March 13, 2015 – 11:05AM
Reporter for The Canberra Times
Photo: Andrew Quilty
A Tax Office public servant sacked after being jailed for child sex offences has failed again to win his job back in an unfair dismissal case.
Former tax official Kevin Cooper suggested that his former bosses at the ATO might have let him do his job from his jail cell as he served time for under-age sex offences committed in a foreign country.
It is in our view fanciful … that the appellant might have been permitted to carry out his duties whilst incarcerated.
Fair Work Commission
But the Fair Work Commission has upheld the right of ATO to sack Cooper, despite his offence having been committed overseas and having nothing to do with his work at the Tax Office.
In his appeal to the full bench of the Commission, Cooper tried to argue that his sacking, if allowed to stand, would impose a higher standard of behaviour on public servants, stripping them of some of the unfair dismissal protections available to all workers.
Cooper is a veteran of 25 years with the ATO, and 33 years with the public service, and prior to his dismissal was a manager supervising 17 staff in the Tax Office’s Goulburn Street office in Sydney, processing Business Activity Statements and Income Tax Returns.
He was convicted in the Sydney District Court in November 2012 of two counts of acts of indecency against a person aged under 16 years outside Australia and jailed for a minimum of two years.
He was sacked in October that year after his bosses decided his offences were a serious breach of the Australian Public Service Code of Conduct which was detrimental to the ATO’s reputation.
But Cooper launched an appeal against the decision from his cell in Sydney’s Long Bay jail.
In his initial unfair dismissal claim, the former public servant protested his innocence and said he intended to appeal his court convictions.
The unfair dismissal case was heard when no appeals materialised and the Fair Work Commission backed the ATO’s stance, finding that public servants were required to uphold their Code of Conduct “at all times” and a serious out-of-hours breach, even one committed outside Australia, was enough to justify the sack.
In his latest plea to the full bench of the Commission, the 55-year-old suggested the ATO might have let him have unpaid leave while he served his sentence, or even to continue to do his job while behind bars.
But the three Commission members were not interested in Cooper’s line of argument.
“It is in our view fanciful in the circumstances of this case, to suggest that the respondent might have favourably considered an application by the appellant to take a period of unpaid leave during his incarceration,” they wrote.
“It is equally fanciful, given the nature of the respondent’s functions and the duties of the appellant whilst employed by the respondent, to suggest as the appellant did, that the appellant might have been permitted to carry out his duties whilst incarcerated.”
The Canberra Times