TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal – due to mutually difficult personal circumstances of all concerned in this matter appropriate to anonymise many of the details – respondent provides job placement services nationally for recipients of various Commonwealth Government benefits – applicant employed as Job Placement Officer – dismissed because she was not truthful to respondent about a conviction in August 2014 for Centrelink fraud when it asked her to complete a police check – applicant was convicted of two charges of obtaining a financial advantage, fined $3,000 and ordered to make reparations of $26,862.26 to the Commonwealth – other reason given for dismissal was that the work she performed, being in performance of a Commonwealth of Australia Deed meant that it was untenable for the company to continue to employ her – as a result of a concession given in the course of the proceedings the respondent no longer argued that the applicant’s continued employment was inconsistent with its obligation to the Commonwealth – applicant worked casually since 2011 at various branches of respondent – police check in March 2014 disclosed no matters of substance – offered full-time employment by respondent in 2015 – applicant was still covered by 2014 police check – in March 2016 respondent advised applicant that her police check was shortly to expire and that she was required to authorise a further check – applicant did not acknowledge request and was not made to comply with it as the respondent did not follow up – respondent again requested police check in April 2018 – three requests made – applicant gave authorisation only after the third request which led to the respondent obtaining information about her convictions – Commission held that the applicant did not respond to the respondent’s requests for authorisation knowing that she was expected to, and also that she was expected to positively appraise her employer of changes in her legal status – those two matters formed the basis of the respondent’s complaint – Commission found the respondent’s requests for a police check in 2016 was not followed up when the applicant failed to respond – took two increasingly firmer reminders for applicant to respond to the 2018 request – Commission in no doubt from the evidence that the applicant was avoiding the situation; that she knew what would be uncovered, and its significance to her employer; and that she avoided responding because of her knowledge of these matters – in Mahoney v White the Full Court held, in relation to an argument that employment ended when a relevant registration was withdrawn, that such employment does not axiomatically end, in that case, with the cancellation of a legislatively required registration, but with a decision by the employer which amounts to termination at the initiative of the employer – Commission found the respondent terminated the applicant at its initiative pursuant to a discretion it had about the situation – it could have chosen other avenues, but did not – respondent also argued that the failure by the applicant to comply either with the Policies or its directions to provide it with information was serious misconduct, being ‘a breach of the fundamental term of the contract of employment that obliges an employee to comply with the lawful and reasonable directions of the employer’ [B, C and D v Australian Postal Corporation T/A Australia Post] – Commission not persuaded the applicant’s actions amounted to a breach of the standard advocated by the respondent, or that her actions were serious misconduct – applicant was correct in apprehending that dire things for her employment would flow from the respondent’s knowledge of her convictions, given that was precisely what occurred – her fears about disclosure must therefore be seen as having been reasonably held – in the ordinary course the applicant’s tardiness in responding to the respondent’s requests for consent for a police check or, if she was obliged to do so, to respond and to positively appraise her employer of changes in her legal status, may be sufficient for her to be warned about the consequences of future transgressions, but they are insufficient to be found to be the basis of a sound, defensible and well-founded decision for dismissal – Commission found no valid reason for dismissal – found the applicant’s dismissal was harsh, in that the decision to dismiss her was disproportionate to her conduct; that it was unjust, since the respondent’s decision was predicated upon false or faulty reasoning about its obligations to the Commonwealth; and it was unreasonable, since the respondent did not sufficiently consider the applicant’s explanation for her conduct – found applicant was unfairly dismissed – remedy – considered that the applicant chose to hide information from her employer, by actively not disclosing it and that this was on several occasions, leans against reinstatement being appropriate – her actions amount in retrospect to a signal from her that she did not trust her employer with the information – persuaded that reinstatement in the circumstances was not appropriate – found compensation was appropriate – Commission assessment of the anticipated period of employment was no less than two years (24 months) – one-third deduction for misconduct (-8 months) – 25% deduction for contingencies (-6 months) – 5% deduction for mitigation (-1.2 months) – 8.8 months remaining – applicable compensation cap is the total amount of remuneration she received during the 26 weeks immediately before the dismissal – ordered an amount equivalent to the total amount of remuneration the applicant received, including superannuation, during the 26 weeks immediately before her dismissal, with the payment to be taxed according to law. KB v The Agency
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