Starr, Daniel v Department of Human Services - [2016] FWC 1460

1

Fair Work Act 2009 
s.394 - Application for unfair dismissal remedy

Daniel Starr

v

Department of Human Services
(U2015/13875)

VICE PRESIDENT HATCHER SYDNEY, 29 MARCH 2016

Application for relief from unfair dismissal.

Introduction

[1] After over 21 years of service, Mr Daniel Starr was dismissed from his employment 
with the Department of Human Services as a frontline Centrelink officer on 6 October 2015. 
The dismissal was not the result of any misconduct or poor performance at work. Indeed, 
apart from a minor disciplinary issue which arose in September 2006, it is apparent that Mr 
Starr was a competent and conscientious officer. The reason for the dismissal was a number
of comments made by Mr Starr on two social media sites over a period of some years, the first 
of which was on 14 June 2012 and the last in April 2015. The letter which notified Mr Starr of 
his dismissal, which was signed by Mr Michael Nelson, the General Manager of People 
Services for the Department, stated, among other things:

“... As outlined in my previous letter, I remain of the view that the level of criticism you 
have directed towards the government, the department, and its employees and 
customers, over a period of nearly three years, gives cause for grave concern about 
your ability to undertake your duties impartially, and reasonably suggests that you 
have deliberately sought to publically damage the reputation of the department, despite 
your assertion that this was not the case.

I also remain of the view that you have demonstrated a fundamental lack of respect, 
integrity and professional esteem towards the government, the department and its 
policies, programs, employees and customers. In this regard, you have conducted 
yourself in a manner that is entirely inconsistent with the standards of professional 
probity required of you as a public service employee. Your conduct represents a 
significant breach of trust which I consider to be inconsistent with the maintenance of 
the ongoing employment relationship.

As such, having considered all of the facts of this case, I have decided that your 
employment with the Department of Human Services is to be terminated with 
immediate effect.
...

[2016] FWC 1460 [Note: An appeal pursuant to s.604 (C2016/3300) was 
lodged against this decision and the order arising from this decision.]

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/awardsandorders/html/pr578298.htm


[2016] FWC 1460

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Despite the fact that your employment is being terminated as a result of serious 
misconduct, I have determined that you will be paid four weeks of salary in lieu of 
notice, given your employment is being terminated with immediate effect...”

Facts

[2] Most of the facts of this matter were either not in dispute or were clearly established 
by evidence that was not contested. Evidence was given by Mr Starr, Ms Sheryl Gaffney, who 
was employed by the Department as Acting Program Manager, Corporate Relations, for the 
Southern New South Wales Zone, and Ms Michelle Bethune, the Assistant Director of the 
Department’s Conduct Standards Team. 

[3] I also admitted into evidence, over the Department’s objection, statements made in Mr 
Starr’s support during the Department’s investigation of him by Ms Yvonne Willoughby, 
Team Leader at the Wollongong Service Centre, and Ms Wendy Andersen, the Branch 
Operations Manager at the Wollongong Service Centre. I did so on the limited basis that they 
were probative of Mr Starr’s previous work performance. They also formed part of the record 
of the disciplinary process undergone by Mr Starr. It may be accepted that the statements on 
their face give no indication that Ms Willoughby or Ms Andersen had knowledge of the 
matters which led to Mr Starr’s dismissal, and accordingly they cannot be treated as character 
references, properly speaking.

Mr Starr’s employment history

[4] As earlier stated, Mr Starr’s role in the Department was as a Centrelink officer with 
responsibility for dealing with “clients” - that is, recipients of or applicants for social security 
benefits including Newstart, the aged pension, family payments and student benefits. He 
usually dealt with such clients on a face-to-face basis. His responsibilities included 
interviewing clients, providing information to them, and making decisions about the grant, 
suspension and cancellation of payments. He had performed his duties at a number of branch 
offices, but in the last six years of his employment he was based in the Department’s Service 
Centre in Wollongong.

[5] The quality of Mr Starr’s work record was clearly demonstrated in the evidence and 
was not in dispute. Ms Gaffney made a statement in Mr Starr’s support during the disciplinary 
process which led to his dismissal, and she affirmed the contents of that statement in her 
evidence. The statement included the following;

“... I have worked with and known Daniel Starr at Department of Human Services for 
appropriately [sic] 15 years. At times throughout those years, I have supervised Daniel 
in my capacity as his Team Leader or Manager, and this has allowed me to observe his 
work ethics and character. More recently in my role as the region Service Support 
Manager, I have worked with his Manager and Daniel when he has acted in the Team 
Leader role. 

Daniel is always an extremely valued team member in any team that he has worked in 
by both his peers and his supervisors. He is a committed and dedicated employee, who 
is respected by those he works with. Daniel has always undertaken any role asked of 
him with dedication, quality output and high performance. 








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With his knowledge and experience, Daniel takes enormous pride in his work and 
willingly tackles difficult tasks whenever he is asked. He is efficient and effective in 
his roles, always willing to explore, challenge and constantly strives to improve which 
is a demonstration of his work ethics. Daniel is committed to assisting customers and 
his helpful and supportive nature sees him being called upon in complex and difficult 
matters. 

He is a team player and takes pride in working with and supporting team members to 
achieve results. Daniel has regularly coached and mentored new staff with patience 
and understanding. When Daniel has acted in the Team Leader role, he has done so 
exercising sound leadership skills and judgment.”

[6] Ms Willoughby said in her statement in support of Mr Starr:

“I am writing to tell you of the many fine qualities of Daniel Starr, whom I have known
for 5 years in various capacities, including professionally.

I have had the chance to get to know Daniel, and I say without a doubt that you are 
dealing with a person of very good moral character. Daniel operates with integrity, and 
always treats people with respect. He is also hard working and dedicated, and never 
leaves a job unfinished. Daniel is very passionate about his job and is very dedicated 
to DHS. In the time I have worked with Daniel he has always exhibited a strong work 
ethic combined with a commitment to the best interests of our customers and his 
colleagues.” 

[7] Ms Andersen said in her statement:

“I am writing to advise I have worked with Daniel Starr on and off since 2002. I have 
been Daniel’s manager since 1st December 2014. I have found Daniel to be hard 
working and dynamic. Daniel always displays integrity and wonderful work ethics. 
Staff seek Daniel out to help them and trust his guidance, including specialists. Daniel 
treats everyone with equality. He recently filled in as a Team Leader and his 
commitment to the role was outstanding. 

Daniel won a Star of the Month award in our zone. He was recommended for this 
award by his peers.

On a personal level my observations with Daniel is that he is very passionate 
employee who enjoys his work and helping people. Daniel never says no when he 
asked to do something. Daniel recently took an AVO out on a customer to protect our 
office. Daniel thinks of others first and foremost. Daniel shows nothing but exemplary 
behaviour at all times and it is a joy to work with Daniel. Daniel is a very valued team 
member.” 

[8] Having regard to the reasons for his dismissal which are discussed in greater detail 
later, it is significant that there was no suggestion by the Department that Mr Starr had ever 
treated any client of the Department in a less than respectful manner, or had ever acted other 
than impartially and appropriately in the exercise of his decision-making functions.








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[9] As earlier mentioned, there was a single blemish on Mr Starr’s disciplinary record. On 
3 June 2008 he was penalised the sum of $400 for breaches of the Australian Public Service 
(APS) Code of Conduct (Code) contained in s.13 of the Public Service Act 1999 (PS Act). 
The extract from the disciplinary record shows that the breaches arose from two incidents, one 
on 6 September 2006 and the other on 15 September 2006, and records that “Mr Starr 
behaved inappropriately in his dealings with his colleagues”. The actual nature of the conduct 
involved is not described in the extract. The Department did not rely upon this matter as 
supporting its later dismissal of Mr Starr.

APS Code of Conduct and relevant policies

[10] The Code established by s.13 of the PS Act has changed over time. Since 1 July 2014, 
s.13 has relevantly provided:

The APS Code of Conduct

(1) An APS employee must behave honestly and with integrity in connection 

with APS employment.
...

(7) An APS employee must:

(a) take reasonable steps to avoid any conflict of interest (real or apparent) in 
connection with the employee's APS employment; and

(b) disclose details of any material personal interest of the employee in 

connection with the employee's APS employment.

(10) An APS employee must not improperly use inside information or the employee's 
duties, status, power or authority:

(a) to gain, or seek to gain, a benefit or an advantage for the employee or any 
other person; or

(b) to cause, or seek to cause, detriment to the employee's Agency, the 
Commonwealth or any other person.

(11) An APS employee must at all times behave in a way that upholds:

(a) the APS Values and APS Employment Principles; and

(b) the integrity and good reputation of the employee's Agency and the APS.
...
(13) An APS employee must comply with any other conduct requirement that is 
prescribed by the regulations.

[11] Prior to 1 July 2013, s.13(1) was limited by the words “in the course of APS 
employment”, and s.13(11) did not contain any reference to the APS Employment Principles.








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[12] Section 10 of the PS Act sets out the “APS Values”. Since 1 July 2013 s.10 has 
provided as follows:

APS Values

Committed to service

(1) The APS is professional, objective, innovative and efficient, and works 
collaboratively to achieve the best results for the Australian community and the 
Government.

Ethical

(2) The APS demonstrates leadership, is trustworthy, and acts with integrity, in all 
that it does.

Respectful

(3) The APS respects all people, including their rights and their heritage.

Accountable

(4) The APS is open and accountable to the Australian community under the law and 
within the framework of Ministerial responsibility.

Impartial

(5) The APS is apolitical and provides the Government with advice that is frank, 
honest, timely and based on the best available evidence.

[13] On 24 May 2007, Mr Starr was required to sign a document certifying (relevantly) that 
he had read, understood, and would abide by the rules in a booklet entitled “Declaration of 
Confidentiality, Privacy, Security, Fraud Awareness and Conduct Responsibilities”. The 
booklet provides the following:

 The ethical behaviour required of employees “[a]t work … means…considering 
the effect of individual behavior and consequences of action upon others and the 
organisation as a whole”.

 “Centrelink expects all employees to approach their responsibilities, work and 
dealings with colleagues and customers in accordance with the APS Values and 
comply with the APS Code of Conduct”.

[14] The Department has issued a “Conduct and Behaviour Policy” which, in relation to 
“Public comment”, has since 25 August 2011, provided:

“As citizens, employees have the right to make public comment. Any public comment 
however must be made in the context of their private capacity as a member of the 
community, not as an employee. Any criticism of the government must not lead the 
audience to suspect the employee is unable to undertake their duties impartially. At no 








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time are employees to provide any public comment that would lead to the 
identification of a customer, or that would bring the department or the Australian 
Public Service into disrepute.”

[15] The APS has a Social Media Policy which has been updated from time to time. As at 
June 2015, this policy included the following:

“Personal use of social media

The department supports staff who choose to use social media in their capacity as 
private citizens, however you should be aware that content published on social media 
sites is publicly available – even on your personal accounts. 

As such, you should ensure:

 you are mindful that your behaviour is still bound by the APS Values and Code 
of Conduct – even outside work hours

 you don’t make comments that are obscene, defamatory, threatening, harassing, 
discriminatory or hateful to or about your work or about another person or entity

Your comments are not, or could not be perceived to be: 

 made on behalf of the department or the government, rather than an expression 
of a personal view

 so harsh or extreme in your criticism of the government, a Member of 
Parliament from another political party, or their respective policies, that they 
raise questions about your capacity to work professionally, efficiently or 
impartially as an APS staff member (such comments would not have to relate to 
your area of work)

 compromising your capacity to fulfil your duties as an APS staff member in an 
unbiased manner. This applies particularly where comment is made about 
policies and programmes of the department 

 So strong in your criticism of the department’s administration that it could 
seriously disrupt the workplace (APS staff members are encouraged instead to 
resolve concerns by informal discussion with a manager or by using internal 
dispute resolution mechanisms, including by making an internal public interest 
disclosure under the Public Interest Disclosure Act 2013)

…
Breaches of the social media policy 

… Some examples of failure to adhere to the Code of Conduct in a social media 
setting include: 

 making derogatory and obscene posts about a manager and workplace on 
Facebook

 tweeting derogatory comments about customers from their personal Twitter 
account 

 sending private messages to colleagues on Yammer to share racist or sexist jokes 
 disclosing non-publicly available information about delays in processing 

payments on a public forum (e.g. family payments on a parenting forum)








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 using Instagram to post inappropriate photos from a work Christmas party
 creating a Facebook page to protest the implementation of a departmental policy 

that impacts you in a private capacity and actively promoting it to your friends 
(e.g. a new Child Support policy because of the impact on your family).”

[16] A previous version of the Social Media Policy, in effect from 21 April 2011, provided:

“4.3 In situations where staff are involved in online discussions that relate to 
payments, services or initiatives, and general information is not available or 
will not suffice as a response, you are required to:
…
(iii) be mindful that your behavior is still bound by the APS Values and 

Code of Conduct, even outside work hours
…
(v) disclose only publicly available information. This includes information 

available on relevant agency websites or in annual reports…”

[17] The evidence did not make clear when the former version of the Social Media Policy 
replaced the latter version. It may be noted from the extract quoted immediately above that 
the 2011 version of the policy seems to predicate that employees may be involved in online 
discussions about payments, services and initiatives. Mr Starr gave evidence that he was sent 
emails which advised of updates to the Social Media Policy, but he did not necessarily read 
them. He said he was not aware that he was not permitted to criticise the government or 
government policy. He was aware however that his comments on social media should not be 
such as to give rise to a perception that he had compromised his capacity to carry out his 
duties in an unbiased manner, or be perceived to be so strong in their criticism of the 
Department’s administration that they could cause serious disruption to the workplace.

Mr Starr’s usage of social media and the contradiction of Flick

[18] In his non-work time, and on his own computer, Mr Starr prior to his dismissal 
participated in a number of online forums. These include Whirlpool, a site concerned with 
information technology issues, and Sportal, a sports website. His evidence was that he had 
participated in online forums for about 10 years and would have posted literally thousands of 
comments over that period. In doing so, Mr Starr has habitually posted under the name 
“mmmdl”.

[19] It was certain comments made upon a forum on the Whirlpool site in February-April 
2015 concerned with “Youth allowance/Austudy/Abstudy (Students)” which appears to have 
triggered a full-scale investigation into Mr Starr’s online activities. The Department operates a 
social media unit which seeks to maintain an online media presence on sites and forums 
relevant to the Department’s activities. In this connection, a person in the unit was at the 
relevant time posting comments under the name “Flick@HumanServices” (Flick). The 
evidence did not disclose whether Flick was an actual person’s name or simply an adopted 
user name.

[20] In response to a comment apparently made by other persons on the forum about the 
time it took for a Youth Allowance claim to be processed, Flick posted the comment “our 
claims take at least 21 days to process once we’ve received all of your supporting documents, 
but it can take longer at this busy time of year”. Mr Starr (as “mmmdl”) then replied on 27 








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February 2015: “FYI Flick – the KPI for YAL claims is now 42 days, not 21”. Some time later, 
in response to another comment, Flick posted another comment about the time frame for 
Youth Allowance claims which included “it’s a busy time of year so claims may take longer 
than expected”. On 7 March 2015 Mr Starr then responded “again Flick, the KPI is now 42 
days, not 21. Check PRISM for these details. So, someone lodging their claim on 2nd Feb is 
actually well within standard”. Flick subsequently responded to another comment by saying 
“Youth Allowance claims take at least 21 days to process … but it can take longer at the start 
of the study year”. Mr Starr responded to this on 22 March 2015 as follows:

“Please Flick, you need to stop giving this incorrect information. The KPI for Youth 
Allowance student claim is now 42 days, not 21. Continually saying 21 days, as it used 
to be, is doing nothing other than giving people false hope, and increasing customer 
traffic.”

[21] Another user, “ulmo”, replied to Mr Starr and said that he/she had been told at a 
Centrelink office that it was 21 days, and asked “Do you work at C’limk mmmdl? (Genuine 
question)”. Mr Starr replied on 22 March 2015:

“yeah mate, I do. And have done so for over 20 years.

This change has only happened recently, and only applies to student claims – for a 
jobseeker it’s still a 21 day processing time. And I am not surprised that people are 
unaware of these changes – I work in an office that has a high student population and a 
lot of student related traffic, so that is why I know.

It just frustrates me when someone doing a job like Flick, who is offering a good 
service, is giving incorrect info, especially when I have stated here twice already (and 
told her where to look, using an acronym that would only be known within the dept.)”

[22] Flick later responded to another person’s comment by saying that claims “take at least 
21 days to process”, to which Mr Starr responded on 25 March 2015 by saying “Yet again 
Flick – NO. 42 days now. From PRISM … It is only 21 days for jobseeker claims”. Mr Starr 
also responded to another user on 8 April 2015 by saying “I can tell you (despite Flicks 
continued assertion that the claims should take 21 days when it is now 42 days), that they are 
currently processing claims lodged in the 1st week of Feb”.

[23] Flick subsequently responded to another user by saying “the 21 day period is all days, 
not just business days. I can confirm that we are taking longer to process claims at this busy 
time, but we’re generally still finalising claims within a month of all required documents 
being lodged”. Mr Starr responded on 14 April 2015 by saying “…as I have stated 
repeatedly, the processing time for a Youth Allowance Student claim is now 42 days and not 
21 days. And they are not finalising claims within a month, they are currently processing 
claims lodged in Early to Mid February”.

[24] Finally, after another user complained “My daughter applied in late Feb still no word 
on her Austudy payments”, Mr Starr replied (on an unidentified date in April 2015):

“yes, it’s utterly disgraceful. In all my time there (over 20 years) I have never seen it 
this bad (not even close). 








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I encourage every single person to complain to your local MP. Maybe that way they 
will get the hint that more help is required. Despite Flick’s ridiculous assertions in this 
thread that most claims are processed within 21 days to a month, I can tell you that 
they aren’t even close to the end of February processing at the moment. 

It makes me embarrassed to work there, my heart genuinely goes out to all these kids 
who are simply struggling (to put it mildly) and there isn’t a damn thing those of us in 
the offices can do about it.”

[25] Mr Starr confirmed in his evidence that 42 days was, at the time of the above posts, 
the correct “KPI” (which I take to be the timeliness benchmark) for the processing of claims 
for the Student Youth Allowance, not 21 days. His evidence in that respect was not 
contradicted. He also said that the 42 day timeframe was, as a matter of standard practice, 
communicated to claimants for the allowance at the time they made their claims. Again, this 
evidence was not contradicted. I accept Mr Starr’s evidence in this respect.

Identification of Mr Starr and discovery of earlier posts

[26] Someone in the social media unit became displeased at Flick being contradicted on the 
Whirlpool site by “mmmdl”. On 21 April 2015 Ms Melissa Ryan, the General Manager, 
Participation Division, sent an email to Mr Mark Withnell, the General Manager, Business 
Integrity, which stated:

“I have been speaking to Michael Nelson [General Manager, People Services]
regarding a DHS staff member (‘MMMDL’) who has been posting comments on 
Whirlpool. The staff member is using information that they can access at work to 
contradict posts made by our social media team.”

[27] An investigation was then undertaken by the Business Integrity Division to uncover 
“mmmdl’s” identity. I would infer that this involved a wholesale trawl through all of 
“mmmdl’s” online posts, since it was discovered from those posts that “mmmdl” claimed that 
he was approximately 39 years old in January 2015, had been employed at Centrelink for 20 
years, lived opposite the Telstra exchange in Corrimal, and would be travelling overseas 
during late May to early June 2015. These claims were matched with the Department’s 
internal data sources, and permitted “mmmdl” to be identified with a high degree of 
confidence as Mr Starr.

[28] In undertaking this identification process, the Department discovered a large number 
of earlier posts made by Mr Starr (as “mmmdl”) on the Whirlpool and Sportal websites which 
it apparently regarded as being of concern. It is not precisely clear which, out of a large 
number of these posts, the Department relied upon to justify its dismissal of Mr Starr. At the 
hearing a confined number of them were referred to. The first occurred on 14 June 2012, on a 
thread concerned with a rugby league match between the Manly Sea Eagles and the 
Melbourne Storm. Mr Starr appears to have been a supporter of the former team, but this was 
not one of the reasons for his dismissal. Another participant had posted: “***k, I’m sorry. I 
didn’t realise I was dealing with a bunch of retarded ESL lepers...”. Mr Starr replied:

“English super league or English as a second language? Though ESL means something 
totally different for me here at work – it’s an appointment for the spastics and junkies. 
Always a joy.”








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[29] In his evidence, Mr Starr explained that “ESL” was, within the Department, an 
expression used to refer to appointments with long-term social security benefit recipients, but 
he did not know what ESL actually stood for.

[30] The second and third posts, on 31 July 2013, were on the “Sportal Federal Election”
thread on the Sportal website. In the second post Mr Starr responded to a comment by 
“lebbo73” referring to “... rumours that 20k deadbeat leeches will be cut from the public 
service. That should help trim the fat” in the following terms:

“I can tell you right now, quite emphatically, that as a public servant, I am far from a 
‘deadbeat leech’. 

I would challenge yourself, or anyone to come and do my job, even for a week. I 
promise you that your opinion would change. Try being abused on an hourly basis, 
spat at, punched, headbutted etc etc. Try dealing with whinging junkies hour after 
hour, day after day. You would walk out after an hour.”

[31] Lebbo 73 then said “I wasn’t referring to you mmmdl”, to which Mr Starr replied in 
the third post: 

“maybe you weren’t. But when you make sweeping statements like ‘20k deadbeat 
leeches’ when you clearly don’t have any idea what it is like to work for the public 
service then I’ll call you on it.

I’ve been a public servant for over 19 years now. And in my early days, it was cruisy. 
Then the Liberal government got in, and didn’t just cut, they cut to the bone, and past 
it. 

Now, I work for a Department that is farcically understaffed. Part of that 
“understaffing” is the fact that, yes, we have our share of utterly useless people that 
couldn’t get a job anywhere else. But a huge part of it is simply that we don’t have 
enough staff, period. 

I’ve stated on here before that I work for Centrelink. It’s a department where, at the 
moment, you have to wait almost 3 weeks simply to even get an appointment to get on 
the dole. You have to wait 4/5/6 weeks to get your family payments granted. You 
spend 30 mins at a minimum just to get to talk to someone on the phone. And these are 
because we simply are understaffed, and have an upper management who seem to 
think that ‘self service’ is the be all and end all, when in fact we now have a new 
operating system that is forcing us to work even slower in the fact that the system 
itself takes 2-3 times as long to do a simple transaction.

I’ve no doubt there are plenty of areas in the public service that can be hugely 
improved. I honestly have zero idea what all our managers do, especially the higher 
managers. None at all. However, it never seems to be in this area where the cuts seem
to be.”








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[32] The fourth post was on “The Australian Politics Thread” on the Sportal website on 14 
May 2014, shortly after the 2014 Federal Budget was presented. Mr Starr’s lengthy post 
included the following:

“Have to say, I’m quite surprised by the lack of discussion in this post today – is it 
because there is just nothing anyone can say to justify the savagery of the cuts?...The 
change in the Pension age from 67-70 - Abbott and Hockey can go on all they like 
saying this isn’t a broken promise because it won’t begin until 2017 – however it is in 
THIS budget – meaning that, yes, it is a broken promise…The change to entitlement to 
welfare payments – where do I start? People under 30 not being able to get payments
for 6 months – ummmm, what?...Oh, so they can Earn or Learn – where are all these 
educational positions coming from?...All this policy is going to do is cause even more 
poverty…However, they haven’t gone far enough with regards to FTB…Give working 
families the rebates, and stop the “bonuses” to people who already get payments every 
week. Trust me – come July 1, they all come into the office and want to know when 
their bonuses are coming. Doing that alone would have [cost] god knows how much 
money. And taking $80b from the states over the next 10 years for health and 
education – what a sleazy, slimy way to make the states have to start the talks about 
raising GST…something Abbott explicitly stated would not happen under this 
government.”

[33] The fifth, sixth, seventh, eighth and ninth posts were on a thread entitled “6 month 
wait for the dole” on the Whirlpool site. I infer that this thread was established in response to 
the 2014 Federal Budget. Mr Starr made a number of comments on this thread in the period 3-
16 June 2014 which involved criticisms of the Budget and other aspects of Federal 
Government policy. The fifth post, on 4 June 2014, was part of a dialogue with other forum 
participants, and was as follows:

“The reality these days is that there are less jobs available for younger people, 
especially those that don’t have high education. 

What people don’t realise is that Earn or learn has been around for at least 7 years. It is 
however close to unenforceable at the moment. I have zero issue with trying to 
educate people in order to make better lives for themselves. The issue is the fact that 
you can be fully qualified and still not get a job, at least not for a while. And yet these 
people won’t be supported. In the meantime junkies can continue to get paid left right 
and centre with zero penalties. Trust me, I know. I deal with it every day.”

[34] The sixth post, on 8 June 2014, was part of a continuation of the same dialogue, and 
included the following:

“and yet you are an advocate of this ridiculous PPL scheme that they are looking to put 
in place that will cost 5b per year...you are all over young people, with the Learn or 
Earn policy – I put it to you, that if you can’t afford to have a child without receiving a 
Welfare payment in the form of PPL, then don’t have a kid. There is NOTHING wrong 
with the current PPL scheme….As opposed to the new PPL which is nothing more 
than welfare for the rich... As much as Abbott goes on about how it will keep working 
mothers employed – how? They will, instead of taking leave without pay or quitting 
immediately, will just do so once the PPL period expires.”








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[35] The seventh post, on 11 June 2014, was part of the same conversation, which had 
turned to a wider range of issues including welfare dependency. Mr Starr said (as one of a 
number of posts he made that day:

“Quite honestly, there needs to be a MUCH greater emphasis placed on breaking the 
welfare cycle. There are trial programs running at the moment, but honestly, they do 
very little. 
...
The other thing that needs to be stopped is the ridiculous amount of exemptions given. 
The fact that there is under 66% participation rate is farcical. Medical exemptions 
should only be very temporary, and very short term. And only for things like broken 
legs. Every 2nd certificate is for depression. And yes, there are some genuine cases. 
But with most of them - hey, here’s an idea - get a job, meet some people, bingo, you 
won’t be so depressed. Being exempt isn’t going to help.”

[36] A participant responded to this by saying, among other things “it is not funny and 
shows you have no understanding of depression”. The eighth post, in direct response to this, 
on 11 June 2014 was as follows:

“actually, no, unfortunately, I have a very good understanding of depression.

And, as I said in my post, yes, there are some genuine cases where depression is so 
debilitating that it would prevent you from working or looking for work.

However, every 2nd medical certificate that is provided is for depression.  Minimum. 
Funny that you see these people out and about without a care in the world as soon as 
they get their exemption. 

Tell me how a doctor can diagnose depression in someone to give them a medical 
certificate for a 3 month period of time based on a 15 minute visit.  They can’t. And 
the doctors are as much to blame. Go to the doctors to get a certificate because you’re 
sick and can’t go to work – you’ll get a day.  Need one for Centrelink - 3 months, no 
questions asked.”  

[37] A participant responded by asking “How do you know all this? Do you work at 
Centrelink or a medical practice? How do you know whether they are genuine or not?” In the 
ninth post, still on 11 June 2014, Mr Starr replied:

“Yep, work at Centrelink.  And you know if they are genuine or not.  As I’ve said, less 
than 2 out of every 3 people on Newstart are actually actively seeking work.  That is a 
massive, massive problem.”

[38] I interpolate two observations here. The first is that I infer that when Mr Starr said in 
the eighth post that he had a very good understanding of depression, he was referring to the 
fact that he himself has suffered from chronic depression, as well as anxiety. I will deal with 
this issue in greater detail later. The second was that the Department did not accept that it was 
factually correct to say, as Mr Starr said in the seventh and ninth posts, that only two thirds of 
Newstart recipients were actively seeking work. When cross-examined about this, Mr Starr 
said he derived the figure from ABS statistics on workforce participation. That is a quite 








[2016] FWC 1460

13

different statistic. The evidence did not disclose what the actual figure was for the proportion 
of Newstart recipients who were actively seeking work.

The investigation and disciplinary process

[39] On 14 May 2015 Ms Marg Lambkin, the Director of the Conduct Standards Team in 
the Department’s Workplace Relations Branch, appointed Ms Michelle Bethune, the Assistant 
Director of the Conduct Standards Team, to conduct an investigation into “an allegation” that 
Mr Starr had breached the Code. The maker of this “allegation” was not identified. On 18 
May 2015 Ms Bethune wrote to Mr Starr advising him of the allegations. The letter referred 
to a “suspected breach” of the Code in the following terms:

“It is suspected that you may have made inappropriate and derogatory comments in 
regard to the department’s programs and customers, as well as other inappropriate 
comments on the social media platforms ‘Whirlpool’ and ‘Sportal’ with the user 
identification ‘MMMDL’.

It is alleged that these behaviours do not reflect the expectations of an employee of the 
Department of Human Services ... and have the potential to impact the reputation of 
the department and the APS.”

[40] The letter went on to identify that the suspected Code breaches were of subsections
(1), (7) and (11) of s.13 of the PS Act. The letter stated that a copy of the relevant material 
relating to the allegation was attached, although it was not attached to the copy of the letter 
placed in evidence before me.

[41] Mr Starr received Ms Bethune’s letter on 19 May 2015. This was shortly before he 
was due to take a pre-arranged period of long service leave commencing on 25 May 2015 and 
to travel overseas. He rang Ms Bethune to discuss the investigation that day. It is apparent that 
Mr Starr wanted the investigation completed before he went overseas so that it was not 
hanging over his head during his overseas holiday. Ms Bethune took a note of the 
conversation. In her note (the contents of which were not disputed by Mr Starr), she recorded 
Mr Starr as initially saying “I’m calling about the allegations. I have nothing to say” and then 
going on to say “well I’m not going to provide a response to the allegations, there’s no point 
in denying it was me”. Mr Starr conveyed his request concerning the completion of the 
investigation before going on leave, and Ms Bethune explained that this was not possible.

[42] Mr Starr gave evidence, which I accept, that “[s]ince this matter came to light” he had 
attempted to remove all of his posts from the various forums. I presume that means that he did 
this sometime after Ms Bethune’s letter of 18 May 2015. Mr Starr said he was only partially 
successful in this endeavour, since in some cases, particularly with the Whirlpool site, posts 
were archived after a certain period, meaning that the user could no longer go in and edit their 
posts. It is unclear on the evidence whether these archived posts remain publicly accessible.

[43] On 7 July 2015 Ms Bethune sent Mr Starr a copy of the preliminary findings, the 
material she relied upon and her draft investigation report. Her proposed conclusion was that 
Mr Starr had breached the Code in respect of the requirements in subsections (1), (10) and 
(11) of s.13 of the PS Act. She advised that he had seven days to provide any comments or 
further information in writing before she made her final determination.








[2016] FWC 1460

14

[44] The only response made by Mr Starr was to complain, by email on 14 July 2015, that 
Ms Bethune had included her record of his telephone conversation with her of 19 May 2015. 
Mr Starr said that he was feeling emotionally distressed when he made the call, and had not 
been told that notes were being taken of the conversation for use in the investigation.

[45] On 17 July 2015 Ms Bethune completed her final determination and report. She 
confirmed that Mr Starr had breached the Code in respect of the requirements in subsections 
(1), (10) and (11) of s.13 of the PS Act. The critical findings in her report were as follows:   

“70. Accordingly, I have formed the view that a reasonable person would conclude that 
your behaviour was entirely inappropriate, and inconsistent with APS Values and 
Code of Conduct, as well as the departments’ rules about how you are expected to 
behave. 

71. Specifically, I note that you have repeatedly posted comments on both ‘Whirlpool’ 
and ‘Sportal’ social media platforms that appear to be in contravention of the 
department’s policies, including: 

 Providing specific guidance and advice on payments and services offered by the 
department to members of the public online; 

 Criticising the government;
 Encouraging members of the public to complain to their local MP’s about the 

service levels of the department;
 Negative comments about the policies and programmes of the department;
 Derogatory comments about departmental ‘Managers’ and more broadly, the 

department;
 Disclosing non-publically available information about delays in processing 

payments;
 Berating members of the Social Media team publically on ‘Whirlpool’;
 Derogatory comments about customers of the department, including referring to 

customers as ‘spastics and junkies’.

72. I am further of the view that a reasonable person could conclude that your 
behaviour has brought the reputation of the department into disrepute, and that your 
conduct raises serious concerns about your ability to fulfil your duties impartially and 
in an unbiased manner. 

73. My basis for this view is that over a period extending nearly 3 years, whilst clearly 
identifying yourself as an employee of the department, you have repeatedly publically 
criticised and made derogatory comments about not only the government, but the 
department’s policies and programmes, management, members of the social media 
team, and the department’s customers, including publically advising that you are 
‘embarrassed’ to work for the department. 

74. On the basis of the evidence, I have formed the conclusion that, in the 
circumstances: 

 your conduct was entirely inappropriate and unacceptable, and in breach of 
departmental policies, instructions and guidelines;

 your conduct constituted a breach of the Code of Conduct; and 








[2016] FWC 1460

15

 it was incumbent upon you to take steps to avoid breaches of the Code of 
Conduct.

…
78. It appears that you repeatedly chose not to abide by the department’s clear 
directions to you about how you were to behave. Furthermore, I note that you posted 
these comments with the understanding that your actual identity was unknown to the 
department. I am satisfied that your actions in this regard were deliberate, and were 
undertaken to avoid detection, on the basis that you knew that your conduct was 
entirely inappropriate.
…
83. There is no doubt that you improperly used your knowledge of the department’s 
internal processes and performance data, that was made available to you as an 
employee, to make inappropriate, critical public comment about the service levels 
provided by the department.

84. I am satisfied, on the balance of probabilities, that you used your knowledge as an 
employee to inappropriately make public comment that you knew, or should have 
known, could reasonably damage the department’s reputation. 
…
92. In particular, I consider that in behaving as you did, you failed to uphold the APS
Value that states that the APS is ‘Ethical’ and, therefore, ‘demonstrates leadership, is 
trustworthy, and acts with integrity, in all that it does’. Ethical conduct, in this 
situation, demanded that you not make public comment that: 

 Criticised the government;
 Encouraged members of the public to complain to their local MPs about the 

services of the department;
 Criticised the policies and programs of the department;
 Criticised ‘Managers’ and more broadly, the administration of the department;
 Disclosed non-publically available information about delays in processing 

payments;
 Berated fellow employees, notably ‘Flick’, an member of the Social Media team, 

and other employees, by stating that some of them are ‘utterly useless’ and 
‘couldn’t get a job anywhere else’; and 

 Disrespected customers of the department, including referring to departmental 
customers as ‘spastics and junkies’.”

[46] Mr Nelson was then appointed as the “Sanction Delegate” - that is, the person who 
would determine the penalty to be imposed upon Mr Starr. On 15 September 2015 Mr Nelson 
wrote to Mr Starr advising him of his appointment, and referred specifically to the following 
findings from Ms Bethune’s report:

“ Between June 2012 and April 2015, you made a range of inappropriate and 
derogatory comments on the social media platforms ‘Whirlpool’ and ‘Sportal’, 
using the alias of ‘MMMDL’.

 The comments you made were in contravention of departmental policies, notably 
the ‘Conduct and Behaviour’, and ‘Social Media’ policies. Specifically you:








[2016] FWC 1460

16

o Provided specific guidance and advice on payments and services offered by 
the department to members of the public online;

o Criticised the government;

o Encouraged ‘everyone’ to complain to their local MP’s about the service 
levels of the department;

o Made negative comments about the policies and programmes of the 
department; 

o Made derogatory comments about departmental ‘Managers’ and more 
broadly, the department;

o Disclosed non-publically available information about delays in processing 
payments;

o Berated members of the department’s Social Media team publically on 
‘Whirlpool’;

o Made derogatory comments about customers of the department, including 
referring to customers as ‘spastics and junkies’.”

[47] Mr Nelson also stated that “You have not admitted to, or accepted responsibility for 
your actions”. He characterised the findings in Ms Bethune’s report as “extremely serious”, 
and said “The fact that you used an alias, whilst clearly identifying yourself as an employee of 
the department, indicates that you took steps to conceal your identity, knowing your 
behaviour was entirely inappropriate and unacceptable”. He said he was considering 
imposing the sanction of termination of employment, and invited Mr Starr to provide a 
written response. Mr Starr was stood down with pay from this point. 

[48] On 18 September 2015 Mr Starr sent a “preliminary response” by email in which he 
asked Mr Nelson to recuse himself from the role of Sanction Delegate on the ground that his 
earlier involvement in the investigation process (as evidenced by the 21 April 2015 email 
from Ms Ryan to Mr Withnell) gave rise to “potential perceived bias”. 

[49] On 22 September 2015 Mr Starr sent his full response to the report, together with the 
statements of Ms Gaffney, Ms Willoughby and Ms Andersen. The response is too lengthy to 
reproduce in full, but it made the following points:

 He was sincerely remorseful for his actions.

 He did not make any statement during the investigation process because it could 
not have impacted upon his guilt or innocence.

 He agreed that a number of the comments he had made were entirely 
inappropriate and unacceptable.

 He did not intentionally set out to cause any harm to the Department.








[2016] FWC 1460

17

 He offered advice online because he was naïve about the Social Media Policy and 
had a passion and desire to assist people.

 He did not sign up for the forums for the purpose of making negative comments 
about the Department, but had participated in them for many years with the same 
user name.

 There was no excuse for making derogatory comments such as “spastics and 
junkies” about customers of the Department. He took full responsibility for this, 
recognised they were completely and utterly inappropriate, and there was no 
justification for making them.

 The information he disclosed was the same information that he and his colleagues 
relayed to customers on a daily basis.

 In relation to the time to process student claims, he could not in good conscience 
say that they were supposed to take 21 days, when the KPI had been increased to 
42 days and they were in fact taking 9-10 weeks or more than 3 months in some 
cases.

 He understood it to be the usual position that dissatisfied customers should be told 
to complain to their Member of Parliament.

 He had always treated customers with respect at work, and had always acted with 
professionalism and integrity.

 He had long suffered from depression and anxiety, and sometimes engaged in 
self-destructive behavior as a coping mechanism. Some of his comments on the 
Whirlpool forums involved him releasing his internal anger and frustration.

 He accepted that he should be subject to a sanction for his behavior, but not 
dismissal.

[50] On 23 September 2015 Ms Lambkin wrote to Mr Starr rejecting any contention that 
there was actual or perceived bias on the part of Mr Nelson as Sanction Delegate. 

[51] On 28 September 2015 Mr Starr provided an additional statement to Mr Nelson in
which he emphasised the importance of his job to him, his fear of being dismissed, and the 
length and quality of his service with the Department. He also said:

“… I have certainly learnt from the mistakes I have made, right across my life, and 
certainly when it comes to my career. I just hope to be given the opportunity to show 
that I have learnt from the mistakes I have made regarding the Social Media policy.”

[52] On 6 October 2015 Mr Starr was sent the letter from Mr Nelson, from which I have 
quoted above, informing him that he was dismissed.

Events since dismissal








[2016] FWC 1460

18

[53] Mr Starr has not succeeded in finding any alternative employment since his dismissal, 
although he has been reluctant to apply for jobs because of the need to disclose the 
circumstances of his dismissal. Having been dismissed for misconduct after working with the 
same employer for 21 years, and having no tertiary educational qualifications, his future 
employment prospects must be assessed as poor. The investigation and dismissal process 
caused him such distress that he had to seek medical treatment, but that ceased before the end 
of 2015.  

[54] Mr Starr’s evidence, which I accept, is that he has felt remorseful and embarrassed 
about his dismissal. He has stopped most of his social activities, and has ceased posting on 
any social media forums. 

Preliminary matters

[55] Section 396 of the Fair Work Act 2009 (FW Act) requires that four specified matters 
must be decided before the merits of Mr Starr’s application may be considered. There was no 
contest between the parties about any of those matters. I find that:

(a) Mr Starr’s application was made within the period required by s.394(2);

(b) Mr Starr was a person protected from unfair dismissal;

(c) The Department was not a “small business employer” as defined in s.23 of the 
FW Act, so that the Small Business Fair Dismissal Code was inapplicable; and

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

Was Mr Starr’s dismissal unfair?

[56] Section 387 of the FW Act requires the Commission, in considering whether a 
dismissal was harsh, unjust or unreasonable, to take into account a number of matters 
specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in 
relation to Mr Starr’s application in turn below. 

Paragraph 387(a)

[57] There was no factual dispute in the proceedings that Mr Starr engaged in the conduct -
that is, making the comments on the Whirlpool and Sportal websites - which led to his 
dismissal. Therefore the assessment of whether there was a valid reason for Mr Starr’s 
dismissal based on his conduct involves a characterisation of the nature and gravity of that 
conduct having regard to the requirements of the PS Act and the relevant policies of the 
Department. In undertaking that task, I shall follow the approach taken by the Full Bench 
majority (Lawler VP and Cribb C) in B, C and D v Australian Postal Corporation T/A 
Australia Post1 that the issue of whether a valid reason for the dismissal exists for the purpose 
of s.387(a) is to be determined from the employer’s perspective, and that issues of substantive 
fairness from the employee’s perspective are to be considered separately. Accordingly I will 
deal with any mitigating circumstances as other relevant matters under s.387(h).

                                               
1 [2013] FWCFB 6191 at [35] and [42]-[46]








[2016] FWC 1460

19

[58] One of the difficulties in this case is to pin down precisely which comments posted by 
Mr Starr were relied upon to justify his dismissal, and what requirement or policy in relation 
to each such comment was said to have been breached. Ms Bethune’s report, and Mr Nelson’s 
correspondence of 15 September and 6 October 2015, applied allegations of breaches to the 
online comments on a global basis. At the hearing the Department in its submissions made a 
greater effort to identify what particular comments were said to have breached which 
particular requirements or policies. I will rely primarily on the approach taken by the 
Department at the hearing in assessing the question of valid reason, but I will also have regard 
to the more sweeping approach taken by Ms Bethune and Mr Nelson.

[59] It is necessary to observe at the outset that all of the conduct occurred outside of work. 
In that circumstance it is necessary to identify the principles defining the extent to which the 
employer is entitled to regulate, and take disciplinary action in relation to, “out of hours” 
conduct. The usually applicable principles were stated in Rose v Telstra Corporation Limited2

to be as follows:

“It is clear that in certain circumstances an employee's employment may be validly 
terminated because of out of hours conduct. But such circumstances are limited,:

 the conduct must be such that, viewed objectively, it is likely to cause serious 
damage to the relationship between the employer and employee; or

 the conduct damages the employer's interests; or
 the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to 
indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an 
employee's out of hours conduct.” 

[60] Thus there will not usually be a proper basis to find that there is a valid reason for a 
dismissal for “out of hours” conduct which does not fall within the circumstances described in 
Rose v Telstra. Thus if an employer dismisses an employee for a breach of an employment  
policy which purports to regulate the employee’s private conduct, there will not usually be a 
valid reason for the dismissal unless the employee’s conduct falls with the Rose v Telstra
circumstances.

[61] However, the scope of employer control over private conduct may be greater in the 
case of public servants whose employment is regulated by statute. This was recognised by the 
Federal Court (Finn J) in McManus v Scott-Charlton3 as follows:

“From 1862, Australian public service legislation has imposed strictures and limitations 
upon the employment and non-employment (or private) conduct and activities of 
public servants; the acquisition of personal interests conflicting with duties of office: 
cf PS Regulations, reg 8B; holding outside offices or employment: cf PS Act s91; 
making private disclosures of official information: cf PS Regulations, reg 35; and see 
also PS Regulations, reg 8A(i) and regs 65 and 70.

                                               
2 Print Q9292 [1998] AIRC 1592 (4 December 1998)
3 (1996) 70 FCR 16 at 25








[2016] FWC 1460

20

It seems clear that some number of these strictures and limitations were - and are - not 
designed merely to serve the purposes of the employment relationship as such. Rather, 
for reasons of governmental and public interest, their object includes securing values 
proper to be required of a public service in our system of government and, in 
particular, the maintenance of public confidence in the integrity of the public service 
and of public servants: for a contemporary treatment of this, see generally Electoral 
and Administrative Review Commission, Report on the Review of Codes of Conduct 
for Public Officials, (1992, Qld).

For this reason public service Acts and regulations have in some respects gone 
considerably beyond what would be countenanced by the implied contractual duty of 
an ordinary employee to serve his or her employer with good faith and fidelity - at 
least insofar as the regulation of an employee's private activities are concerned: on this 

implied contractual duty, see eg Blyth Chemicals Ltd v Bushnell [1933] HCA 
8; (1933) 49 CLR 66 at 81-82.

Perhaps the most contentious illustrations of this legislative regulation of private 
conduct have been (i) the changing supervision of the political activity of public 
servants (initially taking the form of a total ban: see Civil Service Regulations 1867 
(Vic) reg 23;) but see now eg "Guidelines on Official Conduct of Commonwealth 
Public Servants" (1995) Chs 5 and 6; and for a comparative treatment see, Ontario 
Law Reform Commission, Report on Political Activity, Public Comment and 

Disclosure by Crown Employees (1986); and (ii) the still exceptionally broad and, 
perhaps today, possibly invalid prohibitions imposed on the private use made of 
information "of which an officer ... has knowledge officially": see PS Regulations, reg 
35.

The particular points I wish to make about this enduring and legislatively backed 
"public interest" regulation of the private conduct of public servants are these. First, to 
the extent that private conduct is made the lawful subject of employment regulation, it 
can for that reason provide the subject of a binding employment direction - provided 
the direction given is itself reasonable.

Counsel for the applicant has submitted in contrast that the only binding directions 
which can be given a public servant are those related to - which have a nexus with -
the performance of that person's employment duties. In light of what I have said so 
far, this submission is untenable as a generalisation.”

[62] Having regard to the above decision, I will proceed upon the basis that where Mr Starr 
has breached in a non-trivial way any relevant requirement of the PS Act, or any policy 
reasonably giving effect to a requirement of the PS Act, then such conduct may constitute a 
valid reason for dismissal.

[63] I will firstly consider the posted comments in the period February-April 2015 
concerning the timeframe for processing Student Youth Allowance claims. In relation to these 
posts (or at least those which occurred on 22 March and the last one in April 2015), the 
Department submitted that they involved a lack of integrity or ethical conduct in breach of 
s.13(1) and the use of inside information for personal benefit in breach of s.13(10), and had 








[2016] FWC 1460

21

the potential to bring the Department into disrepute. It was also submitted that the posts were 
derogatory of a member of the social media team.

[64] Except in one respect, I cannot accept these submissions. I do not consider that any 
issue of lack of integrity or unethical conduct in breach of s.13(1) arises. If Mr Starr’s 
comments concerning the KPI for processing Student Youth Allowance claims had been 
knowingly false, then there would be a basis for finding that he had acted dishonestly and 
unethically. However the evidence before me was that it was in fact the case that the KPI had 
been extended to 42 days, that the 21 days referred to by Flick was incorrect, and that claims 
were taking longer than suggested by Flick to process. 

[65] I likewise do not consider that in disclosing the KPI, Mr Starr was using inside 
information in breach of s.13(10). The uncontradicted evidence before me was that the 42-day 
KPI was as a matter of course disclosed to any claimant for the Student Youth Allowance. 
Thus, although the figure came from the Department’s PRISM computer system, it cannot be 
said to be confidential in any real sense. That it was not confidential is demonstrated by the 
fact that Flick was promoting what he or she considered to be the usual timeframe - 21 days. 
The only relevant difference was, on the evidence before me, that Flick was disclosing the 
wrong timeframe and Mr Starr was disclosing the correct one. 

[66] In any event, I do not consider that the information was disclosed in order for Mr Starr 
to obtain a benefit or advantage. It was submitted by the Department that the benefit sought to 
be obtained was to “impress others with his knowledge of DHS operations”. The evidence did 
not permit the inference that this was Mr Starr’s purpose; rather, it is reasonably clear that Mr 
Starr was acting out of frustration that Flick was promulgating information which he knew to 
be incorrect. 

[67] I also reject the proposition that Mr Starr’s post involved any denigration of Flick as a 
member of the social media unit. Merely disagreeing with a person does not mean that the 
person has been denigrated or treated disrespectfully. When pressed to identify that part of Mr 
Starr’s comments which were derogatory of Flick, counsel for the Department pointed to the 
comment in the last of the series (set out in paragraph [24] above) where Mr Starr referred to 
Flick’s “ridiculous assertions” concerning the time being taken to process claims. I think 
“ridiculous” is a reasonable adjective to use to describe a factual assertion which one knows 
to be at odds with reality. Society has not (yet) become so thin-skinned that the use of the 
word “ridiculous” in this way would be regarded as offensive, demeaning or denigratory.

[68] However there is one aspect of that same post in April 2015 which I consider to have 
involved a breach of s.13(11)(b), in that Mr Starr behaved in a way that did not uphold the 
Department’s good reputation. In that post, Mr Starr referred to the time taken to process 
payments as “utterly disgraceful” and said he was “embarrassed to work there ... and there 
isn’t a damn thing those of us in the offices can do about it”. Although I think Mr Starr’s point 
was that the Department had not been provided with sufficient resources to discharge its 
functions properly, to describe its operations as “utterly disgraceful” was clearly excessive 
and would give the impression that the Department was being run in a way which was 
scandalous and at odds with what reasonable people would consider was appropriate. And 
although as a general proposition I consider that employees are entitled to dislike their jobs 
and to say so publicly, the phrase “embarrassed to work there” went much further than that 
and suggested that there was something shameful about working for the Department.








[2016] FWC 1460

22

[69] In relation to the other, earlier posts, I accept in two respects only that they provided a 
valid reason for dismissal. Firstly, in the first post (14 June 2012) Mr Starr referred to clients 
of the Department as being “spastics and junkies”, and in the second post (31 July 2013) and 
the fifth post (4 June 2014) also referred to clients as “junkies”. In each of these posts 
“mmmdl” made it apparent that he was speaking from experience as an employee of the 
Department. Although the evidence demonstrated that Mr Starr frequently had to deal with 
clients who had substance abuse problems and he was undoubtedly frustrated by this, it was 
nonetheless entirely inappropriate for him to refer to clients in this derogatory way. I consider 
this conduct involved a breach of s.13(11)(a), in that Mr Starr did not uphold the APS value in 
s.10(3) that the APS respects all people, and also a breach of s.13(11)(b) in that Mr Starr did 
not uphold the Department’s reputation because his comments suggested that clients might
not be treated with respect.

[70] Secondly, in the seventh and eighth posts (11 June 2014), Mr Starr’s comments 
concerning clients seeking exemption from the work search requirements of Newstart on the 
basis that they suffered depression conveyed the view that a very large proportion of them 
were not genuine. While it would be naïve to think that there are no Newstart recipients who 
abuse the system, Mr Starr’s comment was expressed in such excessive terms as might 
engender a doubt as to whether a depression sufferer would be treated fairly and impartially 
by the Department. Again, the post made it apparent that “mmmdl” was speaking from his 
experience as an employee of the Department. In making these comments, Mr Starr failed to 
uphold the Department’s integrity and reputation in breach of s.13(11)(b).

[71] I reject entirely the Department’s submission that the criticisms of the government and 
government policy made by Mr Starr in the third, fourth, fifth, sixth, and seventh posts
constituted a valid reason for dismissal. The Department’s submission in this connection was 
based on s.13(11)(a), which requires employees to uphold APS values, s.10(5), which 
requires as an APS value that the APS be apolitical, and the provisions of the Conduct and 
Behaviour Policy and the Social Media Policy concerning public criticism of the government.

[72] In order for the political comment made by Mr Starr to constitute a valid reason for his 
dismissal, s.10(5) and s.13(11)(a) of the PS Act would have to be construed expansively so as 
to confer on APS departments a general right to discipline their employees for political speech 
communicated outside of working hours. I do not consider that the provisions should be so 
expansively construed. There has been recognised in Australian law the existence of a 
common law right of freedom of expression which is more than just residual in nature but 
operates subject to those exceptions otherwise provided by law.4 Additionally the High Court 
has identified an implied freedom of political communication in the Australian Constitution 
which, to the extent necessary to maintain the effective operation of the system of 
representative and responsible government provided for by the Constitution, operates to 
preclude the exercise of legislative power to curtail the freedom.5 The language of s.10(5) and 
s.13(11)(a) is not sufficiently clear and unambiguous to displace the assumption that the 
Parliament did not intend to interfere with the common law right, at least not in such a 
sweeping way. Further, the requirement in s.15A of the Acts Interpretation Act 1901 to 
construe legislation so as not to exceed the legislative power of the Commonwealth would 
also militate against such a broad construction of the provisions.

                                               
4 Eatock v Bolt (2011) 197 FCR 261 at [227]-[238]
5 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559-562








[2016] FWC 1460

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[73] In my opinion, the reference to the APS being apolitical in s.10(5) is to be read as 
meaning apolitical in the exercise of its functions. The context provided by the rest of the 
subsection, which provides that it is an APS value to provide the government “with advice 
that is frank, honest, timely and based on the best available evidence” supports the 
proposition that the provision is concerned with political impartiality in the exercise of the 
APS’s functions. The provision is not, when read with s.13(11)(a), apt to be construed as 
requiring that all APS employees be apolitical at all times outside of working hours. It may be 
accepted that, in some cases, the public expression of political views by public servants in 
their private time might compromise their capacity to carry out their work functions 
impartially and this might, consequently, contravene s.13(11)(a). This might happen if, for 
example, a departmental secretary, a policy advisor, a ministerial staff member or a senior 
diplomat publicly and emphatically criticised the government of the day. However in the case 
of the vast majority of public servants who perform routine administrative tasks (such as Mr 
Starr), it is difficult to envisage any circumstance in which the robust expression of political 
views and criticism of the government outside of work could have an impact on the 
performance of their duties.

[74] The articulation of the requirement for apoliticality in the Department’s policies 
supports this approach. The requirement in the Conduct and Behaviour Policy is that any 
criticism of the government “must not lead the audience to suspect the employee is unable to 
undertake their duties impartially”. There was nothing in Ms Bethune’s report or evidence, or 
in Mr Nelson’s correspondence of 15 September 2015 and 6 October 2015, which ventured to 
explain why Mr Starr’s criticism of specific policy measures announced in the 2014 budget or 
of the then-proposed paid parental leave scheme could possibly compromise his capacity to 
carry out his front-line Centrelink functions. 

[75] In final submissions at the hearing, counsel for the Department retreated somewhat 
from the proposition that criticism of the government of itself constituted a valid reason for 
Mr Starr’s dismissal. However the alternative submission was advanced that s.13(11)(a) read 
with s.10(3) prohibited any criticism that was “disrespectful of the government”, and that Mr 
Starr had breached this prohibition in the fourth post when he referred, in connection with
funding cuts to the States announced in the 2014 budget, to the “... sleazy, slimy way to make 
the states have to start the talks about raising GST ...”. I reject completely the proposition that 
the APS value in s.10(3) (“The APS respects all people...”) is to be read, in conjunction with 
s.13(11)(a), as requiring all members of the APS to be “respectful” at all times outside of 
working hours, including in the expression of their attitude to the government of the day. It 
would require express and absolutely unambiguous language in the statute to justify the 
conclusion that such a gross intrusion into the non-working lives and rights of public servants 
was intended.

[76] I also reject, although less emphatically, the Department’s submission that Mr Starr’s 
reference in the third post to the Department having “our share of utterly useless people” and 
him having “zero idea what all our managers do, especially the higher managers” involved 
him being “disrespectful” to fellow employees in contravention of s.13(11)(a), read with 
s.10(3), and thus constituted a valid reason for dismissal. Because the comments were
expressed in the abstract rather than pointed at any particular person, related to a department 
which has thousands of employees, and were made in the context of an exchange in which Mr 
Starr was reacting to and rejecting another person’s comment about public servants being 
“deadbeat leeches”, I do not consider they have the degree of seriousness to constitute a valid 
reason for dismissal.








[2016] FWC 1460

24

[77] The Department also contended that in the earlier posts there was inside information 
disclosed by Mr Starr “to impress others with his knowledge of DHS operations” in breach of 
s.13(10), and that this was a valid reason for the dismissal. I disagree. I do not consider that 
Mr Starr’s descriptions of his experiences at work, or the problems he encountered in 
servicing the public because of understaffing, is the type of information which s.13(10) was 
intended to protect. I consider that the reference to “inside information” is to information 
which is truly intended to be confidential to the employer, and does not include general 
information which the employee gains by his or her day to day experience of working for the 
employer and is not specifically related to internal work processes, management directives, 
client particulars and the like. In any event, I do not consider that Mr Starr used any such
information improperly or for any identifiable benefit to him.

[78] In summary, I find that the following constituted valid reasons for dismissal:

(1) Mr Starr’s references in the first post (14 June 2012), the second post (31 July 
2013) and the fifth post (4 June 2014) to clients of the Department being 
“spastics and junkies”, “whinging junkies” and “junkies” respectively.

(2) Mr Starr’s comments in the seventh and eighth posts (11 June 2014) to the 
effect that a very large proportion of clients seeking exemption from the work 
search requirements of Newstart on the basis that they suffered depression 
were not genuine.

(3) The statements in the April 2015 post that processing times in the Department 
were “utterly disgraceful” and that Mr Starr was “embarrassed to work there ... 
and there isn’t a damn thing those of us in the offices can do about it”.

[79] It was conceded by Mr Starr at the hearing, properly but unusually, that each of the 
above matters constituted a valid reason for his dismissal.

Paragraph 387(b) 

[80] Mr Starr was notified of the reason for his dismissal in Mr Nelson’s letter of 15 
September 2015. 

Paragraph 387(c) 

[81] Mr Starr was given an opportunity to respond in writing to Mr Nelson’s letter, and he 
did so.

Paragraph 387(d) 

[82] There were no discussions about Mr Starr’s dismissal, so the issue of permission to 
have a support person present does not arise.

Paragraph 387(e) 

[83] Mr Starr was not dismissed for unsatisfactory performance, so the issue of whether he 
had any prior warnings for unsatisfactory performance does not arise.








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Paragraphs 387(f) and (g)

[84] The Department is a very large employer with dedicated human resource management 
specialists and expertise, and the procedures it followed in effecting Mr Starr’s dismissal 
reflected that fact.

Paragraph 387(h)

[85] There are a number of matters which I consider to be relevant and which tend to
mitigate the seriousness of the conduct which led to Mr Starr’s dismissal and favour the 
conclusion that the dismissal was harsh.

[86] The first is the length and quality of Mr Starr’s service with the Department. I have 
earlier set out the details of that service. Apart from one blemish, Mr Starr’s work 
performance can fairly be characterised as being of very high quality over a long period of 
time. Having regard to the conduct which led to his dismissal, that by itself tends to support 
the conclusion that dismissal was too harsh a penalty in all the circumstances. Additionally 
however it also places the conduct in its proper context. Although some of the online 
comments made by Mr Starr might theoretically raise a perception that there was an employee 
in the Department who might not make decisions concerning claimants for benefits
impartially, the actual position was that there was no evidence to suggest that Mr Starr was 
anything other than completely impartial when he carried out his decision-making functions, 
and indeed Ms Gaffney positively affirmed his impartiality. Similarly, while some of the 
comments conveyed a lack of respect to some benefits claimants, the evidence was that when 
at work Mr Starr always treated the Department’s customers appropriately and with respect. 
There was therefore never any basis to form the conclusion that Mr Starr’s comments online 
ever had reflected or ever would reflect his actual work performance. Mr Nelson’s statement 
in his letter of 6 October 2015 that Mr Starr’s conduct gave “cause for grave concern about 
your ability to undertake your duties impartially” I therefore consider to be unfounded.

[87] Second, although I have found that Mr Starr’s conduct did not uphold the reputation 
of the Department and might affect perceptions of its impartiality, there was no evidence that 
the Department’s reputation was actually damaged or that anyone actually formed an adverse 
perception of the Department’s impartiality. The comments were discovered by the 
Department only as a consequence of Flick being aggrieved at being contradicted about the 
time frame for processing Student Youth Allowance claims. Nobody ever complained about 
them, despite the fact the comments remained publicly accessible for long periods of time.
That is not surprising, since they were expressed in particular special interest forums on two 
special interest websites involving what appears to be a small number of active participants 
(although there were no doubt at least some passive readers of the comments as well). Thus 
although the comments were theoretically accessible to the public, they are not in a place 
where a claimant or recipient of social benefits would readily expect to find material of that 
nature. In short, there was no evidence that Mr Starr’s conduct had any actual adverse effect 
upon the Department or any of its employees.

[88] Third, I consider that Mr Starr clearly and genuinely expressed remorse and regret for 
his conduct such as to allow confidence that it would not recur. He did so in his letters to Mr 
Nelson of 22 September and 28 September 2015 in which, among other things, he made clear 
that he accepted that what he had done was deserving of disciplinary sanction. He also did so 








[2016] FWC 1460

26

at the hearing, most notably by his unusual concession that there was a valid reason for his 
dismissal in the respects I have earlier identified. The Department submitted that Mr Starr 
should not be believed in this respect, on the basis that an adverse credit finding should be 
drawn against him because he did not in his statement of evidence disclose the 3 June 2008
fine on his disciplinary record but rather asserted he had an unblemished record. I do not 
accept that submission. Mr Starr should have disclosed the blemish on his disciplinary record, 
assuming he remembered it at the time he made his statement, but I do not consider that 
provides a basis to entirely devalue his credit as a witness. That is particularly the case as 
most of his evidence was not factually the subject of any challenge. I believe that Mr Starr 
genuinely understood that a number of his online comments were inappropriate, accepted 
responsibility for them, and was properly remorseful in that sense.

[89] Fourth, I cannot accept Mr Nelson’s assertion in the dismissal letter that Mr Starr 
“deliberately sought to publicly damage the reputation of the department”. A proper analysis 
of the comments show that they were situational - that is, responsive to comments made by 
others - and so widely interspersed as to deny the proposition that Mr Starr engaged in a 
course of intentional conduct to bring the Department into disrepute. The post on 14 June 
2012, responded to a rather abusive participant in the forum who had used the expression 
“ESL”, prompting Mr Starr to respond as to what that meant at his work. The comment on 31 
July 2013 was an angry one in response to another persons’ comment expressing pleasure at 
the prospect of “20k deadbeat leeches” being cut from the public service. The posts on 4 and 
11 June 2014 were made in the context of a robust discussion about the 2014 budget and 
issues relating to welfare dependency. The final comment in April 2015 related to the debate 
about the time it took to process Student Youth Allowance claims, and can be characterised as 
an expression of frustration in response to a parent complaining about how long it was taking 
to process his/her daughter’s claim. None of this alters the inappropriateness of the comments, 
but I consider that Mr Starr made them impulsively and out of frustration and not maliciously.

[90] There was an associated proposition in Ms Bethune’s report and Mr Nelson’s letter of 
15 September 2015 that Mr Starr’s utilisation of the user name “mmmdl” was a step taken to 
deliberately conceal his identity in order to engage in behaviour which he knew was 
inappropriate and unacceptable. That proposition is unsustainable. There is no evidence that 
Mr Starr began using the “mmmdl” name for that purpose; rather the evidence was that he had 
used the name for a large number of posts (Mr Starr said literally thousands) over a period of 
a decade on a variety of topics, and well before the first comment in 2012 which attracted the 
Department’s attention. 

[91] Fifth, the dismissal of Mr Starr has had particularly harsh personal consequences for 
him. His job with the Department is the only job he has had since he was 19 years old. He has 
no qualifications which would assist him in gaining other employment. As at the date of the 
hearing he remained unemployed. These might be considered to be the usual results of the 
dismissal of an employee who has served with one employer for a long period of time, but in 
Mr Starr’s case his particular personal circumstances have exacerbated the situation. In his 
letter to Mr Nelson dated 22 September 2015, which I have earlier attempted to summarise, 
Mr Starr explained in considerable and distressing detail his ongoing struggle with chronic 
depression and anxiety. I have chosen not to reproduce in full those parts of Mr Starr’s letter 
out of respect for his privacy. It is sufficient to say that Mr Starr’s employment with the 
Department was central to his efforts to maintain a stable and tolerable existence, and this has 
now been removed from him. 








[2016] FWC 1460

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[92] Finally, having regard to my findings concerning whether there was a valid reason for 
Mr Starr’s dismissal, it is clear that Mr Nelson determined to dismiss Mr Starr based on a 
range of findings about his conduct which were, to a significant degree, unjustified. That 
raises a serious question as to whether Mr Starr would have been dismissed at all if the 
findings concerning his conduct had properly been confined to those limited matters which I 
have found constituted a valid reason for his dismissal, and had not wrongly been 
characterised as involving a deliberate and deceptive effort to bring the Department into 
disrepute. I consider it likely in that circumstance that lesser disciplinary sanctions would 
have at least been considered by the Department, and that a quite different outcome which 
allowed Mr Starr’s employment to continue but ensured that his misconduct would not be 
repeated may have ensued.

Conclusion

[93] Having regard to all the above matters, I find that Mr Starr’s dismissal was harsh,
notwithstanding that there were valid reasons for his dismissal, because in summary:

 the penalty of dismissal was disproportionate to the gravity of Mr Starr’s 
misconduct, having regard to all the circumstances of that conduct including that 
it bore no relationship to his actual work performance, caused no actual 
detriment to the Department, was situational in nature and engaged in 
impulsively rather than with deliberation, and consisted of a small number of 
widely interspersed comments over a period of years;

 the length and the quality of Mr Starr’s service, and his clear recognition that 
what he had done was seriously inappropriate and deserving of disciplinary 
sanction, strongly indicated that his conduct would not be repeated, making the 
ultimate sanction of dismissal unnecessary;

 many of the grounds relied upon for his dismissal were not justified, with the 
consequences that the decision to dismiss him was not taken in respect of the 
limited instances of misconduct in which he had engaged and that there may 
have been a different outcome if the disciplinary sanction to be imposed had 
been determined on a proper assessment of his misconduct; and 

 the personal consequences of the dismissal for Mr Starr have been particularly 
severe.

Remedy

[94] Mr Starr seeks as a remedy an order reinstating him to his former employment with 
the Department together with ancillary orders to maintain the continuity of his employment 
and to compensate him for the remuneration he has lost. In the submissions made on his 
behalf it was recognised however that full compensation for his lost remuneration may not be 
appropriate given the concession that there was a valid reason for his dismissal.

[95] Reinstatement is the primary remedy provided for in respect of unfair dismissals under 
the FW Act in the sense that there must be a finding that reinstatement is inappropriate before 








[2016] FWC 1460

28

any power exists to make an order for compensation.6 Accordingly, in respect of remedy, the 
primary issue which must be considered is whether it would be appropriate to make an order 
for Mr Starr’s reinstatement.

[96] The main question which arises in this connection is whether, objectively assessed, 
there is a proper basis for trust and confidence that, if reinstated, Mr Starr would not in future 
engage in any repetition of the conduct which caused his dismissal. The Department relied 
upon Mr Nelson’s assertion in the dismissal letter of 6 October 2015 that he had lost trust and 
confidence in Mr Starr based on his conduct. However, as earlier explained, Mr Nelson’s 
subjective view was based on findings about Mr Starr’s conduct which to a significant degree 
exceeded what was justified.  Mr Nelson was not called to give evidence, his employment 
with the Department apparently having come to an end, and no other witness was called by 
the Department to give evidence concerning the practicability or otherwise of Mr Starr’s 
reinstatement.

[97] Consistent with my earlier findings, I consider that there is no real risk that Mr Starr 
will engage in any repetition of his misconduct. I am persuaded that he fully understands that 
his conduct was inappropriate, understands why it was inappropriate, and has taken full 
responsibility for his actions. I place weight upon the fact that he has taken steps, as far as he 
can, to remove his previous posts from the various websites, and has ceased posting 
comments on websites altogether. I also place significant weight on the evidence given by Ms 
Gaffney on the issue of reinstatement. She had managed Mr Starr for long periods in the past, 
and was aware of the online posts he had made which had led to his dismissal. She said that, 
while she understood reinstatement was ultimately a matter for the Commission, “as a 
manager, I would have no hesitation in having Daniel in my team”.7

[98] My conclusion is that reinstatement is practicable and is the appropriate remedy. I also 
consider it appropriate to make an order under s.391(2) to maintain the continuity of Mr 
Starr’s employment and the period of his continuous service with the Department. However I 
will not make any order for lost remuneration under s.391(3). Mr Starr’s conduct in the 
respects I have earlier identified was seriously inappropriate. Although I consider dismissal 
was a disproportionate response to this conduct, it was conduct which was worthy of a lesser 
but still significant disciplinary response. The significant financial loss which Mr Starr has 
suffered since his dismissal will thereby operate as a suitable sanction for his conduct. It will 
also serve as a signal to him, other employees of the Department and the public that conduct 
of the type he engaged in is unacceptable and not condoned by the Commission.

[99] An order8 giving effect to this decision will separately be issued.

VICE PRESIDENT

                                               
6 Melanie Millington v Traders International Pty Ltd [2014] FWCFB 888 at [66]
7 Transcript 4 February 2016, PN587
8 PR578298


THE FAIR WORK MISSION SEAL THE




 



[2016] FWC 1460

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Appearances:

J. Stanton of counsel with D. Potts solicitor for Daniel Starr. 
D. Mahendra of counsel with J. Nand for the Department of Human Services. 

Hearing details:

2016.
Sydney: 
4 and 5 February.

Printed by authority of the Commonwealth Government Printer

Price code G, PR577744

Cases cited by this decision: