| [2015] FWCFB 868 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
JUSTICE ROSS, PRESIDENT |
SYDNEY, 11 MARCH 2015 |
Appeal against Decision [2014] FWC 7551 of Deputy President Lawrence at Sydney on 6 November 2014 in matter number U2013/15300; public interest not enlivened - permission to appeal refused.
[1] Mr Kevin Cooper (the appellant) was dismissed from his employment with the Australian Taxation Office (the respondent) on 14 October 2013. The appellant had been employed by the respondent since 10 July 1987 but had commenced employment in the Australian Public Service on 12 May 1980. The appellant applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (Cth) (the FW Act) on 25 October 2013.
[2] On 20 December 2012 the appellant was convicted in the Sydney District Court of two counts of committing an act of indecency against a person aged under 16 years outside Australia. The offences for which the appellant was convicted were under then s.50BC(1)(a) of the Crimes Act 1914 (Cth). At the time of his conviction the appellant was refused bail and was held on remand pending sentence.
[3] Following the conviction, the respondent suspended the appellant from duty with effect from 2 January 2013 pending an investigation into a suspected breach of the Australian Public Service Code of Conduct (APS Code of Conduct). The APS Code of Conduct is relevantly set out in s.13 of the Public Service Act 1999 (PSA). On 15 February 2013 the respondent issued to the appellant a notice of suspected breach of the APS Code of Conduct. A further and corrected notice of suspected breach was issued to the appellant on 9 May 2013. Responses to the notices were provided to the respondent by the appellant through his solicitors.
[4] On 15 March 2013 the appellant was sentenced to a term of imprisonment of three years and two months with a non-parole period of two years. A portion of the term of imprisonment was suspended on the appellant entering a recognisance. In effect the appellant was to be released from prison on 20 December 2014.
[5] The respondent provided to the appellant through his solicitors a “notice of determination of suspected breach of the APS Code of Conduct” on 13 August 2013 and on 19 September 2013 a “consideration of sanction” letter was also provided. Various submissions and reply correspondence were provided to the respondent by the appellant’s solicitor during this period.
[6] By letter attaching a “notice of termination of employment” dated 11 October 2013, the appellant was advised that his employment with the respondent would be terminated with effect at the close of business on 14 October 2013. The reason given for the termination was that the appellant had breached the APS Code of Conduct. By separate correspondence also dated 11 October 2013, the appellant was given notice that his suspension from duty would end with effect from close of business 14 October 2013.
[7] The appellant’s unfair dismissal remedy application was heard and determined by Deputy President Lawrence, who issued a decision on 6 November 2014 1 in which the Deputy President concluded that the appellant’s dismissal was not unfair and dismissed the application. An order giving effect to that decision was also made.2
[8] The appellant seeks permission to appeal the Deputy President's decision and order and that is the matter before us.
[9] The decision the subject of this appeal was made under Part 3-2 – Unfair Dismissal – of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s. 400(2)). The appellant’s application for permission to appeal is not advanced on the ground that the Deputy President’s decision is attended by any error of fact. 3 In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s. 400 as ‘a stringent one’.4 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
[10] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[11] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[12] Central to the appellant’s argument that permission to appeal should be granted is the Deputy President’s conclusion that there was a valid reason for the appellant’s dismissal by the respondent because the appellant’s convictions were for a serious offence which was clearly unethical and a breach of the APS Code of Conduct. The Deputy President’s conclusions are encapsulated in the following passages of the decision:
“[49] It seems to me that the general approach of the Commission, as summarised in Rose, needs to be applied so that the test is appropriate to the circumstances of the employment relationship. Private, for profit employment will be different to the school situation dealt with in King. In this case, public sector employment is under consideration.
[50] The relevant parts of the Code of Conduct are quoted above. Section 13(11) and s.10(1)(d) require an ATO employee to behave “at all times” in a way which maintains the integrity and reputation of the APS. I accept the ATO’s submission that this creates an overriding obligation, not just in work time or workplaces, for an employee to behave with the highest ethical standards so the APS’s reputation is maintained.
[51] The Applicant’s convictions were for a serious offence which was clearly unethical. I find that the Applicant was in breach of the Code of Conduct.
[52] I accept also that public sector employment has a special value. This is particularly so with an agency like the ATO which must maintain the confidence of the general public in dealing with their taxation and financial affairs.
. . .
[54] The decision in Rose describes the shift in the way in which ‘private” acts are treated. It is noted that a conviction for a criminal offence is not, of itself, sufficient to warrant termination. It depends on the circumstances.
[55] Given the nature of the employment and the convictions in this case, the action taken to dismiss by the ATO, is in my view not contrary to Rose:
[56] Having found that the Applicant’s convictions put him in breach of the Code, I find that the ATO’s action in carrying out a formal investigation and ultimately dismissing the Applicant was a reasonable response to a difficult situation. I find that, in the circumstances of the case, there was a valid reason for the dismissal of the Applicant.” 9
[13] The appellant submitted that permission to appeal should be granted on three bases. First, the appellant submitted that the Deputy President’s decision (in particular in the passages to which we have made reference) creates classes of employees with differential rights to protection from unfair dismissal due to non work related misconduct, with the result that public sector employees have less protection. It was submitted therefore that it is of importance and general application to determine whether the decision in that respect is correct.
[14] Secondly, the appellant contended that s. 10(1)(d) of the PSA has no application to individual public servants in their personal capacity but is merely declaratory of the ethical standards held by the APS as an organisation. It was submitted that the Deputy President applied s. 10(1)(d) to the appellant as a standard of conduct applicable to the appellant in relation to private conduct by the appellant. The proper construction of s. 10(1)(d) of the PSA is of importance and general application because of the large number of public servants and the question of the scope of that sub-section (if it applies on an individual level) to govern the private conduct of public servants in their private lives.
[15] Thirdly, the appellant contended that the principles in Rose v Telstra Corporation Limited 10 inform the question of the scope of the words “at all times” in s. 13(11) of the PSA. It was submitted that the Deputy President gave a literal meaning to those words which has the effect of greatly increasing the scope of a Public Sector employer’s ability to intrude into the private lives of public servants. The proper construction of s. 13(11) of the PSA is of importance and general application for the same reasons as pertain to the construction of s. 10(1)(d) of the PSA.
[16] Turning first, to the appellant’s third contention. The Deputy President’s deals with the application of the decision in Rose in the context of the appellant’s employment as follows:
[42] The convictions, it is agreed, were not work related. They occurred outside Australia. They did not relate to other employees of the ATO. They were, however, for very serious offences which were, it was agreed, highly unethical.
[43] In Rose, VP Ross considered the extent to which an employee’s conduct out of their working hours can provide a valid reason for their termination.
[44] He concluded, at page 12 of the print:
“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.30
Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”
[45] His Honour analysed the facts of several cases and concluded that a valid reason for termination for conduct outside work would require “requisite connection to his employment”.
[46] In Anthony Farquharson and Qantas Airways Limited [PR971685], 10 August 2006, a Full Bench, VP Lawler, SDP O’Callaghan, Raffaelli C dealt with “the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees.” In that case, Qantas had a legitimate interest in ensuring that incidents did not occur which damaged its interests and reputation.
[47] In Michael King v Catholic Education Office Diocese of Parramatta [PR544488], 20 November 2013, I decided that although the conduct for which the Applicant was dismissed occurred outside school hours and premises, it constituted a valid reason for dismissal. The “requisite connection” to the Applicant’s employment was the students of the college.
[48] This decision was upheld by a Full Bench (2014) FWCFB 2194.
[49] It seems to me that the general approach of the Commission, as summarised in Rose, needs to be applied so that the test is appropriate to the circumstances of the employment relationship. Private, for profit employment will be different to the school situation dealt with in King. In this case, public sector employment is under consideration. 11
[17] There is nothing in these passages which suggests any error. Moreover the Deputy President’s summary at paragraph [49] that the general approach in Rose should be applied having regard to the circumstances of the employment relationship is plainly correct. The Deputy President then applies Rose to the circumstances before him and concludes as follows:
[54] The decision in Rose describes the shift in the way in which ‘private” acts are treated. It is noted that a conviction for a criminal offence is not, of itself, sufficient to warrant termination. It depends on the circumstances.
[55] Given the nature of the employment and the convictions in this case, the action taken to dismiss by the ATO, is in my view not contrary to Rose:
[18] The Deputy President’s conclusion rests on his earlier finding that the appellant, by his out of hours conduct, had breached the APS Code of Conduct. This conclusion in turn rests upon the Deputy President’s acceptance at paragraph [50], of the respondent’s submission that the particular obligations in the APS Code of Conduct at issue created an overriding obligation, not just in work time or in workplaces, for an employee to behave with the highest ethical standards so that the APS’s reputation is maintained. We will return to this shortly; however for present purposes assuming that the Deputy President’s construction of the breadth of the APS Code of Conduct is correct, the way in which the Deputy President applied the principles distilled from Rose to the facts as found, seems to us to have been reasonably open to the Deputy President on the material before him.
[19] Turning next to the second of the appellant’s contentions, we agree that the broad construction of the relevant provisions of the PSA contended for by the respondent and accepted by the Deputy President might not be correct having regard to the text of the provisions themselves and the legislative context in which those provisions appear. We do not need to express a concluded view about this. However it does not follow that this case is an appropriate vehicle through which to review the scope and proper construction of those provisions, or that permission to appeal should be granted on this basis.
[20] This is because the Deputy President’s acceptance of the construction contended for by the respondent and his conclusion that by reason of that construction the appellant’s out of hours conduct constituted a breach of the APS Code of Conduct led the Deputy President ultimately to conclude that there was a valid reason for the dismissal of the appellant. It seems to us, putting to one side the question whether the appellant’s conduct breached the APS Code of Conduct, there was a valid reason for the appellant’s dismissal by reason of his continued incarceration. This is because with effect from close of business on 14 October 2013 the appellant’s suspension from duty ceased. From that time the appellant could not be said to be ready, willing and able to perform his duties for the respondent. He could not carry out the duties for which he was employed by reason of his incarceration. The appellant was not due for release from prison for over 14 months, namely on 20 December 2014. Contrary to the submissions of the appellant advanced during the hearing of the permission to appeal application, it is in our view fanciful in the circumstances of this case, to suggest that the respondent might have favourably considered an application by the appellant to take a period of unpaid leave during his incarceration. It is equally fanciful, given the nature of the respondent’s functions and the duties of the appellant whilst employed by the respondent, to suggest as the appellant did, that the appellant might have been permitted to carry out his duties whilst incarcerated.
[21] Both the second and third bases upon which it is said that permission to appeal should be granted are ultimately directed to whether the Deputy President was correct in his conclusion that there was a valid reason. Given our conclusions on the preceding paragraph there is no utility in the appeal since the ultimate conclusion, that the dismissal was not unfair, would be the same. As a consequence the public interest is not enlivened.
[22] Returning then to the first contention, we have already expressed doubt about the correctness of the respondent’s broad construction of the provisions of the PSA advanced before the Deputy President and before us. Given our view as to the existence of a valid reason, this case is not an appropriate vehicle through which the breadth and reach of the PSA should be tested. Consequently the public interest is not enlivened.
[23] For completeness, we note that the respondent maintained that notwithstanding the conduct of the respondent between the date of the appellant’s conviction and the date of the dismissal, the contract of employment nevertheless ended through frustration by reason of the appellant’s incarceration. The Deputy President concluded to the contrary, 13 and the respondent did not appeal. Given our conclusions above, it is unnecessary for us to express a view about the correctness of the respondent’s contention.
[24] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
PRESIDENT
Appearances:
The Appellant: Mr D Fitzpatrick, Solicitor
The Respondent: Mr I Neil SC with Mr J Darams of Counsel
Hearing details:
Sydney
19 February 2015
3 Appellant’s Outline of Submissions at [13]
4 (2011) 192 FCR 78 at paragraph 43
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
6 (2010) 197 IR 266 at paragraph 27
7 Wan v AIRC [2001] FCA 1803 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28] at the
9 [2014] FWC 7551 at [49]-[52] and [54]-[56]
10 Print Q9292
11 [2014] FWC 7551 at [42] - [49]
12 Ibid at [54] - [55]
13 Ibid at [30] - [35]
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