C2015/4047, Transcript of Proceedings [2015] FWCTrans 436 (21 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052149

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VICE PRESIDENT CATANZARITI
VICE PRESIDENT WATSON
COMMISSIONER JOHNS

C2015/4047

s.604 - Appeal of decisions

Farah v Australian Federal Police
(C2015/4047)

Sydney

9.44 AM, TUESDAY, 14 JULY 2015

PN1

VICE PRESIDENT CATANZARITI: Thank you. I'll take the appearances.

PN2

MR D O'SULLIVAN: If it pleases the Commission, my name is O Sullivan, initial D. I seek leave to appear for the appellant in this matter pursuant to section 596. Submissions with respect to section 596 were filed.

PN3

VICE PRESIDENT CATANZARITI: Yes, I understand that. Thank you, Mr O Sullivan.

PN4

MS S CALLAN: If it please the Commission, my name is Callan, C-a-l-l-a-n, and I also seek permission to appear on behalf of my client, the Australian Federal Police.

PN5

VICE PRESIDENT CATANZARITI: Thank you. We note that both parties are represented. Permission to appear will be granted in this matter. The Full Bench has had the opportunity to read the material. Now is the opportunity for only short oral submissions on the permission to appeal. Mr O Sullivan?

PN6

MR O'SULLIVAN: Yes, thank you, your Honour. The appellant, I think it goes without saying, relies on the outlines of submissions and also the grounds which were filed in the notice to appeal. I'll speak briefly to those outlines of submissions. By way of background, your Honours, the appellant relies upon - I'll withdraw that. The relevant principles with respect to leave to appeal are set out at paragraphs 4 and 5 of the outlines of submissions and I don t intend to go to those. They're relatively well settled.

PN7

In terms of the decision which is the subject of the appeal, your Honours will note that there were seven issues which were alleged as against the appellant in the matter below and then her Honour, the learned Commissioner, found that three of the issues, which were issues 1, 3 and 4, were found collectively to constitute a valid reason for the dismissal and that can be found at appeal book page 30 at paragraph 164. What the appellant says about that firstly, your Honour, is that it is the three issues together which constitute the valid reason.

PN8

In terms of the seven issues which were alleged as against the appellant, they were set out in the letter of termination dated 15 July 2013 - they're found at appeal book 254 to page 256. I won t go through each one of those separately. If I can go then through to issue number 1, your Honour, issue number 1 concerned an allegation which was that the appellant had breached a particular part of the respondent s code of conduct with respect to three separate requests for the provision of information. If one goes to the allegation, which was that the appellant had breached the code of conduct in receiving agreeing to provide information; and then, thirdly, failing to report the request for the provision of information.

PN9

In relation to the first request, the learned Commissioner found at appeal book page 1428 at paragraph 147 that part of the reasoning in finding that allegation proven was that the appellant had failed to read a warning screen. Your Honour, this was an allegation which did not form part of the reasons which were put to the appellant during the investigation process which took some two years and seven months, nor was it something that was relied upon by the employer in reaching its decision to terminate the applicant s employment.

PN10

With respect to the third request, the learned Commissioner found that the appellant, in telling the particular individual that he was going to supply information, but did not intend to, formed a lie of which constituted a breach of the AFP code of conduct. With respect to that particular third request for information, the Commission and the respondent during the course of the proceedings were clearly put on notice that this issue was one which the appellant did not consider was conduct which was subject to the decision of the respondent to terminate the employment of the applicant and that can be found at appeal book page 151 at PN1272 in transcript.

PN11

That was by way of background, your Honour. That was an objection by the appellant to a line of questioning by the respondent as to the basis of the lie. In response, and dealing with that objection, your Honour, the respondent did not advance that conduct as one upon which it relied upon for a finding of valid reason; rather the response was it was a line of questioning which went to credibility and relevant as to remedy.

PN12

If one returns to the conduct which the respondent relied upon, and is set out in the letter of termination, the respondent in cross‑examination at appeal book page 214 at PN1899 to PN1902 confirmed that the conduct that was being relied upon was the request to provide information, the agreement to provide the information and the failure to report the requests. The learned Commissioner did not find fault with the approaches by individuals to the applicant, that can be found at appeal book page 27 at paragraph 145, nor did she find failure by the appellant to report these approaches. That can be found at appeal book page 28, paragraph 152. She made no definitive finding as to the agreement to provide information; rather she relied upon other conduct which was known, or should have been known by the respondent, being the failure to read a warning screen, the content of which was unknown and the telling of a lie to provide information.

PN13

Firstly, the appellant says with respect to issue 1, which is this issue of the provision of information the appellant says it raises important matters that are not the subject of a definitive approach to the use made by the Commission of conduct that was known, or should have been known, by the employer prior to the termination of the employment, but not relied upon by the respondent for the purposes of reaching a decision to terminate the employment of an employee.

PN14

This is to be contrasted with the well settled approach in relation to conduct not known by an employer prior to the termination or otherwise referred to as after acquired knowledge . In that respect, I don t intend to take the Bench to the case, but the position with respect to after acquired knowledge is well settled and if I make reference to Metricon Homes Pty Ltd v Bradley.

PN15

Secondly, with respect to issue 1, the appellant says the decision the subject of this appeal raises a manifest injustice in that the appellant was denied procedural fairness in addressing the further conduct that the learned Commissioner relied upon and, in particular, the reliance by the Commissioner on the failure to read a warning screen and, furthermore, that the telling of a lie in the provision of information was something which was to be relied upon as being a valid reason.

PN16

The third issue of the seven issues, the second issue, if I can say it that way, that the Commissioner relied upon in determining that there was a valid reason was the use by the appellant to send a letter by way of diplomatic bag. The Commissioner rightly determined that there was no guideline nor policy which prohibited the appellant from using the diplomatic bag, notwithstanding that - and that reference can be found at appeal book page 29 and paragraph 156 and 157 the learned Commissioner found that the use of the applicant to send a letter by way of diplomatic bag in circumstances where there was no prohibition for the use of the diplomatic bag constituted a valid reason.

PN17

The appellant submits that this path of the decision with respect to the use of the diplomatic bag is counterintuitive and contrary to the well accepted principles that the reason must be sound, defensible or well founded. Secondly, with respect to issue 3, one will see that the learned Commissioner, at appeal book 29, paragraph 157 of the decision, were placed, for want of a better term, the particular part of the AFP code that the respondent relied upon and for which the appellant responded to as constituting the valid reason. In those circumstances, your Honour, the appellant submits that there was a denial of procedural fairness and this manifests an injustice.

PN18

Issue 4 involved the provision of references by the applicant to various individuals who were not the employees of the AFP. With respect purely to the issue of leave to appeal and the relevant principles, the same issue arises here with issue 4 as with issue 3. Again, the learned Commissioner replaced that part of the AFP code relied upon by the respondent with another particular part of the code. In those circumstances where the appellant did not have an opportunity to address what could be said to be a change to the valid reason that would be relied upon by the learned Commissioner constitutes a denial of procedural fairness and, again, manifest injustice.

PN19

There are further grounds of appeal which are set out in the outlines of submissions. I don t intend to go to those in any great deal, if at all. However, with respect to the submissions as to error of fact in paragraphs 21 and 22, the appellant no longer puts those forward as being in the category of errors of fact that would lead itself to an exercise of the Commission s discretion for a granting of appeal, but notwithstanding that still reserves its rights to run those on any substantive hearing of this matter. Unless the Commission has any further questions of me, those are the further oral submissions.

PN20

VICE PRESIDENT CATANZARITI: No. Thank you.

PN21

MR O'SULLIVAN: Thank you, your Honour.

PN22

MS CALLAN: Commissioners, running through the complaints made by the appellant in relation to this decision, in my submission, is a fundamental difficulty which is that the Commissioner, with respect, approached the task that she faced in an orthodox and coherent way and, in particular, her role was to determine if there was a valid reason for dismissal and in undertaking that role she was not limited to the reasons given by the Australian Federal Police when it dismissed Mr Farrah and there s well established authority to that effect in relation to her role.

PN23

There seems to be some degree of concern that ultimately in relation to two of the issues, the Commissioner concluded that the nature of the misconduct by Mr Farrah fell into better within a different provision of the code of conduct, but that doesn't take away from the fact that either way it was considered to be misconduct which is cumulatively what gave rise to a valid ground basis for dismissal.

PN24

VICE PRESIDENT WATSON: Isn t the point, Ms Callan, more a natural justice point ‑ ‑ ‑

PN25

MS CALLAN: Yes.

PN26

VICE PRESIDENT WATSON: ‑ ‑ ‑ that I think Mr O Sullivan submits that in deciding the matter in the way that the Commissioner did, there was not an opportunity for his client to deal with that issue? That's his argument.

PN27

MS CALLAN: Yes.

PN28

VICE PRESIDENT WATSON: I'm not saying that it stands up, but that s really more the point, is it not?

PN29

MS CALLAN: Yes. If I may respectfully say, there s a superficial attraction and a concern that is raised by reading that aspect of the Commissioner s judgment, but particularly when consideration is given to the transcript of this matter as to the way the hearing was run before her. First of all, there was very little factual dispute as to the conduct the subject of consideration. What it came down to was its characterisation, whether it was misconduct or not, but more particularly this case was not run on the basis that paragraph 8.7 of the code of conduct was your problem. It was framed much more generally as being about integrity, lack of insight and a failure to distinguish between the personal and the professional in the way that Mr Farrah was conducting himself in his employment.

PN30

So that, in my respectful submission, deals with any concern which might otherwise be lingering in your minds about procedural fairness.

PN31

VICE PRESIDENT WATSON: So you say the way the matter was run, the more general nature ‑ ‑ ‑

PN32

MS CALLAN: Yes.

PN33

VICE PRESIDENT WATSON: ‑ ‑ ‑ there was denial of an opportunity to ultimately address the basis on which findings were made.

PN34

MS CALLAN: Indeed, yes. Just dealing with some of the more particular complaints that my friend puts forward, there was a suggestion in relation to the first ground of appeal which concerned various requests for information and Mr Farrah s response to it. For instance, in relation to the first, which was the accessing of the electoral roll whilst at work and giving that information to a friend that a certain that his failure to read the warning screen appeared before accessing the electoral roll had not been put to him during the course of the investigation.

PN35

With respect, the more pertinent question is whether it was put to Mr Farrah during the course of the hearing and it was on a number of occasions and he acknowledged that he was not in the habit generally of reading warning screens and that was a matter that the Commissioner referred to in her decision that s causing her particular concern, demonstrating a cavalier attitude to his approach to his role in the workplace.

PN36

Similarly, the third request for information was a request by a friend of Mr Farrah for some assistance in relation to his sister s upcoming police matter and he made a police that he would consider the brief of evidence and he said, I didn't even mean to consider the brief of evidence. It wasn't, you know, within my remit, but I told her I would to give her peace of mind. The fact that he acknowledged that that was a lie was squarely put to Mr Farrah during the course of the investigation and, again, raised with him during the course of the hearing before the Commissioner and it is apparent from her Honour s reasons why she was troubled that he would not appreciate the telling of a lie in such a circumstance in the sense that it would bring, amongst other things, the reputation of the AFP into disrepute.

PN37

I d also observe that the sorry, I withdraw that. The point or the complaint that is raised, which was dealt with as issue 3, concerning the use of the diplomatic bag, in my submission, would not provide a basis upon which you would be persuaded that leave ought be granted. It was a discrete issue which was dealt with neatly by the Commissioner. She was satisfied that it, in combination with the other two issues, was of concern and, in particular, I note at paragraph 155 the Commissioner considered that his conduct, effectively not appreciating again the distinction between the personal and the professional, displayed a total lack of appreciation for that distinction. As I said, that s a consistent theme running through the conduct which she ultimately concluded constituted a valid ground for dismissal.

PN38

VICE PRESIDENT CATANZARITI: But in that paragraph when she deals with that, she adds the extra sentence:

PN39

Such a distinction is of particular importance in his role as a police officer.

PN40

MS CALLAN: Indeed.

PN41

VICE PRESIDENT CATANZARITI: Is different perhaps to the normal person putting something in a courier bag.

PN42

MS CALLAN: Yes. Arguably, it s a concern for anyone who uses the resources of the workplace for personal reasons, but it s particularly so, Commissioner, in that instance. The complaint which is made in relation to this ground really arises from the final paragraph of 156, which is that the Commissioner considered the existence, or otherwise, of some specific guideline or policy as to the use of the diplomatic bag was not crucial. The issue is one of commonsense and it really just goes back to the broader concern which, in my submission, gave rise to a valid ground for dismissal, in combination with the other issues as to the appellant s lack of appreciation for the distinction between the personal and the professional in the workplace.

PN43

The final complaint which is raised concerns the provision by the appellant of a number of character references from friends in circumstances where he as the Commissioner observed again failed to separate the personal from the professional. I d draw the Commission s attention in particular to paragraph 159, second sentence, where the Commissioner observed:

PN44

The applicant s failure to even consider the possibility that there might be a guideline or policy on the subject of providing references is itself a concern.

PN45

Commissioner, that s one of the three issues of which the Commission considered cumulatively constituted a valid ground for dismissal, which, in my submission, does not disclose any area of potential error or concern and particularly not one which would exercise the discretion on the basis that it would be in the public interest to grant leave to appeal. This matter turned on its face. In my submission, those facts were put squarely to the appellant. I haven't taken the opportunity on this, given the purposes of this application, to deal seriatim with matters raised in the transcript, but in my submission matters were put, they were responded to, and this case was dealt with and disposed of in an orthodox fashion. Are there any other aspects of the decision I can assist you with?

PN46

VICE PRESIDENT CATANZARITI: No, thank you. Mr O Sullivan, reply?

PN47

MR O'SULLIVAN: There s nothing further that the appellant wishes to say in response to those submissions.

PN48

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved. The parties are excused.

PN49

MR O'SULLIVAN: If it please the court.

ADJOURNED INDEFINITELY [10.00 AM]