Michael Lawler behaviour ‘justified’ sacking: Heerey report

A report into former Fair Work vice-president Michael Lawler found his misconduct was sufficient to justify his removal.

Former Fair Work vice-president Michael Lawler should have been sacked, says a report by barrister Peter Heerey.

A bombshell report into former Fair Work vice-president Michael Lawler has found he had brought reputational damage to himself and Fair Work and his misconduct was sufficient to justify his removal by a vote of both houses of parliament.

The findings regarding Mr Lawler, who abruptly quit his $435,000-a-year position two weeks ago on the eve of the report being handed to Employment Minister Michaelia Cash, brings down­ the curtain in an unprecedented case.

The report, by barrister and former judge Peter Heerey QC and tabled in the Senate yesterday, found that Mr Lawler’s behaviour in 2008 during two ­industrial relations conferences — where he had summoned health industry parties, yet failed to advise them he was conducting an affair with one of the parties, Health Services Union national secretary Kathy Jackson — was a breach of natural justice.

It caused severe reputational damage to Mr Lawler and to the then Industrial Relations Commission (now known as Fair Work).

The conflicts of interest ­inherent in that situation constituted grounds for sacking Mr Lawler now for misbehaviour.

The revelations of Mr Lawler’s calling of the two conferences in 2008 and the chronology of his overlapping relationship with Ms Jackson were revealed in The Australian on August 31 last year.

Following the conferences, industrial relations advocates had discovered the affair and ­approached then commission president Geoff Giudice in late 2008 to complain and to request Mr Lawler be barred from further involvement in health industry matters.

Justice Giudice had been in the dark about the affair until told by this high-level delegation.

PDF: The Heerey report

In the aftermath, Mr Lawler was removed from the health ­industry panel, and his conduct in the 2008 conferences remained a secret until revealed by this newspaper last year.

Mr Heerey also found additional grounds for his ­removal were in Mr Lawler’s appearance on a Four Corners program where he used foul language, handed over home movies of holidays and criticised his colleague, Fair Work president Iain Ross.

Mr Heerey said Mr Lawler had sought vindication of his position after media criticism of his behaviour in supporting Ms Jackson by appearing on the ABC.

He described Mr Lawler’s behaviour in appearing on Four Corners as undignified — to be a middle-aged, quasi-judicial figure presenting home movies on holiday with his girlfriend amid saccharine “lovers’ chit chat”.

Accompanied by expletives and descriptions of Ms Jackson’s physical attractions, this was certain to provoke ridicule.

Mr Heerey said this had ­compounded the serious matter of the 2008 industrial relations conferences.

When The Australian’s revelations of these conferences were raised on the ABC program, Mr Lawler gave a false narrative of the chronology.

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Mr Lawler had also secretly recorded conversations with Justice Ross, and Mr Heerey found that Mr Lawler had “on balance” committed offences under the Surveillance Devices Act.

Recording his colleagues was unlawful as well as dishonourable, Mr Heerey said.

Senator Cash tabled the report in parliament yesterday, with some redactions of information from Mr Lawler’s psychiatrist.

Mr Heerey found that Mr Lawler’s long periods of absence from work on sick leave since 2014 were reasonable given his long mental illness of “considerable ­severity”.

He rejected the assertion that Mr Lawler was not sick if he was doing so much work on Ms Jackson’s legal matters. There had been no cap on Mr Lawler’s sick leave.

Mr Heerey said Mr Lawler had attracted media attention because of Ms Jackson’s high profile.

“He would not have drawn so much media attention had he been aiding his sister while she was involved in an unexciting building dispute”.

Nor was it relevant, Mr Heerey said, how much Mr Lawler was paid.

Mr Heerey reported that he had spoken with Mr Lawler’s psychiatrist, Irwin Pakula, who had said he was aware that Mr Lawler was doing a considerable amount of work with Ms Jackson’s case, and that he was, “albeit unwisely”, involved in her litigation.

This was one of the “stressors” that had hindered Mr Lawler’s ­recovery.

Mr Heerey said Mr Lawler had taken further sick leave from ­October 27 last year until February 26 this year. Mr Heerey had offered Mr Lawler a chance to respond to his draft report, sending it to him on January 19. The draft recommended adverse ­action against Mr Lawler on two counts.

On January 27, Mr Lawler emailed Mr Heerey to say he planned to resign, and his condition prevented him from any oral presentation and he would respond when he had sufficient strength.

The previous day, January 26, Mr Lawler had driven from NSW to Canberra where he appeared in the ACT Magistrates Court on ­behalf of a friend who faced charges over allegedly threatening a woman over several years.

Mr Lawler gave a lucid report to the magistrate of the work he had done on the defendant’s behalf in preceding weeks. He offered bail and said the defendant could live with him and Ms Jackson at their Wombarra home.

Mr Heerey found that there would be logic in the aftermath of the Lawler case, in extending the provisions of the Judicial Misbehaviour and Incapacity Act to cover termination proceedings against people such as Mr Lawler who were not judges but hold ­office under similar terms.

In regard to the primary misbehaviour in the 2008 conferences, Mr Heerey said in August 2008 then vice-president Lawler had convened and conducted two conciliation conferences at which Ms Jackson appeared for one of the parties. It was five months after the start of their personal ­relationship, “but there was no disclosure to the parties or the AIRC of this obvious conflict.

“The subsequent revelation of this conflict of interest would have been highly damaging to vice-president Lawler’s reputation and that of the AIRC.

“(His) conducting these conferences while concealing, it must be said deliberately and consciously, his relationship with Ms Jackson was misbehaviour of the relevant kind.”

Mr Heerey said Mr Lawler had used moral authority “as a senior member of the AIRC to summons the parties to a formal conference at the commission’s premises when he had an undisclosed personal relationship with a representative for one of the parties’’.

“The … episode does provide a reasonable basis for parliament considering a request for removal on the ground of proved misbehaviour,” Mr Heerey reported.

Regarding Mr Lawler’s approach and participation in the Four Corners program, Mr Heerey reported: “Behaviour of a standard far below that which the Australian public is entitled to expect from a person holding his office.

“Amongst other things, he unlawfully recorded and broadcast a telephone conversation with Justice Ross.

“In doing so, he displayed personal ingratitude and disloyalty.

“This conduct was dishonourable. Further, he demon­strated feelings of suspicion and hostility towards trade unions in general, a category of litigant likely to be regularly engaged in matters before the FWC.”

Jared Owens reports: Opposition employment spokesman Brendan O’Connor cited Mr Heerey’s report as a vindication of the Fair Work Commission’s conduct.

“We support the conclusions by the former justice of the Federal Court in that there were grounds for Mr Lawler to be dismissed,” Mr O’Connor said in Canberra this morning.

“In doing so there are a number of matters that have arisen including the conclusion by the report that vindicates the conduct of the Fair Work Commission and in particular the handling of the matter by President Ross, and I think that’s an important matter given some of the … remarks of the government on that matter.”

Mr O’Connor said the opposition would have more to say after the government indicates how it will fill Mr Lawler’s position.