[2020] FWC 6719

The attached document replaces the document previously issued with the above code on 15 December 2020.

Amended document in accordance with PR726210

Associate to Deputy President Young

Dated 15 January 2021

Fair Work Act 2009
s.394—Unfair dismissal

Margherita Donelan
v
Commissioner of the Australian Federal Police on behalf of the Commonwealth of Australia
(U2020/8395)

Application for an unfair dismissal remedy.

[1] On 17 June 2020, Ms Margherita Donelan made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that she had been unfairly dismissed from her employment with the Commissioner of the Australian Federal Police on behalf of the Commonwealth of Australia (AFP). Ms Donelan seeks reinstatement, compensation, and an order with respect to continuity of service.

The Hearing and Witnesses

[2] Ms Donelan’s application was the subject of a hearing before me on 14 and 15 September 2020. Pursuant to section 596 of the Act, Mr James Tierney of Counsel appeared on behalf of Ms Donelan and Ms Vanja Bulut of Counsel appeared on behalf of the AFP.

[3] Ms Donelan gave evidence on her own behalf. Ms Naomi Capuano, Quality Manager of Community Children Wyndham Vale, also gave evidence on behalf of Ms Donelan.

[4] The following witnesses gave evidence on behalf of the AFP:

•  Assistant Commissioner David McLean - Chief of Staff, AFP;

•  Detective Superintendent Nicholas Moger - Coordinator of the Joint Counter Terrorism Team – Victoria, AFP;

•  Detective Leading Senior Constable Katherine Fitzpatrick - Team Member, Professional Standards Investigations, AFP.

Submissions

[5] Ms Donelan filed an outline of submissions, witness statements and documents in the Commission on 27 July 2020. A further witness statement of Ms Donelan was filed in the Commission on 3 September 2020. Ms Donelan filed closing written submissions on 6 October 2020. The AFP filed an outline of submissions, witness statements and documents in the Commission on 10 August 2020. The AFP filed closing written submission on 20 October 2020.

Initial Matters

[6] Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:

•  the application was made within the period required in subsection 394(2);

•  the AFP is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;

•  Ms Donelan was an employee who had completed a period of employment with AFP of at least the minimum employment period;

•  at the time of dismissal, Ms Donelan was a person protected from unfair dismissal; and

•  the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.

[7] I have concluded that Ms Donelan’s dismissal was not unfair. These are my reasons for that conclusion.

Factual Background and Findings of Fact

Ms Donelan’s employment with the AFP

[8] Ms Donelan commenced employment with the AFP 1 in the full-time position of Federal Agent on 4 December 2006.2 Prior to that time, since approximately 1995, Ms Donelan worked in the childcare industry.3

[9] In her employment with the AFP, Ms Donelan held a number of roles including:

•  Case Officer of Operation Cyrene 4

•  Member of a crimes operations team 5

•  Office coordinating role in a surveillance team 6

•  Working on the Trident Taskforce. 7

[10] By letter dated 22 May 2020 (Termination Letter) Ms Donelan’s employment with the AFP was terminated with effect on 27 May 2020 for failure to comply with the Professional Standards of the AFP and the AFP Code of Conduct. 8 The Termination Letter provides that the following four conduct findings were established against Ms Donelan:

“(a) Conduct Issue 1: Since 26 October 2018, Constable Margherita Donelan AFP 15886 seriously breached section 8.10 of the AFP Code of Conduct (An AFP appointee must behave in a way that upholds the good order, discipline and security of the AFP) when she continued secondary employment as director and owner of Community Children Pty Ltd, without AFP approval.

(b) Conduct Issue 2: On 26 October 2018, Constable Margherita Donelan AFP 15886 seriously breached section 8.6 of the AFP Code of Conduct (An AFP appointee must comply with any lawful direction given by a person who has the authority to give such a direction) when she failed to submit a secondary employment application which Detective Superintendent Nick MOGER directed her to do by email on 24 September 2018.

(c) Conduct Issue 3: On 19 September 2017, Constable Margherita Donelan AFP 15886 seriously breached section 8.8 of the AFP Code of Conduct (To gain, or seek to gain, a benefit or advantage for the AFP appointee or any other person, or for any other improper an AFP appointee must not improperly use: information obtained directly or indirectly as a result of AFP duties or employment; duties, status, power or authority as an AFP appointee) when she wore AFP uniform for an improper purpose at the United Children childcare centre in Sebastopol during an Assessment and Rating visit by the Department of Education and Training.

(d) Conduct Issue 4: On 14 August 2018, Constable Margherita Donelan AFP 15886 seriously breached section 8.11 of the AFP Code of Conduct (An AFP appointee must behave in a way that upholds the AFP Values and the integrity and good reputation of the AFP) when she declared she had not engaged in “any form of employment or self employment for which she (had) received or been entitled to receive payment in money or otherwise” after attending part of a Department of Education and Training (DET) Assessment and Rating visit at the Community Children child care centre in Moonee Ponds on 21 May 2018.”

[11] Conduct Issues 1 - 3 were determined by the AFP to be Category 3 conduct and Conduct Issue 4 was determined to be Category 2 conduct. More is said about these categories below.

[12] In this decision, when reference is made to Conduct Issues 1 - 4, that reference is to Conduct Issues 1 - 4 as set out in the Termination Letter.

Statutory framework

[13] There is no dispute that the Australian Federal Police Act 1979 (Cth) (AFP Act), the Australian Federal Police Commissioner’s Order on Professional Standards (Commissioner’s Orders), the AFP Code of Conduct (Code of Conduct) and the Australian Federal Police Categories of Conduct Determination 2013 (Conduct Determination) applied to Ms Donelan’s employment with the AFP. It is also did not appear to be contested that certain AFP guidelines applied to Ms Donelan in her employment with the AFP, including the AFP National Guideline on Secondary Work and Volunteering (National Guidelines).

[14] It is of utility to first set out the relevant provisions of those instruments.

The AFP Act

[15] Section 37(1) of the AFP Act provides:

“(1) Subject to this Act, the Commissioner has the general administration of, and the control of the operations of, the Australian Federal Police.”

[16] Section 38 of the AFP Act provides:

“38 Commissioner’s Orders

In the exercise of his or her powers under section 37, the Commissioner may, by writing, issue orders with respect to the general administration of, and the control of the operations of, the Australian Federal Police.”

[17] Section 39 of the AFP Act provides:

“39 Compliance with Commissioner’s Orders

An AFP appointee must comply with Commissioner’s Orders.”

[18] Section 40 of the AFP Act provides:

“40 Compliance with specific directions, instructions or orders

An AFP appointee must not:

(a) disobey; or

(b) fail to carry out;

a lawful direction, instruction or order, whether written or oral, given to him or her by:

(c) the Commissioner; or

(d) the AFP appointee under whose control, direction or supervision he or she performs his or her duties.”

[19] Section 40RC of the AFP Act provides:

“40RC Commissioner may determine professional standards

(1) The Commissioner may issue Commissioner’s orders under section 38 determining the professional standards to be complied with by AFP appointees.

(2) Without limiting subsection (1), the Commissioner may determine a professional standard by reference to the requirements specified in:

(a) another Commissioner’s order; or

(b) another document issued or made by the Commissioner in the exercise of the Commissioner’s powers under section 37.

(3) Despite section 46AA of the Acts Interpretation Act 1901, a document referred to in paragraph (2)(a) or (b) may be a document:

(a) as in force at a particular time; or

(b) as in force from time to time.”

[20] Part V of the AFP Act is headed “Professional Standards and AFP Conduct and Practice Issues.” Amongst other things, Part V sets out that AFP conduct issues are dealt with depending on the category to which the issue belongs. The provisions of Part V presently relevant are as follows.

[21] Section 40RM:

“40RM AFP Commissioner and Ombudsman to determine the kinds of conduct that are to be category 1, category 2 or category 3 conduct

(1) Subject to sections 40RN, 40RO and 40RP, the Commissioner and the Ombudsman may jointly determine, by legislative instrument:

(a) the kind of conduct that is to be category 1 conduct for the purposes of this Act; and

(b) the kind of conduct that is to be category 2 conduct for the purposes of this Act; and

(c) the kind of conduct that is to be category 3 conduct for the purposes of this Act.”

[22] Section 40 RH:

“40RH AFP conduct issues

(1) For the purposes of this Act, an AFP conduct issue is an issue of whether an AFP appointee has:

(a) engaged in conduct that contravenes the AFP professional standards; or

(b) engaged in corrupt conduct.”

[23] Section 40 RK:

“40RK Categories of conduct

(1) There are 4 categories of conduct for the purposes of this Act.

(2) The lowest, and least serious, is category 1.

(3) The next highest, and next most serious, is category 2.

(4) The next highest, and next most serious, is category 3.

(5) The highest, and most serious, is conduct giving rise to a corruption issue.

(6) If conduct would otherwise belong to more than one category, it is taken to belong to the higher or highest of those categories.

(7) The category to which conduct belongs may change as more information is obtained in relation to the conduct.”

[24] Section 40TI:

“40TI Action that may be taken in relation to category 1 conduct

If the manager is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 1 conduct, the manager may take training and development action in relation to the AFP appointee.”

[25] Section 40 TJ:

“40TJ Action that may be taken in relation to category 2 conduct

If the manager is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 2 conduct, the manager may do either or both of the following:

(a) take remedial action in relation to the AFP appointee;

(b) take training and development action in relation to the AFP appointee.”

[26] Section 40 TR;

“40TR Recommendations that may be made in relation to category 3 conduct or corrupt conduct

(1) If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 3 conduct or corrupt conduct, the investigator may recommend that any one or more of the following be taken in relation to the AFP appointee:

(a) termination action;

(b) remedial action;

(c) training and development action;

(d) any other action that the Commissioner can take in relation to the AFP appointee.

(2) To avoid doubt, the Commissioner may take termination action in relation to an AFP employee whether or not a recommendation has been made by an investigator that termination action be taken in relation to the employee.”

[27] Accordingly, under the above provisions, termination arises as a possible disciplinary action only if there is a Category 3 conduct finding.

Commissioner’s Orders and Code of Conduct

[28] The Commissioner’s Orders are made pursuant to section 38 and section 40RC of the AFP Act.

[29] Part A of the Commissioner’s Orders sets out the professional standards of the AFP to be complied with by AFP appointees. Part A relevantly provides as follows:

“6. Professional standards scope

6.1. The professional standards of the AFP are the responsibility of every AFP appointee.

6.2. All AFP appointees must be aware of and comply with the AFP's professional standards and integrity framework, and maintain the highest level of professional standards both in their official and private capacities.

…

6.4. The professional standards of the AFP apply to all AFP appointees in Australia, its territories and international jurisdictions.”

[30] Section 8 of the Commissioner’s Orders sets out the AFP Code of Conduct. The presently relevant sections of the Code of Conduct are set out below.

[31] Section 8.1 of the Code of Conduct provides as follows:

“8.1. Adhering to the AFP Code of Conduct in this section is fundamental to complying with the professional standards of the AFP.”

[32] Section 8.6 of the Code of Conduct provides as follows:

“8.6. An AFP appointee must comply with any lawful direction given by a person who has the authority to give such direction.”

[33] Section 8.8 of the Code of Conduct provides as follows:

“8.8. To gain, or seek to gain, a benefit or advantage for the AFP appointee or for any other person, or for any other improper purpose an AFP appointee must not improperly use:

•  information obtained directly or indirectly as a result of AFP duties or employment

•  duties, status, power or authority as an AFP appointee.”

[34] Section 8.10 of the Code of Conduct provides as follows:

“8.10. An AFP appointee must behave in a way that upholds the good order, discipline and security of the AFP.”

[35] Section 8.11 of the Code of Conduct provides as follows:

“8.11. An AFP appointee must behave in a way that upholds the AFP Core Values, and the integrity and good reputation of the AFP.”

Conduct Determination

[36] The Conduct Determination is made pursuant to section 40RM(1) of the AFP Act. The Conduct Determination is the instrument which sets out and defines each of Categories 1, 2 and 3 conduct. The sections of the Conduct Determination presently relevant are set out below. The Conduct Determination in relation to Category 2 and Category 3 conduct, together with the Conduct Determination’s Explanatory Statement, is set out in full at Annexure A to this decision.

“Category 2

Category 2 conduct issues include:

•  Minor misconduct;

•  Inappropriate conduct that reveals unsatisfactory behaviour by an AFP appointee;

•  Conduct that would otherwise be a Category 1 matter but warrants treatment as Category 2 due to its repeated nature; or

•  Misconduct as defined in Part V of the Act, which does not warrant being classified as either a Category 3 conduct issue or a corruption matter.

…

Category 3

A Category 3 issue is serious misconduct as defined under Part V of the Act, but does not give rise to a corruption issue.

A matter should be initially investigated as a Category 3 matter if:

1. The conduct as described in the complaint would, prima facie, amount to serious misconduct pursuant to Commissioner’s Orders 2; or

2. The conduct is assessed to have been carried out deliberately and/or is of such seriousness as to demonstrate that the AFP appointee has been wilfully or recklessly indifferent to the professional standards and integrity of the AFP.; or

3. The description of the conduct would reasonably lead to consideration of the employment suitability of the AFP appointee; or

4. The description of the conduct, prima facie amounts to a criminal offence.

…” 9

National Guidelines

[37] The AFP National Guidelines on secondary work have been in force, in varying forms, since 2007. 10 The guidelines are issued pursuant to section 37(1) of the AFP Act, under delegation by the Commissioner under section 69C of the AFP Act. The AFP National Guideline on Secondary Work or Volunteering as in force at April 2016,11 relevantly provided the following preamble and definitions:12

“Compliance

This instrument is part of the AFP's professional standards framework. The AFP Commissioner’s Order on Professional Standards (CO2) outlines the expectations for appointees to adhere to the requirements of the framework. Inappropriate departures from the provisions of this instrument may constitute a breach of AFP professional standards and be dealt with under Part V of the Australian Federal Police Act 1979 (Cth).”

…

“Secondary work - means work or duties external to the AFP which an AFP appointee undertakes in addition to their official duties. This may involve:

•  paid work

•  activities where there is an actual, potential or perceived conflict of interest

•  voluntary service

•  circumstances where time spent has the potential to impact on the full application of the AFP appointee to their official duties.”

…

“Work – any task or activity for which an individual receives benefit in the form of salary, wages, commission or other things of value.”

[38] Other relevant provisions were as follows:

“5. Introduction

This guideline details the obligations for AFP appointees and non-appointee contractors applying or, engaging in, and managing work or volunteering external to the AFP.

6. Policy

The AFP is committed to ensuring both organisational and AFP appointee integrity in order to maintain government and community support.

...

7. Approval

Before undertaking any secondary work or volunteering, applicants must:

…

•  complete the AFP’s secondary work or volunteering application form (AFP Hub)

•  submit the application form to their supervisor for consideration and progression.

7.1 Considerations for applicants

•  Applicants must not commence any secondary work or volunteering until approved by the delegate

•  approval is conditional and valid for one year

•  Applicants must seek re-approval on an annual basis

…

10. Restrictions

10.1 Prohibited activities

Secondary work or volunteering must not involve any of the activities outlined in Attachment A – prohibited activities.

…

11. Roles and responsibilities

The applicant must:

•  complete the application for secondary work or volunteering and forward to their supervisor

•  not commence any secondary work or volunteering until the delegate has approved the application

…

12.3 Undertaking secondary work or volunteering while on workers’ compensation leave

Applicants who are on leave with an open compensation claim are required to lodge an application for all secondary work or volunteering, except where the activity relates to a work trial under an approved Comcare Return to Work Program.

Where the activity relates to a work trial under an approved Comcare Return to Work Program, the delegated rehabilitation case manager must progress the necessary paperwork for an external work trial placement for approval, in lieu of an application for secondary work or volunteering.

…

Attachment A – prohibited activities

Secondary work must not involve:

…

•  wearing any part of the AFP uniform or use of AFP controlled items or accoutrements

…” 13

[39] There is no evidence before the Commission as to the precise commencement and end dates of the various versions of the National Guidelines and this is not readily ascertainable from the documents themselves. However, the National Guidelines as in force at September 2009, February 2012, July 2013 and as in force at the time of the directed interview on 22 November 2019, all of which are before the Commission, contained similar requirements and prohibitions and were in substantially the same or similar form to the guidelines in force as at April 2016.

Injuries and periods of leave

[40] Ms Donelan’s took a number of extended periods of leave during her employment with the AFP.

[41] In January 2007, Ms Donelan sustained a back injury whilst in training at the AFP. Ms Donelan made a Comcare claim for this injury which was accepted. 14

[42] In late 2009, Ms Donelan commenced a period of parental leave, returning to work “for a couple of months” in 2010. 15

[43] In 2011, Ms Donelan commenced a second period of parental leave. 16

[44] In or around June 2013, Ms Donelan returned to work as a member of a crimes operations team. 17

[45] From around February 2014, Ms Donelan says that she experienced ongoing sexual harassment in the workplace which ultimately lead to her taking a period of personal leave from 26 September 2014 onwards. 18 Ms Donelan was subsequently diagnosed with adjustment disorder with mixed anxious mood. Ms Donelan made a Comcare claim for this injury, which was accepted.19 This period of leave continued until June 2016.20

[46] In June 2016 Ms Donelan returned to work, working three days per week for a month and then two days per week. 21 In early 2017, Ms Donelan took a period of leave to undergo major surgery involving spinal fusion on 12 January 2017.22 In June 2017, Ms Donelan underwent surgery on her right knee, following tearing her meniscus.23 Ms Donelan did not return to work at any point following 12 January 2017.

[47] On 14 September 2018, the AFP referred Ms Donelan to Rehab Recovery Partners (RRP) to facilitate her return to work. 24 RRP conducted an initial needs assessment report which included an expected outcome of endorsement of a return to work plan by 31 March 2019.25 A meeting occurred on 12 March 2019 between Ms Donelan, AFP and RRP to discuss Ms Donelan’s return to work26 and in April 2019, Ms Donelan was offered an assignment to the National Anti-Gang Squad for her return to work.27 On 5 June 2019 Ms Donelan was certified as having capacity to return to work, with restrictions relating to sitting, standing and lifting, however, she did not return to work and remained on Comcare.28

Ms Donelan’s secondary employment - Conduct Issue 1 and 2

[48] In December 2008, Ms Donelan became director and shareholder of Community Children Pty Ltd. 29 Ms Donelan says that she submitted the relevant secondary employment application at this time to the AFP, which was approved.30

[49] In 2009, Ms Donelan, with her business partner, established a number of childcare centres. Ms Donelan’s role within the business was administrative and she says she “dealt with landlords, developers and day to day management.” 31 Ms Donelan says that between 2008 and 2016 she submitted the relevant secondary employment applications for this work when required, which were approved.32 The application submitted by Ms Donelan in 2016 (2016 Application) was approved by Commander Beveridge on 10 July 2016 with the following comment:

“Part-time employment of 30 hours is of concern. I have identified that in a separate flexibility document she has reduced her AFP work to 2 days per week from 3. I want both documents looked at next year together not separately.” 33

[50] Approval for secondary employment under the 2016 Application expired on 9 July 2017. It is uncontested that since 9 July 2017 Ms Donelan has continued her involvement in childcare centres, has not submitted a secondary employment application nor had such secondary employment approved by the AFP. Ms Donelan says that she did not receive any reminders before July 2017 that her approval was about to expire and that as she was absent from the workplace on sick leave 34 she did not have access to the secondary employment forms and policies.35 Ms Donelan’s evidence was also that she did not think that she knew the applications were due annually.36 I reject that evidence. Firstly, whilst I accept that Ms Donelan may not have been reminded in 2017 that she was required to submit a new secondary employment application, that she could not access the application because she was absent from the workplace is unable to be reconciled with the fact that Ms Donelan has taken extensive periods of leave during her employment with the AFP, as set out above, and yet has submitted secondary employment applications each year between 2008 and 2016. Secondly, that she did not know that approval was required annually is also unable to be reconciled with Ms Donelan submitting a secondary employment application every year for the eight years between 2008 and 2016. Thirdly, under cross examination Ms Donelan said she “had done this form consistently every year since 2009.”37 Fourthly, under cross examination Ms Donelan agreed that in the 2016 Application she had declared that she had read, amongst other documents, the National Guideline38 and although her evidence was that she “could not remember reading” the National Guideline at the time,39 notwithstanding her declaration that she had done so, she agreed she was “familiar” with it.40 She agreed under cross examination that the National Guideline provided that “an appointee must obtain approval under the National Guideline prior to undertaking any secondary employment”41 and that “approvals are conditional and valid for one year and appointees must seek approval on an annual basis.”42 Finally, the secondary employment application requires the applicant to select the type of application being made. In each application in evidence before the Commission between 2008 and 2016 Ms Donelan selected the “annual renewal” option.43

[51] Ms Donelan also says that around this time she separated from her husband and one of her children was diagnosed with a major heart condition in 2018. She also says that her former husband attempted suicide on three occasions which caused her great distress. 44 She says for these reasons she did not think to renew her secondary employment approval. I reject that evidence. Firstly, Ms Donelan’s further evidence is that she separated from her husband shortly before 5 June 2018.45 Accordingly, this cannot explain Ms Donelan’s failure to apply for approval of secondary employment for the period July 2017 to June 2018, even if it could explain her failure after this date. Secondly, Ms Donelan says that her child’s condition was diagnosed in 2018. Again, this cannot therefore explain her failure to submit a secondary employment application in July 2017. In the directed interview, Ms Donelan said that her child required surgery in August 2019,46 although at hearing she gave no evidence of her child requiring surgery or, if it was required, when it occurred. However, if it did occur in August 2019 it also cannot provide an explanation for her failure to apply for approval of her secondary employment in 2017, 2018 or for much of 2019. Thirdly, whilst I accept that her former husband’s suicide attempts and Ms Donelan’s child’s diagnosis were events likely to cause Ms Donelan stress and may have impacted on her ability to complete the approval application in a timely manner, there is no medical or other probative evidence before the Commission as to these events or their severity and no evidence at all as to when her former husband attempted suicide. Fourthly, none of these matters were raised by Ms Donelan in her response to the complaint of 8 May 2018,47 which is set out below, and which led to the issuing of a formal warning on 24 September 2018.

Formal warning

[52] On 8 May 2018 the Melbourne complaint management team of the AFP received a complaint alleging that Ms Donelan had breached the National Guideline by being engaged in secondary employment without formal authorisation from the AFP. 48 Federal Agent Amanda Humbley was appointed to investigate that allegation.49 Ms Donelan was notified of this allegation by email dated 5 June 2018.50 Ms Donelan responded to that allegation by email dated 17 June 2018 saying that the Melbourne Manager, John Beveridge, was not happy with her childcare interests being a greater component than her AFP employment, that he was “on a war path for part time workers” and that he has “purposefully set me up for failure as he can’t stand my arrangements”. She also said that she had not been at work since January 2017 and the AFP had not given her access to the 2016 Application so she could not access the information required to complete a renewal application.51 Ms Donelan’s assertion that she required the 2016 Application in order to complete a new secondary employment application was raised at multiple points. I address that assertion later in this decision. The investigation concluded that Ms Donelan had engaged in secondary employment since the expiration of the 2016 Application on 9 July 2017 and that no further application or renewal request had been received for her.52 By letter dated 24 September 2018 (Formal Warning Letter), Ms Donelan was advised of these findings and the following outcomes:

“The CMT has determined that the following outcomes will be applied as a result of the finding in this matter:

1. You are hereby issued with a formal warning in respect of a breach of the AFP National guidelines on secondary employment or volunteering, in respect of your failure to submit an application for approval to engage in secondary employment or volunteering;

2. You are hereby directed to complete and return the enclosed/attached application for secondary work or volunteering within 14 calendar days from the date this letter is received via your stated email address, [redacted] Please note that you are required to complete the entire application form from step 1A. (Initial application, not renewal, as there is no current approval in place to renew).

To assist in the completion of your application, I have attached the following documents:

•  Blank copy of a Secondary Work or Volunteering Application;

•  A copy of your previous Secondary Work or Volunteering Application.” 53

[53] The Formal Warning Letter also included the following statement:

“The Melbourne CMT now considers this matter finalised, however failure to comply with the direction detailed in this letter may lead to further referral to PRS to address any continuance of conduct breach.” 54

[54] The Formal Warning Letter and attachments were forwarded to Ms Donelan by email and also by registered post. 55 Ms Donelan’s evidence is that she did not receive the hard copy sent in the post but agreed under cross examination that the Formal Warning Letter attached both a blank secondary employment application form and a copy of the 2016 Application.56 Her evidence was that at the time she believed that only the blank application form had been attached57 and that she needed the 2016 Application in order to complete a new application for approval of secondary employment.58 I reject that evidence. Firstly, it is entirely clear that the 2016 Application is attached to the Formal Warning Letter. It is expressly stated and set out in a separate bullet point. It could not be clearer. Secondly, the response provided by Ms Donelan to the Formal Warning Letter, which is addressed in paragraph [61] below, does not raise as a reason for not complying with Detective Superintendent Moger’s direction the purported absence of the 2016 Application. As set out earlier, I address Ms Donelan’s assertion regarding the need for her to be provided with the 2016 Application later in this decision.

[55] In her closing written submissions Ms Donelan submits that her belief that the 2016 Application was not attached is reflective of the work-related stress and anxiety from which she suffered and is reflective of the significant personal stress and turmoil that she was dealing with at the time. 59 I reject that submission. Firstly, for the reasons set out above, I do not accept Ms Donelan’s evidence that she believed that the 2016 Application was not attached to the Formal Warning Letter. Secondly, although I accept that Ms Donelan was diagnosed with adjustment disorder with mixed (elevated) anxiety and depressed mood at least by October 201560 and that injury was the subject of an accepted Comcare claim,61 and that she was suffering anxiety in 2018, there is no evidence before the Commission that in September 2018 Ms Donelan’s mental health was such that she was unable to understand the contents of the Formal Warning Letter or to adequately comprehend that the 2016 Application was attached to it. The medical evidence before the Commission most relevant in time is a Certificate of Capacity dated 9 May 201862 issued by Dr Dorjee (May Certificate of Capacity), Ms Donelan’s general practitioner, and a report prepared by Dr Dorjee which appears to have been provided pursuant to a request dated 20 September 2018 by Comcare (Medical Report).63 As set out above, the May Certificate of Capacity is dated 9 May 2018 and provides that Ms Donelan has no capacity for work for the period 4 May 2018 until 4 August 2018.64 Accordingly, it predates the Formal Warning Letter and does not specifically evidence Ms Donelan’s mental health status or capacity at 24 September 2018 or thereafter. The Medical Report is undated but appears to be in response to the 20 September 2018 request and I consider it most likely is reflective of Ms Donelan’s mental health status around the time of the Formal Warning Letter, although it is unclear if it was generated before or after the Formal Warning Letter. However, the reference in the Medical Report to the complaint regarding Ms Donelan’s failure to submit a secondary employment application, but the absence of any reference to the Formal Warning Letter or the formal warning, suggests, in my view, that at the time of the consultation which led to the Medical Report being generated, Ms Donelan had not yet received the Formal Warning Letter. In relation to Ms Donelan’s mental health status, the Medical Report, relevantly, provides as follows:

“Ms Vasilevska is still struggling with symptoms of adjustment reaction with anxious mood.

…

Ms Vasilevska has been suffering high levels of anxiety and her time is only spent with her children and fears coming out of home, only to attend their schooling.

…

Secondly, Ms Vasilevska received a complaint against her from her Manager Mr Beveridge regarding putting in a renewal application for secondary employment. But Ms Vasilevska feels this is a witch hunt against her due to not returning to work. Ms Vasilevska states that she could not do the renewal paperwork as she is off site and has no access to the AFP intranet or forms.

…

I agree with Dr Chambers that Ms Vasilevsak is still suffering from an adjustment disorder with mixed anxiety and depressed mood. Her condition has not yet resolved.

…

Ms Vasilevska is taking Lexapro and presents with depression.”  65

[56] Accordingly, I accept that at the time of the Medical Report, which I consider is likely to have been around the time of, but before, the Formal Warning Letter, Ms Donelan was suffering from anxiety. I also accept that this likely had an impact on Ms Donelan’s attention, concentration, memory and judgment as is reflected in the May Certificate of Capacity. However, the reason provided in the Medical Report for Ms Donelan’s failure to submit a secondary employment application is that she is off site and does not have access to the forms. It is not that she is unable to do so because of her adjustment disorder or any other mental health concern. Further, there is no evidence that Ms Donelan’s adjustment disorder affected her cognitive function to such an extent that she was unable to understand clear and explicit correspondence. Further, it is not contended that she did not understand that she had been issued with a formal warning for failure to submit a secondary employment application or that she had been given a direction by her superior do so within a specified period of time.

[57] Under cross examination Ms Donelan agreed that in the Formal Warning Letter Detective Superintendent Moger issued her with a direction to complete and submit a secondary employment application. 66 She also agreed under cross examination that following the directions of her supervisors was important and crucial to the operation of the AFP. The following exchange occurred between Ms Donelan and Counsel for the Respondent:

“Of course you accept that following directions from your superiors is very important.  Correct?---Yes.

The AFP, you accept, is a very hierarchical organisation.  Correct?---Yes.

The chain of command is very important within the AFP?---Yes.

Adhering to your supervisor's instructions and directions is crucial to the operation of the AFP.  Correct?---Yes.” 67

[58] Ms Donelan did not submit a secondary employment application by 8 October 2018 as directed in the Formal Warning Letter. 68 Ms Donelan agreed under cross examination that in fact she did not submit the application for secondary employment until 27 November 2019, being more than two years after the authorisation in the 2016 Application expired.69

[59] On 9 October Ms Donelan sent an email to Detective Superintendent Moger saying that she was “quite unwell”, was about to undergo a second knee operation and would complete the forms when she was “fit and healthy.” 70 Under cross examination Ms Donelan agreed that the only issue she raised in that email regarding her health at that time was her knee operation.71 Detective Superintendent Moger replied later that day by email requesting that as Ms Donelan now had all the necessary documents to complete her application she do so in accordance with the direction given to her in the Formal Warning Letter. Detective Superintendent Moger advised Ms Donelan that “delaying submission indefinitely until [she was] completely recovered from her condition” was not a reasonable request, unless she was no longer undertaking secondary employment and had no intention of doing so whilst employed by the AFP. The reply further provides that if Ms Donelan’s condition renders her physically unable to complete the application, Detective Superintendent Moger would be “happy to arrange for the AFP Social Worker [Andrea] to attend your residence and assist you.” The reply further said that “if Andrea’s assistance is not required, please submit your application for secondary employment (or volunteering) by COB Friday 26 October 2018, so this matter may be resolved.” Detective Superintendent Moger also provided Ms Donelan with Andrea’s mobile number.72

[60] Under cross examination Ms Donelan agreed that in that reply email Detective Superintendent Moger provided her with an additional 17 days to complete the secondary employment application if Andrea’s assistance was not required 73 and to reflect the fact that she was in hospital at the time.74

[61] Ms Donelan responded to that email later that day. That response was as follows:

“Hi Nick

I’m currently in hospital and have been in a moon boot for weeks.

I haven’t been doing secondary employment.

As soon as I get out I will get Andrea to assist.

The forms are no big deal I just have to get around to doing them as well as navigating around small children.

I also have to advise that I have separated from [name redacted].

If there are forms for this please forward also.

Kind regards
Margherita” 75

[62] Under cross examination Ms Donelan agreed that the physical medical matter she raised for her inability to complete the application at that time was that she was in hospital and had been in a moon boot for weeks. 76 However, her evidence under cross examination was that her email also raised non-physical medical matters,77 being mental anguish around the separation from her husband.78 Her evidence was that she knew Detective Superintendent Moger and that she thought “he would take it” that she was “not in a good place”.79 I reject that evidence. I do not consider that any such anguish is implicit in the language used in the email. I consider that the email raises Ms Donelan’s separation from her husband for the purposes of notification and the seeking of any forms that may be required to be completed.

[63] Ms Donelan says that she was liaising with Federal Agent Humbley during this time and that she told her she was not well and was having difficulties. 80 I reject that evidence as providing an explanation for Ms Donelan’s failure to comply with Detective Superintendent’s Moger’s direction. Firstly, Ms Donelan’s communications with Federal Agent Humbley were in June 2018. They cannot provide an explanation for Ms Donelan’s failure to comply with the direction of 24 September 2018. Secondly, while I accept that Ms Donelan was suffering from anxiety and that this would have had some effect on her attention, concentration, judgement and memory, in her email of 9 October 2018 she states that the secondary employment application is “no big deal” and that she just has to get around to doing it. Under cross examination Ms Donelan agreed that the secondary employment application is approximately six pages long,81 with the parts required to be completed by her being pages 1, 2 and 3 and the inclusion of a signature on the top of page 4.82 She agreed that the application was not extensive.83 Secondly, she did not seek any further assistance of any kind to complete the secondary employment application or indicate to Detective Superintendent Moger in any way that she was “having difficulties”. Under cross examination Ms Donelan agreed that she did not contact Andrea once out of hospital,84 saying she did not want anyone in her home.85 This is unable to be reconciled with the statement in her email to Detective Superintendent Moger that “as soon as I get out I will get Andrea to assist.” Under cross examination Ms Donelan also agreed that she did not seek that any alternative form of assistance be provided to her to complete the application,86 she did not contact Detective Superintendent Moger to say she had difficulty completing the application87 and she did not complete the application until 27 November 2019,88 more than two years after the expiry of the 2016 Application.89 Further, under cross examination Ms Donelan also agreed that she had in fact been undertaking secondary employment since July 2017.90

[64] Ms Donelan also says that she asked Federal Agent Humbley to send a copy of the secondary employment application by post as she was confused by the emails she was receiving. 91 I also reject that Ms Donelan was in any way confused by the emails. Firstly, the emails are, in my view, clear. Secondly, Ms Donelan’s evidence under cross examination regarding this contradicted her earlier evidence. Under cross examination Ms Donelan said that her confusion was a reference to the blank application and that she was confused because the “renewal wasn’t there”,92 in contradiction to her earlier evidence which was that she could not complete the secondary employment application because only the renewal application was attached to the Formal Warning Letter and not the 2016 Application. She also gave evidence in relation to the further provision of the 2016 Application to her in March 201993 that she thought, “Here they go again, I’ve only got the blank document”, saying “I just thought they didn’t understand that I needed my renewal application to fill in the current application.”94 Accordingly, I consider Ms Donelan’s evidence on this matter to be contradictory and unreliable and I reject it.

Findings in relation to the direction issued on 24 September 2018 – Conduct Issue 2

[65] For the reasons set out above, I find that:

•  on 24 September 2018 Ms Donelan was directed by Detective Superintendent Moger to submit a secondary employment application within 14 days, being by 8 October 2018;

•  at that time she was provided with a blank secondary employment application and a copy of the 2016 Application;

•  Ms Donelan did not comply with that direction;

•  on 9 October 2018 Detective Superintendent Moger provided Ms Donelan a further period until 26 October 2018 to submit a secondary employment application due to her hospitalisation and to allow her to seek assistance from the AFP social worker to complete the secondary employment application;

•  despite stating that she would contact the AFP social worker once out of hospital, Ms Donelan did not do so, nor did she seek any other assistance or advise Detective Superintendent Moger that she was having difficulty completing the application; and

•  Ms Donelan did not submit a secondary employment application on 26 October 2018 or at all until 27 November 2019.

[66] For the reasons set out above, I also find that Ms Donelan’s failure to comply with the direction given to her by Detective Superintendent Moger’s on 24 September 2018 and the extension of time provided to her to comply with that direction until 26 October 2018, is not adequately explained by her anxiety, her separation from her husband, her child’s asserted medical condition, her former husband’s asserted suicide attempts, her asserted belief that the 2016 Application had not been provided to her, her asserted confusion regarding the email correspondence provided to her, or any other matter.

[67] It is not contested, and I find, that Ms Donelan’s conduct as set out above was in breach of section 8.6 of the AFP Code of Conduct. 95 I address the seriousness of the breach later in this decision.

Events post 26 October 2018

[68] On 12 March 2019 Ms Donelan attended a meeting with Ms Pierotti, Mr Treherne and Ms Duffy regarding her return to the workplace. She says that at this meeting Ms Duffy reminded her to complete her secondary employment application, as well as completing her security clearance. 96 Her evidence is that after the meeting Mr Treherne provided her, by email, with a further copy of the 2016 Application. In her witness statement she says she did not complete the secondary employment application at that time as she was “emotionally drained” following the meeting and she was mostly focused on completing the security clearance.97 Under cross examination Ms Donelan’s explanation for not completing the secondary employment application at that time was that she believed that she had once again only been provided with the blank document,98 that Ms Pierotti told her to focus on the security clearance as a priority,99 and that Mr Randall, Ms Pierotti and Ms Duffy told her she must get the security clearance done as a priority.100 I reject that evidence for the following reasons. Firstly, Ms Donelan did not put into evidence the email from Mr Treherne. Accordingly, the text of that email, if any, is not before the Commission. However, on Ms Donelan’s own evidence Mr Treherne supplied her with a copy of the 2016 Application. There is no evidence that anything else was provided to Ms Donelan at that time. In circumstances where only one document is provided, being the 2016 Application, I am unable to see how Ms Donelan could have considered that she had been provided with the blank application form. Further, even a cursory glance at page one of the 2016 Application101 demonstrates that the form has already been completed with Ms Donelan’s details and is clearly not a blank application. I find this explanation implausible. Secondly, whilst in her witness statement Ms Donelan does say that she was “mostly focused” on completing the security clearance, and I accept that security clearance was a necessary prerequisite for Ms Donelan to return to the workplace, she does not at any point say that she was told by Ms Duffy, Mr Treherne or Mr Randall to prioritise completion of the security clearance over completion of her secondary employment application. Thirdly, she does not anywhere in her witness statement say that a reason for not completing the secondary employment application at that time was because she believed she had once again been provided with the blank application by Mr Treherne. I consider Ms Donelan’s evidence on this matter to be inconsistent and unreliable. Finally, even if Ms Donelan was emotionally drained following the meeting, there is no evidence that this emotional state continued beyond 12 March 2019. Further, Ms Donelan was declared fit to return to work on suitable duties in early June 2019. Ms Donelan’s asserted emotional state simply cannot provide an explanation for her continued failure to submit her secondary employment application until 27 November 2019. Finally, under cross examination Ms Donelan agreed that she lodged her security clearance documents between March and May 2019.102 It was put to her that that form is more onerous than the secondary employment application and is between 30 and 40 pages long. She agreed that the form was “big”103 and “far more onerous”104 and that it required that she declare her business interests.105 In circumstances where Ms Donelan was able to complete the security clearance form and declare her business interests I am unable to see why she was not able to submit a secondary employment application.

[69] Ms Donelan’s evidence is that she was also concerned that the information she provided in her security clearance document might contradict the information she intended to provide in her secondary employment application. She says she was concerned about this because she was in the process of selling some of the childcare businesses and wanted to make sure that there were no differences between the two disclosures. 106 She said that her interests in the child care businesses were “fluid”.107 Under cross examination she agreed that in the security clearance she declared two different business interests, being Community Children childcare and the second being United Children childcare.108 She agreed that she had included information in the security clearance that United Children childcare was for sale.109 Ms Donelan’s explanation under cross examination of the asserted contradiction between the two documents110 was, in my view, incomprehensible. Both documents are a declaration of business interests and other relevant information at a point in time, although the secondary employment application covers a period of one year. Ms Donelan had flagged in her security clearance that she may divest herself of certain interests. Accordingly, in those circumstances, even if there had been a difference between the two disclosures it does not, in my view, give rise to any “contradiction”. Further, the National Guidelines provide that if there are significant changes in the nature of the secondary employment, any current agreement must be terminated and a new application submitted for approval.111 I do not accept that Ms Donelan was in any way precluded from completing a secondary employment application because of any contradiction between the disclosures required in that document and the disclosures required in the security clearance.

[70] As to Ms Donelan’s assertion regarding the need for her to have a copy of the 2016 Application in order to complete a secondary employment application, I have earlier rejected her evidence that she did not believe she had been provided with a copy of the 2016 Application. She conceded that she was, in fact, provided with a copy of the 2016 Application by Detective Superintendent Moger on 24 September 2018 and again by Mr Treharne in March 2019. Ms Donelan’s explanation as to why she required the 2016 Application to complete the secondary employment application was, in my view, lacking in credibility and I reject it. Under cross examination Ms Donelan’s evidence was that she needed the 2016 Application because she might “have sold some entities or bought some entities”, 112 that she had to show the AFP “movements in my businesses”113 and that she did not know at “what point [she] started what business”.114 The following exchange occurred between Ms Donelan and Counsel for the AFP:

“Yes.  So why is it that you needed your form from 2016 to fill out your form in 2017?---Because I may have sold some entities or bought some entities and I have to get that information right.  I don't - - -

Why would that information be on your previous form?  If you needed to state only your interests at the time you were completing the form, why would some business that you may have sold or bought subsequently - which obviously the information would be different from your earlier form.  Why would you need your earlier form to complete that?---Absolutely I need the renewal form because, as you will see if you want me to take you to it, it states what holdings I have so I have to list - for example, on my 2019 I listed Federation Children.  Well, that was a company that I only formed that year, then I had sold other interests, so that would be on my renewal form.  So I have to show the AFP my movements in my businesses.

Yes, but why do you need your 2016 form to state in your 2019 form that you now have an interest in Federation Children?---Sorry, I mustn't be making myself clear.  I don't have access to the old forms.  They're all on my drive at my AFP work. 115

…

I want to put to you that in order to provide information to the AFP about your current business interests - that is, businesses that you're currently self-employed in - it is of no assistance to you to know what business you were previously employed in that you may or may not have an interest in any more.  Correct?---No, I need those renewal forms.  That has assisted me with every application.

Okay.  You don't accept, do you, that in answering these questions you don't need to have regard to a previous form?  You need to state the current state of affairs.  You don't accept that?---For one year, yes, I don't accept it.

One year looking forward?---Yes.

Okay.  So you say you need to know what happened a year ago in order to project what's going to happen in the next year?---Yes, because, for example, during that year if I have bought an entity then I would write on B2, 'I held United Children for six months, but has now been sold.'  I need to just be very accurate when I fill out that form to make sure I've captured what I've already projected and given that it was two years' separation, I wanted to articulate what had happened in the two years.  As I've stated a number of times, this is very fluid; whether you have one centre, whether you don't, et cetera.” 116

[71] Firstly, Ms Donelan’s own evidence is that her childcare interests were “fluid”. Her evidence was that at the time of the 2016 Application she had interests in three childcare centres and that at one point subsequent to that, she had interests in as many as eight childcare centres. 117 In those circumstances, it is difficult to see how her interests as at 27 April 2016 when she completed the 2016 Application are relevant, or needed, to enable her to complete the secondary employment application when she was directed to do so some eighteen months later by Detective Superintendent Moger or, indeed, at any time thereafter. Secondly, I find it implausible that Ms Donelan was not aware of the companies of which she was a director and from which she received income and in respect of which she undertook duties, noting that she continued to do so during her absence from the AFP. Further, if that was the case, that information could be sourced most accurately from her accountants whom she said were also shareholders in the businesses118 and also completed her tax affairs.119 Thirdly, on 24 September 2018 Ms Donelan was directed to submit an “[i]nitial application, not renewal, as there is no current approval in place to renew”.120 Ms Donelan agreed under cross examination that she was directed to submit an initial application, not a renewal application121 and also that this is the form of application she ultimately submitted on 27 November 2019.122 Accordingly, Ms Donelan’s 2016 Application was not relevant. Finally, I find Ms Donelan’s explanation under cross examination to be simply implausible and to lack cogency and credibility.

[72] I also reject that Ms Donelan’s anxiety, her separation from her husband, her child’s diagnosis, or her former husband’s asserted suicide attempts provide an explanation for her failure to submit a secondary employment application after 26 October 2018. Firstly, there is no medical evidence before the Commission as to Ms Donelan’s mental health between 24 September 2018 and 27 November 2019, other than a certificate of capacity dated 18 June 2019 123 (June Certificate of Capacity). That certificate provides that Ms Donelan’s diagnosis is “mechanical low back pain and right L5 radiculopathy”, provides under “Mental Health Function” “anxiety/stress, work related” and says that Ms Donelan’s attention/concentration, memory and judgement are “affected”. It further provides that she has capacity for suitable employment from 5 June 2019. I accept that Ms Donelan was suffering from anxiety and this affected her attention, concentration, memory and judgment. However, there is no evidence that Ms Donelan’s cognitive function was affected to such an extent that she could not complete the secondary employment application. It is to be noted that in regards to Ms Donelan’s mental health the June Certificate of Capacity is in the same form and provides the same limitations as the May Certificate of Capacity, however, the June Certificate of Capacity certifies her as sufficiently fit to return to work on suitable duties. Further, that she was so affected as to explain her failure to complete the secondary employment application, is in my view, inconsistent with her ability to complete the security clearance, which on her own evidence was far more onerous and also required her to disclose her business interests. Additionally, even if Ms Donelan’s anxiety could explain her failure to submit the secondary employment application after 26 October 2018, which I do not accept, it cannot explain her failure to do so once she was declared fit to resume suitable duties in June 2019. It is uncontested that she did not submit a secondary employment application until 27 November 2019, some five and a half months later and then only after she attended the directed interview in relation to Conduct Issues 1 - 4. Secondly, as to Ms Donelan’s separation from her husband, this occurred in June 2018 and although I accept that this would have been a source of stress and anxiety for Ms Donelan, I do not accept that it explains a failure to submit a secondary employment application for a period of 17 months, most particularly in circumstances where she received a formal warning for failing to do so in September 2018, was given an express direction to submit an application, offered assistance to do so and was reminded by Ms Duffy to do so in March 2019. Thirdly, in relation to her former husband’s suicide attempts and Ms Donelan’s child’s illness, I refer to and repeat my comments set out in paragraph [51] above, noting also that Ms Donelan’s evidence is that her child’s diagnosis occurred in 2018, the absence of any direct evidence from Ms Donelan in these proceedings as to her child requiring surgery or when it occurred and that she did not submit a secondary employment application until 27 November 2019.

Findings in relation to the failure since 26 October 2018 to submit a secondary employment application – Conduct Issue 1

[73] For the reasons set out above, I find that:

•  from 26 October 2018 Ms Donelan continued secondary employment as director and owner of Community Children Pty Ltd, without AFP approval; and

•  Ms Donelan continued secondary employment as director and owner of Community Children Pty Ltd, without AFP approval notwithstanding having been issued with a formal warning for failing to do so, being provided with an express direction to submit a secondary employment application, being offered assistance if needed to complete the application and being reminded in March 2019 to do so, and following being certified as having capacity to resume work on suitable duties.

[74] For the reasons set out above, I also find that Ms Donelan’s continuation of secondary employment without AFP approval from 26 October 2018 is not adequately explained by her anxiety, her separation from her husband, her child’s asserted medical condition, her belief that she had not been provided with the 2016 Application, any contradiction between the information in the security clearance and what would be required in the secondary employment application or any other matter.

[75] It is not contested, and I find, that the above conduct was in breach of section 8.10 of the Code of Conduct. 124 I address the seriousness of the breach later in this decision.

[76] In its final written submissions the AFP submits that the various explanations provided by Ms Donelan “simply beg the question as to whether there was in fact some other reason for her conduct.” 125 Whilst I consider there to be some force in that submission, I do not consider it necessary for me to determine the reason for Ms Donelan’s conduct. It is sufficient that I have found that Ms Donelan’s failure to submit a secondary employment application and seek approval of her secondary employment arrangements is not adequately explained by any of the matters upon which she relies.

Wearing AFP uniform in secondary employment - Conduct Issue 3

[77] In the Proposed Findings Investigation Report Detective Leading Senior Constable Fitzpatrick found that Ms Donelan wore her full AFP uniform on 19 September 2017 while attending the United Children childcare centre in Sebastopol for an assessment and ratings visit by the Department of Education and Training (DET). In relation to this matter Detective Leading Senior Constable Fitzpatrick concluded:

“4.32 Conclusion

4.33 I conclude that, on the balance of probabilities:

(a) Const DONELAN did wear her AFP uniform during her secondary work at the United Children childcare centre in Sebastopol between 19 and 20 September 2017;

(b) Const DONELAN was wearing full AFP uniform when she gave a presentation to children in the three and four year old room, as described in statement, corroborated by statement;

(c) Const DONELAN was aware of her obligations and responsibilities as an AFP appointee and secondary employment applicant, but chose to ignore them; and

(d) Const DONELAN was reckless to the potential conflict of interest created by her wearing the AFP uniform during her secondary work at the Rating and Assessment visit by DET.

4.34 I am satisfied that Const DONELAN’s conduct amounts to a serious breach of 8.8 of the AFP Code of Conduct.

4.35 I am also satisfied that Const DONELAN’s conduct is Category 3 conduct in accordance with the Determination and section 40RP of the AFP Act.” 126

[78] In reaching the above conclusions Detective Leading Senior Constable Fitzpatrick noted that the DET officials had different perceptions of Ms Donelan’s purpose in wearing her AFP uniform and said:

“Irrespective of this, using one’s position as an AFP appointee by identifying oneself in uniform for a purpose unrelated to AFP duties is improper. It is not necessary to prove there was a benefit gained however, the investigating officer is of the view that Const DONELAN’s intention was to seek the advantage of a more positive review from the assessment of the centre. 127

…

Const DONELAN’s intention in presenting as an AFP appointee or police officer is not clear. …Even viewing Const DONELAN’s action in the most forgiving light cannot ignore the prohibition clearly detailed in the National Guideline on secondary work and volunteering at Attachment A: Prohibited Activities, which states “secondary work must not involve wearing any part of the AFP uniform.” 128

[79] The Proposed Findings Investigation Report provides that the evidence of the first DET official 129 was that she felt that Ms Donelan had worn her uniform to demonstrate to the officials that she was a Federal Police officer and to intimidate them.130 The evidence of the second DET official131 was that she did not consider Ms Donelan wore her uniform to intimidate or influence but thought Ms Donelan was “ticking all the boxes required for the assessment by presenting in her uniform”.132

[80] Under cross examination Detective Leading Senior Constable Fitzpatrick agreed that she did not know Ms Donelan’s intention in wearing her AFP hat on 19 September 2017. 133 The following exchange occurred between Detective Leading Senior Constable Fitzpatrick and Counsel for Ms Donelan:

“Given that you genuinely don't know her intentions, and noting your intention to give officers the benefit of the doubt, shouldn't it follow that you should find that Ms Donelan did not deliberately wear her uniform to influence the ratings assessors?---In regards to this conduct issue, I was not focused on what her intention by wearing the uniform was.  I was focused on the fact that she wore the uniform at a time that she knew there was an assessment and rating visit occurring and that ultimately, she took a great risk of presenting a conflict in front of another government agency that could be viewed as an abuse of power.” 134

[81] Assistant Commissioner McLean’s evidence on this matter under cross examination was that he agreed that he determined that in wearing her AFP hat in the context of her secondary employment Ms Donelan had been recklessly indifferent to the professional standards expected of an AFP appointee. 135 He said that wearing AFP uniform in connection with secondary employment was not a “proper purpose” and that Ms Donelan breached the Code of Conduct by engaging in an improper purpose.136 His further evidence under cross examination was that he did not know what Ms Donelan’s intentions were.137 Under cross examination however he also said that the improper purpose was “wearing her uniform to the child care centre that day and engaging with the community within that centre to influence the assessment by DET.”138 He also agreed under cross examination that if Ms Donelan did not intend to influence the DET authorised officer, then she “didn’t seek to gain, or otherwise engage in an improper purpose.”139

[82] Ms Donelan’s evidence at hearing was that she was asked by Ms Capuano, Quality Manager, Uniting Children Pty Ltd at Sebastopol to speak with a child at the centre as he had said he was scared of police and Ms Capuano thought Ms Donelan might be able to help him as a police officer. 140 Ms Capuano gave evidence consistent with this.141 Ms Donelan says that she approached the child and showed him her police hat. She says she put the hat on his head and the child then put the hat on her head.142 Whilst speaking with the child the DET officials entered the room.143 Ms Capuano’s evidence regarding this is generally consistent with that of Ms Donelan.144 I accept Ms Donelan’s evidence as to these matters. Under cross examination Ms Donelan said that she decided to bring her police hat to the centre knowing that DET officials would be in attendance to conduct the assessment and rating.145 Ms Donelan also agreed that it was “100 per cent possible” that the DET officials saw her with her AFP hat.146 She agreed that she did not seek permission or approval to take her hat to the centre.147 She also agreed that she was not permitted to use any part of the AFP uniform in conducting secondary employment.148 As set out above, she also agreed that the National Guidelines provide that secondary employment must not involve wearing any part of the AFP uniform.149 However, she denied that she took her hat into the centre that day because the DET officials were going to be there150 or to attempt to influence the DET rating.151 I also accept that evidence.

[83] At hearing the Respondent no longer pressed that Ms Donelan wore her full uniform on 19 September 2017 and accepted that Ms Donelan wore her AFP hat only. Accordingly, it is not in dispute that on 19 September 2017 Ms Donelan attended the United Children childcare centre in Sebastopol in the context of her secondary employment to participate in an assessment and rating visit by the DET. 152 It is also not in dispute that Ms Donelan had taken her AFP hat to the centre and wore it whilst at the centre.153 Ms Donelan agreed under cross examination that she decided to take her AFP hat into the centre on that day knowing that DET officials would be present.154 She agreed that the National Guidelines provide that secondary employment must not involve wearing any part of the AFP uniform155 and that her AFP hat was part of the AFP uniform.156 She earlier agreed under cross examination that the purpose of the National Guidelines is to ensure the integrity of the AFP and to have regard to any activity, such as secondary employment, that may carry with it the potential for conflict of interest or lead to a public perception of a conflict of interest.157 Ms Donelan agreed that conflicts of interest arise not just in relation to actual conflicts, but also where there are perceived and potential conflicts.158 She agreed that the AFP is a highly respected organisation, that Federal Agents have a lot of power159 and are in a position of authority.160 She accepted that some members of the public may regard Federal Agents as intimidating,161 and that there was a necessity to maintain trust of the community,162 including avoiding perceptions of abuse of power.163 She also agreed that it was important that Federal Agents did not misuse their position,164 that there be no appearance of misuse of position165 and that if a member of the public perceives that a Federal Agent is attempting to misuse their position or power that diminishes that integrity of the AFP.166

[84] Ms Donelan contends that she did not breach section 8.8 of the Code of Conduct because in wearing the AFP hat during her secondary employment, she did not gain or seek to gain a benefit. She says she also did not improperly use the AFP hat for an improper purpose. 167

[85] Section 8.8 of the AFP Code of Conduct is set out in paragraph [33] above.

[86] In order for Ms Donelan’s conduct to have breached section 8.8 of the Code of Conduct she must therefore have:

•  improperly used information obtained directly or indirectly as a result of her AFP duties or employment; or

•  improperly used duties, status, power or authority as an AFP appointee (First Limb); and

•  such improper use was to gain, or seek to gain, a benefit or advantage for the AFP appointee or another person or for another improper purpose (Second Limb) (Commission’s emphasis)

[87] I accept Ms Donelan’s evidence that she did not intend to influence the DET officials by wearing her hat during the assessment and ratings visit. I also accept that she therefore did not improperly use her status, power or authority as an AFP appointee to gain or seek to gain a benefit or advantage. Ms Donelan submits that it therefore “must follow” that she was not in breach of section 8.8 of the Code of Conduct. 168 I reject that submission. The Second Limb of section 8.8 of the Code of Conduct uses the word “or”. The purposes for which the improper use is required to have been put in the Second Limb are therefore disjunctive. Accordingly, the Second Limb may be engaged by an improper use which is either to gain or seek to gain a benefit or advantage or, alternatively, for another improper purpose.

[88] In closing oral submissions Ms Donelan submitted that for the purposes of section 8.8 of the Code of Conduct the wearing of the AFP hat was the improper use but such use does not also constitute the “mental element” of improper purpose as is required by section 8.8 of the Code of Conduct. 169 In this regard Ms Donelan submits that the Commission should find that she did not wear her AFP hat to influence the DET officials. I consider this submission to be misconceived. It conflates the two circumstances under which the Second Limb may be engaged. As to this submission, in its closing written submissions the Respondent contends that this submission ought be rejected. It says that the “improper purpose” is simply a purpose other than a proper purpose. It submits that the improper purpose arises by virtue of Ms Donelan having put her AFP hat to a purpose other than a proper purpose (such as use in the performance of her duties or for a purpose otherwise approved). It contends that no question of intention arises nor is required to be proved by the AFP.170 Further, the Respondent submits that Ms Donelan used her AFP hat for an improper purpose is made clear by the prohibition on wearing any part of the AFP uniform in secondary employment contained in the National Guidelines.171 I find this latter submission somewhat confused. It appears to conflate the question of improper use of status, power or authority and improper purpose. However, I accept the submission that no question of intention arises in relation to establishing “another improper purpose” under the Second Limb of section 8.8 of the Code of Conduct. I do not consider that the plain language of section 8.8 of the Code of Conduct requires any intention be established as a necessary requirement of concluding that the improper use was for an improper purpose. On a plain reading, the section simply requires that the improper use be for another improper purpose; that is, an improper purpose other than to gain or seek to gain a benefit or advantage. An improper purpose is simply, in my view, a purpose that is not proper.

[89] The National Guidelines make clear that secondary employment must not involve the wearing of any part of the AFP uniform. 172 Under cross examination Ms Donelan agreed with this. She agreed that the purpose of the National Guidelines was to assist the AFP to manage conflicts of interest, which maybe actual, potential or perceived. She also agreed that AFP appointees are in a position of authority. Accordingly, I find that by wearing her AFP hat on 19 September 2017 in the course of her secondary employment Ms Donelan improperly used her status, power or authority as an AFP appointee. I also find that she did so for an improper purpose, being a purpose other than a purpose approved by the AFP or a purpose in connection with or related to her duties as an AFP appointee and one that was in connection with her own commercial interests.

Findings in relation to wearing AFP uniform in secondary employment – Conduct Issue 3

[90] For the reasons set out above, I find that:

•  Ms Donelan wore her AFP hat in the course of secondary employment on 19 September 2019;

•  Ms Donelan did so knowing that DET officials would be in attendance at the centre that day for the purposes of an assessment and ratings visit;

•  Ms Donelan’s conduct in wearing her AFP hat in the course of secondary employment was in breach of the National Guidelines;

•  in so doing, Ms Donelan improperly used her status, power or authority as an AFP appointee; and

•  that use was not approved by the AFP, was not in connection with or related to her duties as an AFP appointee and was in the context of her own commercial interests. It was therefore for an improper purpose.

[91] I find that Ms Donelan’s conduct on 19 September 2017 was in breach of section 8.8 of the Code of Conduct. I address the seriousness of that breach later in this decision.

Declaration that not undertaking secondary employment – Conduct Issue 4

[92] In relation to Conduct Issue 4, it does not appear contested that on a certificate of capacity dated 14 August 2018 Ms Donelan declared that she was not undertaking secondary employment and that that declaration was incorrect. Ms Donelan agreed under cross examination that the relevant National Guidelines defined “employment” to include holding the office of a director 173 irrespective of whether any monetary payment was received for the holding of that office.174 She also agreed under cross examination that the National Guidelines made clear that an AFP appointee is required to submit an application for secondary employment even when on a period of paid or unpaid leave.175 I also consider it clear that under the National Guidelines AFP appointees who are undertaking secondary employment while on worker’s compensation leave are required to submit a secondary employment application.176

[93] Ms Donelan’s evidence is that at the time of the declaration she “was not actively engaged in [her] childcare businesses” 177 and she thought she had answered the question on the declaration correctly.178 Detective Leading Senior Constable Fitzpatrick’s evidence was that she accepted that Ms Donelan had not correctly completed the form because she did not exercise due care and diligence, rather than wilfully providing incorrect information. On this basis she determined that the allegation ought be downgraded to Category 2 conduct. Detective Leading Senior Constable Fitzpatrick’s evidence under cross examination was also that she accepted that Ms Donelan’s conduct occurred at a point in time.179 I accept that evidence.

[94] I do not understand it to be contested that Ms Donelan’s conduct in declaring on the 14 September 2018 that she was not undertaking secondary employment was in breach of section 8.11 of the Code of Conduct and/or was properly considered to be Category 2 conduct.

Findings in relation to incorrect declaration – Conduct Issue 4

[95] For the reasons set out above, I find that:

•  on 14 August 2018 Ms Donelan incorrectly declared that she was not undertaking secondary employment;

•  that conduct was in breach of section 8.11 of the Code of Conduct; and

•  that conduct was properly characterised as Category 2 conduct.

Disciplinary action/investigation

[96] On 17 October 2019, Ms Donelan was advised by Detective Leading Senior Constable Fitzpatrick that she was investigating allegations about Ms Donelan’s secondary employment and that Ms Donelan was required to participate in a directed interview. 180 Ms Donelan was provided with a copy of the allegations made against her on 20 November 2019.181 On 26 November 2020 Ms Donelan attended the directed interview. In attendance, in addition to Ms Donelan and Detective Leading Senior Constable Fitzpatrick, were Ms Donelan’s support person Ms Jordan and Senior Constable Fraser.182 Senior Constable Fraser took hand written notes of the interview, as did Detective Leading Senior Constable Fitzpatrick, who then prepared typed notes from her handwritten notes.183 The accuracy of those two sets of notes was not challenged at the hearing, although I accept Ms Donelan’s evidence that they are not a transcription of the interview.184

[97] Ms Donelan’s evidence is that during the directed interview Detective Leading Senior Constable Fitzpatrick referred to the National Guidelines and that she had not seen the National Guidelines prior to the interview as she had been absent from work for two years. 185 I reject that evidence. Firstly, Detective Leading Senior Constable Fitzpatrick’s uncontested evidence is that the National Guidelines were first published in August 2007 and have been in force, in various versions, since that time. Secondly, Ms Donelan has applied for approval to undertake secondary employment in her childcare business annually from 2008 until 2016. Those applications, including the 2016 Application, being the last application submitted by Ms Donelan prior to the investigation commencing, include a declaration acknowledging that Ms Donelan has made the application having regard to, amongst other things, the National Guidelines.186 Thirdly, during the directed interview both Senior Constable Fraser’s hand written notes and Detective Leading Senior Constable Fitzpatrick’s typed notes provide that Ms Donelan confirmed that she “would have viewed” the National Guidelines.187

[98] On 13 January 2020 Detective Leading Senior Constable Fitzpatrick completed the Proposed Finding Investigation Report. That report concluded that Conduct Issues 1 - 3 were established as Category 3 conduct. Detective Leading Senior Constable Fitzpatrick determined that Conduct Issue 4 ought be downgraded from Category 3 to Category 2 conduct because she accepted that Ms Donelan had incorrectly competed the declaration due to lack of care and diligence, rather than wilfulness. 188

[99] Detective Leading Senior Constable Fitzpatrick’s Proposed Finding Investigation Report was peer reviewed and endorsed first by Detective Sergeant Sarah Hammond and then by Detective Acting Superintendent Katherine Fox. 189

[100] On 22 January 2020 Ms Donelan was provided with the draft Investigation Report and provided until 5 February 2020 (14 days) to provide any response to the draft report that she wished to. 190 Ms Donelan did not provide a response by 5 February 2020191 and after seeking an extension of time on 10 February 2020192 (five days after the response was required) was ultimately provided until close of business on 12 February 2020 to respond.193

[101] At between 10.15 pm and 10.21 pm on 12 February 2020 Ms Donelan provided documentation in response to the draft Investigation Report. 194 She did not provide a written response.195

[102] Detective Leading Senior Constable Fitzpatrick determined that the documentation submitted by Ms Donelan in response did not alter the findings in the draft Investigation Report 196 and on 18 February 2020 she completed the Finding of Fact Investigation report.197 On 19 February 2020 Detective Leading Senior Constable Fitzpatrick provided Ms Donelan with the Finding of Fact Outcome Notification and advised her that the matter would proceed to the Professional Standards Panel (PRS Panel) for determination as to sanction.198 Category 3 and corruption issues are referred to the PRS Panel for consideration of the appropriate sanction that ought be imposed.199

[103] Assistant Commissioner McLean’s evidence was that he, in his capacity as Chair of the PRS Panel, considered that Ms Donelan’s conduct demonstrated examples of serious misconduct and potential conflicts of interest. 200 As such, he determined to issue Ms Donelan with a Show Cause Notice (SCN) advising her that he was considering terminating her employment and inviting her to show cause as to why he ought not do so.201 That was provided to Ms Donelan on 18 March 2020 by Detective Leading Senior Constable Fitzpatrick.202 On 31 March 2020 Ms Donelan was provided with a further SCN, dated 16 March 2020, due to an error contained in the SCN forwarded on 18 March 2020.

[104] Ms Donelan was suspended from duty without pay on 24 March 2020. 203

[105] On 7 April 2020, via her solicitors, Ms Donelan responded to the SCN. 204

Dismissal

[106] The PRS Panel determined that termination of employment was the appropriate sanction. Assistant Commissioner McLean provided the Termination Letter to Ms Donelan advising her that that her employment was terminated pursuant to the provisions of section 28 of the AFP Act. The termination was effective on the day Ms Donelan received the Termination Letter. The conduct findings relied upon in the Termination Letter to terminate Ms Donelan’s employment with the AFP are set out in paragraph [10] of this decision.

Was the Dismissal Harsh, Unjust and/or Unreasonable?

[107] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[108] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 205

[109] I set out my consideration of each below.

Was there a valid reason for Ms Donelan’s dismissal? – Section 387(a)

[110] Section 387(a) of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account whether there was a valid reason for the dismissal related to the person’s capacity or conduct. The principles that are relevant to the consideration of this concept are well-established. A valid reason is one that is “sound, defensible and well-founded.” 206 The Commission does not stand in the shoes of the employer and determine what the Commission would do if it had been in its position.207 The question the Commission must address is whether there was a valid reason, in the sense both that it was a good reason and a substantiated reason.

[111] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. 208 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.209

[112] Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw v Briginshaw, 210 the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained”211 and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”212 or “circumstances pointing with a wavering finger to an affirmative conclusion”.213 The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.214

[113] The rule in Briginshaw has elsewhere been described as reflecting a conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. 215 In Greyhound Racing Authority,216 Santow JA noted:

“… The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal].” 217

[114] The ‘level of comfort’ referred to means that the finder of fact must “feel an actual persuasion of the occurrence or existence of the fact in issue”; the “mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.” 218

[115] I note that the Act requires me to consider whether there was a valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. Further, it is well-established that a valid reason need not necessarily be the one relied upon by the employer.

Submissions on valid reason

Applicant’s submissions on valid reason

[116] Ms Donelan submits that there is no valid reason for her dismissal.

[117] Firstly, in her outline of submissions under the heading “Valid reason” Ms Donelan submits that while Conduct Issues 1 and 2 were matters which “may have warranted disciplinary action” neither involved conduct of sufficient seriousness to warrant termination. 219 In her closing written submissions Ms Donelan contends under the heading “Valid reason” that Conduct Issues 1 and 2 were “simply not objectively serious enough to be deemed Category 3 conduct”220 and that the investigator should have found that the conduct was Category 2 conduct.221 A similar submission is made in relation to Conduct Issue 3.222

[118] Secondly, Ms Donelan submits that Conduct Issues 1 and 2 stem from the same conduct; “the fact that Ms Donelan did not, over an extended period of time, fill out a secondary employment application.” 223

[119] Thirdly, Ms Donelan submits that in relation to Conduct Issues 1 and 2 her conduct was at the low end of seriousness for the following reasons. 224 Firstly, she relies upon the explanations she provided as to why she did not “think to renew” her secondary employment approval.225 She submits that her evidence is consistent with the explanations she provided Detective Leading Senior Constable Fitzpatrick and with the medical evidence as to her mental state.226 She submits that her medical evidence is relevant as it evidences her “serious and debilitating mental health problems” from 12 January 2017 onwards, it highlights the particular difficulties Ms Donelan had in interacting with the AFP and her affected mental state gives some explanation for her failure to submit a secondary employment application. Secondly, she says that she needed the 2016 Application and thought she was provided only with the blank application form. She says this is reflective of the work-related stress and anxiety she suffered and the significant personal stress and turmoil that she was dealing with at the time.227 Thirdly, she submits that Detective Leading Senior Constable Fitzpatrick accepted that her mental health issues and life circumstances may have impacted on her ability to submit a secondary employment application. Fourthly, she submits that under cross examination Detective Leading Senior Constable Fitzpatrick accepted that there was no contradiction in Ms Donelan being able to perform work in relation to her childcare businesses but being unfit for work at the AFP.228 Fifthly, Ms Donelan submits that she did not make an intentional decision not to submit a secondary employment application and that the investigator did not make a finding that her conduct was deliberate or that she had an ulterior purpose in failing to submit a secondary employment application.

[120] Fourthly, in relation to Conduct Issue 3 Ms Donelan submits that it does not constitute a valid reason for dismissal because the AFP fell into error in dismissing Ms Donelan on the basis that she wore her full uniform, it did not establish that Ms Donelan acted for an improper purpose in contravention of section 8.8 of the Code of Conduct and the conduct was not serious enough to warrant a finding of Category 3 conduct. 229 Ms Donelan submits that even at its highest, Conduct Issue 3 was a minor breach of section 8.8 of the Code of Conduct and did not warrant a Category 3 conduct finding. Ms Donelan relies upon the fact that the conduct did not involve dishonesty, cause any loss or harm, was not repeated, and that Ms Donelan did not obtain any material gain nor obtain such a gain for anyone else. 230

AFP’s submissions

[121] The AFP submits that Conduct Issue 1, and to an extent Conduct Issue 2, were not matters concerning Ms Donelan’s failure to fill out a form. Rather, it submits, it was a failure to seek and obtain approval to undertake secondary employment prior to doing so. 231

[122] The AFP submits that based on Ms Donelan’s own admissions, she engaged in a breach of the AFP Code of Conduct. It submits that a substantial and wilful breach of an employer’s policy will often, if not usually, constitute a valid reason for dismissal. 232

[123] Further, it submits that the conduct was serious because of the nature of the conduct in light of the operations of the AFP and the statutory framework in which it operates and also because of the sustained nature of the conduct. 233 It submits that it does not assist Ms Donelan to point to some other conduct that is more serious or to assert that there has been no loss or damage that is measurable.234 It submits that such matters are simply not relevant to this matter and their absence does not diminish the seriousness of the conduct.235

[124] As to Conduct Issue 3, the AFP submits that there was clearly a breach of the Code of Conduct and the National Guidelines. It submits that even if there was no actual conflict Ms Donelan’s conduct nonetheless gave rise to a perceived and/or a potential conflict. It submits that this is precisely what the National Guidelines and the Code of Conduct seek to manage and why compliance with them is of the utmost importance. 236

[125] As to Conduct Issue 4, the AFP submits that whilst that conduct would not in and of itself justify dismissal, it is relevant to the course of conduct engaged in by Ms Donelan.

Findings as to valid reason

[126] I have found that:

•  since 26 October 2018 Ms Donelan continued secondary employment as a director and owner of Community Children Pty Ltd without AFP approval. I have also found that conduct to be in breach of section 8.10 of the Code of Conduct;

•  on 26 October 2018 Ms Donelan failed to comply with a direction given to her by Detective Superintendent Moger to submit a secondary employment application. I have also found that conduct to be in breach of section 8.6 of the Code of Conduct;

•  on 19 September 2017 Ms Donelan wore her AFP hat in her secondary employment. I have also found that conduct to be in breach of section 8.8 of the Code of Conduct; and

•  on 14 August 2018 Ms Donelan incorrectly declared that she was not undertaking secondary employment. I have also found that conduct to be in breach of section 8.11 of the Code of Conduct.

[127] It is not contended that Conduct Issue 4 constitutes a valid reason for dismissal.

[128] I consider that Ms Donelan’s conduct as found in Conduct Issues 1 - 3 constitutes a valid reason for dismissal. I consider Ms Donelan’s conduct demonstrates a pattern of, at the very least, reckless indifference to, and disregard for, her obligations as an AFP appointee. Further, I consider that each of Conduct Issues 1 - 3, individually, constitute a valid reason for her dismissal. However, should I be wrong in that, I consider that collectively Conduct Issues 1 - 3 constitute a valid reason for dismissal. I give no weight to Conduct Issue 4. My reasons for those conclusions are as follows.

[129] I first address Ms Donelan’s submissions that Conduct Issues 1 - 3 were not sufficiently serious to warrant a Category 3 conduct finding. If those submissions be that unless the relevant conduct is properly characterised as Category 3 conduct it cannot constitute a valid reason for dismissal for the purposes of section 387(a), I reject them. The existence of a valid reason for the purposes of section 387(a) is not assessed by reference to any legal right to dismiss. 237 In He v Lewin238 Gray and Mansfield JJ made the following comments in relation to whether there can be a valid reason for dismissal, notwithstanding non-compliance with other legal obligations:

“In a given case, it would be open to the Commission to determine that there was no valid reason for termination of the employment, even if the employer had a legal right to terminate the employment.

…

Conversely, it would be open to the Commission to find that there was a valid reason, of the kind contemplated by the provision, even if the termination was in breach of the contract of employment, an award or a collective agreement…It would be open to the Commission to proceed straight to the questions it is required to determine ignoring any question of legal rights.”

[130] In Martine Magers v Commonwealth of Australia (Department of Health and Ageing) 239 the Full Bench of the Commission referred to a number of authorities and said:

“These cases demonstrate that the existence of a valid reason does not depend on consistency with requirements for termination for other purposes such as the requirement of an enterprise agreement, legislation or the common law. A valid reason is one which is sound, defensible and well-founded. If a termination is inconsistent with some other obligation, that is a factor to be considered under other criteria relevant to the overall consideration in the matter.”

[131] Therefore, whether Ms Donelan’s conduct was sufficiently serious as to amount to Category 3 conduct such as to give rise to a right to dismiss under the Conduct Determination does not go to whether there was a valid reason for the dismissal under section 387(a). It may, however, be a relevant consideration to the overall question of whether the termination was harsh, unjust or unreasonable. Accordingly, I address the question of whether Ms Donelan’s conduct is sufficiently serious to constitute Category 3 conduct under the Conduct Determination in the course of my consideration of section 387(h).

[132] Secondly, whilst I accept that Conduct Issues 1 and 2 are related, I reject that they are properly characterised as a failure by Ms Donelan to fill out a form. I accept the Respondent’s submission that Conduct Issue 1 and, to some extent, Conduct Issue 2, are more properly characterised as a failure to seek and obtain approval to undertake secondary employment prior to undertaking that secondary employment.

[133] As to Conduct Issue 1, Ms Donelan failed over a sustained period of time to comply with the National Guidelines and seek approval prior to undertaking secondary employment. Section 39 of the AFP Act provides that an AFP appointee must comply with Commissioner’s Orders. Part A of the Commissioner’s Orders provides that an AFP appointee must be aware of and comply with the AFP’s professional standards and integrity framework. The National Guidelines are part of the AFP’s professional standards and integrity framework. The National Guidelines require that secondary employment not be undertaken prior to approval. Ms Donelan agreed under cross examination that the purpose of the National Guidelines was to allow the AFP to manage actual, potential and perceived conflicts of interest and to ensure the integrity of the AFP. I consider it clear that such a purpose cannot be achieved if application for approval and relevant disclosures are not made before secondary employment is undertaken and approval provided. I therefore do not consider that Ms Donelan’s failure to submit a secondary employment application was simply a failure to fill out a form. Further, Ms Donelan continued secondary employment without approval notwithstanding having been issued with a formal warning for doing so, being directed to submit an application for approval, being provided on more than one occasion with the necessary forms to do so and being reminded to do so. She therefore continued secondary employment without approval in full knowledge that she did not have approval to do so, was required to have such approval and had been provided with the necessary documents to allow her to do so. Accordingly, I consider her conduct to be deliberate conduct, in the sense that it was not accidental or inadvertent. Additionally, she continued to fail to seek approval even following being declared fit to return to work in June 2019 and submitting her security clearance. Her conduct was therefore sustained, on-going and undertaken in full knowledge of her obligations and the need to comply with them. Ms Donelan was recklessly indifferent to her obligations as an AFP appointee. Ms Donelan’s conduct was in breach of her obligations under section 39 of the AFP Act, the Commissioner’s Orders, the National Guidelines and section 8.10 of the Code of Conduct. It constitutes a valid reason for dismissal.

[134] As to Conduct Issue 2, a failure to obey a lawful and reasonable direction can constitute a valid reason for dismissal. 240 Ms Donelan was required to comply with the lawful and reasonable directions of her employer. The obligation to comply with an employer’s lawful and reasonable directions is a fundamental term of the contract of employment. Further, section 8.6 of the Code of Conduct provides that she must do so, as does section 40 of the AFP Act. It is not in any way contended that Detective Superintendent Moger’s direction was not a lawful and reasonable direction with which Ms Donelan was required to comply. I consider it clear that compliance with the directions of one’s supervisors is of particular importance in an organisation such as the AFP. Assistant Commissioner McLean’s evidence was that as an AFP appointee, Ms Donelan was tasked to uphold and enforce the law.241 Assistant Commissioner McLean’s further evidence was that the AFP is a disciplined organisation that relies upon a traditional command and control structure requiring obedience to directions and orders from superior officers.242 I accept that evidence. Indeed, under cross examination Ms Donelan agreed that the AFP was a hierarchical organisation and that the chain of command was very important. She agreed that adhering to the directions of her supervisors was crucial to the operations of the AFP. As such, in the context of employment with the AFP Ms Donelan’s failure to comply with Detective Superintendent Moger’s direction was a matter of significance. Further, Ms Donelan failed to comply with the direction given to her in circumstances where a Category 2 conduct finding had already been made for failing to submit a secondary employment application and in respect of which she had been issued with a formal warning. Further, she had been expressly put on notice that failure to comply with the direction to submit a secondary employment application may lead to further referral to Professional Standards. Should it have been necessary, she was therefore expressly put on notice that the AFP took compliance with the direction seriously and can have been under no illusions that she was required to comply with it. Under cross examination Ms Donelan agreed that she knew when she saw the direction that she “was in trouble”243 but her mind set at the time was “so whatever”.244 She agreed that in the directed interview she told Detective Leading Senior Constable Fitzpatrick that there were far worse things going on so “she didn’t give a rats”.245 Accordingly, I consider Ms Donelan’s failure to comply with Detective Superintendent Moger’s direction to be deliberate conduct, in the sense that it was not accidental or inadvertent. Ms Donelan appears to have formed the view that due to other circumstances in her life she could simply not comply with the direction of a superior officer. Ms Donelan was recklessly indifferent to her obligations as an AFP appointee. Additionally, Ms Donelan failed to comply with the direction notwithstanding being provided with the relevant documents, being offered assistance to complete those documents and an extension of time to do so. Ms Donelan’s conduct was in breach of section 8.6 of the Code of Conduct and in the circumstances of her employment with the AFP constitutes a further valid reason for dismissal.

[135] As to Ms Donelan’s submissions that Conduct Issues 1 and 2 were at the “low end of seriousness”, the question to be determined under section 387(a) is whether there was a valid reason for dismissal, in the sense that it was a good reason and a substantiated reason. The question of seriousness of the conduct goes, in my view, to the question of whether dismissal was proportionate to the conduct engaged in and is more appropriately addressed in the consideration of section 387(h). However, if that submission is that Ms Donelan’s conduct does not constitute a valid reason for dismissal because it was “at the low end of seriousness”, I reject that submission. For the reasons set out above, I consider that each of Conduct Issue 1 and 2 constitutes a valid reason for dismissal. However, should I be wrong in that, I consider that collectively Conduct Issues 1 - 3 constitute a valid reason for dismissal. Further, should it be necessary, I refer to and repeat my earlier findings and the reasons for those findings set out at paragraphs [68] – [76] above that Ms Donelan’s anxiety, her separation from her husband, her child’s asserted medical condition, her former husband’s asserted suicide attempts, Ms Donelan’s asserted belief that the 2016 Application had not been provided to her, her asserted confusion regarding the email correspondence provided to her, any contradiction between the information in the security clearance and the secondary employment application or any other matter, do not adequately explain her failure to comply with Detective Superintendent Moger’s direction or her continuation of secondary employment without approval from 26 October 2018. I also do not consider these matters detract from the significance of Ms Donelan’s conduct and breaches or alter my conclusion that there was, at the least, a valid reason for her dismissal based on her collective conduct in Conduct Issues 1 - 3. I address Ms Donelan’s contention that her mental health issues were “serious and debilitating” later in this decision. Finally, as to Ms Donelan’s submissions regarding the findings and views of Detective Leading Senior Constable Fitzpatrick, the statutory task of the Commission is to determine, on the evidence adduced before it, whether there was a valid reason for the dismissal. 246 Further, as already noted, it is well-established that a valid reason need not necessarily be the one relied upon by the employer. Accordingly, an examination of the validity or otherwise of the findings and views of the investigator is not relevant to the Commission’s consideration as to whether there was a valid reason for Ms Donelan’s dismissal.

[136] As to Conduct Issue 3, as already set out, section 39 of the AFP Act provides that an AFP appointee must comply with Commissioner’s Orders. Part A of the Commissioner’s Orders provides that an AFP appointee must be aware of and comply with the AFP’s professional standards and integrity framework. The National Guidelines are part of the AFP’s professional standards and integrity framework. The National Guidelines prohibit the wearing of any part of the AFP uniform in secondary employment. As already set out, Ms Donelan agreed under cross examination that the purpose of the National Guidelines was to allow the AFP to manage actual, potential and perceived conflicts of interest and ensure the integrity of the AFP. Ms Donelan wore her AFP hat in breach of these obligations and in the context of her own commercial interests. Under cross examination Ms Donelan also agreed that Federal Agents have a lot of power, are in a position of authority and may be regarded by members of the public as intimidating. She agreed that it was important for Federal Agents to avoid perceptions of abuse of power. Whilst I accept that Ms Donelan did not intend to influence the DET officials, she wore her AFP hat at the centre that day knowing that they were present and were undertaking an assessment and ratings visit. Further, although perceived differently by each of the DET officials, the wearing of her AFP hat gave rise to a compliant 247 and did indeed influence the officials.248 This is precisely the mischief that the prohibition against wearing any part of the AFP uniform is directed at. I consider Ms Donelan’s conduct in wearing her AFP hat at the childcare centre in circumstances where she knew DET officials were present and conducting an assessment and ratings visit was both deliberate conduct, in the sense that it was not accidental or inadvertent, and was recklessly indifferent to her obligations as an AFP appointee. Further, she did so in the course of unapproved secondary employment. Ms Donelan’s conduct was in breach of the National Guidelines and section 8.11 of the Code of Conduct and constitutes a valid reason for dismissal.

[137] As to the submission that Conduct Issue 3 cannot constitute a valid reason because the AFP fell into error in dismissing Ms Donelan on the basis that she wore her full uniform, rather than just her AFP hat as is now conceded by the Respondent, I reject that submission. Firstly, as already set out, whether there is a valid reason for dismissal is determined on the basis of the evidence before the Commission. Secondly, that reason need not necessarily be the reason relied upon by the employer. Thirdly, in so far as Conduct Issue 3 is concerned, the Termination Letter deals only with Ms Donelan wearing her AFP hat on 19 September 2017.

[138] Finally, I consider the submission that Conduct Issue 3 was a minor breach because the conduct did not involve dishonesty, cause any loss or harm, was not repeated and Ms Donelan did not obtain any material gain, to be misconceived and not to the point. That other forms of conduct may be considered more serious does not detract from the conduct actually engaged in. Further, it is not necessary for conduct to involve dishonesty, cause loss or harm, be repeated or result in material gain before it may be considered a valid reason for dismissal.

[139] Accordingly, I consider that each of Conduct Issues 1 - 3 constitutes a valid reason for Ms Donelan’s dismissal. However, should I be wrong in that, I consider that taken collectively Conduct Issues 1 - 3 constitute a valid reason for Ms Donelan’s dismissal.

Notification of reasons for dismissal and opportunity to respond – Section 387(b) and (c)

[140] The Commission must take into account whether an employee has been notified of the reason for dismissal and whether the person was afforded an opportunity to respond any reason related to their conduct or performance. Notification of a valid reason for termination should occur before the decision to dismiss is made, 249 and be made in explicit,250 plain and clear terms.251 The question of whether an employee had an opportunity to respond to reasons related to conduct or performance should be understood in a common sense way; the focus of the consideration is whether the employee was treated fairly, rather than on any formality.252

[141] It is not contested that Ms Donelan was notified of the reasons for her dismissal or that she was provided an opportunity to respond to those reasons.

Unreasonable refusal to allow a support person – Section 387(d)

[142] The consideration under section 387(d) is directed to whether the employer unreasonably refused to allow a support person to be present, not whether one was offered. There is no positive obligation on an employer to offer an employee the opportunity to have a support person.²⁵³

[143] It is not contented that Ms Donelan was refused a support person.

Warning about unsatisfactory performance before dismissal – Section 387(e)

[144] It is not contended that Ms Donelan’s dismissal was not for unsatisfactory performance.

[145] Accordingly, the consideration in section 387(e) has no application to the present circumstances.

Size of the enterprise and dedicated human resources – Section 387(f) and (g)

[146] Section 387(f) and (g) requires the Commission to take into account the degree to which the size of the employer’s enterprise and the absence of dedicated human resources personnel would have been likely to impact upon the procedures followed in effecting dismissal.

[147] Clearly the AFP is an organisation with considerable resources, including dedicated human resources personnel with relevant expertise. The size of the employer’s enterprise would have no adverse impact on the procedures followed in effecting dismissal. There was “no absence of dedicated human resources management specialist or expertise” and accordingly the consideration in section 387(g) has no application.

Other relevant matters – Section 387(h)

[148] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[149] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation 254 the Full Bench stated that:

“That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be ‘relevant matters’ that do not bear upon whether there was a ‘valid reason’ for the dismissal but do bear upon whether the dismissal was ‘harsh, unjust or unreasonable’.” 255

[150] The Full Bench continued:

“Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. (This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct).

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. (This includes matters such as the length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents).” 256

[151] Whether a dismissal is harsh, unjust or unreasonable is to be judged objectively, 257 however relevant factors that can be taken into account in determining harshness clearly include matters personal to the employee.258 Further, the failure of an employee to comply with the policies and procedures of an employer (which may found a valid reason to dismiss) does not prevent the Commission from finding that the dismissal was harsh, unjust or unreasonable.259

Was the conduct Category 3 conduct?

[152] It is uncontested that under the Conduct Determination termination is only permissible in respect of Category 3 conduct findings.

Applicant’s submissions

[153] Ms Donelan submits that her conduct was not sufficiently serious to support a Category 3 conduct finding in respect of any of Conduct Issues 1 - 3. Ms Donelan submits that for a breach of the Code of Conduct to warrant a Category 3 conduct finding it must constitute a serious breach of the Code of Conduct involving serious misconduct or serious neglect of duty as set out in the table contained in the Conduct Determination. She submits that a mere breach of the Code of Conduct is not sufficient. 260

[154] She submits her conduct in Conduct Issues 1 and 2 was “simply not objectively serious enough” to constitute Category 3 conduct where:

•  She had completed a secondary employment application from 2008 until 2016 when sent a reminder to do so;

•  She did not mislead the AFP about the fact that she was engaged in secondary employment or the nature of her secondary employment and this was acknowledged by Detective Leading Senior Constable Fitzpatrick and Assistant Commissioner McLean;

•  She made clear admissions regarding her conduct during the investigation;

•  The AFP suffered no loss or damage because of the conduct; and

•  Ms Donelan’s conduct did not cause harm to any other AFP officer or member of the public. 261

[155] Ms Donelan submits that of particular significance is that the AFP was at all times aware of her secondary employment and the type of secondary employment in which she was engaged. 262

[156] In respect of Conduct Issue 3, Ms Donelan submits that the conduct was minor and did not warrant a finding of Category 3 conduct because Ms Donelan’s conduct did not involve dishonesty, material gain for herself or any other person, cause any loss or harm, was not intended to influence the DET officials and was not repeated. 263

[157] Further, she submits that there were profound mitigating circumstances which, when coupled with the low level of seriousness of the conduct, should have resulted in a Category 2 conduct finding. Those mitigating circumstances were:

•  Ms Donelan’s severe back problems from 2017;

•  Ms Donelan’s severe mental health problems during the period she was absent form work;

•  that the period 2017 - 2019 was a period in her life of significant stress, turmoil and personal difficulty;

•  Ms Donelan had an unblemished disciplinary record; and

•  Ms Donelan was honest and forthright regarding her secondary employment and her failure to submit secondary employment applications. 264

[158] I consider these matters are properly considered in the context of whether the dismissal was proportionate to the misconduct and general considerations as to whether the dismissal was harsh, unjust or unreasonable, rather than as to whether the conduct is properly characterised as Category 3 conduct. I address those matters in that context later in this decision.

[159] Finally, Ms Donelan submits that there are “numerous additional matters that should be taken into account and render [Ms Donelan’s] dismissal harsh.” She submits that:

•  Conduct Issue 1 and 2 were not sufficiently serious to warrant a finding of Category 3 conduct;

•  Conduct Issue 3 was not sufficiently serious to warrant a finding of Category 3 conduct;

•  the decision to terminate Ms Donelan’s employment was disproportionate to the gravity of the misconduct or to sustain a finding of serious misconduct;

•  Ms Donelan had a long and largely unblemished work history with the Respondent; and

•  Ms Donelan’s personal circumstances rendered the dismissal particularly harsh. 265

AFP submissions

[160] The AFP submits Conduct Issues 1 and 2 are a serious breach of the Code of Conduct because the conduct was repeated and the breaches sustained over a prolonged period, notwithstanding reminders and offers of assistance having been provided to Ms Donelan. 266 It further submits that even if Ms Donelan’s explanation about her mental state or her personal circumstances are accepted, it does not explain why she failed to comply with her obligations after she was certified as medically fit and after she was able to complete more complicated forms such as the security clearance and while able to attend to other personal matters.267 It further submits that the Category 3 conduct finding must be considered against the backdrop of Ms Donelan having already received a Category 2 finding and a formal warning having been issued.268

[161] The AFP submits that Ms Donelan’s conduct in Conduct Issues 1 and 2 was, at the very least, reckless indifference to the professional standards and integrity of the AFP and therefore constitutes Category 3 conduct. 269 It submits that the both Detective Leading Constable Fitzpatrick and Assistant Commissioner McLean were “unmovable” in their view that Ms Donelan’s conduct was conduct within Category 3. 270

[162] As to Conduct Issue 3, it submits that there was a clear breach of the Code of Conduct and the National Guidelines. 271 It submits that even if no actual conflict arose, Ms Donelan’s conduct gave rise to a perceived and/or potential conflict.272 It submits that the conduct is serious because not only did it give rise to a potential to influence the DET officials, it did so.273

The Conduct Determination

[163] The Conduct Determination provides that conduct should be initially investigated as a Category 3 matter if, relevantly:

“…

2. The conduct is assessed to have been carried out deliberately and/or is of such seriousness as to demonstrate that the AFP appointee has been wilfully or recklessly indifferent to the professional standards and integrity of the AFP

…” 274

[164] It then provides that “The descriptions provided in the table below are examples only. The table is designed to further guide the assessment of Category 3 matters, which are not limited to the examples given.” (Commission’s emphasis). The example in relation to the Code of Conduct provides as follows:

(Example).

[165] Accordingly, I accept Ms Donelan’s submission that a mere breach of the Code of Conduct is not sufficient to justify a Category 3 conduct finding. I consider it clear that for conduct to constitute Category 3 conduct under the Conduct Determination it must be deliberate and/or serious. I also accept that the example given in the Conduct Determination in relation to a serious breach of the Code of Conduct (Example) is as submitted by Ms Donelan. However, I consider that the Conduct Determination makes it clear that it is provided as an example only and is to guide the further assessment of Category 3 conduct. The Example is not provided as an exhaustive statement of when a breach of the Code of Conduct will constitute Category 3 conduct.

[166] Accordingly, I consider the starting point under the Conduct Determination is whether the conduct is carried out deliberately and/or is of such seriousness as to demonstrate that the AFP appointee has been wilfully or recklessly indifferent to the professional standards and integrity of the AFP.

Is Conduct Issue 1 and/or 2 deliberate or of such seriousness as to demonstrate that the AFP appointee has been wilfully or recklessly indifferent to the professional standards of the AFP?

[167] I have found that Ms Donelan’s conduct in Conduct Issues 1 and 2 was deliberate. It was not accidental or inadvertent.

[168] Further, I reject the submission that Conduct Issues 1 and 2 were simply not objectively serious enough to warrant a Category 3 finding. I accept the AFP’s submissions as to this matter and for the following reasons find that Ms Donelan’s conduct in relation to Conduct Issues 1 and 2 was serious. Firstly, I consider that Ms Donelan’s conduct in Conduct Issues 1 and 2 were serious breaches of the Code of Conduct due to their repeated and sustained nature and in light of the all the circumstances in which the breaches occurred. Secondly, I accept that the seriousness of the conduct must be viewed against that fact that Ms Donelan had already been issued with a Category 2 conduct finding and a formal warning in relation to the failure to submit a secondary employment application. Thirdly, Ms Donelan failed to submit a secondary employment application for a significant and extended period of time. Fourthly, Ms Donelan failed to submit a secondary employment application notwithstanding have being directed to do so, being provided with all documents she considered necessary to enable her to do so on more than one occasion, being provided with an extension of time and assistance to do so and being reminded to do so. Fifthly, even if Ms Donelan’s health issues and personal circumstances could adequately explain her failure to submit a secondary employment application, which I reject, they cannot explain why she continued to fail to submit an application and continued to undertake secondary employment without approval after being declared fit to return to work in June 2019 and in circumstances where she was able to complete the more onerous security clearance documentation and had been reminded in March 2019 to submit an application for approval by Ms Duffy. Even on her own evidence her mental health improved in 2019. 275 Further, I accept the evidence of Detective Senior Leading Constable Fitzpatrick276 and Assistant Commissioner McLean277 that Ms Donelan’s conduct was properly considered as Category 3 conduct. Accordingly, I consider that Conduct Issues 1 and 2 were serious and also constitute serious breaches of the Code of Conduct.

[169] I also reject that any of the matters relied upon by Ms Donelan at paragraph [154] above support a conclusion that the conduct was not objectively serious. Firstly, the fact that Ms Donelan had submitted a secondary employment application every year between 2008 and 2016 means that she was aware of the requirement to do so and had done so annually. In my view, this aggravates the breach rather than ameliorates it. Further, it simply cannot be suggested that after the issuing of the formal warning in 2018 and the direction to submit a secondary employment application that she had not been “reminded” to do so. Further, she was expressly reminded to do so by Ms Duffy in March 2019. Secondly, that the conduct does not involve dishonesty, harm to others or loss or damage to the AFP does not mean that the conduct is not serious or cannot constitute a serious breach. Thirdly, the submission that Ms Donelan did not mislead the AFP as to her secondary employment and that the AFP was at all times aware of Ms Donelan’s secondary employment is, in my view, misconceived. Firstly, what is required under the National Guidelines is that Ms Donelan submit a secondary employment application for approval annually, reflecting her business interests at that time (and as projected for the following 12 months). Secondly, the National Guidelines require approval to be sought and obtained before secondary employment is undertaken. Thirdly, the AFP’s knowledge of Ms Donelan’s secondary employment is limited to those matters which Ms Donelan discloses in the context of seeking approval to undertake secondary employment. No such application has been made by Ms Donelan since 2016. Accordingly, the AFP’s knowledge of the details of Ms Donelan’s secondary employment was historical and based on information provided in April 2016. The AFP cannot approve that which it does not know. Fourthly, Ms Donelan’s own evidence was that her business interests were “fluid”. This reinforces the need for, and importance of, annual disclosure to inform the AFP.

[170] Finally, as to the submission that Ms Donelan gave clear admissions, even if that be the case, employees are required to cooperate in an investigation conducted by their employer and answer questions honestly. Accordingly, this is no more than is required of any employee in a misconduct investigation. It does not diminish the seriousness of the conduct.

[171] The AFP submits that Ms Donelan’s conduct in Conduct Issues 1 and 2 was, at the very least, reckless indifference to the professional standards and integrity of the AFP. I accept that submission. In relation to Conduct Issue 1, Ms Donelan continued secondary employment without approval notwithstanding having been issued with a formal warning for doing so, being directed to submit an application for approval, being provided on more than one occasion with the necessary forms to do so and being reminded to do so. Further, Ms Donelan had previously submitted a secondary employment application annually from 2008 until 2016. She therefore continued secondary employment without approval in full knowledge that she did not have approval and was required to do so. In relation to Conduct Issue 2, Ms Donelan failed to comply with the direction given to her in circumstances where a Category 2 conduct finding had already been made for failing to submit a secondary employment application and in respect of which she had been issued with a formal warning. Further, she had been expressly put on notice that failure to comply with the direction to submit a secondary employment application may lead to further referral to Professional Standards. She was therefore expressly put on notice that the AFP took compliance with the direction seriously and that she was required to comply with it. Notwithstanding that, she failed to comply with the direction despite being provided with the relevant documents, being offered assistance to complete those documents and an extension of time to do so. Additionally, she knew when she saw the direction that she “was in trouble” 278 but her mind set at the time was “so whatever”279 and that there were far worse things going on so “she didn’t give a rats”.280 In light of all of the above, I find that Ms Donelan’s conduct in relation to Conduct Issues 1 and 2, was, at the least, recklessly indifferent to the professional standards and integrity of the AFP.

[172] Accordingly, I find that Conduct Issues 1 and 2 constitute Category 3 conduct within the Conduct Determination. Termination was therefore a sanction available under the Conduct Determination in respect of Conduct Issues 1 and 2.

[173] Further, should it be necessary, I also find that Ms Donelan’s conduct constitutes a serious breach of the Code of Conduct involving serious misconduct or serious neglect as is provided for in the Example. I have previously found that Conduct Issues 1 and 2 constitute a serious breach of the Code of Conduct. I also find that that breach involves serious misconduct. Serious misconduct is defined in the Conduct Determination to mean:

“Intentional, deliberate or grossly negligent conduct that demonstrates wilful or reckless indifference to the AFP Code of Conduct and/or values of the AFP, whether in the AFP appointee’s official capacity or otherwise, and/or could reasonably raise a question of employment suitability. In accordance with part V of the Act, serious misconduct may include the commission of a criminal offence.” 281

[174] I have found that Ms Donelan’s conduct in Conduct Issues 1 and 2 was deliberate. I have also found that Ms Donelan’s conduct demonstrated reckless indifference to the AFP professional standards and therefore to the AFP Code of Conduct.

[175] Accordingly, should it be necessary, I also find that Conduct Issues 1 and 2 are also therefore Category 3 conduct as provided in the Example.

Is Conduct Issue 3 deliberate or of such seriousness as to demonstrate that the AFP appointee has been wilfully or recklessly indifferent to the professional standards of the AFP?

[176] I have found that Ms Donelan’s conduct in Conduct Issue 3 was deliberate. It was not accidental or inadvertent.

[177] I reject the submission that the conduct in Conduct Issue 3 was minor because Ms Donelan’s conduct did not involve dishonesty, material gain for herself or any other person, cause any loss or harm, was not intended to influence the DET officials and was not repeated.

[178] Firstly, the National Guidelines contain a clear and unequivocal prohibition on using any part of the AFP uniform in secondary employment. In breaching the National Guidelines I have found that Ms Donelan breached the Code of Conduct. It is therefore not to the point that her conduct was not repeated, did not involve dishonesty, material gain for herself or any other person, cause any loss or harm or that other conduct may be potentially more serious. Secondly, that breach occurred in the context of Ms Donelan undertaking unapproved secondary employment. Thirdly, the purpose of the National Guidelines is to allow the AFP to manage actual, potential and perceived conflicts of interest and ensure the integrity of the AFP. Ms Donelan wore her AFP hat in breach of her obligations in the context of her own commercial interests, thereby undermining that purpose. Fourthly, whilst I accept that Ms Donelan did not intend to influence the DET officials by wearing her AFP hat, the DET officials were in fact influenced. That influence was a direct consequence of Ms Donelan improperly using her status, power or authority as an AFP appointee for an improper purpose. Accordingly, I consider that Conduct Issue 3 was serious and also constitutes a serious breach of the Code of Conduct.

[179] I also consider that Ms Donelan’s conduct in Conduct Issue 3 was recklessly indifferent to the professional standards of the AFP. Firstly, the National Guidelines have been in force since 2007. 282 Ms Donelan has declared that she has read those guidelines and on numerous occasions has submitted secondary employment applications pursuant to them. Accordingly, Ms Donelan was aware of the prohibition on using any part of her AFP uniform in her secondary employment and, if she was not, she ought have been. Secondly, Ms Donelan wore her AFP hat at the childcare centre in the context of her own commercial and business interests and in full knowledge that DET officials would be present that day and were undertaking an assessment and ratings visit of the centre. Thirdly, Ms Donelan agreed under cross examination that Federal Agents have a lot of power, are in a position of authority and may be regarded by members of the public as intimidating. She agreed that it was important for Federal Agents to avoid perceptions of abuse of power. Nonetheless, she wore her AFP hat whilst DET officials were to present to conduct an assessment and rating visit, the results of which had the potential to affect Ms Donelan’s commercial and business interests. In light of all of the above, I find that Ms Donelan’s conduct in relation to Conduct Issue 3 was recklessly indifferent to the professional standards and integrity of the AFP.

[180] Accordingly, I find that Conduct Issue 3 constitutes Category 3 conduct within the Conduct Determination. Termination was therefore a sanction available under the Conduct Determination in respect of Conduct Issue 3.

[181] Further, should it be necessary, I also find that Ms Donelan’s conduct constitutes a serious breach of the Code of Conduct involving serious misconduct or serious neglect as is provided for in the Example. I have previously found that Conduct Issue 3 constitutes a serious breach of the Code of Conduct. I also find that that breach involves serious misconduct as defined in the Conduct Determination.

[182] I have found that Ms Donelan’s conduct in Conduct Issue 3 was deliberate. It was not accidental or inadvertent. I have found that Ms Donelan’s conduct demonstrates reckless indifference to the AFP professional standards and therefore to the AFP Code of Conduct.

[183] Accordingly, should it be necessary, I also find that Conduct Issue 3 is also therefore Category 3 conduct as provided in the Example.

Multiple Category 2 breaches

[184] Should I be wrong, and either some or all of Conduct Issues 1 - 3 are properly considered to be Category 2 conduct, as set out above, the Example provides that multiple Category 2 breaches may also constitute a serious breach of the Code of Conduct. Accordingly, should it be that Conduct Issue 1, 2 and/or 3 are properly considered to be Category 2 breaches, I consider that collectively Ms Donelan’s conduct would still constitute Category 3 conduct under the Conduct Determination.

Mitigating circumstances

[185] I have considered whether any of the mitigating circumstances submitted by Ms Donelan render her dismissal harsh, unjust or unreasonable. I accept that in the period 2017 - 2019 Ms Donelan a had a number of health and personal issues to manage. I also accept that those matters may have impacted on Ms Donelan’s ability to submit a secondary employment application in a timely manner. However, I have previously found that they do not provide an adequate explanation for Ms Donelan’s misconduct in failing to comply with a lawful and reasonable direction to submit an application for secondary employment or continuing to undertake unapproved secondary employment for such a sustained period of time. Accordingly, I do not consider that they are such as to render her dismissal harsh, unjust or unreasonable. In relation to the specific matters submitted above, firstly, I reject that Ms Donelan had “severe” 283 mental health issues or that her mental health issues were “serious and debilitating”.284 Firstly, there is no medical evidence before the Commission to this effect. Neither the Certificates of Capacity before the Commission nor the Medial Report so provide. Secondly, the Certificates of Capacity before the Commission merely provide that Ms Donelan was diagnosed with adjustment disorder with mixed anxiety mood and that this “affected” her attention, concentration, memory and judgement. Thirdly, notwithstanding this affect being present, Ms Donelan was nonetheless considered fit for duties as reflected in the June Certificate of Capacity. Fourthly, I reject that Ms Donelan had an “unblemished” disciplinary record. She was issued with a Category 2 conduct finding and a formal warning in September 2018. I note that in other submissions Ms Donelan refers to her “largely unblemished” employment history. I address this submission below. Fifthly, I have previously addressed Ms Donelan’s submission that she was forthright and honest regarding her secondary employment. I refer to and repeat those matters here. Finally, I have also already considered whether Ms Donelan’s conduct was sufficiently serious to justify a Category 3 conduct finding and for the reasons set out above find that it was, although I do not consider this is a matter which is, properly considered, a mitigating circumstance.

Personal and employment history circumstances of Ms Donelan

[186] I have taken into account Ms Donelan’s personal circumstances, including that Ms Donelan is a single parent of two young children and was, at the time of the hearing, pregnant with her third child. I have also taken into account Ms Donelan’s length of service and her employment history. As to Ms Donelan’s employment history being “largely unblemished”, I consider that the Category 2 conduct finding and the formal warning issued in September 2018 are matters of relevance. Indeed, given the conduct in respect of which Conduct Issues 1 and 2 are concerned, I consider them to be matters of considerable relevance. I do not consider that Ms Donelan’s personal circumstances or employment history weigh so heavily in her favour so as to render her dismissal harsh, unjust or unreasonable.

Proportionality

[187] The proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h). Clearly a dismissal may be harsh because it is disproportionate to the gravity of the misconduct on which the employer acted.

[188] For the reasons set out above, I have found that each of Conduct Issues 1 - 3 constitutes serious misconduct. I have found that each of Conduct Issues 1 - 3 constitutes Category 3 conduct. Whilst I incline to the view that in isolation dismissal would have been proportionate for each of Conduct Issues 1 - 3, I consider that when considered collectively, and in light of all the circumstances, dismissal was proportionate to Ms Donelan’s misconduct. Further, should I be wrong, and either some or all of Conduct Issues 1 - 3 are properly considered as Category 2 conduct, I would not consider dismissal disproportionate.

Conclusion

[189] I have made findings in relation to each matter specified in section 387 as relevant.

[190] I must consider and give due weight to each as a fundamental element in determining ether the termination was harsh, unjust or unreasonable. 285

[191] Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of Ms Donelan was not harsh, unjust or unreasonable.

[192] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Ms Donelan was unfairly dismissed within the meaning of section 385 of the Act. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

J Tierney for the Applicant
V Bulut for the Respondent

Hearing details:

2020.
Melbourne (via Microsoft Teams):
14 and 15 September.

Final written submissions:

Applicant, 6 October 2020
Respondent, 20 October 2020

Printed by authority of the Commonwealth Government Printer

<PR725400>

Annexure A

Provisions of the Australian Federal Police Categories of Conduct Determination 2013 in relation to Category 2 and Category 3 conduct

“Category 2

Category 2 conduct issues include:

•  Minor misconduct;

•  Inappropriate conduct that reveals unsatisfactory behaviour by an AFP appointee;

•  Conduct that would otherwise be a Category 1 matter but warrants treatment as Category 2 due to its repeated nature; or

•  Misconduct as defined in Part V of the Act, which does not warrant being classified as either a Category 3 conduct issue or a corruption matter.

Complaints that begin as a Category 2 matter may be elevated to a Category 3 complaint on the recommendation of the relevant CMT or by determination of PRS management.

Category 3

A Category 3 issue is serious misconduct as defined under Part V of the Act, but does not give rise to a corruption issue.

A matter should be initially investigated as a Category 3 matter if:

1. The conduct as described in the complaint would, prima facie, amount to serious misconduct pursuant to Commissioner’s Orders 2; or

2. The conduct is assessed to have been carried out deliberately and/or is of such seriousness as to demonstrate that the AFP appointee has been wilfully or recklessly indifferent to the professional standards and integrity of the AFP.; or

3. The description of the conduct would reasonably lead to consideration of the employment suitability of the AFP appointee; or

4. The description of the conduct, prima facie amounts to a criminal offence.

With the exception of corruption matters, if the conduct complained of fails to meet the above principles, it should be determined to be Category 2 minor misconduct. Corruption matters are referred to ACLEI.

The descriptions provided in the below table are examples only. This table is designed to further guide the assessment of Category 3 matters, which are not limited to the examples given.

” 286

Federal Police Categories of Conduct Determination 2013 Explanatory Statement

“EXPLANATORY STATEMENT

Issued by the authority of Commissioner of the Australian Federal Police and the Commonwealth Ombudsman

Australian Federal Police Act 1979

Determination 2013/ to determine AFP Categories of Conduct

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Background

Complaints about the conduct of Australian Federal Police (AFP) appointees are dealt with in Part V of the Australian Federal Police Act 1979 (the Act). Section 40RH of the Act stipulates that an AFP conduct issue is an issue of whether an AFP appointee has engaged in conduct that contravenes the professional standards of the AFP, or engaged in corrupt conduct. Professional standards to which all AFP appointees must comply are established by the AFP Commissioner pursuant to section 40RC of the Act. These professional standards are issued as Commissioner’s orders under section 38 of the Act.

Section 40RK provides that there are four categories of conduct issues for the purpose of the Act. Under section 40RM the AFP Commissioner and the Ombudsman may jointly determine (by legislative instrument) the kinds of conduct considered to constitute Category 1, 2 or 3 conduct for the purposes of the Act.

The category into which a particular instance of conduct falls determines how it will be dealt with by the AFP, the Ombudsman’s office and the Australian Commission for Law Enforcement Integrity (ACLEI). Categorisation is for the purpose of investigation and oversight, and is based on the conduct as characterised when it comes to the attention of the AFP, not on how it was or might be characterised following investigation.

This Determination incorporates specific references to AFP Commissioner’s Orders 2, 3 and 9 and to the AFP Code of Conduct. The Determination also makes general reference to AFP National Guidelines and Practical guides but does not incorporate specific AFP guidelines and directions. These documents are incorporated as in force at the time the Determination took effect. The Determination addresses the conduct of AFP appointees including those who have ceased to be AFP appointees. Each of these documents are readily accessible to existing AFP appointees via the AFP intranet.

In addition, the AFP Code of Conduct, Commissioner’s Order 2 and a number of the AFP National Guidelines and Practical guides are also publicly available. A small number of these contain redactions. A redacted version of Commissioner’s Order 3 is also publically available. Commissioner’s Order 9 and a number of other AFP Governance documents that are not publically available have been assessed and determined as exempt from publication under the Freedom of Information Act 1982.

The Commissioner's Orders specifically incorporated into this Determination are:

•  Commissioner's Order 2 on Professional Standards as made by the Commissioner on 9 August 2011

•  Commissioner's Order 3 on Operational Safety as made by the Commissioner on 1 June 2012.

•  Commissioner's Order 9 on Security as made by the Commissioner on 15 April 2013.

A former AFP Appointee could, in addition to the publically available version of the documents, also request access to relevant information by way of a summons, subpoena or a request under the Freedom of Information Act 1982.

The Categories of Conduct in the Determination

Section 40RK of the Act establishes the following four categories of conduct:

1) Category 1 conduct which is the least serious class of conduct

2) Category 2 which is the next most serious category

3) Category 3 which is the next most serious category again; and

4) Conduct giving rise to a corruption issue which is the highest and most serious category

Sections 40RK, 40RN, 40RO and 40RP of the Act establish that the four categories of conduct have the following characteristics:

Category 1 conduct

Category 1 conduct covers inappropriate conduct that relates to minor management matters, customer service matters or reveals a need for improvement in the performance of the AFP appointee concerned and does not warrant being treated as Category 2 or Category 3 conduct.

Category 2 conduct

Category 2 conduct is minor misconduct by an AFP appointee, inappropriate conduct that reveals unsatisfactory behaviour by an AFP appointee or conduct that would otherwise be Category 1 conduct but warrants treatment as category 2 conduct , due to its repeated nature. Category 2 conduct must also be conduct which does not warrant being treated as category 3 conduct.

Category 3 conduct

Category 3 conduct is serious misconduct by an AFP appointee; or raises the question whether termination action should be taken in relation to an AFP appointee; or involves a breach of criminal law, or serious neglect of duty, by an AFP appointee and in each case is conduct which does not raise a corruption issue.

Corrupt conduct

Conduct captured under this category is defined in s 6 of the Law Enforcement Integrity Commissioner Act 2006 (Cth) to refer to conduct that involves abuse of office, perverting the course of justice or corruption of any other kind.

Comparison with 2006 determination

This instrument replaces the Australian Federal Police Categories of Conduct Determination 2006 (2006 Determination). It is intended to provide further clarity about the kinds of conduct that will satisfy category 1, 2 and 3 for the purposes of the Act.

This Determination introduces definitions for Category 1, 2 and 3 conduct modelled on the provisions in ss 40RN, 40RO and 40RP of the Act. The new definitions align the conduct available in each category with the parameters specified in those provisions.

The tables in this Determination largely restate the categories of conduct that were determined by the 2006 Determination with some clarifications, additions and reorganisation.

Some conduct that was specifically described in the 2006 Determination is now included by reference to governance documents such as the Commissioner's Orders and the National Guidelines. The tables continue to provide a selection of the behaviours captured under these governance documents as examples of the conduct in each category.

Additions to Category 2 will enable less serious examples of breaches of the Commissioner’s Orders on Safety to be addressed by the appointee’s management. Specifically, excessive use of force where the circumstances are unlikely to amount to serious misconduct or serious negligence and unauthorised discharge of a conducted energy weapon are now included in Category 2 conduct.

Specific behaviours are provided as examples in Category 3 to clarify that this Category includes workplace bullying, unapproved methods of use of force and failure to secure a firearm.

Currently, the terms “minor misconduct” used in Category 2 and 3 and “serious misconduct” (as it applies to Category 3 conduct) are not defined. Definitions providing further clarity around the concepts are to be included in Commissioner’s Order 2 and are referred to in this Determination.

Human rights implications

The Determination promotes human rights relating to work

Right to work, including safe, just and favourable conditions of work

The right to just and favourable conditions of work including safe and healthy working conditions is recognised in Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to protection of health and to safety in working conditions is also recognised in the specific context of women in the workplace in Article 11 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).

This Determination promotes these specific human rights by making it clear that workplace harassment (including sexual harassment), bullying of Australian Federal Police appointees or a serious contravention of provisions of anti-discrimination legislation each constitute conduct required to be appropriately addressed under the AFP’s professional standards regime. Clarifying that these kinds of behaviours constitute relevant conduct under the Act promotes awareness that this behaviour can be reported and addressed through appropriate remedies including training and development, remedial action, formal investigation or termination.

Conclusion

This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 because it promotes the right to work in Article 7 of the ICESCR and the right to protection of health and to safety in working conditions in Article 11 of the CEDAW.

Consultation

Under s40RM(1) of the Act, and having been satisfied in terms of s40RN, s40RO and s40RP of the Act, the Commonwealth Ombudsman and the Commissioner of the Australian Federal Police agree to the categorisation of conduct which breaches the professional standards of the AFP, as set out in this Determination.

The Australian Federal Police Association was consulted during the formulation of this Determination as it relates to the handling of breaches of the professional standards of the AFP. The Community and Public Sector Union was informed of the context, scope and impact of this Determination once formulated. The Commissioner and Commonwealth Ombudsman have sole responsibility for jointly agreeing to the categorisation of conduct which breaches the professional standards of the AFP.” 287

 1   Form F2 Application at q.1.1; Form F3 Employer Response at q.1.2

 2   Exhibit A1 at [6]

 3   Ibid at [3]

 4   Ibid at [11-12]

 5   Ibid at [21]

 6   Ibid at [21]

 7   Ibid at [38]

 8   Exhibit R3, Annexure DM-2

 9   Australian Federal Police Categories of Conduct Determination 2013, Schedule

 10   Exhibit R1 at [26]

 11   Exhibit R1, Annexure KF- 4

 12   Ibid at [3]

 13   Exhibit R1, Annexure KF- 4

 14   Exhibit A1 at [9]

 15   Ibid at [18-19]

 16   Ibid at [20]

 17   Ibid at [21]

 18   Ibid at [24-36]

 19   Ibid at [37]

 20   Ibid at [37]

 21   Ibid at [38]

 22   Ibid at [41]

 23   Ibid at [43]

 24   Ibid at [44]

 25   Ibid at [46]

 26   Ibid at [47]

 27   Ibid at [49]

 28   Ibid at [51-53]

 29   Ibid at [14]

 30   Ibid at [14]

 31   Ibid at [16]

 32   Ibid at [17]

 33   Exhibit R2, Annexure NM-1, p.14

 34   Exhibit A1 at [65-66]

 35   Ibid at [65]

 36   Ibid at [17]

 37   Transcript PN189

 38   Transcript PN178-184

 39   Transcript PN188

 40   Transcript PN190

 41   Transcript PN242-243

 42   Transcript PN259-261

 43   Exhibit R1, Annexure KF-3

 44   Exhibit A1 at [67]

 45   Ibid at [70]

 46   Exhibit R1, Annexure KF-5, p.9

 47   Exhibit A1 at [71] and Annexure MD6

 48   Exhibit R2 at [15]

 49   Ibid at [19]

 50   Exhibit A1 ats [69]

 51   Ibid at [71] and Annexure MD-6

 52   Exhibit R2, Annexure NM-1; Exhibit A1, Annexure MD4 at [1.5] and [2.7]

 53   Exhibit R2, Annexure NM-1

 54   Ibid

 55   Ibid

 56   Transcript PN303

 57   Transcript PN303

 58   Transcript PN498, PN505-508, PN531, PN534

 59   Applicant’s written closing submissions at [21]

 60   Exhibit A1, Annexure MD2

 61   Exhibit A1 at [37]

 62   Exhibit A1, Annexure MD27

 63   Exhibit A1, Annexure MD28

 64   Exhibit A1, Annexure MD27, section 4

 65   Exhibit A1, Annexure MD28

 66   Transcript PN136

 67   Transcript PN441-444

 68   Exhibit R2 at [29]

 69   Transcript PN355-356

 70   Exhibit A1, Annexure MD7

 71   Transcript PN296

 72   Exhibit A1, Annexure MD8

 73   Transcript PN318

 74   Transcript PN546-547

 75   Exhibit A1, Annexure MD9

 76   Transcript PN341

 77   Transcript PN342

 78   Transcript PN339

 79   Transcript PN340

 80   Exhibit A1 at [79]

 81   Transcript PN156

 82   Transcript PN159

 83   Transcript PN501

 84   Transcript PN345

 85   Transcript PN348

 86   Transcript PN349

 87   Transcript PN351, PN346

 88   Transcript PN355

 89   Transcript PN356

 90   Transcript PN436

 91   Exhibit A1 at [80]

 92   Transcript PN 550-552

 93  Transcript PN553-562

 94   Transcript PN562

 95   Transcript PN1580

 96   Exhibit A1 at [83]

 97   Ibid at [85]

 98   Transcript PN562

 99   Transcript PN564, PN567

 100   Transcript PN569

 101   Exhibit R1, Annexure KF-3

 102   Transcript PN578

 103   Transcript PN580

 104   Transcript PN657

 105   Transcript PN624

 106   Exhibit A1 at [86]

 107   Transcript PN508

 108   Transcript PN625

 109   Transcript PN629-632

 110   Transcript PN653-660

 111   Exhibit R1, Annexure KF-4 (Guidelines as in force at April 2016), section 7.1; Annexure KF-2, section 7.1

 112   Transcript PN505

 113   Transcript PN506

 114   Transcript PN508

 115   Transcript PN505-507

 116   Transcript PN531-534

 117   Transcript PN710, PN712

 118   Transcript PN714

 119   Transcript PN732, PN734

 120   Exhibit R2, NM 1

 121   Transcript PN523

 122   Transcript PN524

 123   Exhibit R2, Annexure MD30

 124   Transcript PN1580

 125   Respondent’s written closing submissions at [55]

 126   Exhibit A1, Annexure MD4 at [4.32-4.35]

 127   Ibid at [4.23]

 128   Ibid at [4.27]

 129   Name redacted in the report

 130   Exhibit A1, Annexure MD4 at [4.10]

 131   Name redacted in the report

 132   Exhibit A1, Annexure MD4 at [4.11]

 133   Transcript PN1290

 134   Ibid

 135   Transcript PN1529-1531

 136   Transcript PN1551

 137   Transcript PN1533

 138   Transcript PN1554

 139   Transcript PN1559

 140   Exhibit A1 at [99]

 141   Exhibit A3 at [10-11]

 142   Exhibit A1at [103]

 143   Ibid at [107]

 144   Exhibit A3 at [17-19]

 145   Transcript PN802

 146   Transcript PN817

 147   Transcript PN842

 148   Transcript PN843

 149   Transcript PN262-266

 150   Transcript PN838

 151   Exhibit A1 at [108]

 152   Transcript PN797; Exhibit A1 at [100]

 153   Exhibit A1 at [103]; Transcript PN1056-1058

 154   Transcript PN802

 155   Transcript PN264-266

 156   Transcript PN266

 157   Transcript PN235-240

 158   Transcript PN756

 159   Transcript PN758-759

 160   Transcript PN760

 161   Transcript PN761

 162   Transcript PN762

 163   Transcript PN764

 164   Transcript PN765

 165   Transcript PN766

 166   Transcript PN768

 167   Applicant’s written closing submissions at [49]

 168   Ibid

 169   Transcript PN1608

 170   Respondent’s written closing submissions at [24]

 171   Ibid at [25]

 172   See paragraph [38] above

 173   Transcript PN224-227

 174   Transcript PN228

 175   Transcript PN275

 176   Exhibit R1, Annexure KF-4

 177   Exhibit A1 at [122]

 178   Ibid at [123]

 179   Transcript PN1214

 180   Exhibit R1at [21]; Exhibit A1 at [54]

 181   Exhibit R1 at [23]; Exhibit A1 at [56]

 182   Exhibit A1 at [57]; Exhibit R1 at [25]

 183   Exhibit R1 at [28], and Annexure KF-5

 184   Transcript PN836-837

 185   Exhibit A1 at [58]

 186   Exhibit R1, Annexure KF-3

 187   Exhibit R1, Annexure KF-5

 188   Exhibit R1 at [35]

 189   Ibid at [38]

 190   Ibid at [39]; Exhibit A1 at [124]

 191   Exhibit R1 at [41]; Exhibit A1 at [129]

 192   Exhibit R1 at [41]; Exhibit A1 at [126]

 193   Exhibit R1 at [43]; Exhibit A1 at [127]

 194   Exhibit R1 at [44]; Exhibit A1 at [129]

 195   Exhibit A1 at [129]

 196   Exhibit R1 at [45]

 197   Ibid at [45]

 198   Ibid at [46]; Exhibit A1, Annexure MD16

 199   Exhibit R3 at [4] and [8]

 200   Ibid at [16]

 201   Ibid at [17]

 202   Exhibit R1 at [48]; Exhibit A1 at [133]

 203   Exhibit A1 at [134]

 204   Exhibit R1 at [50]; Exhibit A1 at [141]

 205   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]

 206   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 207   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

 208   Edwards v Guidice (1999) 94 FCR 561 at 564; King v Freshmore (Vic) Pty Ltd, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000 Print S4213 at [24]

 209   Ibid

 210   Briginshaw v Briginshaw (1938) 60 CLR 336

 211   Ibid at 363

 212   Ibid per Dixon J at 362

 213   Ibid per Rich J at 350

 214   Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 per Dixon J at 216

 215   Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450

 216   [2003] NSWCA 388

 217  Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35]; approved in Karakatsanis v Racing Victoria Ltd

(2013) 306 ALR 125 at [35-37]

 218   NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124]

 219   Applicant’s outline of submissions at [16]

 220   Applicant’s written closing submissions at [14]

 221   Ibid at [16]

 222   Ibid at [35(c)]

 223   Ibid at [8]

 224   Ibid at [26]

 225   Ibid at [17]

 226   Ibid at [18]

 227   Ibid at [20-21]

 228   Ibid at [23]

 229   Ibid at [35]

 230   Ibid at [50-51]

 231   Respondent’s written closing submissions at [50]

 232   Ibid at [82]

 233   Ibid at [83]

 234   Ibid at [84]

 235   Ibid at [84-86]

 236   Ibid at [71]

 237   He v Lewin (2004) 137 FCR 266 at [15], per Gray and Mansfield JJ, see also Miller v University of NSW [2003] FCAFC 180 per Gray J at [15]

 238   (2004) 137 FCR 266 at [15]

 239   [2010] FWAFB 4385

 240   Grant v BHP Coal Pty Ltd [2014] FWCFB 3027

 241   Exhibit R3 at [25]

 242   Ibid at [26]

 243   Transcript PN684

 244   Transcript PN685-686; Exhibit A1, Annexure MD4 at [3.7]

 245   Ibid; Transcript PN688-689

 246   Lane v Arrowcrest (1990) 27 FCR 427 at [456], Bryne v Australian Airlines Ltd [1995] HCA 24 at [131], [136]

 247   Exhibit A1, Annexure MD4 at [1.1-1.2]

 248   Exhibit A1, Annexure MD4 at [4.10- 4.11]

 249   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 250   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 251   Ibid.

 252   RMIT v Asher (2010) 194 IR 1, 14-15.

253 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 254   (2013) 238 IR 1

 255   Ibid at [41]

 256   Ibid at [42]

 257   Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28

 258   See B v Australian Postal Corporation (2013) 238 IR 1, [43]-[46]; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28

 259   B v Australian Postal Corporation (2013) 238 IR 1 at [48]

 260   Applicant’s written closing submissions at [13]

 261   Ibid at [14]

 262   Applicant’s written closing submissions at [15]

 263   Ibid at [50-51]

 264   Ibid at [27-28]

 265   Ibid at [62]

 266   Respondent’s written closing submissions at [59]

 267   Ibid at [60]

 268   Ibid at [62-65]

 269   Ibid at [33]

 270   Ibid at [30]

 271   Ibid at [71]

 272   Ibid

 273   Ibid at [72]

 274   Australian Federal Police Categories of Conduct Determination 2013. p.5

 275   Exhibit A2 at [15]

 276   Transcript PN1176, 1177, 1253

 277   Transcript PN1459, 1541, 1543, 1544

 278   Transcript PN684

 279   Transcript PN685-686; Exhibit A1, Annexure MD4 at [3.7]

 280   Ibid

 281   Australian Federal Police Categories of Conduct Determination 2013, p.2

 282   Exhibit R1 at [26]

 283   Applicant’s written closing submissions at [27(b)]

 284   Ibid at [19]

 285   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

 286   Australian Federal Police Categories of Conduct Determination 2013, Schedule

 287  

Federal Police Categories of Conduct Determination 2013 Explanatory Statement