The forensic officer was dismissed in January 2022 after admitting to making a phone call in 2019 to a Victoria Police colleague whom her husband had recently confessed to having an affair with.

When the officer was questioned as to who was calling, she falsely stated that she was from The Age newspaper before ending the call.

The employee was accused of inappropriately accessing the Victoria Police database to obtain her husband’s ex-partner’s phone number. Victoria Police claimed she contacted the colleague to gain information about an investigation into her husband’s conduct.

The employee declined to respond to the allegation due to mental illness, and instead elected to be informed of the investigation result.

Once the allegations were substantiated, the employee was granted another opportunity to respond to a recommendation for her employment to be terminated.

After not receiving a direct response to the proposed termination for over two months, Victoria Police decided to end the employee’s long-standing 22-year career.

As a result, the Forensic Officer lodged an unfair dismissal claim with the FWC.

Decision

The FWC found that the forensic officer’s evidence during the hearing had been ‘open and honest’ considering the situation was ‘intensely personal, emotional and painful’.

The employee admitted that the primary reason for making the phone call was to ask her husband’s ex-partner some questions that had been on her mind since her husband confessed to the affair.

While Victoria Police believed her real motive in making the call was to gather information that would assist in her husband’s court case, the FWC concluded that ‘on the balance of probabilities’ it was more likely to confront her husband’s ex-partner about the affair.

The commission found that although these acts constituted a breach of policy and provided a valid reason for dismissal, it was disproportionate to the misconduct which occurred, and unreasonable considering the financial impact it had on the applicant.

Victoria Police strenuously argued that reinstatement was entirely inappropriate due to having “lost trust and confidence in the employee because of her lack of candor in the investigation process”.

Despite this, the FWC ordered reinstatement to her former position, continuity of employment, and partial compensation for loss of income.

Victoria Police has now appealed this decision, and the FWC has issued a ‘stay’ on the reinstatement until the appeal is heard.

Learnings for Business

Despite the potential for the reinstatement to change at the appeal, the circumstances highlight the importance of handling disciplinary processes in a fair, reasonable and appropriate manner, and taking account of all relevant factors before making the serious decision to dismiss. In cases where there may be a valid reason for dismissal, termination of employment could still be overturned by the FWC in certain circumstances. These types of matters are complex and require careful consideration and risk mitigation.

How the Victorian Chamber can assist

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

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