Dec 907/98 M Print Q3730
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.70CE application for relief re termination of employment
Australian Quarantine Inspection Services
(U No. 32087 of 1997)
COMMISSIONER HOLMES MELBOURNE, 6 OCTOBER 1998
Alleged unfair termination.
The Commission had before it an application by Valentine Previsic pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) for relief in relation to the termination of his employment by the Australian Quarantine Inspection Service (AQIS). The matter had been the subject of jurisdictional argument before Commissioner Whelan who in her decision [Print P6753] in determining the question of probationary period said:
"Under the circumstances of this case, I am of the view that a period of 12 months may have been reasonable, given the nature of the position and the circumstances of the applicant's appointment. I do not believe, however, that a period in excess of twelve months could be considered reasonable. I, therefore, find that the applicant is not excluded from the relevant provisions of the Workplace Relations Act by virtue of section 170CC(1)(b) and Regulation 30B(1)(c)." [Print P6753]
As a consequence of Commissioner Whelan's decision Valentine Previsic in effect became a permanent public servant employed under the Public Service Act 1922 (Commonwealth) on 19 February 1997, in that on that date he had completed a twelve month probationary period. The s.170CE application effectively sought to have determined as unfair a decision of the delegate of the Secretary of the Department of Primary Industry and Energy, Ms.. Lawrence, of 23 June 1997, which terminated the employment of Mr. Previsic and sought Mr. Previsic's reinstatement.
Whilst Commissioner Whelan's decision provides some detail in relation to the background to the matter given the significance of the processes which led to the decision to terminate Mr. Previsic's employment it is necessary to recover some of that ground and deal with some aspects in greater detail.
On 19 February 1996 Mr. Valentine Previsic commenced employment with AQIS as an investigation officer. The actual appointment was made on 22 December 1995. The designation of the office to which Mr. Previsic was appointed was Administrative Services Officer Grade 6, Compliance, Legal and Evaluation Branch, AQIS, Department of Primary Industry and Energy.
On 27 February 1996, Mr. Charles Ironside, Principle Executive Officer of the Business Ethics Security Investigation Unit of the Department of Primary Industry and Energy wrote a minute to Mr. J. Cahill, Manager, Support Services Branch which relayed some five allegations concerning Mr. Previsic. That minute [Exhibit P4] indicated that information had been supplied through a reliable but unnamed source and its bona fides had been confirmed by Mr. Ironside. Given the nature of those allegations and the fact that on the evidence before me only one of those allegations - the least significant - has been demonstrated to have any foundation whatsoever, I do not believe it is appropriate to set them out in this decision. However, it is necessary to observe that they involved allegations of serious criminal behaviour and other activities which were improper given Mr. Previsic's previous employment as a sworn officer of the Victoria Police Force.
At the request of management and prior to his appointment Mr. Previsic completed the relevant application forms necessary for pre-employment checks to be made [Exhibit P1]. However on the evidence before me it would seem that those checks were never undertaken.
In March 1996 AQIS made inquiries of the Victoria Police Force in relation to the allegations contained in Mr. Ironside's minute. The Victoria Police was not prepared to provide any information without the consent of Mr. Previsic. On 1 April 1996 Mr. Previsic together with five other recently appointed officers of the Investigation Unit of AQIS received a request that they consent to AQIS carrying out personal integrity checks. That request was justified on the bases first that a review of the officers probation performance was to be undertaken and a decision to be made concerning their permanent appointment to the Australian Public Service and second that a user security review was being undertaken as part of the implementation of a new information system CIS [Exhibit P19]. Mr. Previsic completed the proformas on 10 April [Exhibit P19].
On 17 April 1996 Mr. Previsic's normal duties were changed in that he was no longer involved in conducting investigations but rather given a special project; although from time to time subsequently he did assist other officers conducting investigations but was not the primary investigator.
On 9 May 1996, Mr. Prothero, National Compliance Manager, of the Compliance, Legal and Evaluation Branch of AQIS had a meeting with Acting Superintendent Sharp of "B" District of the Victoria Police during which he was advised of various matters contained on Mr. Previsic's file. Those issues discussed led to the preparation of a document which related to the background of Mr. Previsic's appointment and were specified in an attachment to a letter sent by Mr. Prothero to Mr. Previsic dated 20 May 1996 [Exhibit P20]. The attachment contended that the Victoria Police alleged that their records showed that Mr. Previsic had received three official admonishments and two caution notices during his service with the Victoria Police. That document also dealt with other issues such as internal investigations, counselling, performance reviews and other issues. Mr. Previsic was invited in the covering letter of 20 May 1996 to address the issues raised in the letter and the material contained in the attachments. These issues are dealt with in greater detail below.
On 11 June 1996 Mr. Previsic responded to the concerns raised by Mr. Prothero's letter (20 May 1996). The response was some 48 pages in length and is Exhibit P21. On 19 June Mr. Prothero wrote further to the Victoria Police seeking comment in relation to a number of issues raised by Mr. Previsic's response. That letter to the Victoria Police [Exhibit P23 and A1] contained as an attachment a summary of the comments which Mr. Prothero believed were germane to his inquiries regarding Mr. Previsic's suitability for permanent appointment to the Public Service. The summary had been prepared using Mr. Previsic's response. Mr. Prothero sought the comments of the Victoria Police on the issues raised in this letter and the attached summary. On 14 October 1996 Mr. Prothero responded to a request from Mr. Previsic who had sought a copy of the material which had been forwarded to the Victoria Police i.e. Exhibit A1. Mr. Prothero advised that that request to view that material was not granted, instead Mr. Previsic received in that letter of 14 October 1996 [Exhibit P24] a summary of the letter sent to the Victoria Police which it was acknowledged was in broad terms. On 25 November 1996 the Victoria Police responded to the request for their views on the matters raised in the letter of 19 June 1996. That response is at Attachment B to Exhibit P25.
On receipt of that response from the Victoria Police Mr. Prothero then produced a report [Exhibit P3] to Ms.. Amanda Dixon, Human Resource Manager of AQIS. Its purpose was
"To provide you, as delegate of the Secretary, with background information to independently consider the probational appointment of Mr. Valentine Previsic, with the recommendation that Mr. Previsic's appointment to the Public Service be terminated under section 34 of the Public Service Act 1922 (the Act), based on `fit and proper person' considerations under section 47 (11)(c) of the Act."
On 28 January 1997 Ms.. Lawrence, Acting Director of Human Resource Management within AQIS wrote to Mr. Previsic indicating that in light of information which had come to AQIS, he, Mr. Previsic, may not be a fit and proper person to remain in the public service. She then went on to outline the history of communications between Mr. Prothero and Mr. Previsic in fairly brief compass and indicated the grounds of her concerns and forwarded with that document the response received from the Victoria Police dated 25 November 1996 with various attachments as well as a copy of Mr. Prothero's report to her in which he recommended that Mr. Previsic's appointment should be terminated. Ms.. Lawrence in that letter [Exhibit P25] sought written comments from Mr. Previsic by 11 February 1997.
Prior to 11 February Mr. Previsic sought an extension of time in relation to providing a response to Ms.. Lawrence as his outstanding request for a review of an earlier decision denying him access to documents which he had sought under Freedom Of Information (FIO) was still under consideration. An extension was agreed to by Ms.. Lawrence. On 13 February 1997 Mr. Previsic was provided with further documentation as a result of this request for an internal review of the earlier FOI decision. Two of the documents were germane to the matters before Ms.. Lawrence. They were the initial memo written by Mr. Ironside and the letter from Mr. Prothero to the Chief Commissioner of Police of 19 June 1996 [Exhibit A1] referred to above. On 19 February 1997 Mr. Previsic forwarded to Ms.. Lawrence a 90 page document (Exhibit P26) which examined each of the issues which had been raised for his consideration in addition to which he dealt with a number of other issues which he believed were germane to a consideration of his situation, they related in particular to whistle blowing. On 17 June 1997 the Community and Public Sector Union (the CPSU) made representation to Ms.. Lawrence on Mr. Previsic's behalf indicating concerns about the denial of natural justice it believed had been inflicted upon Mr. Previsic in this matter. Ms.. Lawrence responded indicating that the concerns of the CPSU would be taken into account in her deliberations.
On 23 June 1997 Ms. Lawrence wrote to Mr. Previsic advising him that pursuant to subsection 47(4) of the Public Service Act 1922 she had decided to terminate his appointment on the ground that he was not a fit and proper person to remain in the public service [Exhibit P2]. That decision had been taken having regard to all of the relevant information and in light of the meaning of fit and proper as defined in paragraph 47(11) of the Public Service Act 1922. Attached to the letter was a document headed Statement of Reasons and under the heading Reasons stated:
"I consider Mr. Previsic's appointment should be terminated on the ground that he is not a fit and proper person to remain an officer of the APS because I consider he has behaved in a way that, in addition to being of particular concern in relation to his role in a compliance area, is of serious concern with respect to any position held in the APS and is inconsistent with the objectives of the APS and the proper conduct of the APS, and generally undesirable for persons involved in public administration in that:
- in his application dated 12 July 1995, for a position in the APS a Compliance Officer in AQIS, he misrepresented his work history in a way highly relevant to his suitability to be appointed to that position;
- on 10 April 1996 he supplied false information in a questionnaire in a matter highly relevant to his suitability to remain an APS officer; and
- In his previous employment he accessed a secure database and released information to a member of the public in breach of his employer's rules, which he did not admit to AQIS until presented with the facts."
2. SUBMISSIONS OF THE PARTIES
(i) Procedural issues
Mr. McKenney for AQIS addressed questions of procedural fairness as well as the substantive issues. In relation to procedural fairness his submissions might generally be summarised as follows:
_ that from 17 May 1996 the applicant had been made aware of the areas of concern to AQIS regarding his suitability for permanent appointment;
_ on 20 May 1996 the applicant received written advice which indicated the respondent's concern about whether the applicant was a fit and proper person for the purposes of the Public Service Act 1922; and
_ on the same date he was provided specific allegations regarding the applicant's former employment history and AQIS had then invited the applicant to respond.
Mr. McKenney then traversed the events from that time until the decision of 23 June 1997 and indicated that at the various stages during that time Mr. Previsic was advised of the issues of concern to AQIS. In that regard particular reference was made to the letter of Ms. Lawrence of 28 January 1997 [Exhibit P25] which set out the issues of concern, invited a response and also specified the context within which the decision was to be made that is the Public Service Act 1922.
Mr. McKenney then drew on a number of authorities to support the view that the applicant was made well aware of the precise nature of the employer's concern, that moreover, the applicant was informed of the nature and content of the material being considered against him and that in accordance with the decision of Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) [60 IR 1] that procedural fairness had been applied in a practical and commonsense way in that the affected employee had been treated fairly. He stressed the fact that in her considerations the delegate had not taken into account the information supplied anonymously to Mr. Ironside [Exhibit P4] but had acted on the basis of confirmed advice provided by the Victoria Police. As a consequence the respondent contended that Mr. Previsic had been accorded a fair go all round pursuant to subsection 170CA(2) of the Act.
(ii) Substantive issues
In addressing the substantive issues Mr. McKenney contended that the respondent had relied on issues of substance in coming to the conclusion to terminate Mr. Previsic's employment and that the decision was sound, defendable and well founded. In support of that contention he submitted the decision was lawful as it had been taken in accordance with the relevant criteria in the Public Service Act. AQIS in coming to its decision had relied upon information which it had obtained from the Victoria Police and which was directly relevant to the issue of determining whether Mr. Previsic was a fit and proper person. In that regard not only was the nature of the information important in that it revealed issues of significance in relation to the matter of Mr. Previsic's integrity but also revealed that the representations made by Mr. Previsic at the time of his application and subsequently in response to questions concerning the security clearance were false. Mr. McKenney then drew on Exhibits P3, P20, P25 and A1 to submit that an examination of that material revealed that Mr. Previsic had been the subject of counselling, admonishments and had a conviction. Moreover that material revealed that other aspects of his service e.g. complaints which had been made and disciplinary action taken which were inconsistent with the information supplied by Mr. Previsic. In relation to the matter of whether Mr. Previsic had in fact suffered a conviction Mr. McKenney in his supplementary written submissions made the following comments:
"It is the respondent's submission that the question of conviction or otherwise is irrelevant in light of the state of knowledge of the applicant at the time he answered the questions in Exhibit P19 and the associated declaration that he made that the answers were true in every respect. He confirmed, inter alia, paragraph 18 of the November 25 letter in Exhibit P25 that states that Previsic was convicted.
The applicant did not indicate that he had any doubt about the facts contained in paragraph 18. If the applicant had any doubt about whether he was convicted then at the very least he was grossly negligent to answer a question that he had not been convicted without making appropriate inquiries prior to answering the question and not subsequent to the making of the declaration on 10 April 1996 - Exhibit P36 relates to an inquiry made with the Prahan Magistrates Court on 25 March 1998. It is reasonable to expect that a police officer of twenty years standing whose evidence would be relied upon in a miscellany of court proceedings would have an acute appreciation of the need for accurate and reliable information." [written submissions pg 4]
Mr. McKenney drew on the written statement of the witnesses called by the respondent Mr. Prothero, Director National Compliance Manager of AQIS [Exhibit A8]; Ms. Andrea Lay, Assistant Manager, Quality Assurance and Support Services, Personnel Department of the Victoria Police [Exhibit A10]; Ms. Lawrence [Exhibit A11] as well as the evidence given during proceedings by each of those witnesses. He submitted that Mr. Prothero's witness statement and evidence clearly demonstrated that Mr. Previsic had been accorded procedural fairness in terms of the processes which had been followed by Mr. Prothero which had led to his report of December 1996. Ms. Lay's evidence, he contended, provided:
". . . an independent verification of the material that the respondent relied upon. This supports the respondent's submission there was a valid reason for the termination. . . ." [written submissions pg 5]
In relation to the evidence of Ms. Lawrence he indicated that that revealed that procedural fairness had been accorded Mr. Previsic in that she had written to the applicant on 28 January 1997 outlining what were the issues of concern and invited his response and in so doing she had provided among other things a recommendation that Mr. Prothero had put forward for her consideration that Mr. Previsic should be terminated. Moreover, Ms. Lawrence had sought to contact the applicant during March and April to discuss with him his earlier request that there be a face to face meeting to discuss the matter. An approach which subsequently Mr. Prothero advised Ms. Lawrence on 28 April 1997 he no longer wished to undertake. Moreover Ms. Lawrence on her evidence had taken into account the representations which had been made by the CPSU on Mr. Previsic's behalf. He then went on to state:
"On the substantive issues the respondent submits that Ms. Lawrence thoroughly examined all the relevant material which from the Exhibits and her oral evidence includes submissions from the applicant, documented information supplied by the former employer Victoria Police, the applicant's application and consent forms signed by the applicant. The respondent submits that it was open for Ms. Lawrence to reach the decision that she did given the relationship between the consent forms, the questions the applicant answered, the applicant's application and the material supplied by the Victoria Police and other relevant material." [written submissions pg 6]
Mr. McKenney submitted that Ms. Lawrence in coming to her decision pursuant to subsection 47(4) of the Public Service Act 1922 in terminating Mr. Previsic's employment had sought advice from the then Public Service Commission and in addition had obtained guidance from the document known as Probation Guidelines published by the Public Service Commission [Exhibit A13].
As to the question raised by the Commission as to what the term fit and proper meant Mr. McKenney relied on the passage contained in Exhibit A13 which states:
". . . in part that a fit and proper person test is a Service-wide assessment of inter alia integrity."
He went on to contend that on the evidence before Ms. Lawrence it was open to her to conclude that the applicant's integrity was suspect because of the fact that he had declared the veracity of answers that he had given particularly in relation to Exhibit P19, the security clearance proforma which had been put to Mr. Previsic in April 1996.
Mr. McKenney then went on to address in some detail the relevance of the range of exhibits placed before the Commission and in addition made a number of brief comments responding to contentions made by or on behalf of the applicant. Briefly they were:
_ that AQIS had not acted improperly in any way in obtaining Mr. Previsic's consent to the pursuit of security clearance inquiries nor in relation to questions which it had asked him relating to his permanent appointment.
_ the respondent had an obligation to ensure that in applying the fit and proper person test it did so on the available evidence and it was necessary for it to make proper inquiries in that regard.
_ in relation to Mr. Previsic not being permitted to perform the full duties of his position, AQIS contended that this was defendable on the basis of it becoming aware that Mr. Previsic had been the subject of an admonishment notice by the Victoria Police concerning the improper disclosure of information from a secured data base and as a consequence given the relevance of that matter for the duties of his position it was quite legitimate for it to remove Mr. Previsic from investigation work.
In relation to the duration of the inquiry and its conclusion it was submitted by Mr. McKenney:
". . . that the inquiry did not continue for an inordinate or oppressively long period. In any event the respondent submits that the focus of the Commission's attention should be on whether it was reasonably open for the respondent to reach the decision it did." [written submissions pg 8]
In summary Mr. McKenney contended that on the evidence it was clear that whilst Mr. Prothero made recommendations to the delegate, the delegate herself, Ms. Lawrence, clearly took the final decision following a proper consideration of all the relevant material which related to questions of fitness and proprietary and had not taken into account matters which were extraneous e.g. the issues raised by Mr. Ironside [Exhibits P4 and P5].
B APPLICANT'S SUBMISSION
It is clear from the background above that the process used in determining Mr. Previsic's termination had five phases:
(a) initial allegations and investigation;
(b) Mr. Prothero's Preliminary Report and Mr. Previsic's response;
(c) further inquiries of Victoria Police and the Prothero Report with Recommendations to the Delegate;
(d) Ms. Lawrence's invitation to Mr. Previsic for comment on the Prothero Report;
(e) Ms. Lawrence's consideration of all the material and her decision.
Mr. Harris addressed each of these issues and his submissions are summarised in relation to each phase.
(a) Initial allegations and investigation
Mr. Harris for the applicant submitted that it was necessary to look at the events which had led to the termination of Mr. Previsic. They had essentially been initiated because of a malicious informant making highly defamatory and prejudicial remarks. As a consequence the whole process had got off on the wrong foot and those initial steps had in fact prejudiced the process. It was contended that as a consequence of the initial refusal of the Victoria Police to grant AQIS access to its records in relation to Mr. Previsic that AQIS had put in place a process to obtain Mr. Previsic's approval or at least consent to further inquiries being made and that objective had been masked by the development of an exercise in which ostensibly all of the other employees who had been engaged contemporaneously with Mr. Previsic were asked to consent to inquiries being made for the purposes of security clearances relating to their permanent employment. In Mr. Harris's contention that approach was a device designed to get to the bottom of the malicious allegations that had been made against Mr. Previsic. He contended further that the inquiries made in relation to Mr. Previsic were not undertaken by the usual method of the inquiring organisation seeking comments from a former employer but rather entailed the conduct of an inquiry in which Mr. Prothero personally visited offices of Victoria Police and went into considerable detail to examine the material held on their files albeit on Mr. Prothero's evidence indirectly through the officers concerned i.e. Mr. Prothero did not actually examine the documentation but officers of the Victoria Police Force read to Mr. Prothero passages from their records. Mr. Harris contended that in effect AQIS had engaged in a fishing expedition in order to obtain material which it could use against Mr. Previsic.
In relation to procedural fairness Mr. Harris contended the respondent was incorrect in saying that the applicant was advised of the issues of concern by way of a telephone conversation discussion on 17 May 1996. The matters which were under investigation by the Department at that stage were allegations which subsequently proved not to have any substance and which were never put to Mr. Previsic but only became known to him early in 1997 as a result of the FOI action which the applicant had initiated.
(b) Mr. Prothero's Preliminary Report and Mr. Previsic's response
Mr. Harris contended that the letter of Mr. Prothero dated 20 May 1996 and the attachment [exhibit P20] which set out the issues of concern regarding whether Mr. Previsic was a fit and proper person did not clearly identify with the necessary specificity the grounds of concern. As a consequence Mr. Previsic was forced to make a wide ranging and complex response of some 48 pages in an attempt to address issues and events which might conceivably be of relevance. As a consequence it was submitted that that process was unfair.
(c) Further inquiries of Victoria Police and the final report and recommendations of Mr. Prothero to the Delegate;
Mr. Harris submitted that the processes used by Mr. Prothero in seeking further information and comment from the Victoria Police was flawed as was Mr. Prothero's final report.
Mr. Prothero had summarised Mr. Previsic's 78 page report and prepared a document which set out a range of issues of concern together with his summary of Mr. Previsic's submissions on the major issues. In so doing Mr. Harris contended Mr. Prothero did not faithfully reflect in a proper way the explanations nor accurately set out Mr. Previsic's statement as to the facts so that the Victoria Police were not given the benefit of having placed before them Mr. Previsic's version concerning each of the issues in question.
He was also critical of the weight given by Mr. Prothero to the Victoria Police response in preparing his final report and recommendations. Mr. Previsic was importantly denied access to the letter and attachment Mr. Prothero had prepared and submitted to the Victorian Police. Moreover he also was not given any opportunity to comment upon the Victoria Police response prior to the preparation by Mr. Prothero of his final report and recommendations.
Mr. Harris also highlighted major inaccuracies in that final report. They are set out below as they are germane to submissions going to whether there was a valid reason.
(d) Ms. Lawrence's invitation to Mr. Previsic to comment on the Prothero Report and Recommendations;
Mr. Harris then turned to the request of Ms. Lawrence made in January 1997 to Mr. Previsic in which he was asked to respond to issues relating to the determination of whether he was a fit and proper person for permanent employment to the public service. He contended that Ms. Lawrence was not specific in relation to the issues which were to be addressed by Mr. Previsic and pointed to the fact that that request had brought forth a ninety page response from Mr. Previsic which did not address the issues which ultimately were to be the centre of Ms. Lawrence's considerations and determinations. He further submitted that Mr. Previsic was not given an opportunity to respond to particular concerns. He referred to the fact that Ms. Lawrence, having received the ninety page submission from Mr. Previsic, then sought further comment from him. Clearly in seeking such further comment she had concluded that the response of Mr. Previsic did not address the issues of concern to her. However, she did not amplify or specify her concern when seeking the further comment from Mr. Previsic. Mr. Harris contended that she had a duty of care given that she knew what the issues were. At no stage did Ms. Lawrence say to Mr. Previsic look these are my concerns, you have not addressed them, what do you say about them? Mr. Harris then proceeded to compare the lack of specificity in Ms. Lawrence's approach to Mr. Previsic vis a vis the letter to the Chief Commissioner of Police by Mr. Prothero [Exhibit P23] which he contended set out in some detail the issues which were concerning AQIS and about which it sought the comment of Victoria Police. He focussed particularly on the following statement:
"The ultimate issue for the AQIS decision maker is to determine whether Mr. Previsic represented himself truthfully by making statements to AQIS which appear on the questionnaire and attachment A signed by Mr. Previsic on 10 April 1996." [transcript pg 270]
Mr. Harris also pointed to the fact that Mr. Previsic whose integrity was under question had had to make inquiries under the Freedom of Information legislation and pay charges in order to establish what was in the documents
" . . . that allegedly or purportedly contained material as being held or being used to his disadvantage." [transcript pg 271]
Moreover, he had had to seek a review of the earlier FOI decision which had denied him access to a number of documents including the original allegations. He contended that the provision of that FOI material in the period just prior to the date Mr. Previsic was required to respond to Ms. Lawrence was an important consideration because it caused Mr. Previsic to come to the view that those issues were the real issues behind the consideration by the AQIS management as to him being a fit and proper person for permanent appointment to the Public Service.
Mr. Harris contended that at no stage did Ms. Lawrence advise Mr. Previsic of
" . . . what were the actual issues that were exercising her mind as being relevant to the potential termination of his employment." [transcript pg 257]
He then went on to draw from her letter of 28 January to Mr. Previsic and so in doing expressed concern at the following comment:
". . . your past work performance, as indicated by your previous employer, and your actions in not declaring information to AQIS, tend to indicate you are not a fit and proper person." [transcript pg 259]
Of particular concern was the reference to past work performance, which was a very embracive term and the fact that there was no specificity in relation to the information upon which AQIS had relied. As a consequence Mr. Previsic was placed in the invidious position of having to respond to allegations which were not clearly focussed. Mr. Harris submitted that it was for this reason that the documentation that Mr. Previsic prepared in response to the original inquiry from Mr. Prothero and the subsequent submission to Ms. Lawrence were wide ranging and quite extensive. In essence Mr. Previsic not being certain of what he needed to address effectively sought to address anything that might be conceivably related to whether he was a fit and proper person. It was reasonable therefore to expect that Mr. Previsic would have been concerned to address issues which might conceivably be related to his competence, efficiency and performance in his duties both with AQIS and the Victoria Police. The generality of the issues raised was typified in Ms. Lawrence's letter when she said:
"Therefore it is important that the issues surrounding information you have disclosed and the information you have supplied by your previous employer be examined carefully, along with any information you may care to supply, supporting your case, and demonstrating why action should not be taken to terminate your employment." [transcript pg 259]
Drawing on the decision of Ellicott J in Cunningham v Cole and others [(1982) 64 FLR 131] he submitted that it was essential that if particular allegations were to be relied upon by the employer then the individual employee should have been given an opportunity to be made aware of the detail. As Ellicott J stated:
"It is clear that the obligation for an opportunity to be heard involves ensuring the person be informed of the nature and content of the material which is prejudicial to him."
Whilst Mr. Previsic had addressed some of the issues of concern to AQIS he was not given the opportunity to fully address them because of the fact that AQIS had not specified what they were. He cited for example the difference in understandings about the meaning of terms such as counselling. In that regard he made reference to the comment which Mr. Previsic had made in relation to disciplinary processes of the Victorian Police and the fact that a counselling session is not considered by the Victoria Police as a disciplinary procedure for promotional purposes. Moreover, there had not been a recognition by AQIS that admonitions handed out within the Victoria Police are not taken into account once two years have expired after they have been given.
(e) Ms. Lawrence's consideration of the material and decision
Following the receipt by Ms. Lawrence of Mr. Previsic's second submission, she had then had had discussions with officers of the Public Service Commission and other departmental officers. Mr. Previsic was at no stage informed of the nature or content of those discussions and moreover was denied any opportunity to comment upon them.
Ms. Lawrence then proceeded to make her determination. Mr. Harris acknowledged that Ms. Lawrence had asked Mr. Previsic whether he had wanted to pursue his earlier proposal to discuss the matter with her which he declined. Nevertheless Ms. Lawrence had a duty of care to Mr. Previsic to advise him before making her decision as to what the outstanding concerns were and the criteria upon which she was relying - including matters that had arisen in her discussions with the Public Service Commission et al - to make her determination. This meant that she had an obligation to ensure that Mr. Previsic was fully appraised of the particular allegations against him. She, in his view, had failed to do so.
In relation to the respondent's contentions that the applicant's request for extensions of time for the lodgment of responses to the employer's reports and letters was significant in terms of their impact on the delays in the respondent's consideration of Mr. Previsic's fitness, the applicant noted that the extensions were of the order of fourteen days, a minimal amount compared with the fifteen months taken by the respondent to come to a decision. As to the respondent's refusal to provide material sought by the applicant until late in the day it should be remembered that that material even if not relied upon ultimately in a direct sense was relevant to the inquiries being undertaken by the Department. Moreover it raised questions about the commitment of the respondent organisation to ensure that its officers were accorded procedural fairness.
Mr. Harris in summary contended that throughout the process of the inquiry and all that followed Mr. Previsic was denied procedural fairness and that at no stage had AQIS established that there was a valid reason for the termination of Mr. Previsic related to the conduct, capacity of the employee or the operational requirements of the respondent employer and secondly that at no stage was Mr. Previsic notified of the real reason for his termination. Mr. Previsic had not been given an opportunity to respond to detailed allegations but he was presented with a termination notice to which there was no opportunity to respond. Not only were there concerns in relation to the alleged conduct and capacity matters which ostensibly were the basis of the termination but moreover it took the employer some eighteen months before its processes of investigation and inquiry were taken to conclusion.
In brief the test prescribed by Ellicot J had not been satisfied.
(ii) Valid reason
As regards the application of this test Mr. Harris, after addressing the background focussed on the following:
(a) Elements of the Prothero Report;
(b) Referee Report
(c) Pre-employment checks
(d) Level of Disciplinary Actions in Victoria Police Employment;
(e) Mr. Previsic's integrity;
(f) Performance with AQIS;
(g) Application of the Fit and Proper Person test;
(h) Stated reasons for Delegate's Determination.
In addressing the question of valid reason Mr. Harris drew on the decision of the Full Court of the Federal Court in Cosco Holdings Pty Ltd v Thu Thi Van Do and others [QG 95 - 100/97], Northrop ACJ, Lindgreen and Lehane JJ, [4 December 1997] to conclude that it was necessary for there to be a genuine reason and that it was necessary also to take into account the interests of the employee. Within the context of that authority Mr. Harris contended that the actual termination notice and the reasons attached to it were nothing more than a co-location of phrases which mean nothing. In effect all that those documents said was that Mr. Previsic was not a fit and proper person because he was not a fit and proper person. It did not really set out the reasons in any meaningful way. An examination of the grounds as set out in the reasons revealed that they were specific only in relation to the fact that in his previous employment he accessed a secure data base and had wrongfully released information. The other two reasons were expressed in broad terms viz:
". . . he misrepresented his work history in a way highly relevant to his suitability to be appointed to that position."
". . . on 10 April 1996 he supplied false information in a questionnaire in a matter highly relevant to his suitability to remain an APS officer."
In relation to the latter two reasons Mr. Harris contended that they lacked specificity as there was no indication as to what specifically Mr. Previsic was alleged to have done to warrant such a categorisation. He contended that in her oral evidence, Ms. Lawrence had not enlightened the Commission in terms of the detail of the reasons for her decision to terminate Mr. Previsic. Drawing on her evidence he contended that it was extremely worrying that Ms. Lawrence had indicated that she had taken into account all of the information available to her because in his submission that:
". . . presumably refers to all of the information obtained by Mr. Prothero in the course of his inquiries during the year, or the year and a half, or perhaps it means all the information which is contained at, I think Exhibit 25."
He pointed to the fact that the file before Ms. Lawrence contained the scurrilous allegations which had initiated the investigation of Mr. Previsic and he contended that whilst Ms. Lawrence in her evidence had stated that she had not taken those matters into consideration in coming to her conclusion it had to be recognised that it was difficult for someone to disassociate the influence of such allegations in coming to a decision despite his/her best endeavours.
In relation to the references to those admonitions as contained in the report of Mr. Prothero, Mr. Harris observed that there were important inaccuracies in Mr. Prothero's report not least the fact that he cited dates on which admonitions occurred as being contemporaneous with the date of lodgment of Mr. Previsic's application for appointment to the AQIS positions when in fact those admonitions had occurred one year earlier. This misinformation was significant as Mr. Prothero's report had highlighted the fact of this contemporaneousness and that fact could well have influenced the decision of the delegate which in part would have been based on wrong information. Moreover Mr. Prothero's report indicated that Mr. Previsic had been convicted of a traffic offence in the Magistrates Court in March 1995. Mr. Harris contended that as had been evidenced during these proceedings Mr. Previsic had not been convicted but rather had been fined with no conviction recorded and whilst Ms. Lawrence indicated that she was not worried about the conviction and did not act on the basis of that conviction Mr. Harris contended that one had to be suspicious of the fact that in cross examination Ms. Lawrence had so readily recollected the fact that the alleged conviction had not paid any part in her decision.
In relation to the admonitions, Mr. Harris contended that the matters involved were not of great significance and they were not disciplinary offences but merely admonitions and therefore should not receive much weight.
(b) Referees' Report
Turning to Mr. Previsic's supporting documentation for his application, Mr. Harris contended that Mr. Previsic's comments about displaying integrity in his private and professional affairs must be seen as general comments that one would make in the course of an application. Moreover both of Mr. Previsic's referees had in fact made favourable assessments about him. Mr. Harris whilst acknowledging that neither of the referees had addressed directly the question of integrity pointed to the fact that they of course had not said anything adverse about Mr. Previsic's integrity either. Given the nature of the referees, one who ultimately was Mr. Previsic's immediate supervisor within AQIS, Mr. Pontomio and the other, an inspector of the Victoria Police, Mr. Harris contended that one would hardly expect that they would make favourable referees reports if such reports were not warranted.
(c) Pre-employment checks
In relation to the issue of pre-employment checks Mr. Harris indicated that it seemed on the evidence that no pre-employment checks regarding Mr. Previsic had been made. He then traced through the history of exchanges between Mr. Previsic and AQIS leading up to his appointment. An examination of that documentation would led Mr. Previsic to believe that those pre-employment checks had been undertaken prior to the letter confirming his appointment to AQIS. Mr. Harris, in that context raised the question as to why Mr. Previsic knowing in the light of the advice of AQIS that he was to be subject to pre-employment checks in relation to security and other personnel issues would make a statement that was false being aware that it was capable of being checked and therefore contradictable. Moreover there was a report from a Chief Superintendent of Victoria Force [Exhibit P33] providing an assessment of Mr. Previsic's service with the Victoria Police which categorised his service as being commendable and satisfactory.
(d) Level of "Disciplinary" Actions in Victoria Police Employment
Mr. Harris pointed to the fact that Mr. Previsic had acknowledged in his responses to the April 1996 proforma that he had been the subject of internal investigation and that complaints had been made against him during his period with the Victoria Police however he had indicated that none of the inquiries or complaints had led to any disciplinary charges. Mr. Harris then submitted that a distinction needed to be made between conduct which might be the subject of appropriate admonition and other conduct which would be regarded as being of such a nature that it was the subject of formal disciplinary proceedings by either a disciplinary body or the Chief Commissioner. He submitted that Mr. Previsic had not been the subject of any formal disciplinary proceedings. Effectively therefore the matters which were the subject of consideration by AQIS were of a low level and concerned only admonitions and counselling.
(e) Mr. Previsic's Integrity
In considering the issue of integrity of Mr. Previsic the Department was relying upon the fact that Mr. Previsic had made a false statement. Mr. Harris contended that it was not a false statement because there was a need to consider the understanding of Mr. Previsic when answering the question. As Mr. Harris put it:
"If he believes that this is a true statement because he understood or believed that what was relevant to be conveyed to AQIS was whether he had committed an offence of some description which merited punishment then perhaps he ought to have told them if he thought they were seeking that sort of information and he did not believe his behaviour fitted any of those categories and why would he mention it?" [transcript pg 264]
In coming to that view Mr. Harris examined the nature of the questions asked. He highlighted the difference between the proforma prepared by Mr. Prothero which was specifically concerned with the processing of a security clearance relating to Mr. Previsic and others being classified as highly protected and the form which the Secretary of the Department of Primary Industries and Energy (Exhibit P41) had indicated should be used in relation to establishing whether employees of the Department including AQIS had any convictions. That second form was quite explicit in relation to the nature of the information sought whereas the security proforma prepared by Mr. Prothero is more generally expressed. In relation to the security clearance form [Exhibit F19] Mr. Harris analysed the response given to the questions by Mr. Previsic. He focussed particularly on Mr. Previsic's acknowledgement that he had been the subject of complaint which had been investigated by the internal investigation unit and his conclusion:
"I have never been charged with a criminal or disciplinary offence."
In relation to the fourth question:
"Have you been counselled or official reprimanded in relation your work performance and/or integrity."
Mr. Previsic's response was no.
In relation to the contention by the respondent that that answer is not correct Mr. Harris said it was necessary to take into account the understanding of the applicant. It was clear from Mr. Previsic's evidence that it was his understanding that counselling and reprimand were part of the same thing because of Mr. Previsic knowledge of the Victoria Police processes a reprimand could only occur as a result of a disciplinary proceeding and given the formulation of the question Mr. Previsic considered the question in light of that experience and it was clear on the evidence that Mr. Previsic had never been the subject of formal disciplinary proceedings in the Victoria Police. In relation to the subject matter which AQIS complained of i.e. the incorrect response to that question as alleged by AQIS, Mr. Harris submitted that that was not of any great significance at all and should be so considered in these proceedings.
Mr. Harris analysed the fact that the respondent had decided the fit and properness of Mr. Previsic on the basis that his standing in that regard was suspect. In his view that was a totally inadequate basis on which to determine whether a person was fit or proper or not.
(f) Performance with AQIS
Mr. Harris contended that the applicant's performance in the job provided clear evidence of his fitness to undertake the duties of the position. In relation to the disadvantage suffered by the applicant in his removal from investigatory duties which denied him access to incremental increases in salary to which he would have been entitled the respondent has not in any way contradicted the applicant's contention in that regard.
(g) Application of the Fit and Proper Person
Mr. Harris contended that even if that explanation of Mr. Previsic's behaviour was not accepted then there was a need to establish whether Mr. Previsic's conduct was of such significance that it had impact for his fitness for duty. Mr. Harris contended that it did not when he stated:
". . . in any event those examples of warnings and admonitions do not amount to conduct of such significance as to lead us to the fairly lurid assessment of Ms. Lawrence that he is not fit for employment anywhere in the public service." [transcript pg 264]
Mr. Harris in addressing the question of the meaning of the term fit and proper person as specified in s.47 of the Public Service Act 1922 referred to the respondent's submission that the test of fitness is a service wide assessment and involved a consideration of the concept of integrity.
Mr. Harris drew on the Public Service Commission publications on appointment and probation particularly the publication Probation: Principles Guidelines and Good Practice Public Service Commission 1995 and a document entitled APS Values and Standard of Conduct which had its genesis in the guidelines of Official Conduct of Commonwealth Public Servants 1995. He focussed in the probation document on the following:
_ "prior to an appointment a person must be assessed as to whether they are a fit and proper person to be an officer of the service [page 10];"
_ ". . . that the fit and proper person test is `a Service-wide assessment based on whether a person meets the standards of integrity, loyalty, reliability and diligence generally expected of officers of the Service, and not in terms of the specific requirements of an individual department or a particular position." [page 35]
_ that that document cited as an example of a matter to be considered in an assessment, the supply by a person of incorrect or misleading information during the pre-employment checking process such as a failure to disclose an accurate account of his or her criminal charges, convictions and/or findings of guilt." [page 36]
In the context of those references he then cited the respondent's contention that the responses by Mr. Previsic to the questions in the security clearance form [Exhibit P19] were assessed by the respondent in the light of the allegedly verified information provided by the Victoria Police which led to the conclusion by the respondent that the applicant's integrity was suspect. He contended that that assessment was not a sound foundation for the respondent's decision to terminate Mr. Previsic.
It was contended that three aspects needed to be taken into account when considering the AQIS decision to terminate Mr. Previsic:
· whether, any statement made by the applicant in that document was materially inaccurate;
· whether, if a statement was inaccurate, was it the applicant's intention, in making the statement, to mislead or deceive; and
· if the statement was intentionally misleading or deceptive, was that conduct sufficiently serious to warrant termination of employment.
Before addressing those points Mr. Harris submitted that the judgement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal V Bond and Others [(1990) 94 ALR 11] was germane to the question of fit and proper person where their Honours said:
" The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur."
He contended that:
" These observations appear to be consistent with earlier High Court authority" and cited Dixon CJ, in R. v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 at 120."
In light of these authorities Mr. Harris submitted that the term fit and proper person had to be considered as a service wide definition i.e. in the current case the test was whether Mr. Previsic was fit to be appointed to any office within the Australian Public Service. In other words the test was not position or job specific.
He then pointed to Ms. Lawrence's letter to Mr. Previsic of 28 January 1997 in which she raised the issue of Mr. Previsic not being a fit and proper person in the context of the particular position he held ie a Compliance Officer and the nature of the work of the Branch in which Mr. Previsic worked and the requirement of the position for demonstrated honesty and integrity.
Clearly Mr. Previsic was thereby advised of the fit and proper person test being applied by Ms. Lawrence. Mr. Harris submitted it was not the test statutorily prescribed in the Public Service Act.
Mr. Harris also stressed that Ms. Lawrence's letter was tentative in that it stated:
" Your past work performance, as indicated by your previous employer, and your actions in not declaring the information to AQIS tend to indicate you are not a fit and proper person."
Of particular significance was the use of the words tend to indicate which in his view belied the fact that it was these very grounds and material which provided the basis for the determination of the matter. In his view those words did not explicitly inform Mr. Previsic that those matters were pre-eminent in Ms. Lawrence's deliberations and determination.
The contention by the respondent that that judgement was based on verified information was in his view untenable. In that regard Mr. Harris submitted that:
"Admonishments had been expunged, that there had never been a conviction and that an adequate explanation for lateness had been provided by Telstra but never apparently actioned by the Victoria Police. Further, many of the allegations which were the subject of Mr Breadmore's letter to the respondent `were not' confirmed."
because all that had happened was that Ms. Lay had prepared a response to AQIS's further inquiry for Mr. Breadmore's signature which did no more than draw on the material contained in Mr. Previsic's Victoria Police personnel file.
Mr. Harris contended that the action of the respondent based on such inadequate information was absolutely inappropriate. Drawing on the observations of Sheppard J in Secretary, Department of Foreign Affairs and Trade v Boswell [(1992) 108 ALR 77 @ 82] (and Cooper J in the same matter at pages 94 and 95), Mr. Harris contended that the exercise of powers under s.47 by the Secretary's delegate in this matter became the exercise of
". . . some unspecified discretion . . . and was merely colourable as an exercise of discretion under s.47."
In light of these authorities and the action of AQIS in the matter he contended that there had been an improper exercise of discretion.
In relation to the decision making process followed by Ms. Lawrence, Mr. Harris contended that Ms. Lawrence:
· relied on inaccurate information obtained by Mr. Prothero through his inquiries;
· failed to identify the issues of concern regarding Mr. Previsic's permanent appointment;
· failed to have Mr. Previsic specifically address those issues of concern;
· had material before her which included the documentation making spurious and unfounded allegations which had led to the initial investigations - that material should not have been before the decision maker as it could have tainted her deliberations;
· consulted with persons both within and without AQIS prior to making a decision, that the nature and extent of the input of those other persons in her deliberations cannot be established and that the applicant had no knowledge of the detail of those consultations or the outcomes or an opportunity to comment upon them;
· did not undertake any independent verification of the allegations and material placed before her.
Mr. Harris, in relation to the material relied upon by the respondent that is the material provided by the Victoria Police submitted that it was essential that the validity of that material be evaluated i.e. the delegate in coming to her decision should have taken into account whether the material relied upon was wrong, required to be qualified or explained and then a decision taken in the light of all of those facts. The Commission in considering this matter therefore cannot accept the invitation of the respondent to perpetuate the injustice resulting from the respondent's failure to adequately evaluate the material upon which the respondent came to a decision in the matter.
In that regard it needed to be recognised that the material proved by Ms. Lay of the Department of the Victoria Police was of a hearsay nature and in no way established the truth or accuracy of the allegations, as Ms. Lay had no direct knowledge of any of the events contained in the records other than the fact that they were on the records and had prepared her response relying on those records.
(h) Stated Reasons for Delegate's Determination
As regards the applicant's alleged accessing a secure data base and release of that data contrary to the policies of the Victoria Police, Mr. Harris noted that there was no evidence before the Commission in relation to the security level which applied to that data base or the rules which the Victoria Police had established as a policy in relation to such accessions. Moreover, the applicant was not cross-examined in relation to that alleged breach. He went on to contend that even if the Commission was satisfied that the allegation was substantiated it remained a question as to whether it was of sufficient gravity to provide a basis for the delegate to determine that Mr. Previsic was not a fit and proper person.
A similar issue arose in relation to the other two bases upon which the delegate had reached her decision:
(i) that Mr. Previsic had misrepresented his work history; and
(ii) had supplied false information in responding to a questionnaire.
Mr. Harris contended that the allegations had not been sustained and strenuously contended that they did not provide the basis for the decision that Mr. Previsic was not a fit and proper person.
Mr. Harris went on that even if those contentions had been substantiated they did not provide a basis to conclude that the test enunciated by Mason CJ, Brennan, Deane, Toohey and Gaudron JJ in Australian Broadcasting Tribunal V Bond and Others viz:
". . . However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur."
He, said that in applying that test the delegate ought to have been satisfied that `it can be assumed that it will not occur' and further that the general community (could) have confidence that it will not occur. In his view the delegate had not satisfied herself in relation to either of those tests. There was no evidence to suggest that Ms. Lawrence had addressed those issues. Mr. Harris also submitted that Ms. Lawrence had failed to take into account:
_ the favourable referees report;
_ the favourable progressive probationary report prepared by the applicant's immediate supervisor, Mr. Prothero; and
_ the demonstrated competence of Mr. Previsic in performing the duties of a Compliance Officer.
In sum the applicant, Mr. Previsic had been terminated on grounds which fell well short of what was required under the Act. That the evidence was neither clear or most compelling to permit of such a decision. As a consequence the applicant should be reinstated.
3. CONSIDERATION OF THE ISSUES
(a) Requirements of the Workplace Relations Act 1996
In determining Mr. Previsic's application the Commission is required to do so in accordance with s.170CG(3) which states:
"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee -whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) any other matters that the Commission considers relevant."
Was there valid reason relating to the capacity or conduct of the employer?
(b) Reasons given for the Delegate's Determination
The reasons given to Mr. Previsic on terminating his employment were expressed as follows:
"I consider Mr. Previsic's appointment should be terminated on the ground that he is not a fit and proper person to remain an officer of the APS because I consider he has behaved in a way that, in addition to being of particular concern in relation to his role in a compliance area, is of serious concern with respect to any position held in the APS and is inconsistent with the objectives of the APS and the proper conduct of the APS, and generally undesirable for persons involved in public administration in that:
- in his application dated 12 July 1995, for a position in the APS as a Compliance Officer in AQIS, he misrepresented his work history in a way highly relevant to his suitability to be appointed to that position;
- on 10 April 1996 he supplied false information in a questionnaire a matter highly relevant to his suitability to remain an APS officer; and
- in his previous employment he accessed a secure database and released information to a member of the public in breach of his employer's rules, which he did not admit to AQIS until presented with the facts. "
(c) Bases of the Reasons for the Delegate's Determination
From an examination of the material before me it would appear that the three grounds are reflective of the assessment made by Mr. Prothero in his report of 2 December 1996 (exhibit P3). Consequently given the reliance placed on that report by Ms. Lawrence it is necessary to deal with its essential elements.
Mr. Prothero's submission of 2 December 1996 to the delegated officer (at that time Ms. Dixon) identified the following issues:
(a) Mr. Previsic's personal integrity with reference to his service with the Victoria Police;
(b) Mr. Previsic's honesty is in question with reference to his application for appointment to AQIS; and
(c) the nature and substance of performance and/or disciplinary issues raised with Mr. Previsic by the Victoria Police during Mr. Previsic's service with that organisation.
A close examination of that document reveals that it sets out the reasons which lead Mr. Prothero to recommend Mr. Previsic's termination.
Mr. Prothero in his report addressed each of those issues setting out his view of Mr. Previsic's action viz::
Written Application - Claims
"In his written application Mr. Previsic presented to the Commonwealth certain claims, in particular I refer you to selection criterion:
"Oral and written communication skills of a high order and demonstrated integrity and interpersonal skills"
"I always conduct myself in a professional manner and have ensured that the Police Service has always been presented in a favourable light, to this end I have been a very good ambassador. . ."
"I have always displayed the utmost integrity in my private and professional affairs. I have had several complaints made against me during the course of my service and these complaints have always been found to be without any foundation . . . I am not subject of any investigation" (emphasis added) [Exhibit P3 pg 1 -2)
2. Response to Security Clearance Forms of 10 April 1996.
Mr. Prothero dealt with that issue in the following terms:
"On 10 April 1996, Mr. Previsic answered, in writing, a series of written questions I had sent to him, and other officers newly recruited into the Compliance, Legal and Evaluation Branch. The reason these questions were asked was set out on the written form, being:
"The purpose of these questions is to assist the delegate to determine your suitability for permanent appointment to your current position within the APS. Corroboration may be sought from your previous employers."
In response to question 3:
"Have you been interviewed by an internal investigations unit in relation to a complaint made by a member of the public. an officer of a law enforcement agency or any other person."
Mr. Previsic, replied in writing:
"Over 20 years in the Victoria Police I have had a number of complaints made against me. On every occasion I have been exonerated from any wrong doing. I have never been charged with a criminal or a disciplinary offence."
"Have you been counselled or officially reprimanded in relation to your work performance and/or integrity?"
In response to question 5:
Mr. Previsic replied in writing:
In March 1996 as a consequence of anonymous allegations (later found to be unsubstantiated in all but one respect) Mr. Prothero:
· conducted interviews with officers of the Victoria Police;
· obtained advice concerning entries on Mr. Previsic's Victoria Police personnel file;
· sought comments from Mr. Previsic regarding that information;
· wrote to the Victoria Police seeking further clarification in the light of Mr. Previsic's comments; and
· prepared the recommendatory report of 2 December 1996 recommending Mr. Previsic's termination.
In his final report having set out briefly the details relating the counsellings and admonitions that Mr. Previsic had received whilst an officer of the Victoria Police and provided a chronology of events in tabular form (see Table 1 and pgs 6-7 of Exhibit P3). Mr. Prothero then stated in relation to Mr. Previsic's application:
"Mr. Previsic did not disclose his admonishment in relation to being found in premises where two up was being played. By definition, this 'admonishment' prima facie equates to behaviour that is a `. . minor breach of discipline or (the officer) behaves unprofessionally, careless, indifferently or incompetently.'
This contradicts Previsic's claims, in his written application.
In relation to this it can be taken that Mr. Previsic made false or misleading statements in his application of 12 July 1995."
Later in the report Mr. Prothero in relation to Mr. Previsic's responses to the 10 April questionnaire says:
"in referring to the information contained in Table 1, the issues raised by the Victoria Police, in their communication of 9 May 1996 and 25 November 1996, as well as issues raised in Mr. Previsic's submission (11 July 1996) I submit that it can be found that Mr. Previsic made false or misleading statements in the questionnaire of 10 April 1996. These statements were made after he was appointed, on probation, to the Service.
The questionnaire of 10 April 1996 is a document which is relevant to the probation of Mr. Previsic and consideration of his permanent appointment to the Australian Public Service."
Mr. Prothero then says:
"3. Overall performance and disciplinary issues raised with Mr. Previsic by the Victoria Police - Mr. Previsic's 'fit and proper person' status as a person to be appointed to the Australian Public Service
· I submit that you consider issues raised by Mr. Previsic and the Victoria Police to determine if Mr. Previsic is a 'fit and proper person' to be appointed to the Australian Public Service.
· As the delegate who recommended his initial appointment to position 11145, I was unaware of the issues that were later raised by the Victoria Police. I now believe I have been misled by Mr. Previsic and that my initial decision to appoint him to the Australian Public Service was based on information which was false or misleading.
· Mr. Previsic's statements, in his application
"I always conduct myself in a professional manner and have ensured that the Police Service has always been presented in a favourable light to this end I have been a very good ambassador"
"I have always displayed the utmost integrity in my private and professional affairs. I have had several complaints made against me during the course of my service and these complaints have always been found to be without any foundation ... I am not the subject of any investigation."
In light of the information now at hand, these statements cannot be accepted as the truth.
1. consider these issues, supported by the information at hand; and
2. take into account my reasons for recommending that Valentine Previsic should not be considered a 'fit and proper person', for the purposes of Section 34 of the Act, and therefore in accordance with Section 47(11)(c) his probationary appointment be terminated."
4. FINDINGS IN RELATION TO MR. PREVISIC'S SERVICE WITH VICTORIA POLICE
As at 12 July 1995 the time that Mr. Previsic lodged his application for employment with AQIS I find on the material before me that Mr. Previsic had been:
· counselled for the firing range incident;
· admonished for being found at premises where two-up was being played;
· fined but not convicted for the speeding incident;
· cautioned for being late for work;
· cautioned regarding the internal report he prepared concerning the speeding incident.
As at 10 April 1996 the time when Mr. Previsic completed the forms relating to his security clearance as protected or highly protected. I find that Mr. Previsic was aware that prior to that date he had been:
· admonished in relation to the release information from the LEAP System - unauthorised provision of vehicle ownership information; and
· admonished in relation to the failure to provide service and assistance in relation to an intervention order involving Mrs. Alessi.
It should be noted that in relation to all of these issues Mr. Previsic whilst confirming that these events were true provided a comprehensive explanation in relation to each and every one of them when Mr. Prothero put them to him in a letter dated 20 May 1996. Mr. Previsic response, some 48 pages in length and dated 11 June 1996 was summarised in an eight page document "Attachment B" and forwarded on 19 June 1996 with other documents to the Chief Commissioner of the Victoria Police [Exhibit A1] seeking comments on those issues. Victoria Police responded addressing the 27 issues raised in a five page letter dated 25 November 1996.
In light of the Victoria Police response of 25 November 1996 Mr. Prothero then prepared his recommendatory minute of 2 December 1996 to Ms. Dixon recommending Mr. Previsic's termination.
Ms. Lawrence as acting Director, Human Resource Management of AQIS, wrote to Mr. Previsic on 28 January in the following terms:
"The matter of concern to me is the information you provided in your application and subsequent to your appointment, which has been brought into question by information obtained from your previous employer. I am particularly concerned because the position to which you were appointed, on probation, is that of a Compliance Officer (Administrative Service Officer Class 6), Compliance Legal and Evaluation Branch, Investigations and Integrity Section (PN 11145). A knowing misstatement in an application would be of concern no matter the nature of the work of the officer. In addition, the nature of the work of the Branch in which you work and in particular the position of Compliance Officer requires that staff possess demonstrated honest and integrity because you would be conducting criminal investigations into complex issues such as fraud and other serious criminal offences.
Your past work performance, as indicated by your previous employer, and your actions in not declaring the information to AQIS tend to indicate you are not a fit and proper person.
Public confidence in the integrity of AQIS is vital to its proper operation. It is important that staff at AQIS, and in particular staff that occupy positions within Compliance are and are seen to be beyond reproach and are not likely to bring the operations of the Branch and AQIS into question. Therefore it is important that the issues surrounding information you have disclosed and the information supplied by your previous employer be examined carefully along with any information you may care to supply supporting your case and demonstrating why action should not be taken to terminate your employment." [Exhibit P25]
Mr. Previsic responded by way of a 90 page document which was lodged on 19 February 1998 following an extension of time granted by Ms. Lawrence in response to a request from Mr. Previsic. It should be noted, that on 13 February 1997 Mr. Previsic received a copy of the original unsubstantiated allegations as a result of his successful request for a review of his initial FOI request. The covering letter said in part:
"I have considered the matters raised in your letter, in particular, the extracts from the publications entitled 'In the Public Interest'. In the interests of natural justice I am keen to ensure that you are appraised of the contents of any allegations made against you. I have decided, therefore, to release to you a copy of the document (A above) at folio ff 3 and 4, dated 27 February 1996.
Having decided to release document A, although document B above does not make any allegations against you and is more in the form of an internal working document, for the purposes of continuity, I have decided to also release to you a copy of that document (B above) at folio ff 1 and 2.
Please find copies of the relevant documents attached herewith.
In relation to the identity of the person who spoke to Mr. Ironside on 27 February 1996 I wish to advise you that no written record exists which documents the name of that individual, nor is the name of that person known to myself.
Whilst I appreciate that the name of the person may be of significant importance to you I am unable, either under the provisions of the Act, or from my own knowledge of the matter assist you any further."
I find that Ms. Lawrence's letter of 28 January 1997 inviting Mr. Previsic to comment on whether he was a fit and proper person for permanent appointment to the Australian Public Service did not identify explicitly the criteria upon which she was going to determine the matter. True it is that a copy of Mr. Prothero's report together with a letter from the Victoria Police were forwarded to Mr. Previsic as attachments to her letter so that as Mr. McKenney submitted it is arguable that Mr. Previsic knew what issues he was required to address. However, Mr. Previsic was not advised with any specificity on what grounds Ms. Lawrence, herself was considering let alone the relative importance she was giving to each of the matters. Moreover, having received Mr. Previsic's responses she then proceeded to discuss aspects of the case with officers of the Public Service Commission and others before coming to a decision. She did not appraise Mr. Previsic of the basis of her proposed determination until after the event. It is clear on her evidence that she did not take into account at least one of the matters raised by Mr. Prothero's Report - i.e. the issues relating to the speeding incident in coming to her decision.
I propose to address each of the reasons of Ms. Lawrence's determination to establish whether they constitute either separately or in the aggregate a valid reason.
5. ANALYSIS OF THE GROUNDS FOR TERMINATION
As regards the first ground - the misrepresentation of his work history in a way highly relevant to his suitability to an appointment to the position of a Compliance Officer in AQIS it must be said that that ground:
(i) lacked specificity in that she did not express clearly the nature of his misrepresentations which were of concern to her;
(ii) it applies the wrong test in that a decision to terminate an officer pursuant to subsection 47(4) of the Public Service Act must be made on the ground that the person concerned is not a fit and proper person for appointment to any position within the Australian Public Service and is not a specific position test. Yet Ms. Lawrence clearly took into consideration the fact that the position held by Mr. Previsic was that of a Compliance Officer.
It is clear that Ms. Lawrence relied heavily on the report of Mr. Prothero. It can be inferred that this was so in relation to the first ground although it is not explicitly stated by her in her determination nor in her evidence, written or oral to this Commission. Her appraisal then, regarding the first ground, rests upon the fact that at the time of Mr. Previsic's application he was aware that he had been admonished for being on premises in which a game of two up was being played. On the material before me that fact is not denied. However the comment made in Prothero's report on that incident viz:
"Mr. Previsic does not dispute this, but raises mitigating circumstances in his submission."
is in my view totally inadequate. Certainly Mr. Previsic acknowledged that he had been admonished in his response to Mr. Prothero's inquiries. He had dealt with this issue quite fully, at pages 33 -35 of Exhibit P21 providing an explanation of mitigating circumstances. It should be noted that the explanation regarding this episode provided by Mr. Previsic to Mr. Prothero was repeated under oath and was not the subject of any contradictory evidence.
Mr. Prothero's subsequent request to the Victoria Police dealt with that issue by way of a summary of seven lines - a summary which in my view did not do justice to the issues raised by Mr. Previsic. The response from Victoria Police dated 25 November 1997 [p.25 paragraph 19] explicitly did not address the particular mitigating circumstances raised by Mr. Previsic.
Mr. Previsic was admonished.
The material before this Commission provided the following explanation in relation to admonishments in the Victoria Police:
"The Victoria Police Personnel Discipline Procedures Manual under the heading Admonishments Notices lists the following:
4.1 Admonishments are the second level of formal discipline and used when a subordinate member commits either a minor breach of discipline or behaves unprofessionally, carelessly, indifferently or incompetently.
4.3 Admonishment Notices are primarily designed for Divisional level use when there is no intention to charge the member with a disciplinary offence.
The Victoria Police Force Circular Memo 91 - 4 under the heading Future Reference to Reprimand or Admonishment states;
Future Reference to Reprimand or Admonishment
6.10 Reference to admonishments and reprimands is not to be made by selection panels more than 2 years after the reprimand or admonishment is given. The two (2) year period will date from the date of the reprimand or admonishment is authorised." [Exhibit P21, pg. 33]
In view of this information it is clear that the Victoria Police considered an admonition notice as being of a lower order of discipline.
In light of all of this material, taking into account the mitigating circumstances evidenced by Mr. Previsic, I am of the view that this admonishment was such as to make Mr. Previsic claim that he always conducted himself in professional manner as inaccurate. However in light of his evidence about the evidence and the failure of the Victoria Police in its response to Mr. Prothero to address in any meaningful way Mr. Previsic's explanation and his uncontroverted evidence leads me to conclude that Mr. Previsic's claim in his application regarding his professional behaviour is not on this score a wilful lie or untruth.
Mr. Prothero in his final report did not explicitly refer to or rely on the other incidents as a basis for his conclusions and recommendation although he set out a number of incidents in Table 1 of Exhibit P3 which in my view were implicitly designed to influence the delegate even if they were not remarked upon in the accompanying text by Mr. Prothero.
Those incidents were:
· incident at firing range - counselling
· speeding incident
· report regarding speeding incident - admonition
· late for work - caution notice.
The fact that they were set out in Table 1 which was within the main body of the Report would point to Mr. Prothero clearly seeing that they were germane to the matters under consideration and ought be considered by the delegate.
In considering Ground One I do not propose to deal with these incidents in any detail. However, I find that Mr. Prothero's Table 1 was deficient in significant respects in relation to those events which had been taken to final resolution by Victoria Police before Mr. Previsic made his application for a position with AQIS. First the report states Mr. Previsic was convicted for speeding. On the evidence before me he was fined but no conviction was recorded. Similarly I find on the evidence that the late attendance caution notice involved Mr. Previsic being some five minutes late. Evidence was provided in support of Mr. Previsic's claim that the wake up call he had ordered from Telstra was not provided by that organisation and no comment to that effect is contained in the Table. Furthermore in relation to that matter and the caution notice regarding Mr. Previsic's report on the speeding incidence - both notices being served on 12 July 1994 are stated by Mr. Prothero in Table 1 as being on the same day that Mr. Previsic lodged his application with AQIS. In fact Mr. Previsic's application was made one year later on 12 July 1995.
In relation to each of those issues the comments I made above in relation to the two up matter regarding the detail of Mr. Previsic's response to Mr. Prothero's enquiries, the nature of the summary prepared by Mr. Prothero and put to the Victoria Police equally apply.
In light of the above I find that Mr. Previsic did exaggerate in relation to his claims regarding always acting in a professional manner. However, I find that his error in that regard was not wilful nor was it one of major substance as is clear from the decision of Victoria Police to do no more than admonish him in relation to some of the incidents and counsel him in the others. Moreover Ms Lawrence applied the wrong test in determining the matter by having regard to the position held by Mr. Previsic rather than by applying a service-wide test.
I turn now to the second ground, viz:
"- on 10 April 1996 he supplied false information in a questionnaire in a matter highly relevant to his suitability to remain an APS Officer; and. . ."
Ms. Lawrence does not specify what the alleged false information was. Again it is necessary to infer that this ground is a reference to the matters covered in Mr. Prothero's report of 2 December 1996. [Exhibit P25]. That report states at page 8:
"In referring to the information contained in Table 1, the issues raised by the Victoria Police, in their communication of 9 May 1996 and 25 November 1996, as well as issues raised in Mr. Previsic's submission (11 July 1996) I submit that it can be found that Mr. Previsic made false or misleading statements in the questionnaire of 10 April 1996. These statements were made after he was appointed, on probation, to the Service.
The questionnaire of 10 April 1996, is a document which is relevant to the probation of Mr. Previsic and consideration of his permanent appointment to the Australian Public Service."
In considering this assessment it is necessary to have regard to Table 1. On the face of it Mr. Previsic did not answer Questions 3 or 4 accurately or fully. Moreover in relation to Q3 his comment:
"On every occasion I have been exonerated from any wrong doing"
is contrary to the facts. His actions which had been the subject of investigation and admonition prior to his completion of the AQIS questionnaire on 10 April 1996 involved the following:
(i) speeding incident of 14 April 1994;
(ii) caution for being late 12 July 1994;
(iii) caution re his report on speeding incident of 14 April 1994;
(iv) release of confidential information from the LEAP system 13 February 1996;
(v) failure to take appropriate action regarding intervention order - 14 August 1995.
On the material and evidence before me I find that Mr. Previsic was admonished in relation to these issues. The significance of the term admonish has been dealt with in some detail above. It is not without significance that at the time of Mr. Prothero's report of 2 December 1996 the admonition notices for items (i)-(iii) would have been disregarded within the Victoria Police for purposes of promotion. The notices for items (iv) and (v) would both have been of ongoing significance and taken into account in relation to promotional matters within the Victorian Police for purposes of promotion if Mr. Previsic had still been in the employ of the Victoria Police at the time Ms. Lawrence took the decision to terminate Mr. Previsic.
Mr. Harris submitted that in considering Mr. Previsic's responses to these questions it was necessary to have regard to Mr. Previsic's understanding of the questions arguing that Mr. Previsic would have considered question 4 as being concerned with formal disciplinary issues and that counselling did not fall within such a regime within the Victoria Police processes in that it was explicitly not to be considered as being of a disciplinary nature but rather was intended to enhance the development of the individual officer and was not to be taken into account for any career purposes e.g. promotion. Given that contextual background Mr. Harris then submitted Mr. Previsic's response was quite proper given the intent of the question i.e. to establish whether an AQIS officer could be classified as suitable to access protected or highly protected material.
Whilst that submission does have merit it does not in my view overcome the fact that Mr. Previsic has been the subject of counselling and investigation and the subject of admonishment albeit a low level of disciplinary action. Certainly he was not charged with a disciplinary offence.
I find that Mr. Previsic did not answer question 4 accurately or truthfully.
I turn now to the third ground:
"in his previous employment he accessed a secure database and released information to a member of the public in breach of his employer's rules, which he did not admit to AQIS until presented with the facts."
From the evidence before me it is an undeniable fact that Mr. Previsic committed such a misdemeanour about which Mr. Previsic was contrite. In relation to that matter no explicit evidence was put before me in relation to the level of security that database system was accorded within the Victoria Police Force. In that regard it is germane to my deliberations to have regard to the fact that the Victoria Police decided to issue an admonition notice in relation to that breach of Victoria Police policy. It was issued on the last day of Mr. Previsic's service with the Victoria Police but not served upon him until some three days later.
In light of all of this material it is clear that Mr. Previsic's response to question 3 of the 10 April proforma was wrong in that he stated on every occasion I have been exonerated from any wrong doing." He clearly had not advised AQIS of the admonitions he had received. His answer to question 4 was factually wrong in that he had been counselled regarding his work performance and also officially reprimanded by way of admonition notices concerning his work performance.
The issues which need to be addressed are:
(i) Were these incidents of such gravity that they warranted the termination of Mr. Previsic? and
(ii) Is it proper for a current employer to take into account advice and/or information relating to an employees previous employment. In other words does a judgement to terminate an employee based on that information constitute a valid reason for the termination?
In considering these questions it is helpful to consider the relevant extract of Probation Guidelines publication of the Public Service Commission. [Exhibit A13]. That publication contains the following guidance in relation to the application of the fit and proper person test to probationers. I would observe again that as a consequence of Commissioner Whelan's decision [Print P6753] Mr. Previsic was no longer a probationary employee at the time of Ms. Lawrence made her determination to terminate Mr. Previsic's employment. Nevertheless the guidelines are of assistance in this matter. They state:
"Assessment of 'Fit and Proper Person'
Section 34 of the Act provides that in order to be eligible for appointment to the APS, a person must to be an officer of the Service. This 'fit and proper person test' is a Service-wide assessment based on whether a person meets the standards of integrity, loyalty, reliability and diligence generally expected of officers of the Service, and not in terms of the specific requirements of an individual department or a particular position.
While the fit and proper person test specified in section 34 of the Act is undertaken as part of the decision to appoint a person to the APS, there may be some situations where it is necessary to make an assessment of whether a probationer is a fit and proper person to remain an officer of the Service. These situations might include:
_ where a probationer supplies incorrect or misleading information during the pre-appointment checking process and this is not discovered until after the appointment takes effect; or
_ where a probationer engages in misconduct or is convicted of an offence during the probationary period which raises doubts about the person's eligibility to remain an officer of the Service.
An example of the former situation is as follows. An applicant may be assessed as being a fit and proper person to be an officer of the Service on the basis of the information disclosed during the pre-appointment checking process. Information may subsequently come to light, for example as a result of a check of police records, that the appointee did not disclose an accurate account of his or her history of criminal charges, convictions and/or findings of guilt. In these circumstances, there may need to be a further assessment made as to whether the person is a fit and proper person to remain an officer of the Service. If it is considered that the person is not fit and proper, consideration may be given to terminating the probationer's appointment (paragraph 47(11)(c) of the Act refers).
Information that is available prior to appointment and which should have been taken into account in reaching a decision under section 34 should not subsequently be used to justify termination of appointment under paragraph 47(11)(c)." [emphasis added]
It is clear that in circumstances where a probationer has been the subject ". . . of criminal charges, convictions and/or findings of guilt" there may need to be a further assessment made as to whether the person is a fit and proper person to remain an officer of the Service and that such a reassessment may lead to a consideration to terminate the probationer's appointment.
The circumstances in this case fall far short of those contained in the example cited in the guidelines. Simply put Mr. Previsic on the material before me and before AQIS for that matter has never been the subject of criminal charges let alone convictions and/or findings of guilt. Moreover he has not been the subject of disciplinary charges as such. The incident explicitly mentioned in the reasons for determining Mr. Previsic as being not a fit and proper person - the release of information obtained from the LEAP system is classified according to the Victoria Police Discipline recording system as Minor - without a charge and the result is recorded as "Admonishment". Clearly such an incident falls far short of the gravity of the example cited by the Public Service Commission in its Guidelines.
In relation to the issue of whether it is proper for AQIS to take into consideration the employment record of a prospective or probationary employee the Guidelines clearly envisage such a consideration as is clear from the last paragraph of the extract cited above. However, that paragraph does raise the issue of the use of material which was available prior to the appointment and which had not been taken into account at that time, being taken into account as part of the evaluation of a probationary employee with a view to their employment as a permanent employee. It is clear on the facts of this case that AQIS required the specific agreement of Mr. Previsic in order to obtain access to information on his personnel files held by the Victoria Police. Such approval was neither sought nor obtained until after he had been employed and the security clearance/evaluation of a probationer had been initiated. Clearly the evidence, the subject of consideration in this matter, was not available to AQIS prior to his appointment.
In considering the issue of whether AQIS had a valid reason to terminate Mr. Previsic it is also necessary to have regard to the available information regarding Mr. Previsic's employment record with the Victoria Police and as a probationary employee with AQIS. It is clear from an examination of Mr. Prothero's report that that material was not fully addressed. I do not propose to canvas the issue by way of detailed references to the voluminous material before the Commission. Suffice it to say that the three month probationary report prepared by his immediate supervisor at AQIS is laudatory in a number of respects and contained no adverse comments.
In relation to Mr. Previsic's employment with the Victoria Police the material before the Commission is quite voluminous. It is also evident that Mr. Prothero's investigations involved a selective examination of the material contained on Mr. Previsic's file. As it is evident from Mr. Previsic's response (Exhibit P21) there are various aspects and contentious issues relating to the subject matter of Attachment 1 to Mr. Prothero's letter of 20 May 1996 (Exhibit P20) which strongly point to that attachment being significantly deficient in that it focuses on selective deleterious extracts obtained from Mr. Prothero's earlier interview with the Victoria Police and as a consequence could not be adjudged as fair or objective. Mr. Prothero did not address the meritorious aspects of the material, put to him by Mr. Previsic, in either his further letter to the Victoria Police or his report to the delegate. Similarly the material attached to Ms. Lawrence's letter of 28 January 1997 [Exhibit P25] is also selective particularly the inclusion of the report of Acting Inspector Neil Thomas of 30 July 1992. As is clear from Mr. Previsic's own testimony and an examination of the documents he provided there was other material available on his Victoria Police personnel files which provided a quite different assessment of Mr. Previsic and which on the evidence before me received little consideration.
Whilst there are good reasons to take into account material relating to criminal charges et al relating to earlier employment there were no such circumstances applying in this matter. Moreover, I am not satisfied in the current case that Ms. Lawrence's consideration of the performance of Mr. Previsic as a Victoria Police Officer gave proper weight to all of the material ie the positive reports of Mr. Previsic's supervisors. Nor would it seem was much weight given to Mr. Prothero's performance with AQIS. Moreover there is no evidence to suggest that Ms. Lawrence gave any consideration using the criteria cited in ABC v Bond [see pg. 14 above] as to whether Mr. Previsic was likely to engage in actions which would be of such gravity as to provide a basis for terminating his employment.
In sum on the material before me I find that AQIS did not have a valid reason for terminating Mr. Previsic's employment and thus the test in s.170CG(3)(a) was not met.
Did AQIS meet the conditions specified in s.170CG(3) (b) and (c)
Was Mr. Previsic advised of the reason for his termination and given an opportunity to respond?
A close examination of Mr. Prothero's letter to Mr. Previsic [exhibit P20] and Ms. Lawrence's letter to him [exhibit P25] reveals that the issue of concern which AQIS had under consideration were canvassed in either the letters or the covering material. The letter of 20 May 1996 from Mr. Prothero clearly states the issues of concern in an attachment to the letter which specifies the statements in Mr. Previsic's application and the specific questions and answers thereto in the 10 April 1996 proforma involved. That letter also warns Mr. Previsic of the probation review process and the possibility that the outcome may be termination of employment. It is clear from that letter that Mr. Previsic was on notice in relation to the issues which were considered germane to a determination regarding his permanent appointment.
Mr. Previsic responded on 11 June 1996 in considerable detail to the issues raised by that letter and its attachments.
Ms. Lawrence's letter of 28 January 1997 (Exhibit P25) was less specific. The relevant extracts are as follows:
"I am writing this letter in relation to information that has come to light which indicates that you may not be a fit and proper person to remain in the Australian Public Service (APS).
If that indication is confirmed, then your appointment may be terminated - in which case you would cease to be an officer of the APS.
This letter provides you with an opportunity to respond to what is alleged about you. Your response will be taken into account when the decision is made as to whether to terminate your appointment. . .
The matter of concern to me is the information you provided in your application and subsequent to your appointment, which has been brought into question by information obtained from your previous employer. I am particularly concerned because the position to which you were appointed, on probation, is that of a Compliance Officer (Administrative Service Officer Class 6), Compliance Legal and Evaluation Branch Investigations and Integrity Section (PN 11145). A knowing misstatement in an application would be of concern no matter the nature of the work of the officer. In addition, the nature of the work of the Branch in which you work and in particular the position of a Compliance Officer requires that staff possess demonstrated honesty and integrity because you would be conducting criminal investigations into complex issues such as fraud and other serious criminal offences.
Your past work performance, as indicted by your previous employer, and your action in not declaring the information to AQIS tend to indicate you are not a fit and proper person.
Public confidence in the integrity of AQIS is vital to its proper operation. It is important that staff of AQIS, and in particular staff that occupy positions within Compliance are and are seen to be beyond reproach and are not likely to bring the operations of the Branch and AQIS into question. Therefore it is important that the issues surrounding information you have disclosed and the information supplied by your previous employer be examined carefully along with any information you may care to supply supporting your case and demonstrating why action should be taken to terminate our employment.
For your information I have attached a copy of the information received from the Victorian Police. I have also included a copy of Steve Prothero's recommendation to the delegate dated 2 December 1996 which outlines Mr. Prothero's position in relation to your fitness to remain an officer.
If you wish to discuss any aspect of this matter please contact me on (06) 272 5650 urgently to arrange for that to occur. Alternatively I would appreciate any written comments you may choose to make within 14 days (ie by 11 February 1997). If a response is not received in this timeframe I will assume you do not wish to provide any further information."
Whilst there is merit in Mr. Harris' contention that that letter is not explicit an examination of all of the attachments, particularly Mr. Prothero's report, would in my view enable Mr. Previsic to establish the issues which were under consideration by Ms. Lawrence. Consequently on balance I do not accept Mr. Harris' submissions in relation to that letter. I am fortified in this view from a close examination of Mr. Previsic's response[Exhibit P26] in which he addresses at considerable length and detail the issues raised by Mr. Prothero. Moreover, he is highly critical of the procedure used by Mr. Prothero with, it would appear, some justification.
However I do accept that the process was deficient as a consequence of the events which occurred following the receipt by Mr. Previsic of Ms. Lawrence's letter. Those deficiencies spring from the fact that Ms. Lawrence did not take any steps to disabuse Mr. Previsic of any apprehensions he experienced upon his subsequent receipt of the material released as a consequence of the FOI review. It is clear that that material particularly the salacious allegations impacted significantly upon Mr. Previsic in a deleterious way. Again his response [Exhibit P26] testifies to this fact. He at no time was advised that that material was not under consideration by Ms. Lawrence. It is my view quite probable that he believed that those documents spelt out the real agenda for the review of his probationary status. Mr. Previsic was clearly concerned by what he saw as breaches of the privacy legislation and which he raised in his response. There was no evidence before me to show that AQIS ever formally responded to his concerns.
There is also the fact that Mr. Previsic was not privy to the discussions between Ms. Lawrence and officers of the Public Service Commission about the matters under consideration by her in reaching her determination. Moreover, Mr. Previsic was not advised of the additional material on the file and other policy documents being used by Ms. Lawrence in that process .
A comparison of the final determination of Ms. Lawrence of June 1997 with her letter to Mr. Previsic of 28 January 1997 does reveal that the reasons ultimately given for her decision whilst reflective of the contents of the earlier letter and attachments, were not stated explicitly by her in that earlier letter as the grounds upon which she was considering the issue. The determination in applying the fit and proper person test does not make any specific reference to the nature and responsibilities of the position held by Mr. Previsic. Rather there is simply a reference to the relevant section of the Public Service Act 1922. This is in stark contrast to her letter of 26 January 1997.
In considering this aspect of the process I have had regard to the authorities referred to by Mr. Harris particularly the judgement of the ABC decision and the Stevedoring decision and am led to conclude that Mr. Previsic was not in actuality notified of the actual reasons for his termination until the determination had been made. It was incumbent upon Ms. Lawrence in my view having regard to s.170CG (3)(b) to advise Mr. Previsic of the three grounds upon which she proposed to make the determination as spelt out in the reasons attached to her determination prior to her making that determination and provide him with an opportunity to respond.
True it is that Mr. Previsic was made aware of those three grounds as part of a range of other possible grounds prior to her determination, but at no stage were those three grounds put explicitly to Mr. Previsic by the delegate who was to make the determination in the terms specified in the final determination until after she had made her determination.
Finally an examination of the text of the first two grounds cited leads to the conclusion that they are not specific. It is not clear on the plain meaning of the words what actions Ms. Lawrence is referring to in each of those grounds. Again true it is that by sifting through the letters and attachments sent to Mr. Previsic by Mr. Prothero in the first instance and later by Ms. Lawrence it is possible to come to an understanding of what those grounds meant to Mr. Prothero but it is not clear and explicit that Ms. Lawrence accepted and adopted those interpretations unconditionally and fully as the basis of her own deliberations and determination.
In light of these circumstances I find that Mr. Previsic was not notified of the reason(s) for his termination nor given an opportunity to respond to those reasons prior to his termination as required by s.170CG(3)(b) and (c). As already indicated I find that AQIS did not have a valid reason for terminating Mr. Previsic. In all the circumstances and having regard to all of the requirements of s.170CG(3) and 170 CA(2) I find that Mr. Previsic's termination was harsh and unjust and unreasonable.
Mr. Harris submitted that Mr. Previsic should be reinstated in accordance with s.170CH(3)(a) to the position in which Mr. Previsic was employed immediately before the termination.
Mr. McKenny for the respondent submitted that if the Commission were minded to grant reinstatement it should do so pursuant to s.170CH(3)(b) and appoint the Mr. Previsic to another position or terms no less favourable than those on which the employee was employed immediately before termination.
This course of action was proposed by AQIS
" . . . because there are serious matters relating to the integrity of the applicant that it would be undesirable and unproductive for the applicant to be reappointed to the position in which the employee was employed immediately before the termination - (section 170CH 3(a) of the Act)."
It was contended that AQIS was prepared to bring oral evidence to support its view disputing the evidence of the applicant that reinstatement to the same position was a realistic option.
Mr. McKenny also submitted that if the Commission decided that it would be inappropriate to reinstate Mr. Previsic then having regard to the length of service of the applicant - a period of approximately 18 months - then a lower payment should be made. The reference to a lower payment is understood to imply an amount considerably less than the maximum amount of compensation payable pursuant to s.170CH(7) and (8).
Mr. McKenny also noted that Mr. Harris had requested an opportunity to provide some calculations regarding the amount to be awarded to Mr. Previsic.
In this regard Mr. Harris submitted that
" . . . the applicant notes the respondent's desire to call evidence as to the precise position to which, if the Commission grants the primary relief sought, the applicant may be reinstated. The applicant does, however, express concern that, even if the Commission were to find the termination of the applicant to have been harsh unjust or unreasonable (which conclusion may involve a finding that the applicant was not unfit in the requisite sense) the respondent would continue to maintain that there were 'serious matters relating to integrity of the applicant' and (in fifth paragraph) '...questions about the integrity of the applicant..."
" To the extent that relief in the nature of lost remuneration or compensation may be afforded to the applicant as an outcome of this proceeding, it is accepted that the respondent may wish to reserve its position as to quantum."
Having considered all of these submissions I have decided that reinstatement of Mr. Previsic is appropriate. I have also decided that the order of reinstatement should also address the issues of continuity of service and the payment of an amount in respect of the remuneration lost as provided pursuant to s.170CH(4).
Whilst it was open to AQIS to present evidence for the Commission's consideration in relation to s.170CH(3) during the proceedings it did not. However, in his written submissions Mr. McKenny sought such an opportunity if the Commission deemed it appropriate.
Whilst I have some reluctance in embarking on that course of action I have decided to do so, as it would provide an opportunity for the weight of the mooted evidence to be evaluated. The airing of such matters is in my view ultimately likely to assist in ensuring that Mr. Previsic's reinstatement occurs in the most propitious circumstances for all involved.
This matter will be listed for hearing at 2.00 p.m. on Monday 26 October 1998.
A listing of the hearing and the Directions in relation to that hearing are issued contemporaneously with this decision.
BY THE COMMISSION:
Termination of employment - unfair dismissal - applicant dismissed on basis that he was not a fit and proper person in terms of s47(4) Public Service Act 1922 in that he misrepresented his work history, supplied false information in a questionnaire and did not admit to until presented with the facts of having in his previous employment accessed a secure database and released information in breach of employer's rules - previous decision found application within jurisdiction as 12 month probation may have been reasonable given nature of position and circumstances of applicant's appointment but probationary period beyond 12 months excessive - whether termination was harsh, unjust and unreasonable - was there valid reason relating to capacity or conduct of employee - analysis of three grounds upon which respondent made determination for dismissal - whether applicant misrepresented work history in a way highly relevant to his suitability to appointment with respondent - nature of misrepresentation of concern to employer not specified - test whether applicant is fit and proper person pursuant to subsection 47(4) of Public Service Act wrongfully applied, this being a service-wide test rather than applicable to a specific position - Commission found that applicant did exaggerate in relation to claims regarding always acting in a professional manner however error was not wilful nor of major substance as previous employer did no more than admonish or counsel him - whether applicant supplied false information to questionnaire in matter highly relevant to suitability to remain APS officer - Commission found applicant did not answer question truthfully - applicant committed misdemeanour in previous employment about which Commission found he was contrite to respondent though noted that again he only received admonition - whether incidents of such gravity that warranted termination - whether current employer terminating an employee based on advice and/or information from previous employer constitutes valid reason - Commission found that employer did not have valid reason for termination thus not meeting test in s170CG(3)(a) - Commission found that applicant not notified of reason(s) for termination nor given opportunity to respond prior to termination as required by s170CG(3)(b) and (c) - Commission found that applicant's termination was harsh and unjust and unreasonable - reinstatement appropriate with issues of continuity and service addressed and payment of amount in respect of remuneration lost pursuant to s170CH(4) - respondent directed to lodge statements of evidence germane to s170CH(3).
Previsic v Australian Quarantine Inspection Services
U No 32087 of 1997
6 October 1998
Printed with the authority of the Australian Industrial Relations Commission
<Price code H>
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