Commonwealth of Australia (Australian Federal Police)

s.170CE application for relief re termination of employment

Commonwealth of Australia (Australian Federal Police)

[1] This decision arises from an appeal by G F Fletcher (Mr Fletcher) against an Order made by Commissioner Raffaelli on 26 March 2007 [1] and a cross-appeal by the Australian Federal Police (AFP) against a Decision by Commissioner Raffaelli of 26 March 2007.[2]

[2] In his decision, the Commissioner determined an application by Mr Fletcher, for relief in respect of the termination of his employment by the AFP on 20 February 2006, on the basis that the termination was harsh, unjust or unreasonable. The application was brought pursuant to s.170CE(1)(a) of the Workplace Relations Act 1996, as it operated prior to amendment by the Workplace Relations Amendment (Work Choices) Act 2005. The Workplace Relations Act 1996 as it then operated is referred to hereafter as the Act.

[3] In his decision, Commissioner Raffaelli found that:

• there was no valid reason for the termination; [3]

the termination was harsh, unjust or unreasonable; [4]

if the AFP did have a valid reason to terminate the employment, the termination was harsh; [5]

an order as envisaged by s.170CH(1) of the Act should be made; [6]

• reinstatement was not an appropriate remedy; [7] and

• an order for compensation at the level of the statutory cap in s.170CH(8) of the Act should be made. [8]

[4] The appeal by Mr Fletcher was brought on the basis that the Commissioner erred in finding that it was inappropriate to reinstate Mr Fletcher pursuant to s.170CH(3) of the Act. This was characterised on behalf of Mr Fletcher as an error in the exercise of the discretion in arbitration as to remedy, which was said to be amenable to the supervisory jurisdiction of the Full Bench on the principles established in House v King. [9]

[5] The cross-appeal by the AFP was brought on the grounds that the Commissioner erred in making findings that there was not a valid reason for the termination, that the termination was harsh, unjust or unreasonable and that the termination was harsh, even if supported by a valid reason and, in those circumstances, the Commissioner erred in making an order for compensation. The appeal was filed late and subject to an application for an extension of time in instituting an appeal.

[6] The background to the termination of Mr Fletcher's employment is set out at length in the decision of Commissioner Raffaelli and need not be repeated at length. In short:

• Mr Fletcher was employed as a Federal Agent by the AFP (or its predecessor - the Commonwealth Police Force) in 1975. He had a largely distinguished career [10] with the AFP, including being a recipient of a 2004 Australia Day Medallion for his service with the AFP.

• In November 2000, Mr Fletcher was formally counselled, following an interview which formed part of an investigation conducted by the Internal Security and Audit section of the AFP, concerning, in part, Mr Fletcher's contact with informers, and at least one meeting that he had had with Mr M Hurley, regarded by the AFP as "a prominent criminal entity in Sydney's organised crime". [11]

• The terms of the counselling, which were accepted by Mr Fletcher included directions as to the procedure to be followed in relation to contact with informants and to not have any further contact with Mr Hurley.

• In early 2005, after the implementation of "AFP National Guidelines on Informant Management" in 2001, Mr Fletcher was counselled on the apparent breach of guidelines relating to the payment of expenses and rewards. Mr Fletcher had accepted the counselling.

• The earlier direction to Mr Fletcher that he was not to speak to or approach Mr Hurley or any of his associates was reiterated to him by AFP's Manager, Sydney Office, Federal Agent Warren Gray in February 2005.

• On 14 April 2005, at approximately 9.00 a.m., Mr Fletcher attended a meeting with Mr Hurley at a hotel caf� close to the AFP offices, which had been arranged consequent to a telephone call from Mr Hurley to Mr Fletcher on the preceding working day. Mr Fletcher's evidence was that he was not aware of the identity of the caller and only became aware that it was Mr Hurley when he attended at the caf� for the meeting. Upon his return to his office after the meeting, Mr Fletcher completed a Contact Incident Report (CIR), provided a further report of the meeting to the AFP by email and made oral disclosures both to the AFP and to other interested law enforcement agencies.

• Federal Agent Gray, upon becoming aware of the meeting, reported the matter to Professional Standards. He informed Mr Fletcher that he would be taking management action by transferring him out of narcotics work into a position where human source interaction would not be likely or necessary. That action was accepted by Mr Fletcher in a meeting with Federal Agent Gray on 20 May 2005.

• On 27 May 2005, Mr Fletcher was suspended from duty with pay whilst a Professional Standards investigation was undertaken concerning allegations that Mr Fletcher "failed to comply with AFP guidelines applicable to human source handling." [12]

• The Professional Standards investigation resulted in a Final Report of Federal Agent Fox. It concluded:

"The allegation F/A Fletcher acted in a manner that brings, or is likely to bring, discredit to the reputation of the Australian Federal Police is Substantiated, in accordance with prescribed outcome 1.1.1., the allegation is found to be true.

• Meeting with Hurley on 14 April 2005 unaccompanied;

• Meeting was contrary to the directions given to him when counselled by GME;

• Meeting was contrary to directions given to him by Gray;

• Disregard by F/A Fletcher of AFP approved methodologies". [13]

• On 25 November 2005, Mr Alan Scott, Manager Professional Standards, wrote to Mr Fletcher's solicitor, Mr Boyle, indicating that while the investigation into Mr Fletcher's conduct commenced as an inquiry into whether there had been a release of information by Mr Fletcher to Mr Hurley, it had concluded that the actions of Mr Fletcher had brought or were likely to have brought discredit on the AFP. Mr Scott wrote:

"The issue of the employment suitability of your client necessarily arises from the substantiated finding. After careful consideration, I have decided that I will not refer this matter to a Delegate of the Commissioner for a review of your client's employment suitability. However, I will recommend to the Manager of Sydney Office that arrangements be made for F/A Fletcher to be formally counselled about his actions on this occasion. In order for the counselling to be successful, your client would need offer some reasonable acknowledgement that on this occasion his contact handling methodologies fell below AFP expectations. I will also recommend that as your client has exercised poor judgment on this and previous occasions, consideration be given to his reassignment to a non-operational area. A review of his security clearance will be undertaken." [14]

• In early January 2005, Mr Fletcher instructed his solicitor, Mr Boyle, to write to Mr Scott taking issue with Mr Scott's correspondence, the process of the investigation and its findings and challenging the conclusion that Mr Fletcher had breached AFP guidelines.

• On 27 January 2006, Mr Mark Ney, an Assistant Commissioner of the AFP and a delegate of the AFP's Commissioner, responded to the correspondence from Mr Boyle. Mr Ney advised that he was considering terminating the employment of Mr Fletcher, as a result of the substantiation that Mr Fletcher's actions had brought or were likely to bring discredit on the AFP and the unequivocal position of Mr Fletcher that he did not accept the findings of the investigation. Mr Ney invited Mr Fletcher to respond. [15]

• On 8 February 2006, Mr Fletcher wrote to Mr Ney, stating that he had accepted the counselling he had received from Federal Agent Gray in May 2005 and accepted his transfer and the counselling he received in November 2000. He indicated that he had never met with informants alone, remained committed to AFP policies and guidelines as to human sources. He explained his April 2005 meeting with Mr Hurley as resulting from a telephone call from an unidentified person who he had believed to be a former police officer. Mr Fletcher accepted that the AFP had a right to take the view that he ought to have acted differently upon realising it was Mr Hurley with whom he was to meet and accepted the criticism and counselling from AFP officers in May 2005. He accepted that the meeting placed him in a position of vulnerability and had a potential to embarrass the AFP, but noted that he had immediately reported the meeting. Further, he noted that the investigation had exonerated him from any breaches of confidentiality. [16]

• On 20 February 2006, Mr Ney wrote to Mr Fletcher indicating that he had decided to terminate his employment. The letter concluded:

"However, it is difficult for me not to have regard to your conduct on this and previous occasions and the impact this has on the AFP's core values. I remain gravely concerned about the circumstances surrounding your meeting with Mr Hurley and your attitude, both before and after that, to compliance with AFP procedures and expectations. As I have previously indicated to you, I am of the view that your judgment in accepting an invitation to meet with an unidentified person to discuss undisclosed matters

is seriously wanting. I am not convinced that you have a genuine appreciation of the serious nature of your failing in this regard. This failure, along with an apparent unwillingness to accept counselling from your employer as to what is best practise, represents a fundamental breakdown of the employer/employee relationship between you and the AFP." [17]

[7] In his decision, Commissioner Raffaelli considered the reason for termination, concluding that "the reason for dismissal, styled as fundamental breakdown in the relationship, is due to the AFP's belief that the Applicant did not accept the seriousness of his failings and was unwilling to genuinely accept counselling". [18] The Commissioner found that there was not a valid reason to dismiss Mr Fletcher in circumstances where, in his letter of 8 February 2005, he accepted he had acted in a way that potentially compromised the AFP and was prepared to undergo counselling. The Commissioner found that "(t)here was insufficient basis for Mr Ney to have mistrusted and rejected what the Applicant was saying in his reply of 8 February 2006".[19] The Commissioner found that, absent a valid reason for the termination, it was harsh, unjust or unreasonable.[20]

[8] Commissioner Raffaelli then found that if the AFP did have a valid reason to terminate the employment because Mr Fletcher did not think he had done anything wrong and/or he was not going to genuinely commit to counselling, the termination was harsh. [21] The Commissioner concluded that because of the over 30 years of service by Mr Fletcher as a Commonwealth Police Officer with numerous commendations of the highest level, an alternative treatment to dismissal was warranted.[22]

[9] Being satisfied that he should make an order as envisaged in s.170CH(1) of the Act, Commissioner Raffaelli noted that:

"The Commission ought be cautious in considering an employer's claim that they cannot work again with a dismissed employee, as this might inappropriately frustrate the relief of reinstatement provided by the Act". [23] He found, however, "that there is a well-founded basis for the AFP's contention that they have irrevocably lost trust and confidence in the Applicant."[24]

". . . there was evidence from Mr Ney that the AFP had lost confidence in Mr Fletcher by 20 February 2006, and that there had been a fundamental breakdown in the relationship. The Hurley interview is an additional matter and I am entitled to give consideration to Mr Bromwich's submission that the Hurley interview further adds to the AFP's already existing view that they have lost any trust and confidence in Mr Fletcher." [25]

[10] Given those considerations, and having regard to "the public interest that the AFP, as an important national institution, must have confidence in its federal agents", [26] the Commissioner decided that reinstatement of Mr Fletcher was not appropriate. Instead, he made an order requiring the AFP to pay Mr Fletcher an amount at the level of maximum allowable compensation of six months pay in lieu of reinstatement.

[11] The cross-appeal of the AFP was instituted on 27 April 2007, 31 days after the decision and order of Commissioner Raffaelli. The Commission's Rules provide in Rule 13(2):

(a) within 21 days after the date of the award, order or decision appealed against; or

(b) on application - within such further time as is allowed by a Full Bench."

[12] The AFP is seeking that the appeal be accepted beyond the time prescribed within Rule 13(2)(a), pursuant to Rule 13(2)(b).

[13] A Full Bench in M Stevenson-Hellmer v Epworth Hospital [27] summarised the approach of the Commission to Rule 13(2)(b), by reference to the previous Rule 11(2)(c), which is in identical terms, as follows:

"Rule 11(2)(c) confers power on a Full Bench to extend time. In Re: Metro Meat Ltd Orange Interim Award 1987 the Commission made the following general observations about the exercise of such power:

'The Commission has a discretion to extend the time prescribed for instituting an appeal when it considers that such an extension would be desirable. We do not seek to codify, and it may be undesirable to constrain, the grounds upon which the Commission will exercise its discretion. However, we take as the starting point that it is for the appellant applicants to satisfy the Commission that an extension of time would be desirable . . .

We are reluctant to accept that a time limit of this kind should be open to extension as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal. The parties appearing before the Commission have an obligation to acquaint themselves with such limits.[Print J1669]'

We agree with the above observation. In our view the time limits in relation to the institution of appeals must be treated seriously and should only be extended where there are good reasons for doing so. The appellant bears the onus of persuading the Commission to extend the 21 day period prescribed in Rule 11(2). In Fox v Kangan TAFE, the Commission summarised the factors which may be relevant to the exercise of the discretion in the following terms:

'The cases show that, in exercising the discretion in rule 11(2)(c), the Commission should take into account whether there is a satisfactory reason for the delay, the length of the delay, the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was to be extended: Meat and Allied Trades Federation v AMIEU (1990) 35 IR 25 at p.26; The National Rail Enterprise Agreement 1993, 1 December 1993 [Print L0238 at pp. 11-12]; Shop Distributive and Allied Employees Association v OPSM Pty Ltd, 2 July 1998 [Print S0253 at paras 3-4]"

[14] Having regard to the limited delay, the nature and basis of the appeal, including its relationship to the appeal of Mr Fletcher and the absence of any prejudice to Mr Fletcher arising from the late lodgement of the AFP appeal, we are persuaded to allow the AFP appeal to be instituted out of time.

[15] The appeals of both Mr Fletcher [28] and the AFP are appeals from a discretionary decision of the Commission, subject to the principles on appeal in House v King.[29]

[16] That approach was set out in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others, [30] as follows:

"Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial decision, in House v King in these terms:

'If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so'. [(1936 CLR 499 at 505]" [31]

[17] We first consider the AFP appeal against the decision of Commissioner Raffaelli in respect of his findings that there was no valid reason for the termination, the termination was harsh, unjust or unreasonable and, even if there was a valid reason, the termination was harsh. We will then consider, if necessary, Mr Fletcher's appeal in respect of remedy.

[18] The AFP appeal is based squarely on the proposition that Commissioner Raffaelli erred in reaching his findings that there was no valid reason for the termination, the termination was harsh, unjust or unreasonable and, if the AFP did have a valid reason to terminate the employment, the termination was harsh because the Commissioner failed to have regard to material evidence in the form of the record of a 29 March 2006 interview between Mr Hurley and the AFP.

[19] The Hurley interview was not mentioned in the decision of Commissioner Raffaelli in relation to his findings as to valid reason and whether the termination was harsh, unjust or unreasonable. The interview first arose in the Commissioner's decision when dealing with remedy. In that context, the Commissioner said:

"The AFP also referred to material in the form of a taped record of conversation with Mr Hurley on 29 March 2006. This was not available at the time that the AFP terminated the Applicant's employment. In that taped interview Mr Hurley said that he had identified himself to the Applicant on the phone when arranging to meet the next day.

Mr Hurley was not called as a witness and of course Mr Hurley was a career criminal. On the other hand, the taped interview was admitted without objection. In the circumstances, I have considered that evidence but have given it less weight than if Mr Hurley had been a witness. The taped interview does not satisfy me that the Applicant definitely knew that it had been Mr Hurley who had called him. It does, however, raise the possibility that perhaps he did know.

Given the circumstances of the interview (which was freely given by Mr Hurley and was not made under caution) I am satisfied that there is a real basis to the AFP's disquiet as to whether the Applicant truly was unaware of the caller. The change in the story as to who the caller was (ending in it being possibly a retired policeman) and change in the reasons for remaining to talk with Mr Hurley underscores such concerns." [32]

[20] We are not satisfied that Commissioner Raffaelli failed to have regard to the record of the interview with Mr Hurley. It is plain from his decision that he was aware of the interview and its relevance to the competing propositions as to Mr Fletcher's prior knowledge of the identity of the person he was meeting on 14 April 2005. The findings of the Commissioner in relation to the Hurley interview were, at their highest, that Mr Hurley said he had identified himself on the phone when arranging the meeting and that statement raises the possibility that "perhaps he (Mr Fletcher) did know" the identity of Mr Hurley when agreeing to meet. Ultimately, the Commissioner concluded he could not be satisfied that Mr Fletcher knew the identity of Mr Hurley before the meeting. We see no error in that conclusion given the source of the information, the nature of the evidence (and, we would add, some degree of uncertainty as to the meaning of Mr Hurley's statement at question 54 of the interview [33]). Given that finding, the failure of the Commissioner to specifically mention the Hurley interview when dealing with valid reason and whether the termination was harsh, unjust or unreasonable does not, in our view, establish that the Commissioner failed to have regard to it. The simple fact is that it was of peripheral significance in determining those issues. In the context of the matters specifically reflected in the reasoning of the Commissioner, the record of the Hurley interview was of little effect unless it substantiated a finding that Mr Fletcher knew the identity of Mr Hurley before the meeting. We are not satisfied that Commissioner Raffaelli failed to have regard to material evidence or that the Commissioner otherwise erred in finding that there was no valid reason for the termination, the termination was harsh, unjust or unreasonable and, if the AFP did have a valid reason to terminate the employment, the termination was harsh. We dismiss the AFP appeal.

[21] It was submitted, on behalf of Mr Fletcher, that Commissioner Raffaelli erred in finding that:

"However here, I find that there is a well-founded basis for the AFP's contention that they have irrevocably lost trust and confidence in the Applicant. I have taken note of Mr Moore's submission that no AFP witness addressed the added effect of the post-termination Hurley interview. But there was evidence from Mr Ney that the AFP had lost confidence in Mr Fletcher by 20 February 2006, and that there had been a fundamental breakdown in the relationship. The Hurley interview is an additional matter and I am entitled to give consideration to Mr Bromwich's submission that the Hurley interview further adds to the AFP's already existing view that they have lost any trust and confidence in Mr Fletcher.

Given that, and including the public interest that the AFP, as an important national institution, must have confidence in its federal agents, I have decided that reinstatement of the Applicant is not appropriate." [34]

[22] It was submitted that in light of the earlier finding by the Commissioner that "(t)here was insufficient basis for Mr Ney to have mistrusted and rejected what the Applicant was saying in his reply of 8 February 2006", [35] the finding that the AFP was entitled not to have confidence in Mr Fletcher was in error. It was submitted that the Commissioner in so finding had elevated a stated position or opinion of the AFP to an immutable position and, in doing so, had denied Mr Fletcher access to the primary remedy of reinstatement.

[23] The AFP submitted that no error was evident in the reasoning of Commissioner Raffaelli in his conclusions above. The AFP submitted that the Commissioner's reasoning was to take into account the inevitable effect of the additional information arising from the record of interview with Mr Hurley on the AFP's reasonable perception of the state of the employment relationship and to accept that this material would put the relationship beyond repair.

Did the Commissioner err in finding that reinstatement was not appropriate?

"The Commission ought be cautious in considering an employer's claim that they cannot work again with a dismissed employee, as this might inappropriately frustrate the relief of reinstatement provided by the Act." [36]

[25] This is consistent with the principles set out, in the context of the earlier concept of the "practicability" of reinstatement, by a Full Court of the Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd. [37] Those principles were conveniently summarised, and found to be relevant to the appropriateness of reinstatement, by a Full Bench in Australian Meat Holdings Pty Ltd:[38]

"In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:

'. . . we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case."

[26] In our view, Commissioner Raffaelli erred in giving unwarranted weight to the view of the AFP that a fundamental breakdown of the employer/employee relationship between Mr Fletcher and the AFP had occurred and that the AFP had lost confidence. There is no doubt that the AFP, through Mr Ney, genuinely held the view that trust and confidence in Mr Fletcher was lost. However, the conclusion of the Commissioner that "there is a well-founded basis for the AFP's contention that they have irrevocably lost trust and confidence in the Applican_t"_ [39] is not substantiated by the evidence before the Commissioner and on the Commissioner's own findings on the evidence.

[27] The Commissioner's finding that the AFP's contention was soundly based relied on evidence from Mr Ney that the AFP had lost confidence in Mr Fletcher by 20 February 2006 to which the evidence arising out of the March 2006 interview with Mr Hurley was added, as an additional matter, adding to "the AFP's already existing view that they have lost any trust and confidence in Mr Fletcher". [40]

[28] The reason for the termination of Mr Fletcher's employment, as at 20 February 2006, was "a fundamental breakdown of the employer/employee relationship between (Mr Fletcher) and the AFP [41]", resulting from the AFP's view that Mr Fletcher failed to genuinely appreciate the serious nature of his failings and an apparent unwillingness to accept counselling. Having assessed the evidence, including the 8 February letter from Mr Fletcher to Mr Ney, the Commissioner found that there was an insufficient basis for Mr Ney to have mistrusted and rejected Mr Fletcher's position. There was an insufficient basis, on the evidence, for finding that the AFP's contention that they had irrevocably lost trust and confidence in Mr Fletcher as at February 2006 was soundly based.

[29] Absent a well-founded basis for the AFP's contention that the AFP had irrevocably lost trust and confidence in Mr Fletcher as at February 2006, the finding that reinstatement was inappropriate rests entirely on the "additional" effect of the Hurley interview on the AFP's view as to trust and confidence in Mr Fletcher. Absent a legitimacy of the AFP's already existing view that they had lost any trust and confidence in Mr Fletcher, the findings of the Commissioner in relation to the Hurley interview that Mr Hurley said he had identified himself on the phone when arranging the meeting and that statement raises the possibility that "perhaps he (Mr Fletcher) did know" the identity of Mr Hurley when agreeing to meet do not substantiate a soundly and rationally based loss of trust and confidence. In our view, the Commissioner has misapplied the evidence and has erred. We reach that conclusion notwithstanding the higher than usual level of confidence that the AFP would require of its agents, a consideration properly given weight by the Commissioner.

[30] We grant leave to appeal and uphold the appeal by Mr Fletcher and quash the order of Commissioner Raffaelli [See PR977302].

The terms of an order to replace the order of Commissioner Raffaelli

[31] We have ourselves decided that the appropriate remedy in the circumstances of this matter is reinstatement.

[32] We have reached that view in light of our conclusions that:

• the lack of confidence and trust by the AFP in Mr Fletcher, although reasonably held, is not soundly or rationally based in light of the acceptance by Mr Fletcher of the inappropriateness of his actions in respect of the meeting with Mr Hurley and his preparedness to accept counselling and transfer, as reflected in his 8 February 2006 letter to Mr Ney; and

• the long and generally unblemished employment record of Mr Fletcher with the AFP and his effective service having regard to the various commendations received by him over the course of his employment.

[33] The AFP raised, as a reason against an order of reinstatement, the effect of the conflicting accounts in evidence before Commissioner Raffaelli, which, the AFP contended, would create a risk for the prosecution of criminal proceedings in which Mr Fletcher was a witness because of the duty on the prosecution to disclose to a defendant any information which might impact on the credibility of his evidence. The AFP relied upon the judgment of the High Court of Australia in Grey v The Queen [42] and the Statement of Prosecution Disclosure of the Commonwealth Director of Public Prosecutions.[43] The AFP submitted that the conflicting accounts that Mr Fletcher had given of his meeting with Mr Hurley would need to be disclosed in criminal proceedings in which Mr Fletcher was a witness, with competent opposing counsel able to inflict significant damage to his credibility on the basis of the conflicting accounts of the meeting with Mr Hurley. We do not accept that any inconsistencies in the accounts of Mr Fletcher as to his belief as to who may have been the person telephoning him to arrange the meeting or his reason for proceeding with the meeting or the possibility arising from the March 2006 AFP interview with Mr Hurley that he had disclosed his identity to Mr Fletcher create either the obligation to disclose such information or a risk to the credibility of Mr Fletcher as a witness in criminal proceedings. There is no adverse finding as to credibility against Mr Fletcher as a witness. Further, the issues relied on by the AFP do not fall within the compass of the circumstances in Grey v The Queen, which involved the non-disclosure of a "special relationship between (the witness) and the police" directly relevant to the matters in issue in the criminal trial. In this regard, the Statement of Prosecution Disclosure in dealing with the duty to disclose adverse findings is said not to apply where "not reasonably . . . seen to affect credibility having regard to the nature of, and anticipated issues in, the case." In our view, the proposition advanced by the AFP[44] that in criminal proceedings it would be obliged to disclose all evidence in other proceedings, criminal or otherwise or arising from internal investigations, of its witnesses which was open to challenge as to inconsistencies or challenge from competing evidence, extends far beyond the position established in Grey v The Queen and reflected in the Statement of Prosecution Disclosure.

[34] In light of the fact that Mr Fletcher, in his May 2005 meeting with Federal Agent Gray and in his February 2006 letter, accepted a proposed transfer to other duties, the order for re-instatement [PR977302] will require the AFP to reinstate Mr Fletcher by reappointing him to the position in which the employee was employed immediately before the termination or appoint him to another position on terms and conditions no less favourable than those on which he was employed immediately before the termination.

[35] In the circumstances, we will include in our order a requirement upon the AFP to maintain the continuity of Mr Fletcher's employment.

[36] We will also include in the order a requirement upon the AFP to pay to Mr Fletcher an amount in respect of the remuneration lost, or likely to have been lost, by him because of the termination.

[37] In determining the amount of such compensation, we have considered:

• the finding of Commissioner Raffaelli in respect of the effect of an order for compensation on the viability of the AFP; [45]

• the considerable service of Mr Fletcher with the AFP;

• the termination of Mr Fletcher's employment on 20 February 2006, resulting in the loss of his usual earnings from the AFP since that time;

• the finding of Commissioner Raffaelli that some uncertainty attached to Mr Fletcher's continuing employment, dependant upon his ability to satisfy the concerns of the AFP; [46]

• the actions of Mr Fletcher, which he acknowledges [47] placed him in a position of vulnerability and had the potential to embarrass or affect the AFP, which warrant some sanction and reflect a contribution, on his part, to the circumstances resulting in the termination of his employment; and

• the finding of Commissioner Raffaelli that, at the time of his decision, Mr Fletcher made a real effort to mitigate his loss. [48]

[38] We have decided to order the AFP to pay to Mr Fletcher, in respect of the remuneration lost, an amount equivalent to 12 months salary, net of any remuneration earned by Mr Fletcher from other employment since the termination. This amount will be settled by Commissioner Redmond in the event of any dispute as to the quantum.

R Moore of Counsel with T P Boyle on behalf of Mr Fletcher.

R J Bromwich of Counsel with J Heard on behalf of the Commonwealth of Australia (Australian Federal Police).

[2] [2007] AIRC 60, PR975942.

[9] [1936] HCA 40; (1936) 55 CLR 499 at 504-5.

[10] [2007] AIRC 60, PR975942 at para 67.

[11] ibid., at para 5 and Exhibit F4/252 in the proceedings before Commissioner Raffaelli.

[12] ibid., at para 24 and Exhibit F4/153 in the proceedings before Commissioner Raffaelli.

[13] ibid., at para 26 and Exhibit F4/272 in the proceedings before Commissioner Raffaelli.

[14] ibid., at para 30; Appeal Book at p. 129 and Exhibit F4/285 in the proceedings before Commissioner Raffaelli.

[18] [2007] AIRC 60, PR975942 at para 59.

[29] [1936] HCA 40; (1936) 55 CLR 499 at 504-505.

[30] [2000] HCA 47; (2000) 203 CLR 194.

[32] [2007] AIRC 60, PR975942 at paras 83-85.

[34] [2007] AIRC 60, PR975942 at paras 87-88.

[39] [2007] AIRC 60, PR975942 at para 87.

[42] [2001] HCA 65; (2001) 184 ALR 593 at paras 15-18 and 23. See also the Statement of Prosecution Disclosure of the Commonwealth Director of Public Prosecutions [Exhibit AFP2].

[44] Transcript in the Appeal at para 570.

[45] [2007] AIRC 60, PR975942 at para 74.

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