DECISION

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

Daniel Starr
v
Department of Human Services
(U2015/13875)

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.
...
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.

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.

[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.

[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 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)



• 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 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 2^nd 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 1^st 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).

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.”

[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.”

[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.”

[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 2^nd 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 2^nd 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 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.

[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



• 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:

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



• Criticised the government;



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



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



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



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



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



• 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.



• He offered advice online because he was na�ve 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

[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 Post 1 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).

[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 Limited 2 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-Charlton 3 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.

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 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.

[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 na�ve 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.

[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.

[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.

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 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.

[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 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 order 8 giving effect to this decision will separately be issued.

VICE PRESIDENT

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.

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

 2   Print Q9292 [1998] AIRC 1592 (4 December 1998)

 3   (1996) 70 FCR 16 at 25

 4   Eatock v Bolt (2011) 197 FCR 261 at [227]-[238]

 5   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559-562

 6   Melanie Millington v Traders International Pty Ltd [2014] FWCFB 888 at [66]

 7   Transcript 4 February 2016, PN587

 8   PR578298

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