Ainsley Campbell v Serco Australia Pty Ltd

[2021] FWC 2865

[2021] FWC 2865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ainsley Campbell
v
Serco Australia Pty Ltd
(U2020/12069)

COMMISSIONER WILLIAMS PERTH, 31 MAY 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mr Ainsley Campbell (Mr Campbell or the Applicant) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Serco Australia Pty Ltd (Serco or the Respondent).

[2] At the hearing of this matter, evidence was given by Mr Campbell and Mr Julian Grill (Mr Grill). For Serco, evidence was given by Ms Jody Weston (Ms Weston), the People and Capability Manager of Serco Justice and Immigration and Mr Adrian Rodgers (Mr Rodgers), Serco’s General Manager of the Christmas Island Immigration Detention Centre.

Factual findings

[3] By way of background, Ms Weston explained that the expression “immigration” within the business of Serco in Australia refers to a number of immigration and detention facilities nationally. They include in Western Australia:

•  Perth Immigration Detention Centre (PIDC);

•  Yongah Hill Immigration Detention Centre (YHIDC); and

•  Christmas Island Immigration Detention Centre.

[4] Whilst the physical premises that house persons detained by the Commonwealth through its Department of Home Affairs (the Department) are owned or leased by the Commonwealth, Serco has the commercial contract for the staffing and operation of the Immigration Detention Facilities. This commercial contract requires Serco to employ a broad range of employees, ranging from Detention Services Officers to Health and Wellbeing Professionals, to perform the services at each facility.

[5] The terms and conditions upon which Serco provides services to the Commonwealth Government are included in a range of commercial contracts and agreements. These contracts describe the responsibilities of Serco and its employees whilst at each of the Immigration Detention Facility sites nationally.

[6] As the Commonwealth Government owns or leases the physical premises, every Serco employee must obtain the consent of the Commonwealth to be present on any Immigration Detention Facility. No person other than an approved individual can work at or is permitted to enter an Immigration Detention Facility (other than detainees).

[7] Mr Rodgers explained that the commercial contract between Serco and the Department is described as the Immigration Detention Facilities and Detainee Services Contract (the Services Contract).

[8] Whilst it is the responsibility of Serco to recruit, train, and employ suitable persons to work in each Immigration Detention Facility, the Department places a number of requirements on Serco to ensure that persons employed or engaged by Serco meet the requirements of the Department. These requirements include a range of preconditions to recruitment involving police and probity searches. The Department also closely monitors the performance of Serco in terms of the requirements of the Services Contract. This monitoring can include situations where Serco is required to report matters to the Department relating to individual employees and any incidents that are of potential concern to the Department and the persons who are detained within the Immigration Detention Facilities.

[9] In addition to the requirements placed on Serco as the service provider with respect to the suitability or otherwise of personnel, the Services Contract at clause 22.6 provides as follows.

“The Department may, in its absolute discretion, give notice requiring the Service Provider to remove any Service Provider Personnel from work in respect of the Services. The Service Provider must promptly arrange for the removal of such Service Provider Personnel from work in respect of the Services and their replacement with personnel acceptable to the Department and at no additional cost to the Department.”

[10] The Services Contract is a commercial in confidence document. Mr Rodgers provided a copy of clause 22.6 from the Services Contract.

[11] The Department monitors all aspects of the service levels at Serco and, from time to time, makes enquiries into the suitability or otherwise of Serco employees to be permitted to enter Immigration Detention Facilities. The Respondent submits that, in many cases, Serco is not informed in advance of the concerns of the Department. The Department is not obliged to provide Serco with access to any information that the Department may be relying upon to assess suitability of persons to enter a detention facility. The Department also, from time to time, requires information relating to individual incidents and/or the involvement of Serco employees in any incident that takes place at an Immigration Detention Facility.

[12] In circumstances where the Department forms a view that it is not appropriate that an individual remain permitted to access an Immigration Detention Facility, and that person is employed by Serco, the Department issues a letter to Serco which is described within Serco as a “withdrawal of access” letter. Upon receipt of the “withdrawal of access” letter, Serco is compelled under the terms of the Services Contract to “promptly arrange for the removal of (the Serco employee) from work with respect to the Services provided by Serco at the Immigration Detention Facility”.

[13] With the issuing of a withdrawal of access letter, the employee that is the subject of the notice cannot be permitted by Serco to access to any Immigration Detention Facility site nationally. If Serco was to not comply with the notification, it would be in breach of the Services Contract and face potential penalties under the Services Contract. These penalties potentially include the revocation of the right to provide the services at the Immigration Detention Facility.

[14] Mr Campbell was first employed by Serco in October 2009. His employment was terminated on 18 August 2020.

[15] At the time of his dismissal, the Applicant was employed as the Facility Operations Manager at the PIDC operated by Serco. He had been employed in this position since 2015.

[16] The offer of employment for the position of Facility Operations Manager, 1 dated 23 November 2015, and accepted by Mr Campbell on 22 December 2015 states, amongst other things, that:

“The Company may require you to undertake different work assignments or job responsibilities during the course of your employment with the Company. In such circumstances there will be no reduction in your remuneration.”

and that:

“The location for this position is Perth IDC, Western Australia, but you may be required to temporarily or permanently work at other locations within a reasonable commuting distance. You acknowledge and agree that you may be required to regularly travel away from such location in order to effectively carry out your responsibilities.”

[17] On 28 November 2019 Mr Campbell received a first and final warning letter 2 in respect of eight allegations, set out below.

“ Allegation 1 - that you were negligent in your duties by exiting the Centre for fifteen (15) minutes without having the radio on your person and being in a position to respond should an incident occur thus placing the safety and security of the Centre at risk.

Allegation 2 - that you failed to exercise the Department’s duty of care during the daily operations when you exited the Centre for fifteen (15) minutes.

Allegation 3 - that you failed to comply with the security screening procedures when entering the Centre and as the senior manager on site, you failed to ensure the reception post was appropriately staffed to ensure security screening procedures could be undertaken. Allegation 4 - you failed to wear the radio which is personal protective equipment (PPE) on your person at all times thus failing to comply with the Dress, Appearance and Uniform Policy and the requirement to wear PPE whilst carrying out your duties in accordance with health and safety requirements, thus failing to maintain a safe and healthy workplace. In responding to this allegation, you confirmed you left the radio unattended briefly although you had full line of sight.

Allegation 5 - you failed to ensure secure radio transmissions were conducted at all times by not wearing the radio ear piece when staff were attempting to communicate with you during shift thus breaching Occupational Health and Safety rules and internal directives.

Allegation 6 - you failed to comply with the requirement to have the radio on your person at all times and as a result of not having the radio on your person at all times you have lost; or misplaced the radio that was assigned to you.

Allegation 7 - you failed to comply with and maintain security integrity when you brought into the Centre a personal mobile phone thus breaching Serco and ABF policy that confirms mobile phones are a controlled item and are not to be brought into the Centre without permission

It is noted you received an email from ABF Superintended Sharan Brown on 7 October 2019 stating “until there is a national directive regarding Serco having personal phones in the Centres, I am not able to approve your application based on the reasons cited below. I am happy to reconsider if there are extenuating circumstances but this would be for a specific event, not as an ongoing approval.”

Allegation 8 - you compromised the safety and security of the Centre by failing to comply with the security screening procedures and entering the Centre with a personal mobile phone to which you were not authorised to do.”

[18] The letter included a series of actions Serco required Mr Campbell to follow, as below.

“ Actions required by you

Serco considers the impact of your actions to be serious and requires you to comply with the following:

1. When on duty, you are required to comply with the Serco Australia Dress, Appearance and Uniform Standard Operating Procedure AUS-PPC-ALL-SOP in wearing the radio and ear piece on your person at all times.

2. You are required to comply with policies and procedures to ensure reception is appropriately staffed to ensure all persons entering and exiting the Centre are screened in line with the Enhanced Screening procedures.

3. You are required to comply with the role requirements as set out in the Facility Operations Manager (FOM) Success Profile.

Action: Confirm your acknowledgement and understanding of the FOM role to the Security and Risk Manager Johnny Koh no later than 4pm on 11 December 2019.

4. You are required to comply with the Enhanced Security Screening Policy and Procedure.

Action: Confirm your acknowledgement and understanding of the Enhanced Security Screening Policy and Procedure to the Security and Risk Manager Johnny Koh by Wednesday no later than 4pm on 11 December 2019.”

[19] On 24 April 2020, Serco sent Mr Campbell a letter saying he was suspended from duty following allegations made by Australian Border Force regarding his management of a detainee at the PIDC on the previous day, 23 April 2020.

[20] Mr Campbell remained suspended until the termination of his employment in August 2020.

[21] After initial investigations, on 19 May 2020, Serco sent Mr Campbell a notification of a formal disciplinary meeting. 3 The letter explained that at this meeting Serco would be putting to him various allegations, these are set out below.

“1. At approximately 2209hrs you authorised the released of a detainee from involuntary isolation in the High Care Accommodation (HCA) area and placed her in the visits room without obtaining the required authorisation thus failing to comply with the Detention Services Manual - Detainee Placement - Closer Supervision and Engagement of High Risk Detainees (DM-3301-Operational Procedure) and supporting Serco policy on Detainee Placements.

2. In moving the detainee from the HCA to the visits room you failed to comply with instructions on the requirement for the detainee to be placed in the HCA.

3. You failed to comply with written email instructions when you returned the mobile phone to the detainee in the HCA. Australian Border Force Inspector Tony Principe sent an email to PIDC Operations Managers on 23 April 2020 at 1616hrs advising that the detainee is not to have access to her mobile phone as a result of her actions in having spat on an officer and the risk to herself self-harm threats made and having been placed on a Psychological Support Program (PSP) which required her to be placed in a sterile area for a period of time, furthermore that she was not to have any other items that may pose a risk to her safety.

4. You placed the safety, security and good order of the Centre at risk by your actions in moving the detainee from involuntary isolation in the HCA to the visits room and back to the HCA; and returning the mobile phone knowing there had been numerous recorded incidents captured in relation to the detainee's heighten ed, aggressive and abusive behaviour.

5. You used the release of the HCA as a punitive measure as a means of changing the detainee’s behaviour and in doing this you failed to comply with the Detention Services Manual - Detainee Placement - section 4.7.4 Closer Supervision and Engagement of High-Risk Detainees (DM-626-Procedural Instruction).

6. You were negligent in your duties and failed to give proper care and attention to your job when you did not seek clarification and/or obtain the required approvals in moving the detainee; and/or returning the mobile phone to the detainee as you were advised by FOM Talaepa of the incidents involving the detainee and that her mobile phone had been removed.

7. You disregarded the handover given to you by day shift FOM Talaepa to check your emails on any further instructions; and the Operations Manager handover sheet that captured numerous incidents involving the detainee on 23 April 2020 between 0600hrs and 1800hrs. In disregarding the handover, you failed to consider the seriousness of the detainee's behaviour and your duty of care obligations.

8. You failed to comply with written email instructions from the Centre Manager Adrian Rodgers that was sent to the Perth IDC Operations Managers on 23 April 2020 at 1536hrs advising not to give the detainee your time or the opportunity to take up your time and to let staff and DSMs deal with her as records indicate you had a total of eight (8) interactions with the detainee between 1800hrs on 23 April 2020 and 0600hrs on 24 April 2020 of four of these interactions took place after you became aware of the email instructions from PIDC Centre Manager.

9. You failed to maintain a safe environment for all those who work and live in the detention environment as your actions directly contributed to the detainee's heightened aggressive and abusive behaviour where she had further opportunities for self-harm.”

[22] The letter asserted that, because of the above, Mr Campbell may have committed breaches of discipline and breaches of various operational procedures, procedural instructions, and policies.

[23] Mr Campbell provided detailed written responses to the allegations 4 and participated in a disciplinary meeting regarding these on 28 May 2020.

[24] Mr Rodgers’ evidence was that on 23 July 2020 the Department served on Serco a notification that withdrew the ability of Mr Campbell to be present at any Department Immigration Detention Facility in Australia.

[25] The letter from Australian Border Force to Serco relevantly reads as follows,

“Removal of Service Provider Personnel

I am writing regarding the removal of Service Provider Personnel in accordance with clause 22.6 of the Facilities and Detainee Services Contract (the Contract).

As you would be aware, under this clause, the Department may, in its absolute discretion, give notice requiring the Service Provider to remove any Service Provider Personnel from work in respect of the services under this Contract Serco must promptly arrange for the removal of such personnel from work in respect of the Services and arrange their replacement with personnel acceptable to the Department at no additional cost.

I therefore request that Mr Ainsley Campbell be removed from Services under the Contract effective immediately. Could you please provide me with written confirmation that Mr Campbell has been removed from his duties under the Contract.

Could you also please confirm that Mr Campbell's physical access pass to any departmental premises is returned immediately, along with any departmental devices, information and credit cards.”

[26] Mr Campbell’s evidence was that he was told that Serco was not aware of the reasons for his site access being removed.

[27] Ms Weston’s evidence was that she was not advised by the Department as to the specific reasons for the removal of Mr Campbell from Serco Immigration Detention Facility sites in Australia. 5

[28] On 3 August 2020, Mr Campbell was advised by phone that Australian Border Force had permanently withdrawn his access to all Immigration Detention Facility sites. This was confirmed in a letter from Serco the same day arranging a show cause meeting.

[29] The show cause letter said Serco has been advised by the Department that his access to all Immigration Detention Facility sites in Australia had been permanently withdrawn and that, consequently, he was no longer able to fulfil the requirements of his role as a Facility Operations Manager

[30] The letter directed Mr Campbell to attend a show cause meeting as to why his employment should not be terminated.

[31] On 12 August 2020 Mr Campbell attended a meeting with Mr Johnny Koh (Mr Koh), who is the Security and Risk Manager of the PIDC and Ms Weston who was in attendance to take notes, regarding the show cause letter. Mr Campbell had also provided a letter with detailed arguments as to why his employment should not be terminated. 6

[32] Mr Campbell’s written show cause response stated he would be contesting the withdrawal of his access to Immigration Detention Facility sites using every means of appeal available to him. He stated it was in everyone’s best interest for him to remain employed while he sought an internal review of the decision to withdraw his access. His letter stated his preference was, that while he did this, to remain on paid leave while he concentrated on defending the decision to withdraw his access.

[33] He stated his second preference would be to remain employed within the immigration detention field but working on projects outside of the PIDC. He stated if Serco could not find employment for him in the immigration area he was willing to take on work in another contract provided that once his access to Immigration Detention Facility sites was reinstated he be allowed to recommence his employment at the PIDC.

[34] Mr Campbell’s response also proposed that if site access was reinstated, but not in a management role, he would be happy to consider coming back as an Officer conditional upon discussing appropriate remuneration.

[35] The next day 14 August 2020, the Applicant forwarded a copy of his response to the show cause letter directly by email to Mr Rodgers and explained that,

“Basically what I am asking for is that Serco keep in employed in what ever capacity, even on reduced hours, or on leave until I have the opportunity to appeal the decision by ABF to withdraw my approval to be on site.” (sic)

[36] Ms Weston’s evidence was that in preparation for the 12 August 2020 show cause meeting she printed out a list of jobs available within Serco in Western Australia and Christmas Island. This printout was from an internal database of positions available within Serco which is known as JobShop. Serco’s business in Australia is not exclusively involved in Immigration Detention Facilities, however this is the largest business unit.

[37] Her evidence was that she gave a copy of this list of jobs to Mr Campbell at the 12 August 2020 meeting. She recalls telling the Applicant to go into JobShop and review what suitable jobs may be available and let Serco know so they can help him through the application process.

[38] Her evidence was that she recalls Mr Campbell enquiring about possible alternative employment at the conclusion of the meeting. She says he said words to the effect that if there were to be another opportunity within Serco it would need to be of similar status and money. He indicated that the position would need to be in Western Australia as he had a young family to support. Ms Weston’s evidence was that, notwithstanding he had been stood down, Mr Campbell had access to JobShop using any computer.

[39] With respect to Mr Campbell’s evidence as to what he said at this meeting, Ms Weston denies Mr Campbell asked to be kept in employment in any capacity or even on reduced hours. She denies the Applicant indicated a willingness to accept any role.

[40] Mr Campbell’s evidence in reply to Ms Weston’s statement was that she did not provide any list of jobs to him at the 12 August 2020 meeting. Furthermore, he says Mr Koh at that meeting said he had been through a list of available jobs on JobShop and there was nothing available. 7

[41] Regarding these matters, Mr Grill’s evidence was that during the 12 August 2020 meeting, which he attended as Mr Campbell’s support person, neither Ms Weston nor Mr Koh handed any document to the Applicant. Further, his evidence was that there was no invitation by either Mr Koh or Ms Weston to the Applicant to go through any JobShop list to select roles that suited him nor was there any statement by Mr Koh nor Ms Weston that they would assist the Applicant with the application process.

[42] Mr Grill’s evidence in chief was that, during the 12 August 2020 meeting, Mr Campbell asked to be kept in employment in whatever capacity, or kept on reduced hours, and he did say that he was willing to accept any role.

[43] Mr Grill’s evidence was that Mr Campbell did not say that any other job opportunity with Serco needed to be of similar status and money nor that it needed to be in Western Australia.

[44] Mr Grill’s evidence in chief on these matters was not shaken under cross examination. 8

[45] Noting the conflict in the evidence between Ms Weston and both Mr Campbell and Mr Grill as to what was said and occurred during the meeting on 12 August 2020, I prefer the evidence of Mr Campbell and Mr Grill.

[46] Consequently, I find that during the 12 August 2020 meeting neither Ms Weston nor Mr Koh handed Mr Campbell a document which was a list of jobs on JobShop. Mr Campbell was not told by either Mr Koh or Ms Weston that he should go through JobShop to select roles suited for him nor was he told that they would assist him in the application process.

[47] I also find that Mr Campbell, consistent with what he said in his written response to the show cause meeting and later in his email to Mr Rodgers on 14 August 2020, asked Mr Koh and Ms Weston that he be kept in employment in whatever capacity, or on reduced hours and said he was willing to accept any role. Also, he did not say the role needed to be of similar status and money to his manager position nor that it needed to be in Western Australia.

[48] On 18 August 2020 10:25 a.m. the Applicant emailed Mr Koh as follows,

“I have been experiencing anxiety attacks about my situation.

I am making an appointment to speak with a medical professional and until I am in a better head space I will unable to attend any meetings.

I would like to use my available personal leave about my future prospects.” (sic)

[49] The same day at 11:57 a.m. Mr Koh responded acknowledging receipt of Mr Campbell’s email and explained as follows,

“For your information, Serco is now in a position to advise you the outcome of the process and had planned to arrange a meeting for Friday 21 August 2020 at 11am.

We note that you have indicated you are unavailable to attend any meetings at this point in time however your advice does not constitute medical evidence of a medical condition.

Should you be unable to attend the meeting for medical reasons please provide evidence in support of this.

If you prefer to receive the outcome in writing or via a telephone call in place of attending a meeting then please advise me no later than 5pm on Thursday 20 August 2020 of your preferred option. If you do not respond with a preferred option and do not attend the meeting on Friday 21 August 2020 Serco will provide you the outcome in writing.”

[50] Also, on 18 August 2020, at 2.08 p.m., Mr Campbell responded as follows,

“Your email is acknowledged. I will try to make the meeting on the 21st but I have so many emotions going through me at the moment. I have a medical appointment booked for Thursday the 20th and I may be able to provide a certificate after this date. If I can not make the meeting on the 21st I would like to postpone it until I feel able to attend as I definitely want to receive in person the outcome of this disciplinary process.

I am happy to use my personal leave to await this outcome.”

[51] Thirty-eight minutes later, at 2:46 p.m., that day Mr Koh emailed Mr Campbell advising that Serco had made its decision on the disciplinary matter and attached the outcome letter. Relevantly the outcome letter reads as follows,

“Re: Termination of employment

As you are aware the Department of Home Affairs made the decision to permanently withdraw your access to all Serco Immigration Detention Facility sites in Australia.

The effect of this decision is that you are no longer able to fulfil the requirements of your role as a Facilities Operation Manager (FOM). As a result, your employment with Serco is terminated effective immediately.

In reaching our decision to terminate your employment we have taken into consideration your response to the show cause meeting conducted on 12 August 2020.

Your employment will cease effective today with payment to be provided in lieu of notice.”

[52] The letter was signed by Mr Rodgers.

[53] The evidence is that Mr Campbell heard nothing more officially from Serco about his actions on 23 April 2020, which had been the subject of the disciplinary meeting on 28 May 2020. He was however dismissed on 18 August 2020 as a consequence of his access to Immigration Detention Facility sites being withdrawn.

[54] The evidence of Mr Rodgers was that decisions about the termination of Mr Campbell’s employment, either because of his actions on 23 April 2020 or separately because of the Department’s later advice that his access to Immigration Detention Facilities had been withdrawn, were decisions to be made by Serco’s national office. Notwithstanding this Mr Campbell’s termination letter was signed by Mr Rodgers.

[55] When cross-examined on the fact that since the disciplinary meeting on 28 May 2020 no action had been taken against Mr Campbell in respect of his actions on 23 April 2020, Mr Rodgers’ evidence was that he could not say this was because Serco had concluded there was no basis for imposing any disciplinary action or sanction but rather this was because the 23 April 2020 issues were unresolved. 9

[56] When pressed on this Mr Rodgers’ evidence was that it was his assumption that Serco’s national office was trying to deal with the issue of Mr Campbell’s withdrawn access as a priority in order to then continue to assess the disciplinary investigation into Mr Campbell’s actions on 23 April 2020. 10

[57] At the date of his termination, Mr Campbell had accrued 316.71 hours of annual leave and 364 hours of long service leave.

[58] The evidence is that Mr Campbell’s gross pay was regularly $8,005.94 a month. 11 His remuneration for the 26 weeks leading up to his dismissal was $48,535.64 gross.

[59] Mr Campbell was paid five weeks in lieu of notice upon his termination.

[60] After his dismissal, Mr Campbell says he was not in a good position to immediately begin applying for work. He was under enormous mental and emotional strain trying to come to terms with what had occurred and was having enormous trouble sleeping. For several weeks he was seeking mental health counselling and was prescribed sleeping pills. When he was in a better head space, he found it difficult to apply for some positions because his wife had dramatically increased her workload which meant he became the primary carer of their daughters.

[61] Mr Campbell’s wife is a doctor and prior to his suspension from duty on 24 April 2020 she arranged her roster of 24 hours a week to accommodate his shift roster and so they could provide home care for their two children.

[62] Upon his suspension, the Applicant had more free time at home and so his wife increased her rostered hours to work full time in order to improve their financial position. From July 2020 she also took on an afterhours “on call” roster which means she was then working about 48 hours per week.

[63] The Applicant’s evidence was that he began applying for alternative employment in November and December 2020.

[64] He has applied for jobs in security, mining, postal services, hospitals, and the public transport authority amongst others.

[65] Mr Campbell has also established a business as a sole trader doing handyman work. To date he has been paid $1,020 through his business.

[66] With respect to any “appeal” of the Department’s decision to withdraw his access to Immigration Detention Facilities, Mr Campbell’s evidence was that following advice from his lawyers he, on 26 November 2020, instructed them to not pursue legal action to appeal the Department’s decision. 12

[67] His evidence was that this was due to the prohibitive costs of proceeding to the Federal Court. He says he still intends to proceed with legal action when he has the funds to do so. 13

The legislation

[68] Section 387 of the Act prescribes the matters the Commission must have regard for when determining whether an employee’s dismissal was harsh, unjust or unreasonable.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

[69] In the case of DA v Baptist Care SA 14 a Full Bench of the Commission explained that the concept of capacity in section 387 (a) of the Act, as a basis for a valid reason for dismissal, goes beyond the physical or skill capacity of an employee and also encompasses situations where employees do not have a necessary licence, certification, qualification or approval to lawfully perform the inherent requirements of their job. The Full Bench further considered, as follows, the responsibilities of an employer in circumstances where the capacity of the employee to perform their job is affected by the actions of a third party.

“[32] Second, in a situation where an employee’s capacity to perform the inherent requirements of their job is affected by the actions of a third party, the employer still has an obligation to treat the employee fairly. The principle in this respect was stated by Deputy President Asbury in Stevens v ISS Property Services Pty Ltd, in the context of a situation where the work capacity of an employee of a labour hire business is affected by the actions of the host employer, as follows:

“[12] A number of cases have considered the manner in which the matters in s. 387 of the Act are considered in circumstances where an employer provides labour to a client and the client directs the employer to remove the employee from a site. As a Full Bench of the Commission observed … in Donald Pettifer v MODEC Management Services Pty Ltd (Pettifer) labour hire arrangements in which a host employer has the right to exclude a labour hire employee from its workplace, are becoming a common part of the employment landscape in Australia. The reality for companies in the business of supplying labour is that they frequently have little if any control over the workplaces at which their employees are placed and the rights of such companies in circumstances where a client seeks the removal of an employee are limited. However, this is not a basis upon which companies in the business of supplying labour to clients can abrogate responsibility for treating employees fairly when dismissal is the result of removal from a particular site and the fairness of the dismissal is considered with reference to the matters in s. 387 of the Act.”

[33] The above is founded upon a similar formulation of the principle stated in Deputy President Asbury’s decision in Kool v Adecco Industrial Pty Ltd, which was expressly approved by Full Benches in Pettifer v MODEC Management Services Pty Ltd and Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee. Considerations which may arise in an assessment of whether the employer has acted fairly towards the employee in the type of situation described may include the extent to which the employer has the power to alter, modify or challenge the outcome determined by the third party, the extent to which the employer has exercised that power, and the capacity of the employer to redeploy the employee to a position where the employee’s capacity is not affected by the third party’s conduct. In Pettifer, the dismissal was found not to be unfair in circumstances where it was demonstrated that the labour hire employer was bound by its contract with the host employer to remove an employee from the worksite where instructed to do so by the host employer, and where the employer actively explored opportunities for redeployment but was unable to identify any suitable alternative position. By contrast, in Tasports, the dismissal was found to be unfair in circumstances where the employer did not place its contract with the host employer into evidence and thus did not demonstrate that it had no recourse to preserve the employee’s employment at the host employer’s worksite, nor did it adequately investigate options for the employee’s redeployment.” (References omitted)

Valid reason

[70] This is a case where the capacity of Mr Campbell to perform his job was affected by the actions of a third party, namely the Department.

[71] The Department withdrew Mr Campbell’s right to access Immigration Detention Facilities in Australia which meant he was no longer capable of performing the inherent requirements of his job as the Facility Operations Manager of the PIDC.

[72] The authorities however above are clear that Serco in these circumstances still had a responsibility as Mr Campbell’s employer to treat him fairly.

[73] In this case, I am satisfied that, having been notified by the Department that it had withdrawn Mr Campbell’s right to access Immigration Detention Facilities Serco was contractually bound to arrange for him to be removed from working at the PIDC.

[74] There is no evidence that Serco had any capacity to challenge or otherwise alter the Department’s decision to withdraw Mr Campbell’s right to access Immigration Detention Facilities.

[75] The evidence is that Serco did not know the reason why the Department withdrew Mr Campbell’s access.

[76] Mr Campbell remained capable of performing any other job he was suitable for that did not require him to access an Immigration Detention Facility.

[77] The evidence is that Serco is a large employer that operates Australia wide and employs persons in many places other than Immigration Detention Facilities. Consequently, Serco potentially did have the ability to redeploy Mr Campbell to some other position not affected by the Department’s withdrawal of access to Immigration Detention Facilities.

[78] Mr Campbell had a large amount of accrued annual leave and long service leave and in his response to the show cause letter and at the meeting on 12 August 2020 he urged Serco to allow him to remain on paid leave while he challenged the Department’s decision

[79] Alternatively, he urged Serco to keep him in employment on work that did not require him to enter Immigration Detention Facilities that would therefore not be affected by the Department’s withdrawal of his access. The Applicant also said if Serco could not employ him in the immigration area at all he would work on another contract outside of the immigration Services Contract.

[80] On 14 August 2020, the Applicant emailed Mr Rodgers and explained he was asking to be kept employed in whatever capacity, even on reduced hours.

[81] Serco however ignored all of these possible options put forward by Mr Campbell in circumstances where Serco did not know why Mr Campbell’s access had been withdrawn.

[82] Serco had a positive obligation to actively investigate redeployment opportunities for Mr Campbell.

[83] As is the case when an employee is made redundant, merely advising an employee to apply and compete for vacancies that are advertised often will not be sufficient to satisfy this obligation.

[84] Whilst it will depend on the circumstances, investigating redeployment opportunities likely involves an employer identifying across its operations any suitable vacancies and offering the employee these jobs before they are advertised, either internally or externally, and may also involve offering the employee future suitable vacancies before these are advertised.

[85] The evidence is that Serco did little or nothing to investigate how Mr Campbell could be redeployed.

[86] There is no evidence Serco gave genuine consideration to the option of Mr Campbell remaining employed using his paid annual leave or long service leave, which would have allowed more time for Serco to identify existing or future suitable vacancies as redeployment opportunities for him.

[87] At the time of Mr Campbell’s termination, he had been suspended since April 2020. His termination was not required for Serco to meet their contractual obligations to the Department. Serco’s investigation into Mr Campbell’s actions on 23 April 2020 had not, at the time of termination, been resolved, Serco had made no decision regarding his conduct. Serco was under no time pressure to terminate Mr Campbell’s employment.

[88] In all the circumstances, my decision is that there was not a valid reason for the dismissal of Mr Campbell related to his capacity or his conduct.

Notification of the reason for dismissal

[89] Mr Campbell through the show cause process was notified of the reason Serco was considering dismissing him before the dismissal occurred.

Opportunity to respond

[90] Mr Campbell was given an opportunity to respond to the reason Serco was considering dismissing him and did so in his written response to the show cause letter and during the show cause meeting on 12 August 2020.

Refusal to allow a support person

[91] Mr Campbell was not refused a support person.

Warnings for unsatisfactory performance

[92] Mr Campbell’s dismissal did not involve any complaint about his performance.

Size of the enterprise and procedures followed

[93] Serco is a large enterprise and the procedure followed was appropriate.

Absence of Human Resource management specialists or expertise

[94] Dedicated Human Resource management specialists or expertise were not absent.

Other matters relevant

[95] Mr Campbell had been employed at the Respondent for approximately 10 years at the time of his termination.

[96] Mr Campbell had received a first and final warning in November 2019.

[97] Mr Campbell had been stood down with pay and was subject to a disciplinary process including a show cause letter being provided and a show cause meeting held, as a result of his actions on 23 April 2020. At the time of his termination Serco had not taken any disciplinary action against Mr Campbell. At the time of his termination Serco’s evidence is this matter was unresolved.

[98] The hearing of this application did not involve an evidentiary contest nor argument regarding the actions of Mr Campbell on 23 April 2020. Consequently, the Commission is not able to form a view as to the merit of Serco’s complaints against Mr Campbell detailed in its show cause letter nor the merit of Mr Campbell’s response to Serco’s show cause letter.

Conclusion

[99] In this case, the reason for the withdrawal of Mr Campbell’s access to Immigration Detention Facilities was unknown.

[100] Serco did have a contractual obligation to remove Mr Campbell from work on Immigration Detention Facilities.

[101] Mr Campbell’s contract of employment reserved to Serco the right to require him to undertake different assignments or job responsibilities and to work at other locations temporarily or permanently.

[102] Serco did not discharge its obligation to Mr Campbell to investigate potential redeployment to another part of its operations.

[103] Serco did not genuinely consider any of the options Mr Campbell proposed as alternatives to his immediate termination.

[104] As I have concluded above there was not a valid reason for Mr Campbell’s dismissal.

[105] Mr Campbell had 10 years of service with one recent written warning.

[106] Considering all the circumstances I am satisfied that the dismissal of Mr Campbell was unjust and unreasonable. Mr Campbell has been unfairly dismissed.

Remedy

Reinstatement

[107] Section 390 of the Act provides that the Commission may order reinstatement or compensation as a remedy for a person who has been unfairly dismissed.

[108] Section 391 of the Act prescribes what an order for reinstatement involves. This is set out below.

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[109] In this case, I am satisfied reinstatement of Mr Campbell to the position in which he was employed immediately before his dismissal is inappropriate.

[110] Reinstatement to the position of Facility Operations Manager of the PIDC is inappropriate because the Applicant is unable to access the detention centre as a consequence of the Department withdrawing his right of access. It is obvious Mr Campbell is unable to do this job without being on site at the detention centre.

[111] The alternative of appointing Mr Campbell to some other position on terms and conditions no less favourable than those on which he was employed immediately before his dismissal is in this case problematic.

[112] Importantly, Mr Campbell has been denied access to any Immigration Detention Facility in Australia, not only the PIDC. 15 Further the evidence is that, whilst Serco as a business in Australia is not exclusively involved in immigration, this is the largest business unit.16

[113] Mr Campbell’s position was a relatively senior managerial position. Consequently, of the available positions there may be within Serco at any point in time which he was capable of performing (that are not within Immigration Detention Facilities) there will be relatively few that enjoy terms and conditions no less favourable than those of a Facility Operations Manager. This is demonstrated by the JobShop list included in the evidence of Ms Weston. 17 This reality was recognised by Mr Campbell himself in his response to the show cause letter when he expressed his willingness to work in less senior positions, or even on reduced hours in order to remain in employment. The requirements of section 391of the Act however preclude Mr Campbell being appointed by order of the Commission to such lesser positions.

[114] Consequently, in all the circumstances of this matter, in my view, it is inappropriate to reinstate Mr Campbell to an unknown notional position which meets the requirements of sections 391(b) of the Act that may not exist.

[115] An order of reinstatement must not be an illusory benefit for the Applicant.

[116] I am satisfied that reinstatement is inappropriate but do consider an order for payment of compensation is appropriate in this case.

Compensation

[117] Section 392 of the Act prescribes the matters the Commission must take into account in determining an amount for the purposes of a compensation order. This section is set out below.

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[118] There is no suggestion that an order of compensation would affect the viability of the employer’s enterprise.

[119] Mr Campbell had been employed since 2009.

[120] Had Mr Campbell not been dismissed when he was, it is reasonable to conclude, Serco would have finalised its decision regarding the complaints against Mr Campbell that were triggered by his actions on 23 April 2020. The Commission in this matter has not had the benefit of hearing full evidence or argument regarding his actions on that day. It is unknown whether disciplinary action would have ultimately been taken by Serco and, if it was, what that action would have been. This issue, whilst unresolved, is relevant to the consideration of what remuneration Mr Campbell would have been likely to receive if he had not been dismissed.

[121] If disciplinary action was to be taken by Serco because of the events of 23 April 2020, one relevant consideration was the fact that in November 2019 it had issued Mr Campbell with a first and final written warning and placed him on a performance improvement plan. In my view, this prior final written warning significantly increased the risk that Mr Campbell would have been dismissed by Serco if it had decided to take any disciplinary action against him in response to his actions on 23 April 2020.

[122] Mr Campbell himself recognised in his evidence that the 28 May 2020 disciplinary meeting regarding his actions on 23 April 2020 potentially could have resulted in his dismissal.

[123] Considering Mr Campbell was employed in a managerial role and considering his disciplinary record and the fact that there was an outstanding disciplinary process to be finalised, my view is that Mr Campbell’s employment security was tenuous. My assessment is that Mr Campbell would not have remained in employment for more than 52 weeks had he not been terminated when he was.

[124] Mr Campbell’s evidence was that he began looking for alternative employment in November 2020. It is only from that point onwards in my view that he actively sought to mitigate his loss. Consequently, Mr Campbell should not receive compensation for the period from the date of dismissal, 18 August 2020 to the end of October 2020.

[125] The evidence is that Mr Campbell received five weeks pay in lieu of notice.

[126] Mr Campbell received payments for work done since his dismissal amounting to $1,020.

[127] Serco’s decision to dismiss Mr Campbell was not the consequence of any misconduct by him and there should be no consequent reduction in compensation to the Applicant.

[128] The Applicant’s weekly gross pay was $1,847.54.

[129] Consequently, in terms of weeks’ pay, I calculate the amount of compensation as follows,

•  52 – 5 (pay in lieu) = 47

•  47 – 10.5 (weeks from 18 August 2020 to 31 October 2020) = 36.5

•  36.5 weeks x $1,847.54 = $67,435.21

•  $67,435.21 - $1,020 (remuneration earned) = $66,415.21

[130] The amount of compensation calculated does exceed Mr Campbell’s remuneration for the 26 weeks immediately before his dismissal, which was $48,535.64 gross. Consequently section 392(5) of the Act requires that the Commission only Order the amount to be paid be $48,535.64 gross.

[131] Consequently, the Commission will order that Serco pay Mr Campbell the amount of $48,535.64 gross from which tax will be deducted within 21 days of the date of the Order [PR729980].

Appearances:

G McCorry representative for the Applicant.
P Brown solicitor for the Respondent.

Hearing details:

2021.
Perth:
January 13 and February 22.

Printed by authority of the Commonwealth Government Printer

<PR729979>

 1   Exhibit R2, Annexure JW4.

 2   Ibid., Annexure JW6.

 3   Exhibit R3 at paragraphs 12 to 18.

 4   Exhibit A1, Annexures AAC5 and ACC6.

 5   Exhibit R2 at paragraph 23(b).

 6   Exhibit A1, Annexure ACC8.

 7   Ibid., at paragraphs 4 to 9.

 8   Transcript at PN391 toPN406.

 9   Ibid., at PN706

 10   Ibid., at PN714 and PN715.

 11   Exhibit R2, Annexure JW3.

 12   Transcript at PN1007 to PN1013.

 13   Ibid., at PN1027.

 14   [2020] FWCFB 6046.

 15   Exhibit R2 at paragraph 6.

 16   Ibid., at paragraph 19.

 17   Exhibit R2, AnnexureJW9.