Aaron Forster v G4S Custodial Services Pty Ltd

[2011] FWA 6671

[2011] FWA 6671

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Forster
v
G4S Custodial Services Pty Ltd
(U2011/8439)

Stuart Keele
v
G4S Custodial Services Pty Ltd
(U2011/8441)

Martin Marley
v
G4S Custodial Services Pty Ltd
(U2011/8443)

Richard Azzopardi
v
G4S Custodial Services Pty Ltd
(U2011/8455)

COMMISSIONER GAY MELBOURNE, 29 SEPTEMBER 2011

Termination of employment - arbitration.

[1] The following decision, now edited and annotated, was given in transcript at the conclusion of proceedings in Melbourne on 8 September 2011, where Mr R Rendell of the Community and Public Sector Union (CPSU) appeared for Richard Azzopardi, Aaron Forster, Stuart Keele and Martin Marley (the applicants) and Mr A Dewsnap appeared for G4S Custodial Services Pty Ltd (G4S, the respondent).

[2] “As I have earlier indicated, in giving a decision in this matter it is not my intention to deal exhaustively with all the contentions, but I will endeavour in very much a summary fashion to set out the basis upon which the conclusions have been reached.

Preliminary Findings

[3] It is necessary to say some things by way of introduction and to come to a conclusion about various initial matters prior to considering the merits of the four applications made pursuant to Part 3-2 of the Fair Work Act 2009 (the Act). It is the case that I have to come to a decided view as to whether a matter is within time, whether the person is protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code or whether the dismissal was a case of genuine redundancy. The last two aspects form no further part of my considerations, because on the facts of this case they have no application.

[4] Rather, I have to consider whether the applicants in this case were protected from unfair dismissal and also form a view in relation to section 396(a), that is the time aspect. It plays no part. In relation to the protection from unfair dismissal, I have to ensure, because the Act requires me to do so, that s.382 is satisfied and I say it is satisfied because there is an enterprise agreement underpinning the application. The modern award also has application and there is no difficulty by way of earnings referable to s.382(b)(iii).

The Applicants

[5] It is necessary then to turn to the applications proper and they are made under s.394 of the Act which provides for remedies to be available to employees who do come within its jurisdiction. It is, as has been pointed out to me, a well trod path which I am required to follow in considering whether there is harshness or unjustness or unreasonableness. This is because a person has been unfairly dismissed pursuant to the Act if I am satisfied that not only has the person been dismissed but that the dismissal was harsh, unjust or unreasonable.

[6] By these applications Messrs Azzopardi, Marley, Forster and Keele seek orders from Fair Work Australia providing for their reinstatement to the positions that they had occupied at the G4S Custodial Security Pty Ltd (G4S) Melbourne Custody Centre (MCC) which G4S operates for Victorian Police. Mr Azzopardi was engaged as Shift Manager and had been employed in similar custodial officer capacities for some 12 years, not all with G4S, some with its predecessor, GEO Group Australia, as with the co-applicants, fellow Custody Officers Mr Marley for some 15 months or so, Mr Forster for some eight years, although only latterly G4S, as is the case of Mr Keele.

The Melbourne Custody Centre

[7] I will say something about the MCC. The Centre is located under the Melbourne Magistrates Court and, I was told, is the place to which all prisoners arrested by the Victoria Police, one expects with some few exceptions, are taken. G4S received and commenced its contract to operate the custody centre with effect from March in 2010. The centre is intended to house - perhaps this is more true theoretically - some 67 prisoners for short terms, either those arrested for drunkenness or some other summary infraction, or for those attending court and requiring short term accommodation. The underground MCC (and the submissions were not controversial about these things), is not designed for longer term prisoner accommodation, notwithstanding the fact that it is put to those uses it seems, and there is said to be a lack of yards, air, natural light, such as to limit the proper use of multi-prisoner cells for longer terms.

Those in Custody

[8] Many inmates are said to be suffering shock and distress from the indignity of their initial search, uncertainty, fear of their close incarceration and from the effects of substances no doubt and various incapacities and debilitations. The combination of some of those things are very likely to have affected, the evidence reflects, the prisoner involved in this case. Such prisoners, one of course is conscious, pose formidable challenges to the staff via the behavioural consequences of the various emotional and other forces adverted to above. Fundamental to the contract and to the important task, and the public interest in the task being properly carried out, are the various prisoner handling protocols which are required of the contract holder by the State of Victoria and of course by G4S’s staff.

The Investigation

[9] Before considering and commenting upon the narrative involved in this case I do propose to say something about the submission made in relation to the investigation. I was certainly grateful to the advocates for the speedy preparation of their submissions presented so quickly after the evidence had been given, which itself required them to no doubt condense and truncate what otherwise might have been expanded upon.

[10] There is a close criticism made of the investigation conducted by the General Manager of the Centre, Mr Spadano of G4S, and I am going to comment about that. I do not propose to criticise the investigation. My principal concern is not to judge the investigation against some standard of excellent investigation but rather to have regard for the potential, intentional or otherwise, for it to visit unfairness upon the applicants or to reflect a determination on the part of the employer to in some way discriminate or deal wrongly and unfairly with the employees.

[11] It is said there was a need for an independent investigation. I certainly do not accept that; in the sense of an outsider or specialist invigilator being brought in to deal with these employment related matters. It is true though that very important issues were at large in this case which, I can understand, would ground a submission to that effect. A range of potential conclusions are capable of being drawn from the events in this matter, but for my limited purposes, and notwithstanding the terms used below, I restrict my role to consideration of the employment related aspects agitated in this case. As to the enquiries conducted it is my prime concern whether a fair inquiry was conducted and was sought to be conducted by the employer when fairness will, in part, require it to be thorough and to be objective.

[12] Having regard to the investigation is but part of Fair Work Australia’s function. In my view my role, and in a more decisive sense, is to consider the facts on the basis of all the information before me at arbitration as to what actually occurred, leading to a finding as to what actually occurred relevant to the ongoing employment of those involved and to the statutory injunction that the employees are, under the law of Australia, not to lose their employment harshly, unjustly or unreasonably. It is a relevant point properly raised by Mr Rendell for the applicants in his strongly argued case that the applicants were not initially shown the closed circuit television tape. Whatever one might say about this, of the legitimacy for the employer of first asking for the employees’ unaided recollection, it is likely to be thought important for employees to ultimately be shown the closed circuit television tape in which they feature.

[13] One is mindful that sometimes a portion of a tape is shown to assist an employee in establishing time, place and context of an event distant in time itself. Then the employee is required to be responsive and truthful in their recollections once their memory has been so assisted, if indeed they have any memory of the events which followed and are recorded on some tape. In any event, and that is not discounting any procedural imperfections in this respect, the applicants have seen, and again saw in the hearing of this case, the closed circuit television tape of the occurrences prior to giving evidence in the box.

[14] The resulting evidence means that this is a classic instance of a case which requires some evidence to be entirely preferred over other, by reason of the total irreconcilability of one part of the evidence as to another.

The Prisoner

[15] I will say something by way of outline of the narrative. The position is, and I am going to do this very briefly and not attempt to do it exhaustively, that the prisoner in question was a demanding, unruly, troubled person who had made, whilst not threatening in any overt sense, not just a pest of himself throughout the shift involved, but also a series of unreasonable and repeated demands on the time of the staff. He certainly must have tried their patience and their professionalism. Custody Officer Coates gave evidence of the number of times that she, throughout the shift, spoke to the prisoner in question in an attempt to explain to him why some of his very personal requests and requirements were not going to be met and could not be met, but equally how some were to be met later in the shift or at some later point. Custody Officer Coates had in this way momentarily settled the prisoner down, only to have him make the same requests and require the same mollification shortly afterwards. That occurred repeatedly, in the evidence of Officer Coates and I have accepted her evidence in that regard.

The Event

[16] The evidence is that the prisoner had thrown food at the closed circuit camera in his cell earlier in the day at various times when he had food substances to throw and again when the prisoner was served his evening meal, at or shortly after five o’clock. It is said for the applicants that because there was food on the lens of the camera and by reason of the prisoner’s unruly behaviour, or noisy and demanding behaviour having repeatedly drawn attention to him, that a group of G4S employees, Custody Officers all, was assembled to effect an entry to the prisoner’s cell for the ostensible purpose of permitting the lens of the camera to be cleaned. From the point of view of Mr Azzopardi and from Mr Azzopardi’s evidence, because he was going to take a weapon, to whit, a mop, into the cell to clean the lens, it was necessary for - and one regards this as entirely unremarkable - a show of force to be mustered. Accordingly an ensemble of six (the applicants with Custody Officers Cumes and Crispin Lee) gathered to go into the cell and allow Mr Azzopardi to safely show his back to the prisoner while he cleaned the lens with the mop.

The Applicants’ Version

[17] As Mr Azzopardi’s evidence would have it, because the luncheon food was caked on the lens it was necessary to hold the wet mop immobile against the lens to allow, as I understood the logic of his evidence, moisture to soak into the food which had baked on the camera lens. It is not relevant, but Mr Azzopardi’s other principal concern was cleaning the walls or other parts of the cell. But whilst that was an ancillary purpose, the principal purpose was to clean the lens, because it is necessary for the prisoner to be capable of being ‘surveilled’ in the normal course of their custody. So for that reason, as is central in the evidence of Mr Azzopardi, the mop was not swished around or ‘squiggled’, to use the very good vernacular of Custody Officer Cumes, of which more will be heard, but rather, was held in a still, constant way against the lens.

[18] With Shift Manager Azzopardi holding the mop motionless to the lens, two of the other officers restrained the prisoner, one at each shoulder, each having a free arm. By the account of the group (all gave evidence) the fourth officer held or assisted in restraining, (“passive restraint” was an expression used), the prisoner by placing his hand in the prisoner’s lower back region as he was held down low, face forward, over a side table or bench which seems to have been built into the cell. The applicants’ evidence was that this was the situation whilst Mr Azzopardi held the mop against the camera for some 25 seconds.

[19] In the case of the applicants, upon entry Mr Azzopardi forcefully told the prisoner to sit down. It was his request not being acted upon by the prisoner which justified the conclusion, then said to have been reached by Mr Azzopardi, that the prisoner required restraint. The three compatriots then restrained the prisoner in the way I have just attempted to outline, by forcing him face down on the low lying table or desk built into the side of the cell. As set out above while this was done Mr Azzopardi then held the mop against the lens, withdrew the mop after some 25 seconds after which there was some cleaning effected of the walls and tidying up of the cell with a dust pan and broom, I think, and the group then made their exit.

The Alternative Version

[20] Against that is the evidence of Custody Office Cumes, that she attended with the group, went into the cell and saw that both the officers restraining the prisoner also each punched the prisoner more than once in the kidney region and in the case of one of the officers also in the stomach, at which point Custody Officer Cumes left the cell. She gave evidence that she was upset by what she had seen and absented herself on that account and went to get a bin or the dust pan and broom, some cleaning apparatus, and came back into the cell. The assault, or the forceful interaction, had then ceased and then she observed the prisoner was kicked a total of three times in a somewhat desultory fashion by one of the quartet after being glared at by the two shoulder/arm restraining Custody Officers.

[21] Custody Officer Crispin Lee was just outside the cell and did not see the events inside. His evidence is however that after several decades’ experience in the New Zealand police force he knows the sound of a blow landing on a body. His evidence was that he recognises that sound and he also recognises the sound that he postulated very frequently if not inevitably accompanies it, and that is, the responsive sound made by the person who is receiving a blow. Mr Lee’s evidence is that that was the sound he heard from just outside the cell, such that his evidence was he had, at the time and subsequently, a conviction that an assault had occurred.

[22] During this period Officer Coates had been asked to staff the control station wherein a range of television monitors set out what was happening in this area of the Custody Centre and from where she saw the group go down the corridor and enter the cell. The evidence of Custody Officer Coates is that she perceived a purposive intent on the part of the group attending the cell, such as to have had her reach a conclusion that the prisoner was to receive, in her term, “a clipping”.

[23] Custody Officer Coates did not see what happened inside the cell while the lens was blocked by Shift Manager Azzopardi’s inert mop. Her evidence was though that at the conclusion of the event her monitor was quite clear and clearer, in fact, than the tape recording which of course I have seen. I will soon have something to say about what in my view is revealed by the tape, but, for Custody Officer Coates, what was revealed on the security booth’s television monitor in the aftermath, was that the prisoner, who was seated when the group left (when vision was first again available of him), sat motionless for some time with his head slumped. He then stood up, is seen to walk about the cell and go and look at one side of his face in the mirror or the tin by which prisoners can look at themselves and also to lift up his clothing and look down the neck of his shirt, and lift up his shirt, to inspect his midriff area.

[24] The evidence of Custody Officer Coates is that this was all reflective in her view, of someone who had suffered an unhappy event in the cell, a physical event. Custody Officer Coates’ evidence then was that the prisoner buzzed the control station on some intercom device to complain of what had just happened to him. The prisoner sought to speak with “the boss”, or the head of the outfit, because he wanted to make a complaint. Mr Azzopardi had by then joined Ms Coates in the control booth and responded to this effect; that he was the boss, saying, “I am the boss, what’s your complaint?”. The prisoner, in Custody Officer Coates’ evidence said words to the following effect, “You’ve hurt me, you can’t treat people like this.”. To which the response from Mr Azzopardi was, “I was down in the cell and nothing happened to you.”. Officer Azzopardi says that this dialogue did not occur and for that reason no report of what, in his evidence was a non-incident, was made.

The Obligation to Report

[25] I interpolate to say it is the case of course, and this was certainly stressed in the presentation by G4S, that when events of this sort occur or even approximating such events, such as the allegation of a use of force, there are mandatory reporting requirements which are so obvious that I will not bother repeating them, but they are required to be faithfully made. It seems that in actuality the custom and practice is that the fact or otherwise of the Shift Manager reporting or not reporting an event serves as a trigger to equivalent reporting or non-reporting for other officers. What that means is if the Shift Manager does not make a report, the others do not. I think it is right to say under the G4S work-rules when something of a noteworthy sort occurs, certainly where there is “a use of force”, a term about which I heard a range of meanings, there was a responsibility inhering in each officer to make a report. Custody Officers each have a special notepad for this purpose.

[26] Should such a report be made various predictable things mandatorily happen. The Operations Manager would see the report and the General Manager would see it. There is also an obligation for the Ombudsman to be advised I think - I am not sure about that, I do not make a finding to that effect - and for the tape to be secured and I think also a nominated police person is required to review what had occurred. So, in the official life of the MCC those things are all taken not just very seriously, that is obvious, but that the consequences mandatorily cascade when people respond and give effect to their obligation to report such events.

[27] But of course nothing happens if nothing is reported. In the position of Custody Officer and Shift Manager Azzopardi there was no need to do this (lodge a report) because there had not been a ‘use of force’ and there had not been a prisoner complaint made, contrary to what I have been latterly commenting upon by reference to Custody Officer Coates’ account of the narrative.

Post Incident

[28] The position is that then normality, whatever that might be, resumed. General Manager Spadano hears, some six or eight weeks later, that there is something to be heard; so there is some chatter about something having happened. General Manager Spadano makes it his business to have the officer he understands to be involved advised that he would like to speak to that person. That person was Custody Officer Cumes.

[29] Custody Officer Cumes only speaks with the General Manager. She tells him that something did happen and that it greatly troubled her; it had upset her, that there had been an assault in her view on the prisoner, that he had been punched and he had been kicked. The Custody Officer is asked to set that out. When she does so General Manager Spadano puts himself on inquiry and speaks with other people, which now has the point of the narrative back at the summary that I had given earlier, where a criticism is made by Mr Rendell that there had not been sufficiently - well, there had been an imperfect investigation conducted.

Specificity

[30] Just in case there is any vagueness in the identification of the people involved in the various events, that is Custody Officers Azzopardi, Marley, Forster and Keele, I would not want it thought there is any imprecision in my understanding of these things. I have not, as I have earlier said attempted to be overly forensic. It is said and I have accepted that the officers holding the shoulders of the prisoner were Officers Forster and Keele.

The Tape

[31] I am not going to comment about all the evidence, but I do want to comment about the proposition that on a reasonable view the tape reveals someone mopping the lens with the purpose of cleaning it. In my view, and members of this Tribunal are invited frequently to inhabit the real world, there is something to be said from the evidence that there is entirely insufficient ‘squiggling’ of the mop, and that is to say, in my view the tape discloses that the mop was held against the lens and there is a lack of movement of the mop which would be reflective of it being used for the purpose of cleaning the lens, even allowing for an initial soaking inaction.

[32] I have also formed the view that it simply is not the case that there was a requirement to deal with food baked on the lens in the way suggested, because, regrettably for the applicants, the tape reflects that, although the vision is not very, very fine (it is not perfect), one can clearly see and make out the cell and people in it prior to the arrival of the group and what they are doing, notwithstanding that there had been some earlier food stuffs and substances thrown at the camera lens.

Conclusions as to the Evidence

[33] Where the evidence of the applicants conflicted with that of Officers Cumes, Lee and Coates, I have not had any reluctance in forming the view that the evidence of Officer Cumes, Lee and Coates must be accepted. The logic of what I have been told, and the images recorded on the tape, impinge very forcefully to require one to come to that view.

[34] I am not going to make detailed findings in relation to demeanour, it is unnecessary to do so, but I found Officers Cumes, Lee and Coates to be conscientious in their giving of evidence. I do not want to prefer one over the other as to do so is not really my purpose. I have thought that Officer Cumes presented as a witness of truth in every respect, in part because one is well aware of the considerable difficulties and norms of behaviour which, again in the real world, can affect employees, nowhere it is likely more so, than in this specialised employment where the very safety of the officers is contingent on their unwavering support and presence for each other. One understands such an ethos. I have not accepted a contrary view, not supported in any detailed sense, that Officer Cumes had some reason, some axe to grind, such that she would perjure herself in the very substantial way that would be necessary for her to have done if that construction were to be adopted.

[35] I will briefly say something about Custody Officer Coates, (who it seems to me is very likely to inhabit the real world all the time), and that is, that her experience was important and allows me to accept her conclusions where otherwise one might have some reticence, that is, as to the purpose of the touring party on the occasion in question. Custody Officer Coates was heard also to acknowledge that she herself had thought that the prisoner might have required “a clipping”. But Officer Coates’ evidence to that affect was put in an entirely ironic way, because it was her evidence that, of course, one could not do that. I think in fact that in an entirely non-academic way, Custody Officer Coates exemplified a recognition of the care and patience that these prisoners so frequently require. It must be a lot easier to comment about that obligation than it is to actually give proper effect to it.

Findings

[36] So, insofar as Messrs Azzopardi, Marley, Forster and Keele are concerned there is no doubt in my mind that there are real pressures which, on this occasion, seem to have overborne them. It is the case that I must make findings as a matter of jurisdictional fact in the operation of section 387 of the Act because when a member of Fair Work Australia is considering whether to be satisfied that a dismissal was harsh, unjust or unreasonable, what must be taken into account is, firstly, whether there was a valid reason for the dismissal related to the person’s capacity or conduct, in this case conduct.

[37] There is nothing theoretical about this; the authorities require a member to make, as I have said, as a matter of fact, a determination as to whether the event complained of, or the root cause of the claim by the employer that misconduct has occurred, actually occurred. If the act complained of, that is the root cause, did not occur, then there is no misconduct. One understands then there has to be a proportionate penalty and I will come to those things. In this case I have to come to a view in considering whether G4S had a valid reason for termination, whether the conduct complained of by G4S actually occurred. Because I have accepted the evidence of those officers that I have nominated, as against the applicants, in my view there is no doubt on the balance of probability that the activity, the actions complained of in the cell, and subsequently against the denial of Shift Manager Azzopardi that his conversation with the complaining prisoner occurred back in the control booth in the manner outlined, did occur, and I so find.

The Degree of Misconduct

[38] I will say something about those events relevant to the section and the conclusion that was reached by G4S. In my view by any test, serious misconduct leading to a valid reason on this occasion occurred. Such conduct warranted G4S to reach a range of conclusions that its policy had been disregarded and that of course itself reflects some misconduct by the non-reporting of the event I have found did occur and that the - this is the third element of misconduct - that the accounts subsequently given to the employer were false. So a range of findings are necessarily made and they are sub-consequences one might say. All these events reflect serious misconduct in my view. The central element though of justifiable causation in the dismissal was not those peripheral failures, they are all there to be criticised no doubt, but it was the acts engaged in that cannot be forgotten for a moment and they affected a person requiring dispassionate and objective treatment as the officers went about the performance of their decidedly difficult and challenging vocation.

[39] To give vent to the frustrations with the prisoner in the fashion so clearly evidenced in this case was, in my view, entirely avoidable. Unlike many events, it simply didn’t need to happen and it was very wrong.

[40] Section 387(b) requires me to form a view as to whether the person was notified of the reason and I find that the applicants were notified. They were given an opportunity to respond to any reason. I do not say it was an ideal opportunity and I have already tried to deal with that. In a perfect investigation the employee might have been shown the tape, ultimately in its totality; so there can be criticisms along the way. By this I am again alluding to the likelihood that it may have been preferable for the time and place to have been revealed to them by the showing of part of the tape and then drawing the person, having someone respond, given there is an obligation to respond truthfully to the employer. So a little bit more of the tape can be shown, a response sought, and so on, to give someone really every opportunity to be reminded. And of course a person can rightly be held to account for all their responses.

[41] There was no unreasonable refusal to allow one of the applicants to have a support person present, which is the s.387(d) point. I think this case reflects a conduct matter, but one might say it is an unsatisfactory performance matter. In any event this is not a question, this is likely to be not an event which calls up s.387(e), so it is not an unsatisfactory performance issue where the matter of previous infractions is relevant because, ever so regrettably, whatever might be said about the imperfect performance reflected in the employment record of Shift Manager Azzopardi, detailed in the evidence, but not here canvassed, it is very likely this was the first official occurrence for the other employees of a conduct related act. Section 387(f), the size of the employer’s enterprise, and s.387(g), I do not think they are relevant. As to any other matters, the s.387(h) rubric, I have endeavoured to highlight all the matters I have considered relevant.

[42] For those reasons, in my view, the conclusion must be reached that, given the existence of a valid reason, the termination of the applicants’ employment was not harsh, unjust or unreasonable and for that reason each of the applications has to be dismissed. An order to that effect will issue in respect of each of the applications very shortly. I now adjourn.”

[43] Since preparing these reasons for publication I have come to realise that one part of the evidence upon which I had also placed reliance on 8 September was inadvertently omitted from my extempore decision. In short, it was this.

[44] As the group of Custody Officers proceeded to the prisoner’s cell one of the applicants was heard by Officer Cumes to say, words to the following effect, “Let’s sort out this peanut”. I thought this to be unlikely to refer to a passive-restraint mission where the sole purpose, given the prisoner had not earlier exhibited violent behaviour, was to cleanse the camera lens.

[45] Orders were issued on 8 September 2011 [PR514387, PR514388, PR514389, PR514890] dismissing the applications.

COMMISSIONER

Appearances:

R Rendell of the CPSU, the Community and Public Sector Union, appearing for the applicants.

A Dewsnap appearing for G4S Custodial Services Pty Ltd.

Hearing details:

2011.
Melbourne:
September 6, 7, 8.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR515084>