Unfair dismissal: Kevin Cooper v Australian Taxation Office [2015] FWCFB 868

Published 9 April 2015

An employee of the Australian Taxation Office has recently lost his unfair dismissal application after he was dismissed from his employment following a conviction and a 3 year term of imprisonment for an act of indecency on a person aged under 16 years outside Australia.

In December 2012 Mr Cooper was convicted of two counts of committing an act of indecency against a person aged under 16 years outside of Australia. Mr Cooper had been employed by the ATO since 1987. Upon his conviction, the ATO suspended Mr Cooper from duty pending an investigation into a suspected breach of the Australia Public Service Code of Conduct.

In March 2013 Mr Cooper was sentenced to a term of imprisonment of 3 years and 2 months with a non-parole period of 2 years. His term was reduced upon entering a recognisance and he was due to be released from prison on 20 December 2014.

The ATO terminated Mr Cooper’s employment on 11 October 2013 by reason that he had breached the APS Code of Conduct. Mr Cooper lodged an unfair dismissal application on the basis that the ATO should not have solely relied on his conviction as a valid reason for dismissal.

At first instance, the ATO argued that Mr Cooper’s incarceration meant that the contract of employment was frustrated due to his inability to perform it. The Fair Work Commission (FWC) rejected this submission.

The ATO submitted that the ATO Code of Conduct required employees to behave “at all times” in a way which maintains the integrity and reputation of the APS. The FWC accepted that employees are obligated to abide by the Code of Conduct, not just in work time or workplaces, and behave in the highest ethical standards.

The FWC found that Mr Cooper’s convictions were for a serious offence which was clearly unethical and in breach of the Code of Conduct. Mr Cooper’s dismissal was therefore not harsh, unjust or unreasonable.

Mr Cooper appealed the decision to the Full Bench of the FWC.


The Full Bench expressed doubt about whether the ATO Code of Conduct could extend into the employee’s personal life so as to be applicable “at all times”. However, because the Full Bench found that the ATO had a valid reason to dismiss Mr Cooper, it was not necessary for it to decide on that point.