[2017] FWC 2518
The attached document replaces the document previously issued with the above code on 12 May 2017.
The name of the Respondent’s solicitor appearing at page 19 is corrected.
Associate to Deputy President Lawrence
12 May 2017
| [2017] FWC 2518 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Hackett
v
Australian Federal Police
(U2016/14045)
DEPUTY PRESIDENT LAWRENCE |
SYDNEY, 12 MAY 2017 |
Application for relief from unfair dismissal.
Introduction
[1] On 24 November 2016 Mr Paul Hackett (the Applicant) lodged with the Fair Work Commission (the Commission), pursuant to s.394 of the Fair Work Act 2009 (the Act) an application for a remedy for unfair dismissal against his former employer the Australia Federal Police (AFP).
[2] The Applicant commenced employment with the AFP on 3 August 2009. The Applicant says that he was notified of the dismissal on 9 November 2016 and the dismissal took effect on that day.
[3] The Applicant was a member of the Australia Federal Police Association (AFPA) and the application was lodged on his behalf by the AFPA.
[4] The Applicant was a Federal agent attached to “Crime Operations A” in the Sydney office of the AFP. He commenced with the AFP in Canberra and transferred to Sydney in February 2012.
[5] The events that led to the Applicant’s dismissal arose from events in his private life. The Applicant is in his late fifties, has been married and has adult children from that marriage. In 2011 he commenced a relationship with Ms K. He moved to Sydney to continue the relationship. It was the events around the breakdown of that relationship, which the Applicant says, finally occurred in June 2014, that led to the accusations against him and ultimately his dismissal by the AFP.
[6] I will outline those events, in so far as they are relevant to the application, but at this stage, it is sufficient to note that:
● There was an extensive process of investigation as one would expect by the AFP;
● The AFP sent the Applicant a “show cause” letter dated 25 July 2016;
● The AFPA responded, on the Applicant’s behalf, on 26 August 2016;
● Assistant Commission Michael Chew signed the termination letter which was dated 4 November 2016.
[7] The Termination letter dismissed the Applicant, pursuant to s.28 of the Australian Federal Police Act 1979 (the AFP Act). The Applicant was dismissed for serious misconduct that led to a breach of the Professional Standards and Code of Conduct of the AFP in respect of four charges:
(i) Between 11 December 2013 and 8 April 2015, the Applicant had stalked and intimidated Ms K and others.
(ii) The Applicant made false records in his diary and AFP computer systems to the effect that he commenced work at 8.00 am on 8 April 2015, when in fact he did not start until after 9.00 am.
(iii) On 2 June he supplied those false records in a court statement.
(iv) The Applicant had denied making harassing phone calls and sending texts to Ms K and other events in a Professions Standards (PRS) interview when, in fact, he had done so.
[8] The Applicant was dismissed because he had failed, it was said, to behave in a professional manner and in accordance with the AFP policies and Core Values and Code of Conduct, such that the reputation of, and public confidence in, the AFP would be maintained.
[9] The Applicant denied some of the facts in relation to the allegations and admitted others. He submitted that the AFP’s process of investigation was unfair. He further submitted that the action of the dismissal was not justified by the evidence and was disproportionate to any error that he may have made. In any event, these were events in his private life in respect of which the AFP had no role.
[10] The AFP says that the Applicant was terminated following a comprehensive and fair investigation that substantiated, on the balance of probabilities, that the Applicant was guilty of:
● Stalking and intimidation;
● Falsifying time records;
● Providing incorrect information to a Court proceeding;
● Being evasive/misleading during the official investigation.
[11] The AFP attached to its F3 response a redacted version of the Professional Standards Investigation Report. By the time of the hearing, the parties had agreed on the version that could be admitted into evidence. This became Exhibit W2. It still contained some redactions.
[12] The AFP submitted that the accusations against the Applicant, which were substantiated, meant that the Applicant had engaged in conduct which was contrary to the values of the AFP. He was not, therefore, suitable to be an AFP officer even though the alleged conduct occurred, mostly, away from the workplace.
Commission Proceedings
[13] The matter was conciliated on 19 December 2016 but not resolved.
[14] I conducted a telephone programming hearing on 18 January 2017.
[15] The hearing took place on 23 and 24 March and 3 April 2017.
[16] The Applicant was represented by Mr M. Chilcott of the AFPA. The Respondent was represented by Mr R. Warren of counsel. Mr Warren was granted permission to appear pursuant to s.596 of the Act.
[17] The Applicant relied on written and oral submissions and the witness statements of the Applicant (Exhibit C2) and his current partner (Exhibit C1).
[18] The Respondent relied on written and oral submissions and the witness statements of:
● Sergeant John Czerwinski. |
(Exhibit W1) |
● Federal Agent Rebecca Corby. Agent Corby headed the Professional Standards Investigation team. Her statement had over 40 attachments. |
(Exhibit W3) |
● Commander Michael Chew. His statement had some 16 attachments including the most complete version of the Adjudication Report into the allegations against the Applicant. (Attachment MC-9) |
(Exhibit W5) |
[19] I also viewed extracts from the video of the interview with the Applicant conducted by the PSI investigation officers.
Protection from Unfair Dismissal
[20] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[21] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) The person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) One or more of the following apply:
(i) A modern award covers the person;
(ii) An enterprise agreement applies to the person in relation to the employment;
(iii) The sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[22] The Applicant was covered by the Australian Federal Police Enterprise Agreement (2012 – 2016) [AE891991] (The Agreement). He had a salary of $60,876 per annum plus a composite allowance of $13,392.72. It is therefore clear that he was a person protected from unfair dismissal in accordance with s.382 of the Act
Preliminary Matters
[23] Section 396 provides that certain matters must be determined by the Commission before proceeding to deal with the merits of a matter. It provides:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[24] None of these matters were at issue in this case. In particular I note that the AFP had 6,580 employees at 30 August 2016.
Was the dismissal unfair?
[25] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[26] No issue was raised pursuant to s.385(a) (c) or (d).
Harsh, Unjust or Unreasonable
[27] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
“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.”
The Applicant’s Case
[28] The Applicant says that his relationship with Ms K was turbulent because of her relationships with other men. He says that he ended it finally on 24 June 2014. On 20 November 2014, one of the Applicant’s superior officers received a telephone call from Ms K complaining that the Applicant was harassing her. There was a further complaint by Ms K in early December. On 9 December 2014 the complaint was referred to the Professional Standards Investigation Team Sydney (PRS).
[29] On 19 December PRS interviewed the Applicant in which he denied the allegations of stalking, making harassing phone calls, and using his Facebook account to harass the Applicant.
[30] On 5 March 2015 the Applicant had a work related motor vehicle accident that caused considerable stress.
[31] On 11 April 2015 Ms K made an application for an Apprehended Violence Order (AVO). The Applicant provided the NSW Police with a statement in response on 2 June 2015. The AVO application was not pressed.
[32] The Applicant had a second PRS interview on 28 July 2015 in which he again denied the allegations.
[33] The AFP gave the Applicant a “show cause” letter on 25 July 2016 to which he responded on 26 August 2016. He received the termination letter on 10 November 2016.
[34] The Applicant says that the PRS findings were not based on the facts and were not supported by corroborating evidence. The AFP had accepted Ms K’s version of events rather than his alternative explanations. The Applicant did not deny recording the wrong starting time on 8 April 2015 but says that this was not a deliberate act. He was under stress from the car accident, which meant that he was desk-bound, and the relationship breakdown. He acted on advice from his supervisor. He denied that it was done to create an alibi for the fact that he was harassing Ms K at the time. The Applicant denied using public telephones to repeatedly call Ms K.
[35] The Applicant relies on his good professional record with the AFP. The termination was a disproportionate and unfair response to the allegations.
[36] The Applicant provided a medical report dated 29 February 2016 that stated that he “is permanently unfit for operational police duties”. In September 2016 his working hours were changed from 5 hours per day, 3 days per week to 5 hours per day, 4 days per week which caused him considerable neck and back pain and headaches. The inference was that the Applicant’s medical condition was a reason for the dismissal rather than the misconduct allegations.
[37] The Applicant’s response to the “show cause” letter was detailed. Inter alia, he admitted that he had left a torn T shirt in Ms K’s yard. He attaches medical reports which refer to previous medical breakdowns and on going depression. He also attaches supportive comments by other AFP offices relating to aspects of his service.
[38] The Applicant admitted some of the alleged conduct, namely:
● In early 2014 placing condoms at night in Ms K’s front yard which were treated to make them appear to be used.
● Placing a cut T-shirt on her car in February 2013.
Both events occurred whilst their relationship was still in place.
[39] He says that there were alternative explanations for the other alleged incidents, namely:
● harassing Facebook posts;
● repeatedly driving past Ms K and her home;
● hang-up calls from public telephone boxes.
He denied making harassing phone calls from public places to the Applicant at all.
[40] The Applicant takes issue with the “extraordinary length” of the investigation into the allegations by the AFP which was almost two years between the first allegation and the dismissal. He was not suspended during this time.
The AFP’s Case
[41] The AFP’s Professional Standards and Core Values are contained in the AFP Act and the Commissioner’s Order on Professional Standards. As well as acting with honesty and propriety etc., each officer must uphold the integrity and good reputation of the AFP. The AFP is required to deal with any personal conduct issues, even if they are of a private nature.
[42] The AFP says that the Applicant was spoken to as soon as Ms K’s first allegations were made in November 2014. He promised to keep away from her. Yet, further allegations were made in December.
[43] The formal PRS investigation was then commenced. Following the first formal interview on 19 December 2014, the PRS officers conducted further inquiries. The investigation was categorised as Category 3, which is, essentially, serious misconduct, which is not a corruption issue.
[44] A second interview was delayed awaiting a final position with respect to the AVO. An interim order had been granted in April 2015 but it was withdrawn in June.
[45] PRS reviewed the material submitted in the AVO matter. It was then that the Applicant’s alleged falsification of his time records came to light.
[46] The second PRS interview took place on 28 July 2015. A comprehensive report was then prepared which made findings as to the allegations. It is signed by Agent Corby and dated 11 March 2016 (Exhibit W2).
[47] The Applicant was provided with a redacted copy of W2 and then a “show-cause” letter on 29 July 2016; that is one year after the second PRS interview.
[48] The AFP says it took all matters into account, including the Applicant’s written response of 26 August in coming to its decision to dismiss the Applicant.
[49] The AFP submits that the PRS investigation process was comprehensive, lengthy and fair. It relied on multiple sources of information. The Applicant admitted certain conduct and had implausible explanations for other conduct. The Applicant’s health and personal circumstances were considered in mitigation of his conduct.
[50] There was also an “Adjudication” undertaken by a senior former officer, pursuant to the AFP’s internal processes, which led to a report which endorsed the findings in the PRS report. This was provided on 21 May 2016.
[51] Rebecca Corby’s evidence was that the likelihood of the Applicant deliberately falsifying his attendance record for 8 April was increased by the fact that this was the only error within the month. The time records were submitted on 13 April, two days after the AVO order was served. The Applicant’s supervisor, Sergeant Czerwinski denied that he had instructed the Applicant to enter 8.00 am as the start time (See Exhibit W1). This evidence was not subject to cross-examination.
[52] Although the Applicant’s conduct was mostly outside the workplace, it must be assessed against the high standards expected of police officers. The interests and reputation of the AFP were put into serious jeopardy by the actions of the Applicant.
[53] Agent Corby emphasized that the role of the PRS investigation is to come to an objective conclusion as to the facts and make recommendations to the adjudicator and the National Manager of People. She took over the investigation in May 2015. In her statements she sets out the various steps in the investigation in great detail. She provided a DVD of the 28 July 2015 interview, excerpts of which were played during the hearing. She emphasises that she spoke to other witnesses in relation to the Applicant’s vehicle being near Ms K’s house and his presence near the public phone box. The Applicant also admitted leaving smashed Lego toys in Ms K’s front yard and making hang-up calls to her. The Facebook posts which referred to Ms K’s vagina, were posted in such a manner so that they were likely to be seen by her. In any event, a serving police officer ought to have known that these messages had the potential to intimidate Ms K.
[54] The redacted version of the Investigation Report was given to the Applicant on 30 March 2016 so that he could prepare this response.
[55] Commander Chew has the role of Acting National Manager, Safety and Security. It was his role to review the PRS investigation report and respond to it. He took into account the Applicant’s “Natural Justice Response” dated 29 April 2016. He also took into account the Adjudicator’s Report dated 21 May 2016. He had before him, as well, the records in respect of the Applicant’s employment history and work performance. The Adjudicator in this case was Mr Paul McDermot who is a former Assistant Commissioner of the AFP. His role is to review the PRS investigation report before the full brief goes to the AFP decision maker.
[56] With respect to the time sheet falsification allegations, Commander Chew noted the importance of an AFP officer providing truthful information to the courts.
[57] Commander Chew says that he took the Applicant’s mental health condition into account but concluded that these did not outweigh the conduct that was admitted by the Applicant and the other allegations that were found to be established on the balance of probabilities. Further, the Applicant was found to be evasive and uncooperative during the interviews.
[58] Consequently, the Show-Cause Notice was issued on 25 July. The AFPA responded on the Applicant’s behalf on 26 August. The decision to terminate was made on 4 November.
Approach of the Commission
[59] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[60] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:
“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”
Valid Reason - s.387(a)
[61] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.
[62] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly ...”
[63] In Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166, the Full Bench held:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[64] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:
“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.
[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).
[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.
...
[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.
[35] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
. . .
[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”
Conduct out of working hours
[65] This case was one where most of the allegations against the Applicant related to events which occurred out of working hours and away from the workplace. Therefore, I sought submissions from the parties on this issue.
[66] The decision in Rose reviewed a range of decision of the Commission and other tribunals. At page 12 of the print the then Vice President concluded:
“It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
� the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
� the conduct damages the employer’s interests; or
� the conduct is incompatible with the employee’s duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”
[67] His Honour analysed the facts of several cases and concluded that a valid reason for termination for conduct outside work would require “requisite connection to his employment”. He concluded that this was not such a case because there was not a reasonable basis for concluding that the conduct had damaged the employer’s interests.
[68] In Anthony Farquharson and Qantas Airways Limited [PR971685], 10 August 2006, a Full Bench, VP Lawler, SDP O’Callaghan, Raffaelli C dealt with “the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees.” In that case, Qantas had a legitimate interest in ensuring that incidents did not occur which damaged its interests and reputation.
[69] The High Court in State of NSW v Lepore & Ors [2003] HCA 4; (2003) 221 CLR 511 considered at length the duty of care owed by a school to its students. A school is vicariously liable for the actions of an employee, even if occurring away from the workplace or outside normal working hours, if there is sufficient connection with authorised acts during the course of employment.
[70] Gleeson CJ said at paragraph 142:
“The duty arises on the enrolment of the child. It is not confined to school hours or to the commencement of the teacher’s hours of employment at the school.”
[71] Michael King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta [2013] FWC 8914 was another case about a teacher. At first instance, I held that there was a valid reason for the dismissal of Mr King because he had failed to comply with a lawful direction. This was so even though the actions of Mr King were out of hours. The “requisite connection to the employment relationship was the students of the college and the special duty of care that the teachers have.”
[72] On appeal the Full Bench emphasised this point. King v Catholic Education Office Diocese of Parramatta [2014] 242 IR 249:
“[26] It is well established that an employee has an obligation, implied by law, to comply with the lawful and reasonable directions of his or her employer. The circumstances in which an employer’s direction will be lawful were described by Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-622 per Dixon J) in the following terms:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.
[27] The expressions within the above passage “relates to the subject matter of the employment” and “within the scope of the contract of service” have been regarded as synonymous in respect of the limitation expressed (McManus v Scott-Charlton (1996) 70 FCR 16 at 21E). The scope of employment is a somewhat broader conception than just the course of the performance of duties under the employment contract (See Moreton Bay College v Teys [2008] QCA 422 at [51]-[52]). Textbooks have described the scope of the employment of an employee as determined by the nature of the work the employee is engaged to do, the terms of the contract, and customary practices or the course of dealings between the parties (Sappideen, O’Grady, Riley and Warburton, Macken’s Law of Employment (7th Ed) at 8.280 (the same passage in an earlier edition having been quoted with approval in Tran v Calum Textiles Pty Ltd (1997) 42 AILR 3-553 (No VI 1401 of 1996); Irving, The Contract of Employment at 7.6 p 343). It does not extend to private or personal activities of an employee, not affecting his or her work. In Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42, quoted with approval in McManus v Scott-Charlton (1996) 70 FCR 16 at 21F), Higgins J sitting as President of the Court of Conciliation and Arbitration said:
A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.
[28] The circumstances in which an employer may make lawful directions in respect of the off-work activities of employees will therefore usually be very limited. In McManus v Scott-Charlton (McManus v Scott- Charlton (1996) 70 FCR 16 at 29C) the Federal Court (Finn J) said: “I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.” In Appellant v Respondent (Appellant v Respondent (1999) 89 IR 407 at 416) a Full Bench of the Australian Industrial Relations Commission said that “it is only in exceptional circumstances that the employer has a right to extend any supervision over the private activities of the employees.” Statements of this nature suggest that there must necessarily be significant connection with or effect upon the employee’s employment in order for an employer’s direction concerning the out-of-hours activity and conduct of an employee to fall within the scope of the employment and thus be lawful.
[29] The nature of the employment in question, and the statutory, contractual and other legal obligations applicable to such employment, affect the scope of the employment and the capacity of the employer to issue lawful directions concerning out-of-hours conduct. Police officers, for example, who in contemporary circumstances are engaged under contracts of employment, have obligations (originating from the common law office of constable) to keep and preserve the peace and comply with lawful orders from those with authority over them even when they are off-duty (see e.g. Police Regulation 2008 (NSW), cll 7 and 8). In respect of public servants, some of the powers give to the Crown as employer exist for public interest and not just employment-related purposes, with the result that the scope of supervision over public servants’ private activities may extend beyond what is countenanced by an employee’s implied contractual duty of fidelity and good faith (McManus v Scott-Charlton (1996) 70 FCR 16 at 25).”
[73] Sandra Johnston v Australian Federal Police [2014] FWC 4201 was a case about an AFP officer who made an allegedly false complaint to the NSW Police. The fact that she made clear to the NSW Police that she was an AFP officer was held by Deegan C. to create the connection with her employment. The high standards expected of AFP officers was also emphasised as was the fairness of the AFP’s investigation process.
Conclusion as to valid reason
[74] This case was different from most unfair dismissal cases because the employer, the AFP, had gone through so many internal investigations / review processes before the dismissal which led to “sifting” of the evidence and issues. This included particularly:
[75] I have considered all of this material but, of course, the Commission must come to its own view, based on the totality of the evidence, as to whether there is a valid case for dismissal.
[76] Four conduct issues were identified in the PRS Report in respect of which the Applicant was found to have breached the AFP Code of Conduct. I am satisfied that in each case the allegations were substantiated. I now deal with each allegation in more detail.
Allegation 1 – stalking and intimidating Ms K. and others
[77] The Applicant admitted that he placed a slashed t-shirt that Ms K had given him on the bonnet of her car on 11 December 2013. The Applicant admitted that he placed condoms made to appear used, on Ms K’s front law in March 2014.
The Applicant further admitted to making “hang up” calls to Ms K after the relationship had broken up.
[78] A review of the material placed on Facebook leads to the conclusion that it was intended to refer to Ms K and be seen by her. Ms K also provided a number examples of the Applicant driving by and parking near her house at different times including late at night.
[79] In the original interview in December 2014 the Applicant made the admissions noted above and gave an undertaking that he would cease trying to contact Ms K but he clearly did not adhere to this.
[80] The PRS Report (W2) contains summaries of interviews with other witnesses whose names are redacted. Obviously they were not subject to cross examination but, in the circumstances, they provide some support for the allegations by Ms K.
[81] I am satisfied based on the Applicant’s admissions and the balance of probabilities with respect to the Facebook allegations that the allegations of stalking and intimidating behaviour are made out. Whether this conduct occurred while the Applicant and Ms K were in a relationship or not appears to me irrelevant. It is inconsistent with the standards that are required of police officers.
Allegation 2 – making false records that the Applicant commenced work on 8 April 2015 at 8am when he did not commence until 9am
[82] In the AVO application Ms K said that she had seen the Applicant driving near the local shops just after 8am on 8 April 2015. In his response the Applicant denied this and said he was at work. He attached his time records to prove this.
[83] However it is admitted that these were false. Office records showed that he had swiped his access pass at 9:08am. The Applicant gave evasive explanations during the 28 July 2015 interviews of his whereabouts. Sergeant Czerwinski’s evidence, which was unchallenged, was directly contradictory to the Applicant’s evidence.
[84] I am satisfied that the Applicant made a false record as to his starting time on 8 April 2015 and that this was not done inadvertently or as a result of an instruction by his superior.
Allegation 3 – supplying these false records in a court statement
[85] The false records referred to above were provided in the Applicant’s statement to the NSW Police in the AVO matter. They were clearly designed to support the Applicant’s version of events.
I am satisfied that this conduct was deliberate and inconsistent with the standards expected of a police officer.
Allegation 4 – denying in the PRS that a public phone was used to make harassing calls to Ms K and sending harassing texts
[86] Ms K’s evidence to the PRS investigation team was that she had seen the Applicant and his car near the public phone soon after some of the harassing phone calls. The PRS obtained the phone records from this box which showed numerous calls to Ms K’s phone in September – December 2014.
I am satisfied, on the balance of probabilities, that the Applicant made those calls. In interviews on 19 December 2014 and 28 July 2015, the Applicant denied making these calls. Yet other witnesses saw him in the vicinity and he was not at work at the relevant time. I consider it likely that the Applicant attempted to mislead the PRS in this regard.
[87] I found the Applicant to be an evasive witness who was not forthright in his answers. This was so in the videos of the 19 December 2014 and 25 July 2015 interviews and cross-examination in the hearing. For example, he denied initially that he made hang up calls to Ms K (see PN 192-193), Yet after the 19 December interview was played, he was forced to admit that he made ‘hang up’ calls. His explanation was:
“You agreed at that interview that in the 12 months up to that interview – that being in December 2014 – so it was during 2014 you had rung her and hung up abruptly - not hung up when it wasn’t answered, but hung up abruptly when it was answered; you agreed you had done that maybe 10 to 20 times up until September 2014, didn’t you? –I don’t believe so. I think the question was had I called her, had I ever called her and hung up, and I said, “Yes, I probably have,” and the answer was related to the fact that I had called her in the past and she hadn’t answered the phone, and I had hung up.
I suggest to you that that was not the context in which the questions were put to you during that interview? – That’s the context that I understood the question to be.
We might have to go there. I suggest to you that in the interview it was put to you that you have rung her both on her landline and/or her mobile before she changed her number, and you had done it more than once, you had done it on numerous occasions; you had done it in the middle of the night. You knew it would be a cause of concern for her, and you agreed you may have rung her home phone at night and hung up. Do you agree with what I’ve said now or not? – I don’t believe so, no. As I said, the question was: had I ever, in the past, called her and hung up the phone, and I had said yes, I did. If she hadn’t answered a phone I would answer the phone – make the call, if she didn’t answer, I would hang up. (PN 394-396)
…
Just wait for my question. I suggest to you that Federal Agent Rutley put to you during that interview that in the 12 months prior to 19 December 2014 you had rung her for purposes of her answering the phone to you and then hanging up. Do you agree or disagree? – No.
Ok. And I suggest to you that you said maybe you had done it 10 to 20 times up until September 2014. Do you agree with that, or not? – I do recall saying something about that in regard to the fact that we were in and out of a relationship, and I could call her, and if she didn’t answer the call, then I would hang up. (PN400-401)
[88] Similarly, the Applicant was evasive about what he was doing between 8am and 9am on 8 April 2015. His evidence that he was having breakfast in a caf� in the city appears to be unlikely to me. The evidence of Sergeant Czerwinski, which was not the subject of cross-examination, must be accepted in preference to that of the Applicant.
[89] I found Agent Corby to be a credible witness. She presented as professional and detached. I found no indication that the PRS process was not carried out fairly. It was not conducted on the basis of a criminal standard of proof nor should it have been.
[90] For the reasons outlined, I am satisfied that these substantiated allegations, taken together, constitute a valid reason for the dismissal of the Applicant. The actions of the Applicant were inconsistent with the AFP’s Professional Standards and Core Values. They had the potential to bring the integrity and the reputation of the AFP into disrepute. His conduct was inconsistent with the confidence the public is entitled to have in a police officer.
Notification of valid reason – s.387(b)
[91] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit term, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial commission dealing with similar provision of the Workplace Relations Act 1996 Stated the following:
“ [73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any ) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[92] The AFP’s process of investigation of the allegations was extensive and lengthy. There is no suggestion that it departed from the AFP’s standard procedures in such matters.
[93] The following is a brief summary of the major steps in the investigation:
[94] The AFPA was critical of the length of time the investigation took. I concede it was not rushed but it is difficult to see that this disadvantaged the Applicant. He was notified of the issues and provided with the relevant documentation at each stage.
[95] Mr Chilcott also alleged that the officers who carried out the PRS investigation were biased and had already made up their minds. I do not agree. The videos of the interviews reveal that the questioning was appropriately robust as one would expect from police officers but it was fair. I am satisfied that all the evidence which was reasonably available was taken into account.
[96] Accordingly, I am satisfied that the Applicant was notified of the valid reason for the dismissal before the AFP made the decision.
Opportunity to respond s.387(c)
[97] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality (RMIT v Asher (2010) 194 IR 1, 14-15).
[98] It follows from the above series of events, that the Applicant had an opportunity to respond to the allegations and the various investigative reports. He did, in fact, did so on a number of occasions.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[99] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[100] No issue was taken by the Applicant with respect to this matter. He was offered a support person at both the December 2014 and July 2015 PRS interviews. He did not avail himself of this. However, he was represented by the AFPA at each subsequent step (see PN 260-262).
Warnings regarding unsatisfactory performance – s.387(e)
[101] This matter was not relevant in this case.
Impact of size of the Respondent on procedures followed – s.387(f); Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[102] The AFP is a large employer and it conducted its investigation in a very formal structured way.
Any other matter the FWC considers relevant
[103] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3-2 of the Act contained in s.381(2) to “ensure a fair go all round’ is accorded to both the employer and the employee concerned.”
[104] The submission was made, on behalf of the Applicant, that he should have been suspended during the investigation if the allegations were so serious. Even if there was some force to this point, it doesn’t change the facts. As well, the Applicant was, in effect on “restricted office duties” as a result of the motor vehicle accident that he had. Moreover, the Applicant was not disadvantaged.
[105] I have taken account of the Applicant’s personal circumstances and the medical evidence but I am not persuaded that these lead to a different result. Similarly, the length of the Applicant’s service of 7 years is not such as to alter the result.
[106] For these reasons, I find the dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair within the meaning of s.385.
[107] The Application for unfair dismissal relief is therefore dismissed. An order accompanies this decision.
DEPUTY PRESIDENT
Appearances:
M. Chilcott with V. Linabury, AFPA for the Applicant;
R. Warren of counsel with D. Delimihalis, solicitor for the Respondent.
Hearing details:
2017
Sydney:
January 18 (Telephone conference);
March 23, 24;
April 3.
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