance with Part VII of the EA, Mr McIntosh is able to request to enter into an Individual Flexibility Arrangement. However, flexible workplace practices are not an entitlement and are subject to the reasonable operational requirements of the AFP. As such, Mr McIntosh will need to submit a formal request (template available on AFP Forms) detailing his requirements. Section 65 of the Fair Work Act stipulates that the request must be in writing with the AFP providing a written response in 21 days, noting that any refusal must be based on reasonable business grounds.

Mr McIntosh is able to formally respond in writing to the delegate (CIO) to consider any changes to the directive with an attached Individual Flexibility Agreement Form supported by the Coordinator. The CIO will then either support or decline the request.

Until such time that the delegate agrees to a flexible working arrangement the employee is required to adhere to the directive.

Regards

CARISSA BRIANT

A/G TEAM LEADER HR ADVISORY

HUMAN RESOURCES”.

[30] Mr McIntosh responded later on 6 May 2013 by email to Ms Briant and Assistant Commissioner Lammers as follows:

“Carissa

As acknowledged in the meeting on the 11^th April, under s.21(15) of the Enterprise Agreement, a supervisor can only direct an Employee to work regular hours when that supervisor has ‘within the previous six months, warned or counselled an Employee about the inappropriate use of Flex-time’. To date I have not received any such counselling from the CIO.

Therefore s40 of the AFP Act 1979 does not apply as the direction was not a lawful act under the current EA. Furthermore I do not believe this is an appropriate response to allegations of workplace bullying, nor was it on the 11^th April given that on neither occasion has the issue even been acknowledged.

For the benefit of all involved, I will liaise with Leo Vasiliadis in an attempt to bring this issue to a prompt resolution without further aggravation.

Regards

Adan”.

[31] On 10 May 2013, there was a meeting between the AFP and Mr McIntosh pursuant to the dispute resolution procedure in the 2012 AFP Agreement about his attendance at the AFP. There was no resolution of the issue at the meeting.

[32] Shortly prior to that meeting, Mr McIntosh sent the following email to Assistant Commissioner Lammers:

“Subject: Letter dated 29th April 2013…

Dear Assistant Commissioner Lammers

In response to your letter, as dated above, I understand you have instructed me ‘to report for duties between the core business hours of 0900 to 1700 Monday to Friday’. I acknowledge this instruction and as you have specified, acting as the Supervisor, I agree to report for duties between the core business hours of 0900 to 1700 Monday to Friday under s.21(3) of the AFP Enterprise Agreement 2012-2016.

This agreement is to take effect immediately and I have also forwarded a written copy of this agreement via the internal mail.

Kind Regards

Adan McIntosh”.

[33] Assistant Commissioner Lammers responded to Mr McIntosh on 11 May 2013 by email as follows:

“Dear Adan,

Thank you for your email and pending letter.

To ensure that this matter is beyond doubt, and as explained in the meeting with Mr Crome and HR last week, my direction means that you are to report for duty at 9am each day, Monday to Friday, and cease duty each of those days at 5pm. This is to commence Monday 13 May 2013.

Assistant Commissioner Rudi Lammers”.

[34] On 13 May 2013, Mr McIntosh sent the following email to Assistant Commissioner Lammers:

“Rudi

This is a bit confusing for me given the agreement that had been reached. It now seems like you wish to change the details of that agreement after it has been made or make a conflicting direction. If you wish to negotiate a new agreement, I would be more than happy to make myself available for a discussion.

I am happy to abide by the agreement that has previously been reached and greatly appreciate the flexibility you have offered in that agreement. The terms which you now wish rely upon do not appear to be consistent with our agreement and would cause me undue hardship given I drop my son to school at about 9am every morning. I have mentioned this many times before as I am sure you are aware.

I don’t want there to be any misunderstandings and am happy to work towards a mutually beneficial resolution should there be any misunderstandings. Obviously my family always comes first, but the AFP is definitely a high priority for me and I remain committed to the continued success of the organisation.

Kind Regards

Adan”.

[35] On 17 May 2013, Mr McIntosh was provided with the following letter from Ms Leanne Close, Assistant Commissioner, National Manager Human Resources at the AFP:

“Mr Adan McIntosh

C/o - ICT Support

AFP National Headquarters

[Address]

Dear Adan,

Re: Dispute under Part 70 of the Enterprise Agreement - Hours of Attendance and Individual Flexibility Arrangement

I have received notification of a disagreement between yourself and ICT Management relating to section 11: Hours of Attendance and section 53: Individual Flexibility Arrangement, of the AFP Enterprise Agreement 2012-2016 (EA). This dispute has been referred to me for resolution as delegate in accordance with section 70 of the EA.

Isolating matters below may provide for further clarity.

Hours of Attendance

As an AFP employee you must work 40 hours per week, made up of 38 ordinary hours and two reasonable additional hours per week (clause 11 of the EA - hours of attendance). These hours are based on the working pattern to which your role has been determined.

The Commissioner has determined that your role falls under the Support Working Pattern. Clause 21 of the EA provides a description of this working pattern, and relevantly states:

(3) Where an agreement exists between the Supervisor and the Employee/s they may be able to work these hours flexibly within a bandwidth of 0600 to 2000 Monday to Friday. Where there is no agreement, an Employee’s normal hours of work will be 0800-1600 Monday to Friday, excluding public holidays. [Emphasis added]

As no such agreement is in place currently, you are expected to commence work duty at 0800 and cease duty at 1600, Monday to Friday (excluding public holidays). You are entitled to take a 24 minute paid break during these hours.

Individual Flexibility Arrangement (IFA)

An individual flexibility arrangement is one made under Part VII of the EA between employees and the AFP. An IFA, if entered into will have the effect to vary the terms of an EA in order to meet the genuine needs of the employee and employer. Under the EA, such arrangements are limited and only the hours of attendance, as specified by the relevant working pattern may be varied.

Way forward- IFA

I am advised that you have parental responsibilities, which include dropping off your children at school/childcare and have raised concerns that you would find it difficult to comply with the CIO's recent direction dated 6 May 2013.

Taking these responsibilities and your concerns into consideration, I am willing to enter into an IFA with you to adjust your hours of attendance, which would allow you to commence duty at 9.30am for a continuous period of 8 hours (no split shifts), ceasing duty at 5.30pm Monday to Friday.

Consistent with clause 21(8) of the EA, a flex-time credit or debit can only be accrued where the AFP has a genuine operational requirement. You are also not permitted to accrue flex-time credits or debits unless you have obtained prior approval from your supervisor.

In the absence of an agreement formally signed by yourself and your supervisor, you must work in line with the support working pattern, that is commence duty at 0800hrs and finish at 1600hrs Monday to Friday (excluding public holidays). A failure to comply with these hours of attendance may result in disciplinary action, including the termination of your employment.

Failure to carry out your duties

I understand that you have evinced an intention not to undertake your duties as assigned by your Team Leader, from time to time and in line with the work level standards.

I do not consider your failure to carry out your duties as a matter that would fall under the EA’s dispute resolution processes. As an AFP employee, you must comply with all lawful directions given to you by your supervisor. A direction that you carry out your duties, for which you have been employed, is a lawful direction, and any continuation of your refusal to comply with it may result in disciplinary action, including the termination of your employment.

I understand that the contents of this letter might be difficult to come to terms with. The AFP Employee Assistance Program (EAP) is a free, confidential, counselling service available nationally to all employees and their families. If you would like to access the EAP, please contact [name] directly on [telephone number provided].

Yours sincerely,

[Signed]

Leanne Close APM

Assistant Commissioner

National Manager Human Resources”.

[36] The time records show that from 11 April 2013 to 21 May 2013, when Mr McIntosh worked he regularly commenced work at the AFP at 10.00 am or later.

[37] Between 27 March 2013 and 21 May 2013, Mr McIntosh regularly commenced work at the AFP at or after 10.00 am and often he worked for less than eight hours per working day.

[38] On 27 May 2013, Mr McIntosh was provided with the following letter from Mr Dave Turner, Manager Human Resource Strategies at the AFP:

“27 May 2013

Mr Adan McIntosh

Information Communication and Technology

CONSIDERATION OF TERMINATION OF EMPLOYMENT

SECTION 28 - AUSTRALIAN FEDERAL POLICE ACT 1979

The purpose of this letter is to advise you that I, Dave Turner, performing the duties of Manager Human Resource Strategies and authorised delegate of the Commissioner under section 28 of the Australian Federal Police Act 1979 (Cth) (the AFP Act), am considering terminating your employment with the Australian Federal Police.

I am considering this action as it appears you have been failing to meet the inherent requirements of your employment, namely failure to adhere to the following directions:

● Failure to comply with direction from a Team Leader to attend within the core business hours of 0800 to 1600;
● Failure to comply with direction from Chief Information Officer to commence work at 0900 and cease at 1700; and
● Failure to comply with the terms outlined in the dispute resolution letter from National Manager Human Resource dated 17 May 2013.

I am concerned that no discernible improvement has been observed. This is despite Manager ICT Infrastructure, Stuart Crome, conducting a resolution meeting on Friday 10 May 2013 in an attempt to broker a flexible work agreement with you and National Manager Human Resources, Leanne Close, finalising step 3 of the dispute resolution process on Friday 17 May 2013.

Your supervisors are concerned that your established pattern of attendance is:

● Having a detrimental impact on operational continuity;
● Placing high pressure on client expectations; and
● Placing undue demands on the current resources within the unit.

To date I have considered the following:

1. Directive issued by the CIO on 6 May 2013;
2. Letter from NMHR finalising step 3 of the dispute process dated 17 May 20l3;
3. Emails from ICT supervisors directing you to work core hours;
4. Correspondence emails from yourself to ICT Management; and
5. Leave and time recording history.

I understand that you either have a copy of, or are able to access, the documents mentioned in the preceding paragraph.

My role is to determine, whether you are suitable to remain an AFP employee. Prior to making my decision, I invite you to provide a written response to this letter. You have 7 days, from the date this letter is delivered to you, to respond to me. In reaching my decision, I will consider any submission you make.

At this stage, no decision has been made about your employment status. I will make a decision on your continued employment with the AFP in the near future. In reaching my decision, I will consider any submission you wish to make and the above evidence.

In the event that you choose not to provide a written submission in reply then I will make a decision on your employment based on the evidence outlined above.

I do not consider it is in the best interests of the AFP that you attend work while I consider your employment suitability. Consequently, I direct you not to attend work until I have made a decision in relation to your ongoing employment with the AFP. I will advise you of the outcome of your employment status as soon as possible after the 7 day period. During this period you are on Miscellaneous Leave With Pay.

I understand that the contents of this letter might be difficult to come to terms with. The AFP Employee Assistance Program (EAP) is a free, confidential, counselling service available nationally to all employees and their families. If you would like to access the EAP, please contact [name] directly on [telephone number provided].

Yours sincerely

[Signed]

Dave Turner

Performing the duties of

Manager Human Resource Strategies”.

[39] Subsequently, Mr McIntosh was given extra time to respond to the letter of 27 May 2013.

[40] In a letter to the AFP dated 4 June 2013, Mr McIntosh responded as follows:

“AFP Human Resources

GPO Box 401

Canberra City ACT 2601

To Dave Turner

RE: CONSIDERATION OF TERMINATION OF EMPLOYMENT

I was very disappointed and disheartened to receive the letter from Dave Turner on 27^th May 2013 regarding the above. While I would have much preferred that this be addressed via mediation as provided by the current Enterprise Agreement, I acknowledge the seriousness of the letter and have responded to the best of my ability given my health and personal circumstances.

These events have come at a great personal toll to myself and subsequently my family, compounding existing circumstances largely known to the AFP. Despite this, I have tried to conduct myself in a professional manner befitting an appointee of the AFP. However, the pressure of this recent event has taken a significant toll on my already diminished health and I may need to time to recover before returning should my employment continue.

In regards to this matter think it is important to note that at no time did I wilfully nor intentionally disobey any lawful directive or code of conduct as l understood them. To that end I actively sought confirmation on many points, directly from AFP appointees and also via research into the relevant legislation, policy and guidelines to ensure I acting in accordance with my responsibilities as an AFP employee.

There seems to have been many misunderstandings in this process and I take full responsibility for my part in that. I am not experienced in these matters and while I have endeavoured to act reasonably and appropriately my actions may have been misguided.

1 have always been, and remain, committed to the AFP and any differences between us can be swiftly resolved. I am confident recent changes in the attitude of the mother of my children and my increased knowledge of my professional responsibilities, will enable me to meet and any all of my commitments to the AFP.

Please find my response attached. I thank you for your consideration of this matter. Please provide your response to the address supplied.

Regards

[Signed]

Adan McIntosh”.

[41] The response attached to his letter explained the difficult family circumstances that he had been experiencing, the unreliability of his car, his dislike of the work provided to him by the AFP and his feeling that he was being harassed and bullied by various AFP employees. The response also outlined the deleterious effect his dismissal would have on him being able to meet his financial commitments, his employment prospects, his family difficulties and his health, as well as outlining his personal attributes including the benefit he has provided to the AFP. In respect of his failure to comply with the directions given to him, his response stated the following:

“Failure to comply with direction from a Team Leader

I should note that I am not a legal practitioner and while I have received some legal advice, my understandings are those of a lay person. The directive provided by Chris Trunz on the 10/04/13 was made under s.21(15) of the Enterprise Agreement (EA) as he stated in the email. This section states that a supervisor can indeed direct an employee to work the core hours, but if the have warned of counseled them on their use of flex time. At no time had Chris provided a warning of counselling on the subject of flex time.

This was raised in the meeting at approximately 3pm on the 11/04/13 which arose from my complaint of bullying against Chris. I have requested the name of the person present at the meeting but these have not been forth coming. It was attended by Chris, Leo Vasiliadis, Carissa Briant, I, a representative from IR and another from HR. My understanding at the time was that this meeting was to address my concerns regarding workplace bullying and I clearly stated that at the meeting and was acknowledged by the attendees. Leo Vasilidas recently confirmed this in a conversation at approximately 12pm on 31/05/13.

Although Exhibit ‘J’ illustrates the trouble I was having my complaint heard, in a brief follow up meeting with Leo from that email at approximately 1pm on the same day, he stated that he would organise a meeting with Chris to discuss the issue. This was my understanding for the catalyst for the 3pm meeting. On 31/05/13, Leo stated the meeting was not about workplace bullying at all and was about my insight times. This does not seem consistent with the other evidence so my understanding is that the 3pm meeting was on the issue of workplace bullying.

At this meeting the IR representative confirmed that s.21(15) was regarding flex time and did not apply. It was also confirmed that by the same IR representative that an agreement under s.21(3) can be verbal and that it was possible such an agreement existed between Chris and Myself. To me this confirmed that the directive was not lawful or at least not in the proper form and reinforced the nature of my complaint that Chris was bullying me by requiring me to work hours which would make my life difficult as supported by the Australian Human Rights Commission. If the direction was lawful I would not have reason for the complaint.

I further raised at the meeting that Chris was perpetuating a grossly inaccurate figure of 87.4 of negative flex balance at the end of the previous EA which he based his directive upon. I have repeatedly attempted to seek clarification of this figure but Chris has declined to provide this figure. Brad Ashe has recently assisted with this and it has become clear the number has no relevance further undermining the legitimacy of Chris's directive.

Although my concerns regarding workplace bullying were not adequately addressed at that meeting, there was tacit confirmation of my existing agreement to work from approximately 9 - 10am to approximately 5 - 6pm was still valid. I should further note that I made it explicitly clear on multiple occasions during this meeting that I drop my son to school at around 9am each day and that it would make my life difficult to be at work at 9am.

Failure to comply with direction from Chief Information Officer

On my immediate return from the 3 week leave period, I was given a directive from Rudi Lammers. Initially I only recognised time that were included in this directive and failed to read the context in which they were stated. At that moment I was furious that the CIO had issued a directive to work from 9am to 5pm on my first day back at work from a meeting where openly stated I dropped my son to school at 9am, but after making it clear that I viewed unlawful directives to work hour that make my life difficult as workplace bullying. The CIO directive was made under s.21(3) of the EA however this clearly states that where there is no agreement an employee is to work 8am to 4pm. The does not seem to be a facility in the EA to direct an employee to work from 9am - 5pm. Therefore I did not understand this to be a lawful direction and was another example of workplace bullying.

However after reading the directive more carefully I understood that I could report for between the hours of 9am and 5pm, not execute my duties between these times. I should have read this more carefully before reacting to it and this is regretful. This was far more understandable as it took into consideration my circumstances and was consistent with the content of the meeting on the 11/04/13.

However once again the EA does not seem to provide the facility for a directive to report for duties between the hours of 9am and 5pm so I took it upon my to make an agreement so it would be legally binding.

Unfortunately, Rudi had a different interpretation and his intention, although not necessarily his words, were for me to work from 9am-5pm. This was very disappointing as his intent seems to have been in complete disregard to my personal circumstances, and in spite of them. This is not my understanding of his words, nor does it appear to be lawful under s.21(3) of the EA as require in s.40 of the AFP Act 1979. I offered to negotiate a new agreement which is provided under s.70(4) of the EA, assuming that was the process being followed but did not receive a response to this. At no time did I believe I was acting contrary to the EA, AFP Act or any lawful direction.

Failure to comply with the terms from National Manager Human Resource

The letter from Leanne close was the first I had received in this process which considered my personal circumstances and also the relevant sections of the EA. It was however very confusing as it contradicted the directive from the CIO and put me in a situation where I had different directives and agreements requiring me to work at completely different times.

I was unsure which of these was lawful and requested further clarification of the exact nature of the dispute she was referring to given I had stated to Stuart Crome in our meeting on the 10/05/13 that I did not have a dispute with the AFP regarding my hours. I certainly had never raised this issue under s.70(5) with my only dispute at that time was regarding workplace bullying as I was comfortable with the agreement I had in place.

So I sought further confirmation from Leanne on this issue in my email on the 17/05/13 as I was not aware s.70(5) of the EA had taken place, as required under s.70(1) and even if it had, it had not been actioned in 14 days as required.

I only worked 4 more days (5 business days total) at the AFP before being place on miscellaneous leave and did not receive a response from Leanne in that time. I raised this in the meeting with Dave Turner on 27/05/13 and his response was that the s.28 letter constituted Leanne's response or words to that effect. Unfortunately Leanne has indicated that did not see my requests and did not realise a response was necessary.

Consistent with my understanding to report for duties between the hours of 9am and 5pm here is an account of my time sheet from the week leading up to this issue:

- 20/05/13: Started at 10:40am after having to drop my son to school by bus due to car not starting.

- 21/05/13: Started at 11:50am after dropping my son to school and meeting with the bank to try to apply for a loan to relieve my financial burden.

- 22/05/13: Started at 9:30am after dropping Ayby to school. Had a late lunch at 4:15pm to get some legal documents signed for ACAT but meeting went over and I did not return until 5:30pm. Advised my team leader of this retrospectively, but should have advised prior in case there were delays

- 23/05/13: Started at 9:45 after dropping my son at school. Worked late to make up time.

- 24/05/13: Called in sick and provide medical certificate.

- 27/05/13: Advised my team leader that I was in arbitration as I had 10am hearing at the ACT Civil Arbitration Tribunal (ACAT). Hearing lasted until after lunch and I arrived at approximately 1pm. Was successful in having compensation awarded and now in position to buy a new car.

I am not sure how I could have avoided these times and even with an IFA I would have recorded similar times, only the team leader would have had prior knowledge of the later starts. I can provide further details on my previous attendances as there is always a reason for my attendances and I do not simply arrive when I want, I arrive when I can.

I also note that the AFP has not invoked s.70(8) which would have provided a conclusive outcome through Fair Work on the legality on the directives and agreements in place. From my perspective, I received 2 unlawful directives, and did not receive clarification of important issues in the last letter before my employment was considered for termination. During this whole period I believed I was acting in accordance with the agreements I had in place and at not time was my conduct in spite of relevant legislation of policy. I have obviously noted the personal circumstances that surround this.”

[42] In a letter dated 2 July 2013, the AFP terminated Mr McIntosh’s employment. The letter was as follows:

“Dear Mr McIntosh

Notice of termination of employment

Section 28 of the Australian Federal Police Act 1979 (Cth)

I write to inform you that after significant consideration, I have determined, in accordance with Section 28 of the Australian Federal Police Act 1979, that your employment in the AFP will cease effective from close of business 2 July 2013.

In reaching my decision I have carefully considered your response to my letter to you of 27 May 2013. I have also considered the directions regarding your hours of attendance provided to you by your team leader(s) and by Assistant Commissioners Lammers and Close and your response to those directions and subsequent attendance record.

I have taken particular note of your personal circumstances and the difficulties that they bring to your work. Whilst I am genuinely sympathetic to those circumstances it is evident that significant efforts have been made by your supervisors to accommodate you. Numerous reasonable adjustments have been petitioned by your immediate superiors, ICT and HR Executive in order to establish a mutually beneficial arrangement. These directions were conceived consistent with the provisions of our employment framework and mindful of the operational needs of the organisation. Directions were presented to you with fair and reasonable expectation on your personal obligations however I have taken the view that you have not responded in good faith to those directions, nor demonstrated any intent to comply with those directions in spirit or act.

I have arranged for you to be paid your final entitlements, together with four weeks’ pay in lieu of the notice period. Please note this payment cannot progress without the completion of Separation and Acquittal processes. Please contact Leo Vasiliadis, Coordinator ICT Support, on [telephone number provided] to arrange the completion of these processes.

Whilst I appreciate that this is not the outcome you hoped for, I sincerely wish you all the very best in your future endeavours.

Yours sincerely,

[Signed]

David Turner

Performing the duties of

Manager Human Resource Strategies”.

Relevant statutory provisions

[43] Section 394 of the Fair Work Act 2009 (Cth) (FW Act) provides that a person who has been dismissed may apply to the FWC for an order granting a remedy.

[44] Section 390(1) of the FW Act provides that the FWC may order a person’s reinstatement or the payment of compensation to the person if satisfied the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.

[45] Section 382 of the FW Act provides for when a person is protected from unfair dismissal. Before the Commissioner there was no dispute that Mr McIntosh was protected from unfair dismissal.

[46] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

“(a) the person has been dismissed; and

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

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

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

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

[47] Before the Commissioner there was no dispute that Mr McIntosh was dismissed by the AFP.

[48] Section 387 of the FW Act sets out criteria the FWC must take into account in considering whether it is satisfied a dismissal was harsh, unjust or unreasonable. Section 387 of the FW Act is as follows:

“387 Criteria for considering harshness etc.

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

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

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


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

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

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

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

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

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

Commissioner’s decision

[49] In her decision on Mr McIntosh’s UDR application, the Commissioner summarised the evidence before her and the submissions made to her. She was satisfied there were no jurisdictional issues precluding her from dealing with Mr McIntosh’s UDR application, he was a person protected from unfair dismissal, the AFP was not a small business and there was no claim the dismissal was a case of genuine redundancy. She then turned to consider the matters in s.387 of the FW Act.

[50] In this regard, the Commissioner said:

“[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.’ 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…

[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.” [Endnote omitted]

[51] The Commissioner concluded that Mr McIntosh’s dismissal was not harsh, unjust or unreasonable and, since his dismissal was not unfair, she dismissed his UDR application.

Grounds of appeal

[52] Mr McIntosh’s grounds of appeal are, in summary, that:

(a) he was denied procedural fairness; and

(b) the Commissioner’s decision involved significant errors of fact.

[53] The AFP opposed the granting of permission to appeal in the matter and, if permission was granted, submitted the appeal should be dismissed.

[54] We turn then to consider the appeal.

Consideration of the appeal

[55] Section 604 of the FW Act provides as follows in respect of appeals:

“604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.”

[56] Section 400 of the FW Act to which the note in s.604(2) refers is as follows:

“400 Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[57] We will deal firstly with Mr McIntosh’s ground of appeal concerning procedural fairness.

(a) Denial of procedural fairness

[58] Mr McIntosh said the denial of procedural fairness by the Commissioner was manifest in the Commissioner:

● failing to hear his objections;
● allowing the AFP to push questions on him, but not allowing him to do the same;
● allowing another witness to avoid answering questions;
● being disrespectful and engaging in discourteous conduct towards him;
● failing to enforce request for documents; and
● making errors of fact.

[59] In respect of these matters, Mr McIntosh submitted that he was required to answer questions in cross-examination about an alleged overpayment made by the AFP to him and about a signature on a document, despite him questioning the relevance of the questions.

[60] Further, he submitted that he was prevented from requiring an AFP employee to further answer a question about whether it was reasonable for an AFP employee to follow an unlawful directive. He also submitted he was prevented from further questioning an AFP employee about the AFP calculated debit in his hours of work, which debit had formed the basis of a directive to him to work core hours.

[61] Mr McIntosh went on to submit in respect of the denial of procedural fairness that the Commissioner showed him a lack of respect, failed to ensure the AFP provided him with a document of Ms Carissa Briant which was referred to in the evidence and rejected his request for an adjournment “pending the outcome of a complaint against [the] Commissioner”. 4

[62] In addition, Mr McIntosh submitted the Commissioner was biased as demonstrated by her conduct during the proceedings and by errors of fact in her decision. The alleged errors included the Commissioner’s findings that:

● Mr Trunz’s direction to Mr McIntosh was lawful, there was no mistake about Mr McIntosh’s hours and Mr Trunz had counselled Mr McIntosh about his attendance; 5
● there was no excuse for Mr McIntosh’s unreasonable reaction to a direction to him issued by Assistant Commissioner Lammers; 6

Mr McIntosh made it clear to the AFP that he should be permitted to work the hours that suited him and that he arrived at work at a time that suited him; 7

Mr McIntosh interpreted Assistant Commissioner Lammer’s direction as meaning that he could commence duty at any time between 9.00 am and 5.00 pm; 8

● Mr McIntosh apparently resented being denied by the AFP a compassionate transfer to Brisbane to work. 9

[63] We are not persuaded Mr McIntosh was denied procedural fairness by the Commissioner.

[64] Procedural fairness is one aspect of the rules of natural justice 10 and not every breach of the rules of natural justice affects the making of a decision11 or entitles an aggrieved party to a new hearing.12

[65] Procedural fairness requires that a party be given a reasonable opportunity to present their case. 13 “[I]mpatient or abrupt comments by an adjudicating officer do not of themselves constitute a denial of natural justice in the sense of a refusal to hear a litigant, particularly in circumstances where the litigant has clearly been provided an ample opportunity to be heard.”14

[66] The requirement for Mr McIntosh to answer questions that he considered irrelevant while preventing him requiring an AFP employee to further answer a question and preventing him further questioning an AFP employee on a matter simply did not deny him procedural fairness. This is not the least because the questions he considered irrelevant may well have been relevant to remedy and credibility. Further, the question concerning an unlawful directive was hypothetical. The AFP employee concerned gave an answer to the question. There was no error in the Commissioner not requiring the AFP employee concerned to further answer the question. Mr McIntosh’s questioning of the AFP employee concerning the AFP calculated debit in Mr McIntosh’s hours of work had resulted in the AFP employee concerned advising that he had relied on figures given to him by others and about how he had done his calculations. In that circumstance, there was no error in the Commissioner preventing Mr McIntosh further questioning the AFP employee on matters he did not have the knowledge to answer or on matters which could be the subject of submissions without the necessity for further questioning.

[67] With respect to Mr McIntosh’s submission that the Commissioner failed to ensure he was provided with a document of Ms Briant referred to in the evidence, the circumstances were as follows.

[68] On 16 January 2014, the first day of a two day proceeding before the Commissioner, Assistant Commissioner Lammers gave evidence that he gave Mr McIntosh a directive on the basis of a recommendation made by Ms Briant. 15 At the beginning of the second day of the proceedings, 17 January 2014, Mr McIntosh called for that recommendation to be produced and the Commissioner asked the AFP to inquire into the matter. The AFP was not able to contact Assistant Commissioner Lammers before the conclusion of the proceedings on the second day. The second day of the proceedings concluded with the evidence in the matter being finalised, subject to Mr McIntosh within a day of getting the transcript of the proceedings advising the Commissioner if he wanted to pursue the obtaining of the recommendation. Otherwise, the Commissioner advised the parties at the conclusion of the second day of the proceedings, Mr McIntosh was to provide his further written submissions in the matter to the FWC by 31 January 2014, the AFP was to provide their further written submissions in the matter to the FWC by 7 February 2014 and Mr McIntosh was to provide any written submissions in reply to the FWC by 12 February 2012.

[69] The transcript of the proceedings was provided to Mr McIntosh by email on 22 January 2014. On 28 January 2014, Mr McIntosh sent the following email to the Commissioner’s Associate and to the solicitors for the AFP:

“I note that in PN728 of the transcript, Mr Lammers confirms he acted based on a recommendation from Carissa Briant. This recommendation was not provided in the materials I requested from the respondent and should have been.

However, I request that this matter be adjourned pending the outcome of a complaint against Commissioner Deegan. Having reviewed the transcript many times, this is not something I have taken lightly but believe this request will preserve the integrity of this matter and prevent an unnecessary appeal.”

[70] Mr McIntosh, however, had not made a complaint against the Commissioner at that stage.

[71] The Commissioner’s Associate responded to Mr McIntosh on 29 January 2014 advising that the transcript was delivered to all parties on 22 January 2014 but he had not raised the matter of Ms Briant’s recommendation with the FWC until 28 January 2014, his request for the recommendation had been put to the AFP and it was a matter for the AFP as to whether they wished to make enquiries, and he had to provide his further written submissions to the FWC by 31 January 2014.

[72] Later on 29 January 2014, Mr McIntosh sent an email to the Commissioner’s Associate advising that he had not received the transcript until 24 January 2014 because he had been in transit, he had raised the request for the recommendation within one business day of 24 January 2014 as 25-27 January 2014 were days on which the FWC was closed, and he was seeking confirmation that the recommendation would need to be provided by the AFP prior to 31 January 2014.

[73] On 30 January 2014 the AFP provided the recommendation, to Mr McIntosh and the FWC. The recommendation was contained in a document as follows:

“CIO

MICTI

Through: MHRS

Written direction to perform duties within core business hours

Purpose:

To supply Mr Adan McIntosh with a written directive under Section 40 of the AFP Act 1979 to work within the core business hours of 0900-1700 Monday to Friday.

Background:

Mr Adan McIntosh commenced with the AFP on 21^st March 2011 within the AFP Graduate Program. Mr McIntosh ceased with the Graduate Program on 30/06/2012 and became an ICT member from 01/07/2012.

Since commencement Mr McIntosh has failed to meet the required working hours resulting in a negative acquittal total of 130.49 hours. Team Leader, Christopher Trunz was advised by HR Advisory in conjunction with Industrial Relations that negative hours incurred prior to the commencement of the AFP EA 2012-2016 were to be absorbed by the AFP and acquittal hours after 08/03/2013 were to be managed in accordance with the Section 21 of the EA and the Flex Time HR Policy.

A SAP audit was conducted on 26^th March 2013 which confirmed debit of 43.09 hours within the last averaging period 01/09/2012 to 28/02/2013. Mr Trunz informed Mr McIntosh in writing (Attachment 1) of the result of the audit and the requirement to formally manage his hours. Mr McIntosh’s response (Attachment 2) outlines his disagreement with the action plan recommended by his Team Leader, Christopher Trunz. Mr McIntosh articulates he will continue to work hours as per his previous averaging period and he believes the request to work within the business hours of 0800-1600 is not supported by the AFP Enterprise Agreement 2012-2016.

Please refer to Attachment 3 where advice was provided by HR to Mr Trunz and Coordinator Leo Vasiliadis on recommendations and supporting evidence from the EA.

Mr McIntosh has not attended work since 11^th April 2013. Member requested to be stood down until the current TL Christopher Trunz was no longer acting in the job. Member was advised that there was no delegation to be stood down and the business area agreed to allow recreational leave for the period 15/04/2013 to 21/04/2013. Mr McIntosh was than requested to attend work on 22^nd April 2013 in lieu of no approved leave record by Coordinator Leo Vasiliadis. Mr McIntosh informed Mr Vasiliadis he was unable to attend work due to being in Brisbane and requested to work out of the Brisbane Office. This was declined by the business area and member was placed on unauthorised leave for the period 22/04/2013 to 28/04/2013.

Due to the operational requirements of the business and the attendance pattern of Mr McIntosh it is requested approval to direct member to attend work between the core bandwidth of 0900 to 1700. Consideration of these hours has included any requirement to provide support for school aged children.

Recommendations:

1. That you note the contents of this brief.

2. That you sign the attached written direction to Mr McIntosh.

3. That you note the possibility of a review of suitability of employment.

Regards,

Carissa Briant

HR Advisor

23^rd April 2013”. [Attachments not included]

[74] The written direction referred to in the recommendations was that of Assistant Commissioner Lammers dated 29 April 2013 which we have earlier set out.

[75] Mr McIntosh provided his further written submissions to the FWC on 31 January 2014 with a request that his further written submissions in reply be provided by 15 February 2014, instead of 12 February 2014. That request was acceded to by the Commissioner and Mr McIntosh provided his written submissions in reply on 13 February 2014.

[76] There was no denial of procedural fairness associated with the document of Ms Briant. Mr McIntosh received the document of Ms Briant on 30 January 2014 and provided his further written submissions on 31 January 2014, without requesting further evidentiary proceedings be conducted by the Commissioner and without making a request on receiving the document for further time to prepare those further written submissions. He demonstrated he was not inhibited from making such requests by his requesting on 31 January 2014 a further period for the making of his written submissions in reply.

[77] There was also no denial of procedural fairness in the Commissioner rejecting Mr McIntosh’s request of 28 January 2014 for an adjournment pending the outcome of a complaint against the Commissioner. Mr McIntosh had made no complaint against the Commissioner to the President of the FWC until 12 February 2012.

[78] In regard to the lack of respect Mr McIntosh submitted was shown to him by the Commissioner this was concerned with the tone of the Commissioner during the proceedings on 16-17 January 2014. We are not persuaded matters associated with the Commissioner’s tone during the proceedings denied Mr McIntosh procedural fairness. Much of Mr McIntosh’s complaint about the Commissioner’s tone is associated with her requiring him to answer questions he considered irrelevant, the Commissioner preventing him requiring an AFP employee to further answer a question and the Commissioner preventing him further questioning an employee on a matter. Issues with which we have already dealt. Moreover, while Mr McIntosh maintains he felt inhibited from pursing matters because of the Commissioner’s tone, he has not raised any relevant matters which he would have pursued but for the inhibition he maintains he felt.

[79] Mr McIntosh raises as a subset of his denial of procedural fairness ground of appeal that the Commissioner was biased. It is not apparent from his submissions that he is suggesting the Commissioner was actually biased in respect of his UDR application. Indeed, there was no evident basis on which he could do so. It seems Mr McIntosh is suggesting that the Commissioner should have disqualified herself by reason of the appearance of bias.

[80] Subject to qualifications relating to waiver or necessity, the Commissioner would have been disqualified by reason of the appearance of bias if a fair-minded lay observer might reasonably apprehend she might not bring an impartial and unprejudiced mind to the resolution of the question she was required to decide. 16 With the issue of apprehended bias to be considered in relation to the issues, or likely issues, in the proceeding before the Commissioner.17

[81] In Ebner v Official Trustee in Bankruptcy, 18 the majority held that the application of the apprehension of bias principle requires two steps:

“… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of biased be assessed.” 19

[82] Mr McIntosh did not establish, and we are not persuaded, that the Commissioner was actually biased in respect of his UDR application. Mr McIntosh also failed to articulate the nature of the Commissioner’s interest much less the “logical connection” referred to in Ebner. Further, there was no relevant basis on which we could conclude that a fair-minded lay observer might reasonably apprehend the Commissioner might not have brought an impartial and unprejudiced mind to the resolution of the issues or likely issues in the proceeding before her.

[83] We have dealt with the submissions about the Commissioner’s conduct which concerned her tone during the proceedings. As to the alleged errors of fact, even if they are errors there is no basis for us to conclude they were caused by bias on the part of the Commissioner.

[84] We now turn to deal with Mr McIntosh’s second ground of appeal concerning significant errors of fact.

(b) Significant errors of fact

[85] Mr McIntosh said the Commissioner made significant errors of fact in her decision. Those errors of fact were:

● her finding that Mr Trunz counselled Mr McIntosh about his attendance patterns and the unacceptable number of hours of work he was carrying as a debit; 20

her finding that there was no reason to believe a mistake was made by the AFP about the number of hours of work Mr McIntosh was in debit to the AFP, other than that arising from his failure to properly record leave to which he may have been entitled due to the birth of a child, and she otherwise accepted the calculations set out by the payroll team were correct; 21

her failure to consider whether the directive of 29 April 2013 by Assistant Commissioner Lammers to Mr McIntosh to “report for duties between the core business hours of 0900 to 1700 Monday to Friday commencing Monday 29 April 2013”, while not consistent with the enterprise agreement applying to Mr McIntosh, constituted an enforceable agreement between the AFP and Mr McIntosh; and

● her finding that Mr McIntosh understood that the history of his attendance at work at the AFP, that led to the need for the directions issued to him by the AFP, was also a relevant factor in the decision of the AFP to dismiss him. 22

[86] These errors were said by Mr McIntosh to be significant because they caused the Commissioner to err in finding that there was a valid reason for his dismissal and that he was notified of the valid reason.

[87] We are not persuaded the significant errors of fact Mr McIntosh suggests were made by the Commissioner were errors of fact or significant errors of fact. We have come to this view for the following reasons.

[88] Pursuant to clause 21(3) of the 2012 Agreement, Mr McIntosh’s normal hours of work were 0800 to 1600 Monday to Friday, unless he had an agreement with his supervisor to work his normal pattern of attendance of eight hours per working day within a bandwidth of 0600 to 2000 Monday to Friday.

[89] Further, pursuant to clauses 21(6) and (8) of the 2012 Agreement, Mr McIntosh had access to flex-time. However, all flex credit or debit hours had to be based on the genuine operational requirements of the AFP and approved by a supervisor prior to the hours being accrued or taken.

[90] Pursuant to clause 21(15) of the 2012 Agreement, his supervisor could direct him to work regular hours without access to flex-time for a specified period, where the supervisor had warned or counselled him within the previous six months about his inappropriate use of flex-time.

[91] It is evident that any agreement Mr McIntosh may have had with his supervisor to work his normal pattern of attendance of eight hours per working day within a bandwidth of 0600 to 2000 Monday to Friday ceased on 26 March 2013 when Mr Trunz formally required Mr McIntosh to return to the core support working pattern hours of 0800 to 1600.

[92] Mr McIntosh’s time records show that between 27 March 2013 and 21 May 2013, Mr McIntosh regularly commenced work at the AFP at or after 1000 and often he worked for less than eight hours per working day.

[93] Subject to one exception, the evidence does not support Mr McIntosh having the agreement of his supervisor to commence work at 1000 or later. Nor does the evidence support his flex debit hours on any of the days he worked for less than eight hours having been approved by a supervisor prior to them being taken.

[94] The one exception is 7 May 2013 when Mr McIntosh commenced work at 1555 and finished work at 1710, with the hours before 1555 being approved leave.

[95] The Commissioner concluded there was a valid reason for Mr McIntosh’s dismissal related to his conduct. That conduct being Mr McIntosh’s failure to work the core hours, being 0800 to 1600, directed by Mr Trunz; Mr McIntosh’s unreasonable reaction to Assistant Commissioner Lammers’ attempt at an alternative agreed arrangement to Mr McIntosh’s commencement and cessation times at work, as contained in his direction dated 29 April 2013; and Mr McIntosh’s wilful and deliberate defiance of the direction given by Assistant Commissioner Close in her advice to Mr McIntosh of 17 May 2013. That advice being that pursuant to clause 21 of the 2012 Agreement, Mr McIntosh was expected to commence work duty at 0800 and cease duty at 1600 from Monday to Friday in the absence of an agreement to working the eight hours within a bandwidth of 0600 to 2000, but that she was willing to have an agreement allowing Mr McIntosh to commence duty at 0930 and cease duty at 1730 from Monday to Friday.

[96] Given the bases for the Commissioner’s conclusion that there was a valid reason for Mr McIntosh’s dismissal, the Commissioner’s finding that “Mr Trunz had counselled the applicant about his attendance patterns and the unacceptable number of hours he was carrying as a debit” was not a significant error of fact. Pursuant to clause 21(15) of the 2012 Agreement, counselling is a pre-requisite to a directive concerning flex-time. The Commissioner’s finding that there was a valid reason for Mr McIntosh’s dismissal was not dependent on any directive concerning flex-time. In any instance, the finding was reasonably open to her having regard to at least Mr Trunz’s email to Mr McIntosh of 26 March 2013.

[97] Similarly, the Commissioner’s finding about the calculations on Mr McIntosh’s number of hours of work, if it is an error of fact, was not a significant error of fact. The Commissioner’s finding was as follows:

“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.” 23

[98] The Commissioner’s finding that there was a valid reason for Mr McIntosh’s dismissal was not dependent on this finding about the calculations on Mr McIntosh’s number of hours of work. The valid reason finding was, as we have indicated, based on Mr McIntosh’s conduct in failing to work the core hours of 0800 to 1600 and his inappropriate response to the AFP proposed alternatives.

[99] Moreover, while it is evident from his email to Mr McIntosh of 26 March 2013 that Mr Trunz misinterpreted the table he had before him containing the calculations on Mr McIntosh’s number of hours of work, which table we have earlier set out, Mr McIntosh has not established that the Commissioner misinterpreted the table. The above finding of the Commissioner, which Mr McIntosh submits is in error, does not indicate the Commissioner misinterpreted the table.

[100] There is also no error of fact as suggested by Mr McIntosh in the Commissioner failing to find Assistant Commissioner Lammers’ directive to Mr McIntosh of 29 April 2013 constituted an enforceable agreement between the AFP and Mr McIntosh. On the facts before her, the Commissioner could not have found the directive and Mr McIntosh’s response to it constituted an agreement as suggested by Mr McIntosh. This is not the least because Mr McIntosh understood the directive provided for him to work from 9.00 am to 5.00 pm and he believed it was difficult for him to attend work at 9.00 am. He indicated as much in his email to Assistant Commissioner Lammers and Ms Briant on 6 May 2013 and Ms Briant’s email to him later on 6 May 2013 confirmed as much. In so far as Mr McIntosh’s email of 10 May 2013 to Assistant Commissioner Lammers was indicating his agreement to something other than working from 9.00 am to 5.00 pm, it was disingenuous and constituted no agreement at all. To the extent the Commissioner considered Mr McIntosh interpreted the directive of Assistant Commissioner Lammers as meaning “he could commence duty at any time between 9am and 5pm” she was in error but it was not a significant error of fact in her reasoning.

[101] Assistant Commissioner Lammers’ directive dated 29 April 2013 for Mr McIntosh to work from 0900 to 1700 Monday to Friday was not made pursuant to clause 21(15) of the 2012 Agreement and, as we have indicated, was an attempt to obtain an agreement on Mr McIntosh’s work commencement and cessation times.

[102] The Commissioner’s finding that Mr McIntosh understood that the history of his attendance at work at the AFP was also a relevant factor in the decision of the AFP to dismiss him, if it is an error of fact, was not a significant error of fact.

[103] As we have indicated, the Commissioner’s finding that there was a valid reason for Mr McIntosh’s dismissal because of his conduct was not dependent on her finding about what Mr McIntosh understood about the history of his attendance being a factor in the AFP’s decision to dismiss him.

[104] In addition, ss.387(b) and (c) of the FW Act require that a person be notified of the valid reason for their dismissal before the decision to dismiss is made and given an opportunity to respond to that reason before the decision to dismiss is made. 24 The Commissioner found that Mr McIntosh was notified of the reason for his dismissal in the AFP letter to him of 27 May 2013. That 27 May 2013 letter clearly set out that consideration was being given to terminating Mr McIntosh’s employment for his failure to adhere to the directives. The letter also referred to his supervisors’ concern with his established pattern of attendance at work at the AFP. Further, the letter indicated the matters the AFP had considered included the directives, his emails to ICT Management at the AFP and his leave and time recording history. The letter invited Mr McIntosh’s written response within seven days and advised that a decision on his continued employment with the AFP would consider any such response. Mr McIntosh was subsequently afforded extra time to respond. The Commissioner also found Mr McIntosh was given the requisite opportunity to respond. Mr McIntosh responded to the AFP letter on 4 June 2013. Mr McIntosh was dismissed on 2 July 2013.

[105] Having regard to the content of the AFP letter of 27 May 2013 and the extra time Mr McIntosh was given to respond to it, the Commissioner’s findings to the effect that Mr McIntosh was notified of the valid reason for his dismissal and given an opportunity to respond were reasonably open to her. The findings were not dependent on her finding that Mr McIntosh understood the history of his attendance was also relevant to the AFP decision to dismiss him. As a result, to the extent this finding about what Mr McIntosh understood was an error of fact, it was not a significant error of fact.

[106] In any instance, we are not persuaded the Commissioner’s finding about what Mr McIntosh understood was an error of fact given the content of the AFP letter of 27 May 2013 and Mr McIntosh’s response of 4 June 2013, including its explanation of his difficult family circumstances and the unreliability of his car. Mr McIntosh’s history of attendance at work at the AFP was a manifestation of his non-compliance with the directives given to him.

[107] The other findings of the Commissioner to which Mr McIntosh objected were either reasonably open to the Commissioner on the evidence before her or were not significant errors of fact such that her decision involved a significant error of fact.

Conclusion

[108] Mr McIntosh has not established that the Commissioner’s decision involved a significant error of fact or that it is in the public interest for us to grant permission to appeal from the Commissioner’s decision.

[109] In the circumstances, we refuse Mr McIntosh permission to appeal from the decision of Commissioner Deegan in matter U2013/2420 and, to the extent necessary, dismiss his appeal. An order 25 to that effect is being issued at the same time as this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

A. McIntosh on his own behalf.

A. Reilly for the Australian Federal Police.

Hearing details:

2014.

Canberra:

July 31.

Final written submissions:

Respondent, 8 August 2014.

Appellant, 17 August 2014

 1   Adan McIntosh v Australian Federal Police, [2014] FWC 1497

 2   AC306079.

 3   AE891991.

 4   Email from Adan McIntosh to the Chambers of Commissioner Deegan dated 28 January 2014.

 5   Adan McIntosh v Australian Federal Police, [2014] FWC 1497 at [111].

 6   Ibid [112].

 7   Ibid [114].

 8   Ibid at [113].

 9   Ibid at [123].

 10   Minister for Immigration and Multicultural Affairs v Bhardwaj, (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ.

 11   Re Refugee Review Tribunal and Another; Ex parte AALA, (2000) 204 CLR 82 at [104] per McHugh J.

 12   Stead v State Government Insurance Commission, (1986) 161 CLR 141 at 145.

 13   Sullivan v Department of Transport, (1978) 20 ALR 323 at 343 per Deanne J.

 14   Reihana v Mastercare Highrise Cleaning Services Pty Ltd, [2014] FCA 353 at [23].

 15   Transcript in U2013/2420 at PN728.

 16   Johnson v Johnson, (2000) 201 CLR 488 at 492; and Ebner v Official Trustee in Bankruptcy, (2000) 205 CLR 337 at 344 and 350.

 17   The AWU-FIME Amalgamated Union v Acton and Other, (1994) 57 IR 271 at 280.

 18   (2000) 205 CLR 337.

 19   Ibid at 345.

 20   Adan McIntosh v Australian Federal Police, [2014] FWC 1497 at [111].

 21   Ibid.

 22   Ibid at [116].

 23   Ibid at [111].

 24   Crozier v Palazzo Corporation Pty Ltd, (2000) 98 IR 137 at [70]-[75].

 25   Adan McIntosh v Australian Federal Police, PR556055.

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