Haidari v Serco Group Pty Limited
[2016] FWC 2074
•1 April 2016
[2016] FWC 2074
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Ali Haidari | |
| v | |
| Serco Group Pty Limited T/A Serco Immigration Services | |
| (U2015/10520) | |
| COMMISSIONER RYAN | MELBOURNE, 1 APRIL 2016 |
| Application for relief from unfair dismissal. |
[1] The Applicant was dismissed from his employment for serious misconduct on
20 August 2015. He filed an application pursuant to s.394 of the Fair Work Act 2009 (the
Act) on 10 September 2015 for an unfair dismissal remedy. The application was filed within
the 21 day time limit set by s.394(2) of the Act. The Applicant was covered by the Serco
Immigration Services Agreement 2014 and the Applicant had been employed by the
Respondent since 2013. The Respondent is not a small business. Thus the Applicant was a
person who was protected from unfair dismissal pursuant to s.382. The Respondent does not
contend, and I so find, that the dismissal was not a case of genuine redundancy.
Background
[2] The Applicant was employed in a role similar to that of a prison guard or security
officer at the Melbourne Immigration Transit Accommodation (the Detention Facility). The
Applicant was described by the Respondent as being a Client Service Officer (CSO) and was
described in the Applicant’s own material as being a Detention Service Officer (DSO).The
Respondent manages and operates detention facilities on behalf of the Department of
Immigration and Border Protection. The Detention Facility holds persons in relation to
immigration issues where the persons are not free to enter the wider community. Some of the
detainees are subject to enhanced or constant monitoring. One of the detainees held at the
Detention Facility, Mr S, was assessed by the Respondent as an escape risk when he arrived
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| on 3 July 2015. | Mr S was subject to constant monitoring which required that he be monitored |
on a constant basis whereby the relevant detention officer was required to maintain a line of
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site with the detainee on a continuous basis.
[3] On the evening of 8 July 2015 the Applicant was given the duty of maintaining
constant watch on Mr S. During the evening Mr S escaped from the Detention Facility. The
Applicant was subsequently dismissed because of the escape of Mr S.
Consideration
[2016] FWC 2074
[4] There is a considerable difference in the account of events at the Detention Facility on
evening of 8 July 2015 but importantly the only witness to events involving the Applicant and
the detainee, Mr S, was the Applicant. There was no cctv of the incident. Much of the
Respondent’s case is an attack on the version of events given by the Applicant. Two of the
findings of the Respondent which were relied on by the Respondent to justify the dismissal of
the Applicant treat the Applicant’s version of events as being completely false. The reason for
the dismissal of the Applicant as given by the Respondent was that the Applicant engaged in
serious misconduct by being seriously negligent in the performance of his duties when
undertaking constant watch on Mr S on 8 July 2015.
[5] I intend to deal with this matter by accepting the truth of the Applicant’s evidence and
his version of events on the evening of 8 July 2015. This is not done by ignoring the evidence
relied on by the Respondent. Rather the Applicant’s evidence provides the simplest
explanation for the escape of Mr S whereas the Respondent’s case is based on constructing an
explanation from a flimsy base. Additionally there is evidence other than that of the Applicant
which supports the Applicant’s version of events. In particular the medical evidence supports
the Applicant’s evidence that he injured his back when pushed over by Mr S. Additionally,
the statements made by Ms Lissa Bingham, Operations Manager, that after Mr S had escaped
she had tried to call the Applicant on his radio and had problems maintaining contact with the
Applicant, support the Applicant’s evidence that his radio was not working after he was
pushed over by Mr S.
[6] Before considering the Applicant’s account of the events on the evening of 8 July
2015 it is necessary to put the conduct of the Applicant on that evening into context.
[7] Firstly, the Applicant had performed constant watch duties in relation to detainees
prior to 8 July 2015. The Applicant’s evidence was that he performed constant watch duties
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about once a month during his 2 years of employment with the Respondent.
[8] Secondly, the Applicant understood that the concept of close contact meant that he had
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to keep Mr S in line of sight and that he had to keep at least arm’s length from Mr S.
[9] The Applicant answered a series of questions from the Commission about the
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requirement to keep at arm’s length of a detainee who is on constant watch.
[10] Thirdly, the evidence of the Applicant was that the requirement that he keep Mr S at
least at arm’s length was a requirement that he did not comply with. The Applicant’s very
specific evidence was that where constant watch involved a friendly detainee then it would
often occur that the detainee was within arm’s length of the detention officer.
[11] The Applicant explained in his evidence that the different security requirements for
detainees meant different numbers of detention officers would be involved in the constant
watch of a detainee. If a detainee was thought to be violent then as the Applicant evidenced
there would be two detention officers on constant watch. The Applicant considered that only
one officer would be allocated to a constant watch in circumstances where the detainee was a
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low risk detainee.
[12] The evidence of the Applicant is clear that he considered Mr S to be a friendly
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detainee.
[2016] FWC 2074
[13] Fourthly, the Applicant at the time of the incident was carrying a folder, a coat and his
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keys.
[14] Fifthly, The Applicant had not checked whether his radio was working when he
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commenced his shift.
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[15] Sixthly, the Applicant had not been briefed as to why Mr S was on constant watch
and the Applicant did not at any time read the Enhanced Monitoring Occurrence log which
detailed the regular observations that are recorded by the detention officers engaged in the
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constant watch on Mr S.
[16] In his witness statement, Exhibit A1, the Applicant described the incident as follows:
“56. Detainee Singh started walking towards his room. He told me that he was going to
go to the other rec room to make a cup of tea. There was another rec room near his
room.
57. I got up and followed him.
58. When we were close to his room, I was right behind him. The detainee turned and
pushed me hard with his right hand to my right chest and shoulder; the detainee was
solidly built.
59. I fell back to the floor. It must have been on my right hip and lower back.
60. I don’t know if I hit my head; I believe I blacked out. I had not eaten because I was
fasting for Ramadan.
61. I can’t tell how long I was blacked out. When I came out of the black out my hip
and back were sore. The detainee was not in sight.
62. I was in pain and felt dizzy.
63. The folder was on the ground and the radio was on the ground.
64. The radio is normally clipped in to my left pocket and was obviously dislodged by
the fall.
65. I picked up the radio in order to try to call the code (code green).
66. I pressed down and did not hear the sound that it makes when it is on line and
working properly.
67. I would have called a code if the radio were working.
68. So instead of wasting time I went quickly back to the Rec room to get help.
69. Dan and Nippy were not where they had been. I saw PJ Singh, and walked fast
towards him (I still felt in shock and disorientated).
[2016] FWC 2074
70. I told PJ Singh, “The detainee may have escaped.”
[17] It is clear on the Applicant’s own evidence that he created a valid reason for his own
dismissal. The Applicant’s non-compliance with the requirement to keep at least arm’s length
away from Mr S was a significant failure on the part of the Applicant. There is nothing in the
Applicant’s evidence which suggests that he could not have maintained at least an arm’s
length distance from Mr S at all times. It is clear from the evidence of the Applicant that he
chose not to maintain at least an arm’s length distance from Mr S. The Applicant created the
opportunity for Mr S to push the Applicant over. On any reading of the Applicant’s evidence
his conduct created a valid reason for his dismissal.
[18] It is clear that two of the reasons given by the Respondent for the dismissal of the
Applicant could never be valid reasons. This flows from the fact that the basis for the
Respondent coming to the conclusion that the Applicant engaged in serious misconduct is
fundamentally flawed. However, the third reason for the dismissal, that the Applicant was not
diligent in the carrying out of his duties, whilst based on a wrong factual base nevertheless
provides a valid reason for the dismissal when considered in relation to the correct factual
base.
[19] The Respondent gave as its reason for dismissal that the Applicant had engaged in
serious misconduct because he had been negligent in the conduct of his duties. That reason for
dismissal is supported by the evidence of the Applicant that he failed to maintain at least an
arm’s length distance from Mr S while Mr S was under constant watch.
[20] The existence of valid reason for the dismissal supports a finding that the dismissal
was not harsh, unjust or unreasonable, but the existence of valid reason is only one of the
criteria in s.387 that the Commission must take into account.
[21] In the circumstances of the present matter where the Applicant concedes that he was
notified of the reason for dismissal before the dismissal occurred and that he was given an
opportunity to respond to the reason for dismissal and where there had been no refusal by the
Respondent to allow the Applicant to have a support person present to assist at any
discussions relating to the dismissal and where the dismissal did not relate to unsatisfactory
performance of the Applicant then the Commission can treat the criteria in s.387(b), (c) and
(d) as supporting a finding that the dismissal was not harsh, unjust or unreasonable and can
treat the criteria in s.387(e) as being not relevant.
[22] The criteria in s.387(f) and (g) must always be relevant as those two criteria require a
consideration of the degree to which the size of the Respondent’s business and the absence (or
presence) of HR expertise impacts on the procedures followed in effecting the dismissal. In
the present matter it is clear that the Respondent as a large employer with significant HR
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| expertise embarked upon a detailed investigation of the events of 8 July 2015 | and only after |
that investigation did it take disciplinary action against the Applicant, leading to his dismissal.
In all of the circumstances of the present matter the criteria in s.387(f) and (g) support a
finding that the dismissal was not harsh, unjust or unreasonable.
[23] There are a number of matters which require consideration under s.387(h) as each is
relevant to the consideration of the fairness or unfairness of the dismissal of the Applicant.
[2016] FWC 2074
[24] It is relevant that the Applicant did not get a pre shift briefing on Mr S and that the
Applicant did not at any time read the Enhanced Monitoring Occurrence log which detailed
the regular observations that are recorded by the detention officers engaged in the constant
watch on Mr S. Rather than constitute a matter which excuses the Applicant’s conduct in
breaching the requirement to maintain at least an arm’s length distance from Mr S, the fact
that the Applicant did not read the entries in the Enhanced Monitoring Occurrence log makes
his conduct even more culpable.
[25] It is very clear that well prior to being pushed over by Mr S, the Applicant had very
real opportunities to have read the Enhanced Monitoring Occurrence log. As the evidence in
this matter makes clear, the Applicant made three entries into the Enhanced Monitoring
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| Occurrence log before he was pushed over by Mr S. | As the both an entry in Enhanced |
Monitoring Occurrence log and the Applicant’s evidence make clear the Applicant took
Mr S to the Calder Mess for his dinner at 7.30pm. Whilst Mr S was having his dinner the
Applicant could easily have read all of the recent entries in the Enhanced Monitoring
Occurrence log including a number of entries which refer to Mr S expecting an outcome on
his application for a bridging visa expected that day and the entry at 6.30pm which referred to
Mr S in the following terms:
“Detainee informed DSO B.Patil that he hasn’t received a positive outcome for his
visa but may appeal as advised by his lawyer and Case manager. Detainee appeared to
be worried but remains calm and in good demeanour.”
[26] As the evidence of the Applicant makes clear he simply had no idea why Mr S was on
constant watch and no idea as to what had transpired in relation to Mr S during the earlier part
of the day and evening. Even if some blame can be attached to the Respondent for not
briefing the Applicant about Mr S, it is the Applicant who accepted the role of engaging in a
constant watch of Mr S without having sought information as to why Mr S was on constant
watch or without having read the Enhanced Monitoring Occurrence log which he had in his
possession.
[27] It is also relevant that the Applicant commenced his shift without checking that his
radio was working properly. The relevance of this is that in circumstances where the
Applicant was commencing a shift in which he was to be engaged in a constant watch of Mr S
he failed to ensure that the equipment he had been given was fully operational. Even where a
control officer failed to initiate a radio check before the Applicant commenced his shift there
was nothing preventing the Applicant initiating a radio check. The Applicant points the finger
of blame at the control officer for not initiating a radio check but fails completely to explain
why he would start a constant watch shift without ensuring that his radio was fully
operational. I do not consider that this issue has any bearing on the evidence of the Applicant
that his radio was not working after he had been pushed over by Mr S.
[28] The relevance of the Applicant’s conduct at the beginning of his shift is that it shows a
lack of diligence on the part of the Applicant to ensure that he was properly prepared and
equipped to conduct a constant watch shift on Mr S.
[29] The consequences which flowed from the Applicant’s non-compliance with the
requirement to maintain at least an arm’s length distance from Mr S, namely that Mr S was
able to push over the Applicant and then escape from the Detention Facility, is a significant
relevant matter. This was not a minor incident of misconduct with no real consequences for
[2016] FWC 2074
the Respondent. Rather the consequences for the Respondent were very significant – a person
who was to be held in detention by the Respondent and on behalf of the Commonwealth was
able to escape detention.
[30] In his Closing Submissions, filed on 9 March 2016, the Applicant strongly contends
that non-compliance with the requirement to maintain at least an arm’s length distance from
Mr S is insufficient to justify dismissal. As the Applicant put it:
“198. Firstly there is no policy document that shows failure to maintain arm’s length is
a crucial issue let alone sackable offence.
199. The arm’s length issue only arises from acceptance of the applicant’s scenario
that the detainee assaulted him.
200. However the obvious dynamics of two human bodies moving in one direction
certainly allows for the lead person to stop, turn and lunge to the other person and
breach the arm’s length distance.
201. There is no evidence of any training or drill that would ensure that another person
could not come within arm’s length distance in any situation.
202. One would expect if arm’s length could always be achieved that the applicant
would have a bright career in sports such as rugby, football or boxing.
203. However in the real world it is not always possible to maintain arm’s length
distance in every given situation.
204. The fact the detainee got in close enough to assault the applicant does not mean
that the applicant was guilty of misconduct as asserted…...”
[31] The contentions of the Applicant raise a number of relevant issues.
[32] The absence of a “policy document that shows failure to maintain arm’s length is a
crucial issue let alone a sackable offence” is not determinative of whether the failure to
maintain an arm’s length distance from a detainee on constant watch could be misconduct and
misconduct serious enough to justify summary dismissal.
[33] In the present matter it is the conduct of the Applicant in context of the circumstances
of the case which give rise to a consideration as to whether the dismissal was harsh unjust or
unreasonable. There may very well be circumstances where failure to maintain an arm’s
length distance from a detainee on constant watch would not be considered to be misconduct
by a detention officer, but that is not the case in the present matter.
[34] The contention of the Applicant that “the obvious dynamics of two human bodies
moving in one direction certainly allows for the lead person to stop, turn and lunge to the
other person and breach the arm’s length distance” is merely stating an obvious possibility.
However this contention does not reflect the evidence in the present matter. The Applicant
never suggested in his evidence that Mr S lunged at the Applicant and in so doing breached
the arm’s length distance. In fact the evidence is that the Applicant permitted Mr S to be
within arm’s length of the Applicant. Mr S had no need to lunge at the Applicant at all. In fact
[2016] FWC 2074
as the Applicant described it Mr S only had to push the Applicant on the chest and the
Applicant fell over.
[35] The contention from the Applicant that “there is no evidence of any training or drill
that would ensure that another person could not come within arm’s length distance in any
situation” is consistent with the evidence in this matter. However that contention is irrelevant
in circumstances where the evidence of the Applicant is that he permitted Mr S to be within
arm’s length of the Applicant even though the Applicant knew that he was required to keep a
minimum distance between himself and Mr S of at least an arm’s length.
[36] The contention of the Applicant that “in the real world it is not always possible to
maintain arm’s length distance in every given situation” is most probably correct. Again such
a contention is simply not relevant in circumstances where the evidence of the Applicant is
that he permitted Mr S to be within arm’s length of the Applicant even though the Applicant
knew that he was required to keep a minimum distance between himself and Mr S of at least
an arm’s length.
[37] The contention of the Applicant that “the fact the detainee got in close enough to
assault the applicant does not mean that the applicant was guilty of misconduct as asserted” is
accurate. However again this contention fails to address the context in which “the fact the
detainee got in close enough to assault the applicant” occurs. That context is highly relevant.
Here the Applicant permitted Mr S to be within arm’s length of the Applicant even though the
Applicant knew that he was required to keep a minimum distance between himself and
Mr S of at least an arm’s length.
[38] Each of the above matters, which I consider to be relevant matters for the purpose of
s.387(h) all support a finding that the dismissal was not harsh, unjust or unreasonable.
[39] Having considered each of the relevant criteria under s.387 I conclude that the
dismissal of the Applicant was not harsh, unjust or unreasonable. The application in this
matter is dismissed.
COMMISSIONER
Appearances:
Mr G. Dircks for the Applicant.
[2016] FWC 2074
Mr A. Manos of Counsel for the Respondent
Hearing details:
2016.
Melbourne:
January 22.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR578627>
1
Exhibit R1, para37.
2
Exhibit R1, para 35.
3
Transcript at PN706 - PN711.
4
Exhibit R1, paras 16 and 21 and Attachment AH3 and Transcript at PN712 – PN714.
5
Transcript at PN713 – PN736.
6
Ibid at PN416 and PN724.
7
Ibid at PN726.
8
Ibid at PN716.
9
Exhibit A1, para32.
10
Exhibit A1, para14 and Transcript at PN721.
11
Exhibit A1, para 15.
12
Exhibit R1, paras 70 to 73 and Attachment GC12.
13
Exhibit R1, Attachment GC9.
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