| [2022] FWC 2289 [Note: An appeal pursuant to s.604 (C2022/6549) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Milka Bateson
v
State of Victoria, Victoria Police
(U2022/1739)
COMMISSIONER BISSETT |
MELBOURNE, 12 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – dismissal harsh, unjust and unreasonable notwithstanding a finding that there was a valid reason for dismissal – applicant unfairly dismissed – reinstatement sought – satisfied applicant could return to position occupied prior to dismissal – reinstatement ordered.
[1] Ms Milka Bateson (Applicant) has made an application to the Fair Work Commission in which she seeks a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by the State of Victoria, Victoria Police (Victoria Police or Respondent) as a Forensic Officer. Her employment was covered by the Victorian Public Service Enterprise Agreement 2020 1 (VPS Agreement). The Applicant commenced employment with the Respondent in 1999 and her employment was terminated on 31 January 2022.
[2] The Applicant and Respondent have agreed on the content of the Commission court book (CB) used in proceedings. References to documents in the court book is by reference to the court book page number.
[3] Prior to the commencement of the hearing of the application I granted both the Applicant and Respondent permission to be represented by lawyers pursuant to s.596(2) of the FW Act.
[4] On the basis of the material before me I am satisfied that the Applicant is protected from unfair dismissal, her application was made within the statutory time period, the Respondent is not a small business such that compliance with the Small Business Fair Dismissal Code is not a relevant consideration and the dismissal was not on grounds of redundancy.
[5] To determine if the Applicant was unfairly dismissed it is necessary for me to determine if the dismissal was harsh, unjust or unreasonable. I come to that matter below.
[6] In accordance with the Directions issued by me the Applicant filed submissions and evidence of the Applicant and Mr Stuart Bateson, the Applicant’s husband. Both were required for cross-examination.
[7] The Respondent filed submissions and evidence of Janet Stevenson, Superintendent Victoria Police and Natasha Ilievski Acting Director, Partnering and Workplace Relations Division, Victoria Police.
[8] Superintendent Stevenson was not required for cross-examination. Submissions were made about what weight the Commission should give to a statement attached to her witness statement. Ms Ilievski was required for cross-examination.
[9] The identity of the individual involved in the incident leading up to the investigation into the Applicant’s conduct is subject to a suppression order of the Magistrates’ Court of Victoria and an agreement between the parties that it be supressed in all aspects of the matter before me including the material filed, evidence given and this Decision. That individual is identified as “XY” in this Decision and any information relating to their name has been redacted in the material filed and replaced with “XY”. Any other information that would enable XY to be identified has likewise been redacted.
[10] The Applicant’s employment was terminated on the grounds that the Respondent found allegations made in relation to her conduct substantiated and because of her “lack of candour” in the investigation of the allegations. 2 The specific allegations found to have been substantiated were that the Applicant had:
Allegation 1
It is alleged that you have engaged in conduct that breaches the standards required by you as both a public sector employee and an employee of Victoria Police, including but not limited to a breach of the Code of Conduct for Victorian Public Sector Employees of Special Bodies (VPS Special Bodies Code) and/or the Victoria Police Manual – Professional and Ethical Standards (Victoria Police Code) and/or the Victoria Police Manual (VPM) – Appropriate Use of Information and/or the Agreement, by inappropriately accessing and/or using Victoria Police information and/or equipment for reasons other than approved official purposes while at work, in particular:
(a) In or around 2019, you had access to a Charge Sheet and/or Criminal Brief issued to your husband, Commander Stuart Bateson, in relation to an Independent Broad-based Anti-corruption Commission (IBAC) investigation which contained XY’s name.
(b) On or around 16 December 2019, you attended your rostered shift commencing at 0800 hrs until 1600 hrs located at Forensic Services Department (FSD)…
(c) On or around 16 December 2019, during your rostered shift, at approximately 1509 hrs, you used your ‘Slarge Card’ to access ‘door D061’ to exit the lunchroom and/or dining room which leads to the FSD meeting room within the Turner Building, where the phone with the extension [details redacted] is physically located.
(d) On or around 16 December 2019, during your rostered shift you accessed and/or obtained XY’s dedicated work landline number at [details redacted] using Victoria Police information and/or systems.
(e) On or around 16 December 2019, during your rostered shift, at approximately 1510 hrs, using the phone with the extension [details redacted] in the FSD meeting room, you called XY on their dedicated work landline number at [details redacted].
Allegation 2
It is alleged that you have engaged in conduct that breaches the standards required by you as both a public sector employee and an employee of Victoria Police, including but not limited to a breach of the VPS Special Bodies Code and/or the Victoria Police Code and/or the Agreement, by inappropriately contacting XY during your rostered shift and/or attempting to solicit information in relation to the IBAC investigation involving your husband, Commander Bateson in a deceitful manner, in particular:
Particulars
(a) On or around 16 December 2019, during your rostered shift, at approximately 1510 hrs, you used the phone with the extension [details redacted] in the FSD meeting room to call XY on their dedicated work landline number at [details redacted].
(b) On or around 16 December 2019, at approximately 1510 hrs during your call to XY you introduced and/or identified yourself using words to the effect of you were a representative of ‘The Age’ newspaper.
(c) On or around 16 December 2019, at approximately 1510 hrs during your call to XY you stated words to the effect of ‘your name appears on charge sheets at the Magistrates’ Court’.
(d) On or around 16 December 2019, at approximately 1510 hrs during your call to XY, when XY asked you words to the effect of ‘what is your name?’ you stated words to the effect of ‘has my colleague spoken to you?’
(e) On or around 16 December 2019, at approximately 1510 hrs during your call to XY, when XY asked you words to the effect of ‘what is this regarding?’ you did not respond and ended the call.
[11] Little of the background to the dismissal of the Applicant is in dispute and is set out below.
[12] The Applicant was employed by the Respondent as a fingerprint expert working in the Forensic Services Department. She had been employed by the Respondent since 1999 when she commenced as a trainee forensics officer. The Applicant completed training and gained necessary skills and was a Level 4 Forensic Officer at the time of her dismissal.
[13] The Applicant is married. Her husband was, until July 2021, a serving member of Victoria Police. In early 2015 Mr Bateson started an affair with XY. In 2018 Mr Bateson was named in an IBAC investigation. Shortly thereafter he ended his affair with XY who was “demonstrably upset and angry”. 3 In June 2019 Mr Bateson was charged with breaching an IBAC confidentiality notice. Mr Bateson was charged with the summary offences and summoned to appear in the Melbourne Magistrates’ Court. The summons named XY in the charges. Mr Bateson was suspended from duty whilst the outcome of the charges were determined.
[14] In October 2018 the Applicant’s father was diagnosed with brain cancer. The Applicant was distraught and started seeing a psychologist in December 2018. Her father died in March 2019.
[15] Mr Bateson told the Applicant of the charges, the suspension and of the affair with XY in June 2019. The Applicant was “absolutely devastated” and started feeling panicky and anxious and was not sleeping. She was prescribed Valium. Her supervisor at work placed her on a mental health plan as she was not coping at work. 4
[16] Mr Bateson agreed that the Applicant was upset at the betrayal and said she wanted to know the “where, when, what and why” of the affair. Mr Bateson told the Applicant who XY was, that XY knew Mr Bateson was married with children and that XY worked for the Respondent. The Applicant said she wanted to talk to XY to get their side of the story but Mr Bateson “begged her not to”. 5
[17] Mr Bateson’s charges were first mentioned in the Magistrates’ Court in early August 2019 and again on 16 December 2019. After the December 2019 hearing Mr Bateson rang the Applicant at work around lunchtime. He was stressed, angry and upset at what had occurred in Court that day including attempts by the prosecution to suppress XY’s name which had been on the charge sheet “for months”. 6
[18] At around 3.08pm that day 7 the Applicant agrees that she went into a conference room away from her desk and telephoned XY. While there is some dispute as to whether a particular phrase was used during that telephone conversation (which I deal with below) the conversation went something like this:
XY: “Hello” [and stated their name]
Applicant: “Hi, I’m from The Age – I’m calling with regards to a charge sheet where your name is listed as a witness”
XY: “Who is this” or “What’s this about” 8
[19] The conversation, based on the call log, lasted 46 seconds. 9
[20] At 3.12pm that day XY sent text messages to a particular Detective in which XY asked if they were sure XY’s name had not been released as XY had received a call from a person on their direct line who said they were from The Age and who said that XY’s name was on a charge sheet. XY asked the caller a number of times “what is this regarding” but the caller hung up. 10
[21] In February 2020 the Applicant was diagnosed with depression and placed on a mental health plan.
[22] In late April 2020 the Applicant was advised that she was being criminally investigated in relation to making the telephone call to XY. The crimes alleged included misconduct in public office, attempting to pervert the course of justice, interfering with a witness, and breaching protected disclosure laws. The Applicant voluntarily attended an interview with the Professional Standards Command (PSC) but, on advice of her lawyers, made no comment.
[23] In May 2020 the Applicant had a mental breakdown and was referred to a psychiatrist who diagnosed her with depression and placed her on medication.
[24] On 19 November 2020 the Applicant was advised that the criminal investigation had concluded and no charges would be laid against her. 11 However, the matter was to be handed over to Workplace Relations Department for a disciplinary assessment.
[25] On 24 November 2020 the Business Partnering and Workplace Relations Division (BP&WRD) received correspondence from PSC requesting an assessment for misconduct. 12 On 1 June 2021, arising from that assessment, Ms Belinda McPherson the (then) Director, Recruitment, Deployment and Workplace Relations Division wrote to the Applicant setting out the allegations of misconduct (Allegations letter). The details are set at paragraph [10] above and not repeated here. The particulars in relation to each allegation are, in brief, that the Applicant accessed XY’s direct telephone number using the Respondent’s information and/or systems and that she called XY and had a conversation with XY for the purpose of gathering information to assist her husband in his court case.
[26] The Allegations letter advised the Applicant that she had an obligation to be “honest, open and transparent” in her employment with Victoria Police and that failure to do so (including in the investigation) may be a breach of clause 3.1 of the VPS Special Bodies Code. 13
[27] The Allegations letter also advised the Applicant that an independent investigator would be appointed to investigate the allegations. The Applicant could provide her response to the allegations in writing to a Ms Truong within 10 days of the date of the Allegations letter or she could meet with the investigator to provide her response. The Applicant was given an extension until 28 June 2021 to provide her written response, later extended to 16 July 2021.
[28] On 19 July 2021 Ms Truong was advised by the Applicant’s Acting Team Leader, at the request of the Applicant, that the Applicant would not be responding to the Allegations letter “following her Drs advice”, that the Applicant requested the matter proceed and that the Applicant be advised of the outcome once determined. 14
[29] An independent investigator was appointed to undertake the investigation into the allegations in accordance with clause 25.10 of the VPS Agreement. As the Applicant had not, at the time, admitted to making the call the investigator had to conduct a range of interviews and gather call log and security pass information. 15 The investigator substantiated the allegations against the Applicant as a result of the evidence he collected.
[30] Mr Shaun Eltham, Executive Director, Human Resource Department, considered the findings of the investigation and proposed a disciplinary outcome of termination of employment should apply.
[31] A letter outlining the outcome of the investigation and the proposed disciplinary outcome (Proposed Outcome Letter) was provided to the Applicant on 16 November 2021. That letter invited the Applicant to provide any reasons as to why the proposed disciplinary outcome should not be imposed within 10 days of the date of the letter.
[32] Between 18 November 2021 and 22 December 2021 correspondence was exchanged between the lawyers for each of the parties. In those letters the Applicant’s lawyers raised questions as to the reliability of the investigator’s findings. As part of that correspondence the lawyers for the Respondent provided more details as to the basis of the findings of the investigator. 16 The Applicant was given further time to provide any material in mitigation of the proposed disciplinary action.
[33] In January 2022 Ms Ilievski made the decision to terminate the Applicant’s employment. The letter of termination was provided to the Applicant on 31 January 2022.
[34] There are some disputed matters between the parties. I have considered these below and provided relevant findings. In so doing I am satisfied that the Applicant was open and honest in the evidence that she gave to the Commission. I accept that the matters on which she did give evidence were for her, because of their intensely personal nature, emotional and still painful. I am also satisfied as to the truthfulness of the evidence of Ms Ilievski.
The contents of the telephone call
[35] There is a dispute as to whether, during the telephone call made to XY, the Applicant said, in addition to what she agrees she did say, “Has my colleague spoken to you?”. The Applicant says she cannot recall saying those words. 17
[36] The Respondent, in cross-examination of the Applicant, put to her that the length of the phone conversation suggested she had said the words in question.
[37] On both accounts of the conversation – that of XY 18 and that of the Applicant – the call would appear to have been brief. It is not clear how the disputed words – unless there were long pauses – would account for the length of the telephone call at 46 seconds.
[38] In circumstances where the only direct evidence I have of the conversation is that of the Applicant and where I find the Applicant to have been honest and forthright in her evidence I am not satisfied, on the balance of probabilities, that the disputed words were said. In reaching this decision I have also taken into account that the Applicant had admitted that she made the telephone call. She does not save herself from any findings as to her conduct because 6 disputed words were not uttered than otherwise had the words been said.
[39] That finding having been made I would observe that not much turns on whether these words were said or not.
How did the Applicant get XY’s direct work phone number?
[40] The Applicant said that she obtained XY’s direct work number (landline) by calling the main number at the Police Station where her husband had told her XY worked. She asked for XY’s direct number, was told XY had moved to another area and was given XY’s direct number. This occurred around the time (but after) her husband told her of the affair. 19
[41] Under cross-examination the Applicant said that, in the conversation with the person at the Police Station she called, she did not recall saying that she required the phone number for work purposes. 20
[42] The evidence before the Commission does not allow me to conclude that there is any practice or procedure within Victoria Police that restricts giving direct phone numbers for serving police officers to a person who may call requesting this information. It cannot be that the Applicant got XY’s direct line in any other manner than as she said.
[43] I am not satisfied that the Applicant improperly gained access to XY’s direct phone number at work by accessing the Respondent’s “information and/or systems” (noting that what these are and what issues arose from access to them was not expanded upon). The evidence of the Applicant on this matter is convincing and there is no evidence to support a finding that the Applicant would not be given XY’s direct phone number.
[44] Further, I am satisfied that the Applicant obtained this information when she said, that is, at around the time her husband told her of the affair in mid-2019. The evidence before the Commission does not support any other conclusion.
Why did the Applicant telephone XY?
[45] The Applicant agrees that she telephoned XY on 16 December 2019.
[46] In her evidence-in-chief, when asked about the purpose of the phone call, the Applicant said:
Well, the purpose was that I wanted to speak to [XY] and discuss the affair that [XY] had with my husband and in particular to ask [XY] some questions that had been nagging at me since he had confessed to the affair. 21
[47] The Applicant agreed that she was angry at XY because of the affair and she was angry because XY complained about the affair. The Applicant said:
Well, it made me more angry at him because again, I said why would [XY] do this? Supposedly this affair was meaningless, there was no feelings involved. It went over a four-year time frame, he breaks off the affair and suddenly [XY] makes these false accusations against him which is what I wanted to speak to [XY] about. 22 [Underlining added]
[48] The Applicant was then asked “So that was your view, [XY is] making false accusations and that’s what you wanted to speak to [XY] about?” to which the Applicant replied “No”. 23
[49] It was then put to the Applicant:
…you just gave evidence in the box that [XY] gave false evidence or [XY] made a false statement against your husband and that’s what you wanted to discuss with [XY]?---To say what? No, I didn’t say that that’s what I wanted to discuss with [ XY]. I said that I had a discussion with my husband and that he was the one that suggested that [XY] made the false allegations and that I wanted to ask [XY] what was the nature that led you to make those accusations. What was the nature of that relationship. 24
[50] When asked if she thought XY’s complaint to IBAC was untrue and that was what she wanted to talk to XY about the Applicant said:
What I wanted to discuss was that my belief was that my husband had strung [XY] along for four years on the promise that he was going to leave me for [ XY] which he denied which is why I said to him, ‘Well, why would [XY] - you break off this affair then [XY] makes these accusations, that doesn’t sound to me like a [person] who didn’t care about the affair’. So I wanted to ask [XY] did my husband tell you that he loved you? Did my husband tell you that he was going to leave me for you. That’s what I wanted to ask [XY]. 25
[51] The Applicant gave evidence that the words she used when she spoke to XY were not premediated 26 rather she says that, in her heightened state of emotion when she heard XY identify themself, what she said “just spewed out” as here was the person who the Applicant said had ruined her life and her children’s lives.27
[52] Under cross-examination the Applicant said that her evidence was not contrived 28 and denied that she called XY because she believed XY had lied to IBAC about XY’s experience with the Applicant’s husband.29 The Applicant said that she called XY to ask about the affair XY had with her husband and why XY made the allegations against her husband if they were not in love with him.30
[53] The Respondent, in submissions and in cross-examination of the Applicant, suggested that the motive in making the call to XY was to gather information that may assist Mr Bateson in his case before the Magistrates’ Court. 31
[54] The Applicant submits that the purpose of the telephone call was so that she could confront XY about the affair XY had with her husband – whether or not her husband said he loved XY and whether he told XY he was going to leave the Applicant for XY. The Applicant submits that the events of 16 December 2019 “are all too human, all too understandable.” She submits that the conversation with her husband that day of his court appearance brought back all that she had suppressed for 6 months since her husband confessed to the affair but begged her not to contact XY as it might harm his case.
[55] The Applicant submits that the court case was part of the factual milieu that surrounded the interaction with XY but submits the call was not for the purpose of soliciting information for her husband’s case and that there is no evidence to support such a conclusion. To add to this the Applicant submits that the Respondent has not, in any event, put what information XY might have had that would assist her husband’s case. At its highest it might be concluded (although not conceded) that the Applicant may have wanted to discuss the case with XY but even this conclusion is not supported. Rather, the call by the Applicant was to confront XY on the affair.
[56] The Respondent submits that the Applicant gave evidence “naturally and spontaneously” 32 under cross-examination as to the purpose of the telephone call when she said that XY “had made false accusations” and that was what the Applicant “wanted to speak to [XY] about.”33
[57] On the balance of probabilities I accept that the Applicant’s motive in calling XY was to confront XY about the affair they had with the Applicant’s husband. I accept that this would encompass why XY had caused trouble for the Applicant’s husband but I consider this incidental to questions as to the affair and not the motivation for the call. In any event it seems not possible to compartmentalise the two issues confronting the Applicant – the affair of her husband with XY and her husband’s court case – at that time.
[58] I am not satisfied that the intended purpose of the call was to “solicit information” in a “deceitful manner” for the purpose of assisting the Applicant’s husband in his court proceedings. I have reached this conclusion in light of the totality of the evidence of the Applicant on this question and her clear anger and distress at her husband’s affair and its effect on her marriage. Given the extensive factual circumstances that existed at the time the Applicant made the call to XY, I cannot conclude that the Applicant made the call for the apparent purpose of obtaining information improperly for the purpose of assisting her husband in his court case. The evidence does not allow any conclusion to be drawn as to what information XY may have, or the Applicant thought XY may have, that XY might pass to the Applicant that could then provide assistance to Mr Bateson.
[59] For these reasons I am satisfied, on the balance of probabilities, that the Applicant called XY to confront XY about the affair and to find out what her husband had said to XY. I accept that the Applicant also wanted to confront XY as to why XY had made accusations against her husband but this does not mean the Applicant sought to gain information from XY to support the Applicant’s husband’s case.
[60] The determination of whether the applicant was unfairly dismissed requires a consideration of whether the dismissal was harsh, unjust or unreasonable. Section 387 of the FW Act sets out those matters to be considered in reaching a decision on this matter. Section 387 states as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.
Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:
(a) the person sexually harasses another person; and
(b) the person does so in connection with the person’s employment.
Section 387(a) – was there a valid reason for the dismissal based on the conduct of the Applicant?
[61] In order for a reason for dismissal to be valid it should be “sound, defensible or well founded” 34 and should not be “capricious, fanciful, spiteful or prejudiced.”35 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.36
[62] Where a dismissal relates to an employee’s conduct the Commission must be satisfied that the conduct occurred and justified termination.37 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 38
[63] The Applicant was dismissed because the employer found the allegations against her substantiated and, apparently, for her lack of candour. The issues in relation to lack of candour were not put to the Applicant as a reason as to why her employment might be terminated prior to the termination letter. For this reason I have not considered this under valid reason but rather have considered it under “other matters” below.
[64] It is necessary for me firstly to determine to my satisfaction, and based on the evidence before me, if the conduct did occur and second, if it did, if it provided a valid reason for dismissal. I have therefore considered each of the allegations in light of the evidence before the Commission.
[65] The allegations are set out in full at paragraph [10] above and not repeated in detail here.
Allegation 1 (a) – access to Stuart Bateson’s charge sheet which contained XY’s name.
[66] There is no evidence to support the claim that the Applicant had access to the charge sheet containing XY’s name or that is how she came to have XY’s name. Mr Bateson gave evidence that he kept documents in relation to his prosecution at his mother’s house. 39 The evidence does not support a finding that the Applicant accessed the information at that location.
[67] It was not disputed that the Applicant was aware of XY’s identity from mid-2019 when her husband told her of the affair, the charges and the suspension.
Allegations 1(b) & (c) – the Applicant attended her shift on 16 December and at approximately 1509 hrs, used her ‘Slarge Card’ to access the FSD meeting room.
[68] The Applicant does not dispute this and I am satisfied that it did occur.
Allegation (1)(d) – on or around 16 December 2019, during her rostered shift, the Applicant accessed and/or obtained XY’s dedicated work landline number using Victoria Police information and/or systems.
[69] I have dealt with this issue in detail above. I am not satisfied that the Applicant accessed XY’s landline number using the Respondent “information and/or systems”.
Allegation (1)(e) – on or around 16 December 2019 the Applicant, using the phone in the FSD meeting room, called XY on her dedicated work landline number.
[70] The Applicant agrees that she called XY at about the time alleged.
Conclusion as to the conduct in Allegation 1
[71] I am satisfied that the Applicant accessed the FSD meeting room and telephoned XY on XY’s direct landline number on 16 December 2021 at approximately 1510 hrs from a telephone in the meeting room.
[72] I am not satisfied that the Applicant had access to Mr Bateson’s charge sheet but accept that the Applicant was aware that XY was named in that matter. For the reasons given earlier I am not satisfied that the Applicant used the Respondent’s information and/or systems to gain access to XY’s phone number.
Allegation 2(a)-(e) – on 16 December 2019 at around 1510 hrs the Applicant inappropriately contacted XY during her shift attempting to solicit information in relation to the IBAC investigation involving her husband in a deceitful manner.
[73] I am satisfied, on the evidence of the Applicant, that she did call XY on XY’s landline number at work and that she had a conversation with XY. For the reasons given in my assessment of the contested evidence above I am not satisfied that the Applicant said the words “has my colleague spoken to you?” in the course of that telephone call.
[74] An important issue to determine is the reason for the call made by the Applicant to XY. The Respondent determined that it was reasonable to infer that the purpose of the Applicant’s call was to obtain information from XY in relation to the Applicant’s partner’s proceeding. 40
[75] The Respondent submits that it does not rely on the purpose of the phone call made by the Applicant to XY as necessary to find a valid reason for dismissal of the Applicant. 41 However, the Respondent does say that the evidence supports a finding that the Applicant “made the call in order to confront XY on [XY’s] dishonest complaint and the reasons why [XY] was making a dishonest complaint”42 about the Applicant’s husband.
[76] I accept that, in making its decision to dismiss the Applicant and in finding that the purpose of the call was to gather information in support of her husband’s court case, the Respondent (or at least BP & WRD) was not aware of the affair between Mr Bateson and XY, 43 nor was it aware that the Applicant knew of the affair and had known about it for 6 months but had not confronted XY about it earlier. Nor was the Respondent aware of the domestic turmoil that had come about because of the affair and its effect on the Applicant’s health. The Respondent could not have known, in making its decision, of the possible impact of the call Mr Bateson made to his wife on 16 December 2019 that led to her, two or so hours later, calling XY.
[77] The decision I make must be based on the evidence before me. I have the benefit of evidence that, it would appear, was not known to the Respondent during the relevant period. It provides a different lens through which the telephone call of 16 December 2019 must be viewed.
[78] In all of the circumstances I am not satisfied that any purpose related to the Applicant’s husband’s court case was behind the call the Applicant made to XY. I am, however, satisfied that the Applicant’s contact of XY was improper. The call related to highly personal matters that had no place in the workplace. It was a matter to pursue outside the workplace in her own time.
Conclusion as to the conduct in Allegation 2
[79] I am satisfied that the Applicant had a conversation with XY during working hours. The content of the call are as I have found above. The purpose of the call was not to gain information from XY in relation to her husband’s case. The call was, however, inappropriate.
Conclusion as to valid reason
[80] The Respondent submits that it does not need an improper purpose for the phone call to satisfy the Commission that there was a valid reason for dismissal. The Respondent submits that the Applicant was required, amongst other things, to:
(a) Act honestly at work;
(b) Build a high level of trust with the Government;
(c) use work resources for appropriate purposes as authorised by Victoria Police;
(d) Comply with relevant legislation;
(e) Ensure confidential information is treated and remains confidential; and
(f) Model behaviours on public sector values including “integrity” and “respect”. 44
[81] The Respondent also submits that the Victoria Police Manual – Professional and ethical standards (VPM – Professional and Ethical Standards) provides that the Applicant was required to possess values of:
(a) Professionalism, by behaving in a manner that reflects positively on herself and Victoria Police;
(b) Leadership, by being trustworthy and making decisions that reflected Victoria Police Values and building community trust and confidence; and
(c) Integrity, by being honest and placing the community good before her own interests. 45
[82] The Respondent says that the conduct of the Applicant comes with the definition of misconduct in the VPS Agreement 46 which provides that:
25.3 Meaning of misconduct
For the purposes of this clause, misconduct includes:
(a) a contravention of a provision of the PAA (Vic), the regulations to that Act, a binding code of conduct or a provision of any statute or regulation that applies to the Employee in the Employee’s employment; or
(b) improper conduct in an official capacity; or
(c) a contravention, without reasonable excuse, of a lawful direction given to the Employee as an Employee by a person authorised to give that direction; or
(d) an Employee making improper use of their position for personal gain; or
(e) an Employee making improper use of information they acquired by virtue of their position to gain personally, or for anyone else, financial or other benefits or to cause detriment to the VPS or the public sector.
[83] The Respondent states that the conduct of the Applicant clearly breaches the VPS – Special Bodies Code and the VPM – Professional and Ethical Standards.
[84] I accept that the Applicant’s conduct was wrong. She should not have sought out or obtained XY’s landline number and she should not have called XY on what was clearly a personal matter during working hours. Further, and most egregiously, regardless of the purpose of the phone call, she should not have misled XY on the telephone as to who was, in fact, calling.
[85] I do not consider that the first two of these acts constitute a breach of policy such that they could, alone, provide a valid reason for dismissal. The evidence does not support a finding that the Applicant was misleading in seeking out the direct landline number of XY and I do not consider that making a private call to another employee of the Respondent is a misuse of Victoria Police resources.
[86] However, in misleading XY – by saying she was from a newspaper – the Applicant engaged in conduct that was a blatant breach of her professional and ethical values in employment. It was highly unprofessional and lacked integrity. Further, it was a breach of the requirement to demonstrate honesty, build trust and model behaviours on public sector values.
[87] The conduct of the Applicant had an effect on XY as is evidenced by her text messages sent shortly after the phone call. Even accepting that the Applicant had a “brain snap”, that was some 2 hours before the telephone call. Accepting that the Applicant was emotionally distraught and the call from Mr Bateson had brought matters she had suppressed back to the fore does not provide an excuse for behaving in a manner that was highly misleading, could not possibly reflect well on her and that lacked honesty and courtesy. It would, in this respect, have been better for the Applicant had she been honest with XY as to who she was and the reason for the call or if she had hung up without comment.
[88] It is well established that not every breach of policy will provide a valid reason for dismissal. However, the employment context of this matter cannot be ignored. XY was an informant in Mr Bateson’s matter which was in court that day – the Applicant was aware of these facts when she made the call to XY. For the reasons set out above and in this case I am satisfied that, in calling XY and by misleading XY as to who was calling, the Applicant’s conduct provided a valid reason for her dismissal.
Sections 387(b) & (c) – whether the Applicant was advised of this reason and given a reasonable opportunity to respond
[89] I am satisfied that the Applicant was advised of the reason for her dismissal and was given an opportunity to respond. The Applicant was provided with the allegations against her and notice of investigation on 1 June 2021 in which she was invited to respond to the allegations and/or meet with the investigator should she wish to do so. The Applicant was provided with the findings and the proposed disciplinary outcome by letter on 16 November 2021 and asked to provide her response or any mitigating factors that should be considered. Following receipt of the Proposed Outcome Letter, correspondence passed between the Respondent and Applicant through the respective lawyers.
[90] The Applicant was provided with the final discipline outcome on 31 January 2022.
[91] I am satisfied that the Applicant was advised of the valid reason and given an opportunity to respond prior to a decision being made in relation to her employment.
[92] I would observe that the Respondent took extraordinary steps to provide the Applicant with an adequate opportunity to respond to both the Allegations and the Proposed Outcomes Letter and is to be commended in this respect.
Section 387(d) – access to a support person
[93] There was no refusal by the Respondent of the Applicant having access to a support person. This is not an issue in this matter.
Section 387(e) – warned of unsatisfactory performance
[94] The Applicant’s employment was not terminated for a reason associated with her performance. This is therefore not a relevant matter.
Sections 387f) & (g) – degree to which the size of the employer’s enterprise and access to dedicated human resource specialists or expertise would have impacted the procedures followed
[95] The Respondent is a large organisation. It has a range of human resource specialists and, in this matter, has also accessed outside legal assistance.
[96] Whilst it would generally be accepted that access to such expertise would result in a fair and efficient process I am concerned at how long and drawn out the process was – taking over a year from the referral of the matter to the human resources area and the final decision being made which was, by then, 2 years after the telephone call to XY. I deal with this matter below.
Section 387(h) – other matters
[97] A number of other matters have been put before the Commission which require consideration. Some of these matters have been specifically put by either the Applicant or Respondent or have arisen and are matters I consider warrant attention.
The affair
[98] The events that occurred on 16 December 2019 cannot be divorced from the personal and work circumstances that led to it. The circumstances that led to the misconduct commenced in 2015 when the Applicant’s husband commenced an affair with XY that continued for 4 years. The Applicant worked for the Respondent as, at the time, did her husband and XY – who remains in employment with the Respondent.
[99] The Applicant’s husband had been named in an IBAC investigation in 2018. The Applicant was told by her husband of the affair in 2019 but, it appears, only in the circumstances where he had been charged with a summary offence and ordered to appear in the Magistrates’ Court. Whilst the sequencing is not clear, Mr Bateson appears to have advised the Applicant of his affair with XY and that the charges had come about because he told XY that he was examined by IBAC coincidentally with being charged in June 2019. It is to be observed that Mr Bateson told the Applicant all of this some 3 months after the death of the Applicant’s father of cancer which “was very hard for Milka” and after which the Applicant started seeing a psychologist.
[100] In June 2019 when told of the affair the Applicant wanted to confront XY but was convinced by her husband not to. The Applicant asked her husband to leave the family home, which he did, returning sometime later (it is not clear when) to help with the children.
[101] Six months later the Applicant’s husband was in court in relation to the charges against him. For some inexplicable reason he decided to call his wife at work and vent at what had occurred:
I told her I thought the investigators were being deliberately obtuse and gave an example of the slow-wittedness through the recounting of their application for the suppression order. I called them “idiots” and told her the media had [XY’s] name on the charge sheet for months and only now they were trying to supress it. 47
[102] It is within this context that the call was made by the Applicant to XY that has led to the termination of the Applicant’s employment. This context cannot be ignored.
[103] On the uncontested evidence of Mr Bateson, Victoria Police were aware of his affair with XY. As no evidence of the content of the brief from PSC to BP&WRD of November 2020 is before the Commission it is not known if BP&WRD were aware of this fact when the referral to them was “assessed” although I accept the evidence of Ms Ilievski that she was not aware of the affair prior to the dismissal of the Applicant.
[104] Having made these comments however it cannot be ignored that the Applicant determined not to put any context for her conduct before the Respondent, even when she knew her job was under threat by the Proposed Outcome Letter.
The time taken
[105] The Applicant submits that the period taken to determine that she should be dismissed was too long, taking over a year from the time of the referral of the matter to the BP&WRD by PSC.
[106] The misconduct occurred in December 2019. The Applicant was advised in late April 2020 that she was being criminally investigated. On 19 November 2020 she was advised that the criminal investigation had concluded and no charges would be laid. PSC referred the matter to BP&WRD on 24 November 2020. As part of that handover PSC provided a handover report; Non-authorisation reports – Criminal brief of evidence; a Criminal brief of evidence – not authorised along with matters associated with Public Interest Disclosures. 48 It appears that, on receipt of this handover, BP&WRD staff undertook some “initial assessment” of the material with a view to determining how to proceed. For reasons that are not explained (Ms Ilievski was not Acting Director at the time) it took until 1 June 2021 for that initial assessment to be concluded and for correspondence to be sent to the Applicant setting out the allegations of misconduct. Having received the Allegations Letter the Applicant sought an extension of time to reply, was on personal leave and then, on 19 July 2021, advised that on medical advice she would not be providing a response and requested the investigation proceed and she be advised of the outcome.
[107] The 6 months taken from the referral by PSC to the issuing of the Allegations Letter was apparently due to a “thorough assessment” being undertaken on the part of BP&WRD. The purpose of the BP&WRD assessment was “to determine whether it will proceed to an investigation.” 49 Ms Ilievski acknowledged the investigation by PSC and the assessment by BP&WRD were of the same facts50 but maintained that BP&WRD considered the matter through a misconduct lens and not a criminal lens.51
[108] On 28 June 2021 the Respondent appointed an investigator. As the Applicant did not admit to the allegations the investigator accessed records of Victoria Police in relation to systems and interviewed other employees who may have had access to the conference room or made the telephone call. It is not apparent on the evidence how long the investigation took. Following the investigation the Respondent sent the Proposed Outcomes Letter to the Applicant on 16 November 2022. 52
[109] The evidence does not disclose what additional information was obtained by the Respondent in the period from 19 July 2021 (when the Applicant advised she declined to participate in the investigation) and 16 November 2020 when the Proposed Outcomes Letter was delivered 53 beyond what it already had when it issued the Allegations Letter in June 2021.
[110] The following exchange took place between Ms Ilievski and counsel for the Applicant in cross-examination:
Again, in terms of the factual findings that were required to be made, all Victoria Police really had to find was that, number 1, Ms Bateson made the call, and number 2, that her purpose was to solicit information. They’re the two things that it had to prove. Yes?---The two allegations, yes.
What I’m putting to you is that all the facts were already there, set out in that 1 June letter. You've got the roster, you've got the swipe card, you’ve got the landline. You’ve got everything that establishes the circumstantial case that it was Ms Bateson. Correct?---Yes.
I know you weren’t around in this period, and that's why to be fair I’ll just ask you again, do you know if there was some additional fact that was collected in that period between June and November?---No, I don’t know. 54
[111] While I am satisfied that the Applicant was afforded procedural fairness in that she was advised of the allegations, invited to participate in the investigation by either providing a response to the allegations in writing or meeting with the investigator, advised of the proposed discipline outcome and given a substantial opportunity to respond to that document prior to a decision being taken on her employment, the evidence before the Commission does not provide a satisfactory explanation for the inordinately long time it took the Respondent to undertake its “initial assessment” and determine that an investigation was warranted and then to conduct that investigation.
[112] This delay does contribute to a finding that the dismissal was harsh. This conclusion is made independent of the 7 months it took for the criminal investigation.
[113] The Respondent is not at fault for any delay in a final decision being made after the Proposed Outcomes Letter was sent to the Applicant. The Applicant’s representative engaged in correspondence with the Respondent’s representative and the Respondent, respectfully in my opinion, was mindful of the Applicant’s representative’s office closure in January 2022 and took this into account in advising the Applicant of the final decision with respect to her employment.
The economic impact of the dismissal
[114] The Applicant has worked for Victoria Police since 1999 when she commenced as a trainee forensic officer learning fingerprint analysis. By the time of her dismissal the Applicant was a Level 4 Forensic Officer in the role of Fingerprint Expert.
[115] The Applicant’s evidence is that the main employer of fingerprint analysts in Victoria is Victoria Police. She understands that the Federal Police may employ some fingerprint analysts but they have a small team and she says they are not presently hiring.
[116] The Applicant also gave evidence that the dismissal has made her anxiety and depression worse. Further she says that she worries about the financial aspect of not being able to work or having to take time out of the paid workforce to retrain.
[117] The Applicant’s husband is retired from Victoria Police on medical grounds. The assessment is that it is highly unlikely he will to be able to work again and the family income dropped by a substantial amount when he was retired. 55 Although Mr Bateson is undertaking re-training it is unlikely to result in paid work but rather will equip him for volunteer support work.
[118] While the Respondent suggests that the Applicant could be supported by her husband while she retrains or upskills for alternative work, I do not consider this to be a sound basis to determine that the economic impact of the decision to dismiss the Applicant should be downplayed. A person’s sense of worth and/or ability to survive an economic upheaval as the result of losing a job in the circumstances of this case cannot wholly be attached to the economic circumstances of another person. It cannot be ignored that, in this case in particular, the Applicant’s marriage has gone through an extremely trying and distressing period. The Applicant’s economic security cannot be defined by that of her husband and nor can the economic impact of losing her job.
[119] Ms Ilievski gave evidence of places or organisations where she thought the Applicant could gain alterative employment. 56 Beyond assertions by her that these places offer suitable employment for the Applicant the evidence before the Commission does not allow me to conclude anything on other employment options for the Applicant.
[120] To the extent it is put that the Applicant could retrain, that does not deal with the economic impact of the dismissal and, to an extent, exacerbates any adverse economic impact as the Applicant would be without income while retraining.
[121] As to the Applicant’s concern that, should she apply for other work, she would have to advise a prospective employer of her dismissal I am satisfied that this is likely or that it would otherwise be required to be disclosed. I am not satisfied that the Applicant would necessarily be required to disclose her husband’s affair.
[122] I am satisfied that the dismissal of the Applicant was harsh because of the economic impact on the Applicant. The Applicant does work in a specialised area with evidence of a limited number of employers of the skills she possesses. Whilst the Respondent suggests the Applicant’s evidence and submissions on this question were “self-serving” I do not agree.
Dismissal was a disproportionate penalty
[123] The Applicant submits that the dismissal was harsh in that it was disproportionate to the misconduct.
[124] The Applicant accepts that her conduct was wrong, that she should not have called XY during working hours and her conduct was contrary to policy. She submits however that, while this warranted some sanction, the decision to dismiss her was disproportionate to the misconduct and, in that respect, harsh.
[125] Whilst the Applicant, in submissions, suggested that she was dismissed for serious misconduct that is not apparent from the evidence before the Commission. Certainly the Applicant had her employment terminated on receipt of the termination letter but the letter does not say she was dismissed for serious misconduct and, in fact, says she had engaged in “conduct that constitutes misconduct under clause 25.3 of the Agreement.” The Applicant received five weeks’ pay in lieu of notice.
[126] In this case, having also found that, in making the call to XY, there was no attempt by the Applicant to improperly gather information to assist her husband, and considering the circumstances of the affair, I do consider the termination of the Applicant’s employment to be disproportionate to the conduct which I have found did provide a valid reason for dismissal.
A lack of candour of the Applicant
[127] The Applicant submits that the dismissal was unreasonable because the Respondent relied on the Applicant’s lack of candour and this was never put to the Applicant in the allegations or detailed in the Proposed Outcomes Letter.
[128] In the letter of termination delivered to the Applicant on 31 January 2022 the Respondent said that it was satisfied that the allegations against the Applicant were substantiated and that, without limiting those matters it was satisfied that she had:
• obtained XY’s contact number using Victoria police information;
• contacted XY during her work hours, on a Victoria Police phone line;
• falsely identified to XY that she was a representative of The Age newspaper;
• said to XY words to the effect “Your name appears on charge sheets at the Magistrates’ Court”;
• in response to XY asking for her name, said words to the effect “has my colleague spoken to you”;
• ended the call when XY asked her what the call was regarding;
• in circumstances where a matter was proceeding in the Magistrates’ Court that same day in relation to her husband, in which XY was a witness, and in the absence of any explanation from her as to the reason for her call, it is reasonable to infer that the purpose of her call was to obtain information from XY in relation to her husband’s proceeding; and
• caused significant distress to XY by calling her.
[129] The termination letter then said:
Having found the Allegations substantiated and taking into account your lack of candour in the investigation process, I am not satisfied that Victoria Police could have the requisite trust and confidence in you to act in accordance with your employment obligations were your employment to continue. [Underlining added]
[130] In her evidence Ms Ilievski said that, having received the Allegations Letter, the Applicant was not obliged to provide a response and that she was not required to make any admissions. 57 Ms Ilievski agreed that an employee choosing not to participate in an investigation could not be considered a refusal to participate in the investigation because they have the right not to participate in the investigation.58 Ms Ilievski agreed that, in undertaking an investigation, the obligation is on the Respondent to prove that conduct complained of did occur and that an employee is not obliged to confess to misconduct.59 The Applicant was not warned that a failure to be candid in the investigation might be held against her.60
[131] In submissions the Respondent suggested that the failure of the Applicant to participate in the investigation may be a breach of clause 3.1 of the VPS Special Bodies Code which requires employees to be honest, open and transparent. By not disclosing that she had made the telephone call to XY or the reasons for it the Applicant had not been open, honest and transparent in her dealings with the Respondent or the investigator.
[132] The Applicant submits that, under clause 25.9 of the VPS Agreement, an employee subject to an investigation may, at any time, elect to admit the misconduct. She also says that “they can also elect not to admit the misconduct and they are perfectly entitled to do that.” 61
[133] It is not apparent that the Respondent relied on the lack of candour to ground its finding as to misconduct – it appears from the termination letter that the Respondent relies on its findings in relation to the allegations to find that the misconduct had occurred. In considering dismissal the appropriate penalty it relies on a loss of trust and confidence evidenced by the Applicant’s apparent lack of candour.
[134] I consider that the issues around candour are better considered under remedy. To the extent the Respondent might seek to rely on this as providing a valid reason for dismissal I have not considered it as it was not put to the Applicant in the Proposed Outcome Letter as a reason for dismissal that she might be able to respond to it.
[135] I acknowledge that the Applicant decided not to participate in the investigation. She indicated that this was on the advice of her doctor. I am not satisfied that, in not participating in the investigation, the Applicant was not honest. It appears that there is some tension between the agreed right of an employee to not have to admit to alleged conduct and the requirement to be honest if it is that non-admission of conduct is then to be taken to be evidence of dishonesty or, at least, a lack of candour. The Applicant has not denied that the conduct took place. I accept that she was entitled to argue that the finding of the Respondent that the conduct had occurred could not be sustained on the material before the Respondent without impugning her honesty.
Remorse
[136] The Applicant has apologised for her behaviour, acknowledged her wrong doing and undertakes not to contact XY should she be reinstated.
[137] I do not doubt the sincerity of the Applicant in these statements. The Applicant was sincere in her evidence and, in my view, properly reflective of all that she has done wrong and honest in her undertaking not to transgress in such a way again.
[138] I also acknowledge that the Applicant has no disciplinary history and an exemplary record of over 20 year’s service with the Respondent. The Applicant was a valuable and highly skilled member of her team. Such service and contribution to the work of the Respondent should not be easily brushed aside.
Was the dismissal harsh, unjust or unreasonable?
[139] In Bryne and Another v Australian Airlines Limited 62 Mc Hugh and Gummow JJ said:
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 63
[140] In B,C & D v Australian Postal Corporation T/A Australia Post 64 (Australia Post) the Full Bench of the Commission considered matters related to dismissal where that dismissal was for reasons associated with a breach of Policy. The majority observed that:
[41] …it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal… That principle reflects the approach of the High Court in Victoria v Commonwealth and is 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”.
…
[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.
[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’. 65
(Footnotes omitted)
[141] I have found above that there was a valid reason for the dismissal of the Applicant. The matters under ss.387(b)-(g) of the FW Act are neutral matters weighing neither in favour nor against a finding that the dismissal was harsh, unjust or unreasonable. There are however a substantial range of “other matters” that have been put before the Commission by both parties. These must be weighed in conjunction with the finding of a valid reason for dismissal in order to determine if the dismissal was harsh, unjust or unreasonable.
[142] It was also said in Australia Post by the majority:
[51] …Any notion that a clear and knowing breach of policy will always provide a valid reason for a dismissal that will not be harsh, unjust or unreasonable, no matter the employee’s length of service and other circumstances, is inconsistent with basic principle. Every case must be assessed by reference to its particular circumstances. 66
[143] I am satisfied, taking all of the matters above into account, that the dismissal was harsh, unjust or unreasonable. The foolishness and breach of the Applicant’s responsibilities in engaging in misconduct contrary to the Respondent’s policies and relevant codes of conduct doing so should not be downplayed. The Applicant’s conduct warranted sanction from her employer. But a breach of policy does not automatically mean termination of employment.
[144] I lay no fault at the Respondent for reaching the decision it did. The Applicant, for reasons that appear to go to pride in an unwillingness to admit that her husband had an affair for 4 years with XY, could have provided an answer to the allegations and certainly provided grounds for mitigation in the penalty proposed. The Applicant chose not to do so. The Respondent had grounds, in those circumstances, to infer that the Applicant had engaged in misconduct for the reasons given.
[145] However, in carefully balancing all of my findings and in full knowledge of the circumstances of the conduct I am satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable.
[146] I have carefully considered all of the material before me and weighed all of my findings. For the reasons given above I have concluded that the dismissal of the Applicant was harsh, unjust or unreasonable and that she was, therefore, unfairly dismissed from her employment with the Respondent.
[147] Being satisfied that the Applicant was unfairly dismissed it is necessary to determine remedy.
[148] The Commission cannot order a remedy of compensation unless it is satisfied that reinstatement is inappropriate. In this case the Applicant seeks reinstatement.
[149] The Respondent submits that reinstatement is not appropriate. The Respondent says that it has lost trust and confidence in the Applicant because the allegations were substantiated and because of her lack of candour in the investigation process. In her evidence Ms Ilievski says:
In my view, reinstatement is completely inappropriate because Ms Bateson’s conduct was well below the standards expected of an employee of the Victorian public Service and noting the specific role Victoria Police’s forensic experts have in the criminal justice system. Ms Bateson’s misconduct was serious and constituted a complete breach of the significant trust placed in her. Having broken trust with Victoria Police, Victoria Police has lost confidence in her ability to perform her role ongoing. Victoria Police must have complete faith in the judgment, insight, honesty and integrity of its forensic experts. Regrettably, because of Ms Bateson’s conduct – particularly the deceitful way in which she engaged with XY and the lateness of her admission – Victoria Police no longer views Ms Bateson as a person of sufficiently high honesty and integrity. 67
[150] Ms Ilievski also gave evidence that in making the decision to terminate Ms Bateson she considered:
[T]he fact that one of the duties of Ms Batson’s position was to appear in Court as an expert witness for Victoria Police. Given the findings of the investigation, that the misconduct was substantiated, I did not think that she could perform that aspect of her role any longer. I thought there was a strong prospect any cross-examination of Ms Bateson on credibility grounds would be successful, because if asked Ms Bateson would have to say her honesty and integrity in the performance of her employment had been questioned, and would have to admit she had acted dishonestly during her employment in the past and this would be very damaging to the reputation and standing of Victoria Police.
[151] The evidence of the Applicant is that there are approximately 40 fingerprint forensic officers working for Victoria Police and of the number of times they are generally called to give evidence in court. The Applicant gave evidence as follows:
And Ms Ilievski there says that she thinks there’s a strong prospect that you might be cross-examined in court on credibility grounds, do you see that?---Yes.
All right. So let me just ask you some questions about the role of fingerprint analysts in going to court. First of all, I should ask how many fingerprint experts are there in the FSU approximately?---Currently approximately 40.
Okay. And so taking the unit as a whole, how many times does one expert – I’ll put it a different way, how many times does the FSU send somebody to go and give expert evidence in a court?---I think the numbers are, on average, about four times a year out of that pool of 40.
And do all of the fingerprint experts give evidence as part of their roles or are there some that don’t?---No, there are some that don’t.
And have you given expert evidence?---I have.
And approximately how many times?---In my 22 years probably between 15 to 20 times.
And has your - when giving evidence has your credibility as an expert witness ever been attacked?---No. 68
[152] The Applicant was cross-examined on this matter:
…Now, part of that role is giving evidence in court, isn’t it?---Yes.
And you’ve also had the experience of your evidence being accepted without question so that is without you having to attend to be cross-examined?---Yes.
And your evidence was accepted without question because it was trusted, wasn’t it?---Well, it’s not a case of just my evidence, so there is quality control procedures in place before evidence goes to court so it’s not just me who has for instance, made an identification, it’s second-checked, it goes out to the informant, the informant speaks to the person they’ve identified. If they think that it’s worthy of charges and arrest it comes back with an arrest set of fingerprints, that set is then checked by a senior fingerprint expert and then that court case is allocated so it could be up to four different experts who make the identification or are involved in the case, so it’s not just one. It’s not, for instance, just me.
And you’re a senior fingerprint expert, aren’t you?---No, just a fingerprint expert. 69
Yes. So there’s only one level above you?---Yes.
All right. Thank you?---And they’re the senior fingerprint experts, yes.
Thank you. But if you were - if there were to be a fingerprint expert who attended to give evidence it would be a single expert, wouldn't it?---Yes.
And you're aware - and you've certainly had the experience yourself of not being required to attend for cross-examination because the evidence you've given's been accepted, isn't that right?---Yes.
Now, what I'm trying to test with you, Ms Bateson, is whether you agree that part of the reason why expert evidence from the FSU is accepted without question is because the FSU has an excellent reputation in the criminal justice system?---Based on the evidence.
It has an excellent reputation, doesn't it?---Well, fingerprints does. Fingerprints - fingerprint evidence is not often challenged because it holds such a high weight. 70
[153] I have taken into account the extensive quality assurance process in place in the forensics area and the means by which a fingerprint expert will be only one of a team who have identified the fingerprints such that, should there be a real concern as to the Applicant’s credibility being tested in court her attendance can be avoided. Further, I accept the evidence that fingerprint testimony is not an opinion formed but a matter of fact – that a fingerprint either matches or it does not. Further, I am satisfied that the Applicant’s work can be managed in such a way as to minimise any exposure of the forensics area.
[154] Ms Ilievski gave evidence that, following receipt of the brief from PSC, as part of the Respondent’s assessment as to whether to conduct an investigation into the Applicant’s conduct, it was determined that the Applicant did not need to be suspended from work while it conducted that investigation. The Applicant remained at work without restriction. The concerns the Respondent had of the Applicant’s conduct at that time included that, in calling XY, she was “attempting to solicit information in relation to the IBAC investigation involving [her] husband…in a deceitful manner”. This was a very serious allegation. However, despite the seriousness of this allegation the Respondent did not consider a suspension from duty was justified. The Respondent had no concern about the integrity of the Applicant in undertaking her work or in the integrity of FSU should the Applicant give evidence in Court.
[155] Given my findings as to the conduct which I find did occur and the circumstances in relation to the affair of her husband, I do not consider that the Respondent’s claimed loss of trust and confidence in the Applicant is justified.
[156] For these reasons I have decided that reinstatement is appropriate.
[157] Having considered each of the matters set out in s.391 of the FW Act I have determined as follows.
[158] I am satisfied that the Applicant should be reappointed to the position she occupied immediately prior to her dismissal (s.391(1) of FW Act). No submission was made or evidence put before the Commission that such a position no longer existed. This should occur no later than 7 days after the date of the order made reflecting this decision.
[159] I am satisfied that the Applicant’s continuity of service and period of continuous service should be maintained (s.392(2) of the FW Act).
[160] I am satisfied that the Respondent should be required to pay the Applicant for lost salary, plus applicable superannuation, caused by her dismissal for a period of eight weeks only. I would, generally, not award any payment of lost remuneration in this case because of the conduct of the Applicant and because, as I observed, she chose not to provide any defence for her actions. Further, the Applicant failed to admit her actions in circumstances where doing so may well have foreshortened the process. However, due to difficulties in the Commission the hearing of this matter was delayed for some 8 weeks from its initial listing date. The hearing was first schedule on 31 May 2022 and later rescheduled for 8 June 2022 and then 27 July 2022 not because of any request or action of the Applicant or Respondent. The Applicant should not be disadvantaged by this delay. I do not consider any further pay should be awarded to the Applicant.
[161] An order 71 giving effect to this decision will be issued.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR745261>
Appearances:
J. Fetter, of counsel, for the Applicant.
E. Latif, of counsel, for the Respondent
Hearing details:
2022.
Melbourne:
July 27.
1 AE509129
2 Transcript 27 July 2022, PN894-PN895
3 Witness Statement of Stuart Bateson, paragraph 6, CB p. 40
4 Witness Statement of Milka Bateson, paragraphs 12-14 and 18, CB p. 16
5 Witness Statement of Stuart Bateson, paragraph 9, CB p. 41
6 Witness Statement of Stuart Bateson, paragraph 13, CB pp. 41-42; Witness Statement of Milka Bateson, paragraphs 20-21, CB p.17
7 Witness Statement of Janet Stevenson, attachment JLS-1, CB p. 60
8 Witness Statement of Milka Bateson, paragraph 23, CB p. 17
9 Witness Statement of Janet Stevenson, attachment JLS-1, CB p. 60
10 Witness Statement of Janet Stevenson, paragraph 6, CB p. 57
11 Witness Statement of Milka Bateson, paragraph 31, CB p. 18
12 Witness Statement of Natasha Ilievski, paragraph 12, CB p. 70
13 Witness Statement of Natasha Ilievski, Attachment NI-9, CB p. 230
14 Witness Statement of Natasha Ilievski, Attachment NI-11, CB p. 237
15 Witness Statement of Natasha Ilievski, paragraph 24, CB p. 72
16 Witness Statement of Natasha Ilievski, Attachment NI-16, in particular CB pp. 259-268
17 Transcript 27 July 2022, PN505
18 Witness statement of Janet Stevenson, Attachment JLS-2, CB pp. 62-66
19 Witness Statement of Milka Bateson. paragraph 17. CB p. 16
20 Transcript 27 July 2022, PN360
21 Transcript 27 July 2022, PN215
22 Transcript 27 July 2022, PN388
23 Transcript 27 July 2022, PN389
24 Transcript 27 July 2022, PN391
25 Transcript 27 July 2022, PN454
26 Transcript 27 July 2022, PN490
27 Transcript 27 July 2022, PN486
28 Transcript 27 July 2022, PN492-PN493
29 Transcript 27 July 2022, PN494
30 Transcript 27 July 2022, PN486 and PN496
31 This was also included in the termination letter as an “inference” drawn by the Respondent
32 Ibid
33 Transcript 27 July 2022, PN388
34 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
35 Ibid
36 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
37 Edwards v Justice Giudice [1999] FCA 1836, [7]
38 King v Freshmore (Vic) Pty Ltd Print S4213 [2000] AIRC 1019 (Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24])
39 Transcript 27 July 2022, PN164-PN166
40 Letter of termination 31 January 2022; Witness statement of Natasha Ilievski, Attachment NI 21 CB pp. 291-294
41 Transcript 27 July 2022, PN1068
42 Transcript 27 July 2022, PN1069
43 Mr Bateson gave evidence that Victoria Police were aware of the affair from 2018. See witness statement of Stuart Bateson, paragraph 21, CB p. 43
44 Code of Conduct for Victorian Public Sector Employees of Special Bodies. See Witness Statement of Natasha Ilievski, Annexure NI-1, CB p. 80
45 VPM – Professional and Ethical Standards. See Witness Statement of Natasha Ilievski, Annexure NI-2, CB p. 125
46 Clause 25.3
47 Witness Statement of Stuart Bateson, paragraph 13, CB pp. 41-42
48 Witness Statement of Natasha Ilievski, Annexure NI-7, CB p. 218
49 Transcript 27 July 2022, PN740
50 Transcript 27 July 2022, PN721
51 Transcript 27 July 2022, PN720
52 Witness Statement of Natasha Ilievski, paragraph 27, CB p. 73
53 Transcript 27 July 2022, PN796
54 Transcript 27 July 2022, PN799-PN801
55 Witness Statement of Stuart Bateson, paragraph 20, CB p. 43
56 Witness Statement of Natasha Ilievski, paragraph 44(b) CB pp. 77-78; Transcript 27 July 2022, PN966-PN988
57 Transcript 27 July 2022, PN748-PN749
58 Transcript 27 July 2022, PN764-PN765
59 Transcript 27 July 2022, PN762-PN763
60 Transcript 27 July 2022, PN900
61 Transcript 27 July 2022, PN1052
62 (1995) 185 CLR 410
63 Ibid at 465
65 Ibid
66 Ibid
67 Witness Statement of Natasha Ilievski, paragraph 38 (b), CB p. 75
68 Transcript 27 July 2022, PN230-PN236
69 Transcript 27 July 2022, PN529-PN532
70 Transcript 27 July 2022, PN536-PN541