Irfan Nadeem v Serco Australia Pty Limited

[2016] FWC 2747

[2016] FWC 2747

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Irfan Nadeem
v
Serco Australia Pty Limited
(U2016/4452)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 17 MAY 2016

Application for relief from unfair dismissal – valid reason – process fair – not harsh, unjust or unreasonable.

[1] On 10 February 2016 Mr Irfan Nadeem lodged an unfair dismissal application with respect to the termination of his employment with Serco Australia Pty Ltd (Serco). The circumstances of Mr Nadeem’s application were apparently the same as two other dismissals which were similarly contested. The other two applications were settled as a result of conference proceedings.

[2] Mr Nadeem’s application was the subject of a hearing on 3 May 2016. At this hearing, Mr Nadeem represented himself and Mr Grahame, the Employee Relations Manager of Serco, represented Serco. I note that, in a decision 1 issued on 8 April 2016, I refused a request made for representation of Serco by a lawyer or paid agent.

[3] Serco provide detention service personnel and functions under contract to the Department of Immigration in Western Australia. To this effect Serco engages some 500 Detention Services Officers.

[4] Mr Nadeem was employed by Serco from November 2012, as a Detention Services Officer, on a regular casual basis. On 11 January 2016 he commenced as a full time weekly hire employee. Serco have a documented and structured training regime. Serco also have prescribed procedures relative to the transport and escorting of persons in detention. The incident which led to the termination of Mr Nadeem’s employment occurred on the day on which Mr Nadeem was made a weekly hire employee and involved a person who had been taken into custody by the Department of Immigration and Border Protection. This detainee was placed in the care and control of Mr Nadeem and two other Serco employees to be transported to and from the Royal Perth Hospital. The Serco officers were advised that the detainee had self-inflicted injuries and was to have his hands cuffed at all times as he was deemed to be high risk. The detainee was transported to the hospital on a stretcher. Following his treatment at the hospital, the three officers escorted the detainee out to a waiting vehicle. Just as they arrived at that vehicle, the detainee escaped. Mr Nadeem and the other Serco personnel unsuccessfully chased the detainee. There is no dispute that Mr Nadeem was injured after falling during this chase. He has undergone medical treatment pursuant to a workcover claim since that time and did not work for Serco again after the 11 January 2016 incident. The extent to which Mr Nadeem was properly trained in the Serco procedures and practices and these procedures and practices were properly applied in this circumstance is a critical matter in dispute.

[5] Mr Nadeem was interviewed on 12 January 2016 and was suspended with effect from 13 January 2016 on the basis that an allegation that he did not maintain positive control of the detainee would be further investigated. The outcome of a preliminary investigation into the incident and detailed allegations of misconduct were put to him on 18 January 2016 and were the subject of an interview on 20 January 2016. Mr Nadeem was advised that the matter could result in the termination of his employment and had a support person present at this interview.

[6] The termination of Mr Nadeem’s employment, together with that of the other two persons who have now settled their applications, followed this investigation. The conduct of that investigation and the basis for the termination of Mr Nadeem’s employment are disputed. Serco advised Mr Nadeem of the termination of his employment on 27 January 2016.

[7] Mr Nadeem’s position is that the termination of his employment was unfair because the circumstances of the escape were dynamic and fluid and required rapid decisions which were consistent with the Serco policies. Further, he asserts that the Escort Operational Order 2 which would normally provide details about the security background of the person to be escorted were not satisfactorily the men completed and did not provide clear instructions. Mr Nadeem asserts that any misbehaviour on his part was not wilful or deliberate. Mr Nadeem asserts that the investigation process which followed the incident was deficient and lacked procedural fairness. Finally, Mr Nadeem asserts that the termination of his employment was harsh in that it was disproportionate to the incident itself and that account should be taken of the injuries he suffered as a consequence of chasing the detainee.

[8] Mr Nadeem sought reinstatement to his position at Serco. He explained that whilst he remained injured from the escape incident, he considered that he would be able to undertake restricted return to work duties before resuming as a Detention Services Officer.

[9] The Serco position is that Mr Nadeem was comprehensively trained in the mandatory escort procedures but did not comply with those procedures. Further, that he did not comply with clear instructions relating to the escorting of the detainee, that he failed to seek guidance relative to his concerns over how the detainee should be escorted other than in the manner provided by the standard procedures and that his behaviour in this respect represented serious misconduct and was a valid reason for the termination of his employment. Serco say that the matter was serious in terms of its role and function. Serco assert that the investigation process it followed was fair and appropriate.

[10] There is no dispute that none of the initial matters referenced in s.396 of the FW Act are relevant to this matter.

The Evidence

[11] My consideration of the incident which led to the termination of Mr Nadeem’s employment has been assisted by the provision of CCTV film of the incident. This film shows the detainee exiting a building and moving toward a van before turning and running. It shows the detainee wearing handcuffs and the position of the Serco personnel who were escorting him and who then chased the detainee.

[12] Mr Nadeem’s evidence went to his work as a Detention Services Officer prior to 11 January 2016. He advised that very little information had been provided to him with respect to the 11 January escort function other than the requirement to keep the detainee in handcuffs and that the detainee had stabbed himself 27 times after being told he was going into immigration detention. Mr Nadeem advised that the escort team was not given the normal standard paperwork for the escort duty. This duty commenced early in the afternoon. Some five hours later and after the detainee received medical attention, Mr Nadeem contacted Serco Perth Immigration Detention Centre (the Perth IDC) and advised that the detainee wished to make a telephone call. He advised that approval for a phone call was given and that the detainee was permitted to make the call.

[13] Mr Nadeem’s evidence was that the Perth IDC was subsequently advised that the detainee was ready to leave the hospital. The detainee remained handcuffed over this entire time. When the normal escort position was adopted, before the escort contingent left the hospital, the detainee loudly protested that he was in pain and could not be touched. Mr Nadeem’s evidence was that he then attempted to obtain instructions in this respect, but ceased that attempt because of the loud protests being made by the detainee. Mr Nadeem advised that, as he could not make contact with the Perth IDC, the officers collectively decided that the normal escort position would not be adopted. This meant that the exact formation as the group changed as they went past a building, approached other pedestrians, and neared the Serco vehicle. As Mr Nadeem went to guide the detainee into that vehicle, the detainee turned and ran off. Mr Nadeem described the chase that he and the other Detention Services Officers then gave. Mr Nadeem’s evidence went to his cooperation with the investigation process and the effect on him of the loss of his job.

[14] Mr Chukwe-Ike was a Detention Services Officer on duty with Mr Nadeem on 11 January 2016. His evidence supported that of Mr Nadeem. Mr Chukwu-Ike was one of the former Serco employees who also made an unfair dismissal application but his application was subsequently settled.

[15] Mr Brown is the Acting Superintendent, Detention Operations West Inc, WA Region l Command, Strategic Border Command Operations Group, which is the authority to which Serco detention functions report. Whilst Mr Brown agreed that he spoke with Mr Nadeem on 11 January 2016, his evidence went to refute Mr Nadeem’s assertion that he gave approval for the detainee to make a mobile telephone call to his wife from the hospital. Mr Brown advised that Mr Nadeem had not asked for permission for the detainee to use his mobile phone to ring his wife or anybody. He further advised that he had not made any reference or given any advice about the detainee being handcuffed or that he gave any directions to Mr Nadeem about the task he was performing at the hospital.

[16] Mr Rennie is the Serco Facilities Operations Manager for the Perth IDC. His evidence went to confirm the telephone calls made to him on 11 January 2016. Commencing at around 6.15 pm Mr Rennie received a number of telephone calls from Serco officers present at the incident, including Mr Nadeem. In these phone calls Mr Rennie was advised of the escape. Mr Rennie’s evidence is that, in these phone calls he was not advised that the detainee had been complaining of his injuries. Mr Rennie’s evidence went to explain normal escort practices to be applied where a person in detention is handcuffed. Mr Rennie advised that officers do not have the ability to over-ride the standing instructions which apply to these escort practices without the approval of a person in his position. He further advised that he would not have given that approval in the circumstances of this situation and would have investigated other means of moving the detainee.

[17] Finally, Mr Rennie’s evidence went to his concerns over the possibility that Mr Nadeem could be reinstated.

[18] Ms Bonser is the Serco Compliance Coordinator and Acting Centre Manager for Perth IDC and Perth Immigration Residential Housing. Ms Bonser was one of the Serco decision makers who determined, after consulting with other Serco management personnel, that Mr Nadeem should be dismissed. Her evidence went to Mr Nadeem’s employment history, the function of that position and the training undertaken by Mr Nadeem. Ms Bonser described the Serco Transport and Escort Activities and Procedures and the extent to which the detainee being transported on 11 January 2016 was a high risk person because he had only just been detained and had, shortly after that detention, injured himself with a pen.

[19] Ms Bonser’s evidence detailed the escort functions undertaken by Mr Nadeem and the other Serco personnel whilst the detainee was in the hospital receiving medical attention. She explained the “Enhanced Escort Position” (the EEP) which Serco required its officers to apply in these circumstances in the following terms:

“31. Within Serco there is an established and well known set of procedures that apply uniformly to situations where staff are required to supervise a detainee who is subject to a mechanical restraint such as:

(a) handcuffs; and

(b) cable tie (flexi cuffs),

called the Enhanced Escorting Position or EEP.

32. The essential element of EEP is that "positive control must be maintained" which means:

(a) an officer holds each arm/elbow; and

(b) another officer stands behind a detainee and within arm's length of the detainee.

33. As a "high risk" detainee who was being escorted, it was a mandatory requirement that the Detainee be mechanically restrained. Accordingly, at the completion of the treatment by the medical staff, and before the Detainee was "walked" from the A&E Department to the Serco vehicle waiting outside the A&E Department, a mechanical restraint in the form of handcuffs was applied to the Detainee.” 3

[20] Ms Bonser also detailed the safety requirements which underpinned that EEP protocol and the extent to which approval would have been required if that protocol was not to be applied. Ms Bonser’s evidence was that, having viewed the CCTV film of the incident, she had concluded that the EEP protocol was not applied and that this represented a serious breach of procedure on the part of the officers concerned, such that their employment should be terminated.

[21] Ms Bonser gave evidence that Mr Nadeem had received training and instruction on the EEP protocol in February and November 2015.

[22] Ms Bonser was on duty on 11 January 2016 when she was advised that the detainee had escaped. She was advised that the EEP was being applied at the time of the escape. Ms Bonser provided copies of the reports prepared by the officers involved on 11 January 2016. She detailed the interviews she conducted with these officers and the Serco Regional Human Resources Manager, on 12 January 2016 as part of a formal Serco investigation process. Ms Bonser also interviewed other Serco personnel with involvement in the matter. She then considered a consolidated Serco report into the incident and formally suspended the officers involved on 13 January 2016.

[23] Ms Bonser convened a disciplinary meeting with Mr Nadeem, his support person and the Human Resources Manager on 20 January 2016. She then consulted with other personnel before preparing the termination of employment letters on 27 January 2016.

Findings

[24] Before considering the factors set out in s.387 of the FW Act, I have set out my conclusions about the relevant facts.

[25] I have concluded that Mr Nadeem was trained in the Serco procedure relevant to escorting detainees who were handcuffed and was aware that there was a mandated requirement that Enhanced Escort Position procedures applied in these instances. A key rationale for these procedures related to the minimisation of the risk of injury to a handcuffed detainee who could otherwise fall. Whilst Mr Nadeem may have been further trained about this requirement there is no doubt that he was aware of it and was trained in February 2015. 4

[26] I am satisfied that Mr Nadeem was in no doubt about that policy requirement. In this respect his reference to earlier policy arrangements applicable in 2013 is disingenuous. Further, to the extent that Mr Nadeem sought to rely on procedures applicable to air transport circumstances, the instructions relating to Enhanced Escort Position procedures clearly sets out the relevant requirements. To the extent that Mr Nadeem refers to different formations of security officers, this does not address the consistent requirement that, where a detainee is handcuffed, the security officers on either side of the detainee are required to have their hands under the detainee’s arms.

[27] Despite the significant evidence sought to be put in these respects by Mr Nadeem, his advice to me in his final submissions is particularly significant. This was that:

“SDP O’CALLAGHAN: Do you accept that you made a mistake when you arranged the manner of escorting the detainee?

MR NADEEM: No your honour. I made every decision was according to the situation.

SDP O’CALLAGHAN: Do you accept that there is any form of obligation or mandatory requirement to place your arm on or uner the arm of a detainee who is mechanically cuffed?

MR NADEEM: There is what is called positive control, but if ..

SDP O’CALLAGHAN: It is a black and white question. I just need you to answer my question. I am happy to repeat it … Do you want me to repeat it?

MR NADEEM: Yes

SDP O’CALLAGHAN: Do you accept that you made a misktake by not placing your arm on or under the arm of the detainee who was mechanically restrained?

MR NADEEM: And who was a vulnerable person. He committed self harm.

SDP O’CALLAGHAN: Oh Mr Nadeem, I’ll try a third time. It will be the last time I’ll try it, then I will make an adverse inference. …. Do you accept that you made a mistake by not placing your arm on or under the arm of the detainee who was mechanically restrained.

MR NADEEM: Yes your honour.

SDP O’CALLAGHAN: You accept that you did make a mistake?

MR NADEEM: In that circumstance …” 5

[28] In terms of the escort instructions given to Mr Nadeem on 11 January 2016, I accept that details often included were missing from that instruction. However, those instructions did confirm that the detainee was high risk and unplanned use of force and the Enhanced Escort Procedure was to apply. The advice provided to Mr Nadeem as part of the escort detail made their instructions to treat the detainee as a high risk person very clear. This was set out in the following terms in the log recorded by Mr Nadeem:

“12:15 DSM J Hanafia briefed DSO I Nadeem R Brar G Singh and R Chukwu-Ike to escort detainee from State Office to PIOC and advised OPS D Pavolic is joining the escort and will be the team leader detainee is High Risk and have done self harm I State Office all per State office person advised DSM advise the escort team detainee will be handcuffed through out the escort 6

[29] I have also concluded that the interviews conducted of the Serco personnel involved in this matter by Ms Bonser on 12 January 2016 7 make it clear that the security officer detail was aware that the detainee was to be regarded as high risk and was to remain handcuffed.

[30] I do not accept that the absence of information about the detainee which reflected the extent to which he had only just been detained and his self inflicted injuries, permitted or encouraged the Security Detention Officer to deviate from the established escort procedures.

[31] I have concluded that in the absence of the formal team leader, Mr Nadeem, as the holder of the Serco mobile telephone and the log book, was the primary escort team member. Equally, I acknowledge that all three of the Officers were trained and could all make decisions about the manner of escorting the detainee. The initial escort detail Team Leader, Mr Hanafia, who briefed Mr Nadeem on the escort was not present at the time these decisions were made, but there is nothing to indicate that his absence was an abnormal situation or one that meant that the Officers were then unable to rely on their previous training and instructions.

[32] Mr Nadeem’s evidence was that the detainee requested to telephone his wife and that Mr Nadeem contacted Mr Brown for approval in this respect. I prefer the evidence of Mr Brown to that of Mr Nadeem. That evidence was clear and precise and seems to me to more accurately reflect a definitive policy basis. That said, I do not think the detainee’s request to telephone his wife was the reason for the termination of Mr Nadeem’s employment. I have also accepted Mr Brown’s evidence that he had not provided operational advice to Mr Nadeem about the escort, nor given any instructions about restraint of the detainee. In this regard, Mr Brown’s evidence appears consistent with the authority allocated to Serco to escort detainees.

[33] The evidence is that the detainee was compliant and the escort was uneventful until it came time to leave the hospital. I have accepted Mr Nadeem’s and Mr Chukwe-Ike’s evidence that, when the Officers went to hold the detainee’s arms consistent with the enhanced escort procedure, in the hospital corridor, he called out loudly and drew public attention to the escort. Mr Nadeem’s evidence was that he made an attempt to call the Perth IDC to seek instructions in this respect but did not immediately make contact. I have concluded that Mr Nadeem did not pursue this attempt to call for advice. Mr Nadeem’s evidence was that:

“20. The detainee was doing everything that we asked and was compliant for the past 5 hours however the only thing was that be begged us not to touch him. While the detainee was standing along with fellow officers in the corridor I attempted to call the centre for advice regarding not to use “EEP” but the detainee starting complaining very loudly. To deescalate the situation as medical staff, patient and other public starting looking towards us I decided not to call the centre but to calm the detainee.” 8

[34] In his evidence to me, Mr Nadeem described a somewhat different action. He said that he tried to call the Perth IDC, that the phone rang 4 to 5 times but he then up. 9 I have concluded that Mr Nadeem made an attempt to call the Perth IDC but did not seriously pursue this.

[35] It was at this point that Mr Nadeem and Mr Chukwe-Ike assert the three Security Officers decided not to apply the Enhanced Escort Postion procedure to the detainee. Mr Chukwe-Ike’s evidence was that :

“SDP O’CALLAGHAN: The normal practice to escort a detainee who was a high risk detainee, and who had hand cuffs on, would involve Security Officers putting their hands on or under their arm so as to escort him out as part of a formation?

MR CHUKWU-IKE: Not in every high risk escort your honour.

SDP O’CALLAGHAN: OK, but your understooding that was the case with this detainee did you?

MR CHUKWU-IKE: In the case of this detainee there was no approval for EEP to be adopted.

SDP O’CALLAGHAN: This is what I’m getting at Mr Chukwu-Ike. Why did you see the need to ring Serco to get some further instructions?

MR CHUKWU-IKE: Because we haven’t been advised at the time whether it was actually a planned or unplanned use of force.

SDP O’CALLAGHAN: I see, I’m still struggling to understand the sequence.

MR CHUKWU-IKE: I understand.

SDP O’CALLAGHAN: It seems to me that you must have been working from the premise that you expected to put your hands on or under the detainees arms so as to escort him out and you didn’t do so after he cried out in pain.

MR CHUKWU-IKE: That’s right.

SDP O’CALLAGHAN: It was only after that happened you say there was then an attempt to obtain instructions.

MR CHUKWU-IKE: Correct your honour.

SDP O’CALLAGHAN: So, the expectation was that you would put your hands on or under the detainees arms. Otherwise, why would your have done it?

MR CHUKWU-IKE: Well, cause obviously in most escorts like that, high risk escorts, we actually go based on orders.

SDP O’CALLAGHAN: Yes, but absent orders, as you were saying, why would you have even attempted to have put your hands on or underneath his arms before he cried out.

MR CHUKWU-IKE: Because it is just a basic standard um, operations that we would actually do if we do get approval, but if we don’t get approval we actually exercise our discretion, as Officers.

SDP O’CALLAGHAN: You see, there is a logic gap there, isn’t there? Because what you are saying to me is that you didn’t have approval but nevertheless you were still look to put your hands on or underneath the detainees arm?

MR CHUKWU-IKE: That is correct your honour.” 10

[36] I think it likely that the Security Officers did not intend to embarrass Serco in this respect and accept the evidence of Mr Nadeem that he was concerned not to have a very public scene in the hospital. However, I have concluded that the Security Officers clearly breached the instructions they had been given with respect to holding a detainee who was wearing cuffs, under the arms, while escorting him. Further, I have concluded that the loose formation adopted by the Security Officers when they exited the hospital bore little resemblance to the tight formations required in the standing instructions. I have concluded that there is significant doubt that the Security Officers made a considered decision not to apply the EEP. I consider that Mr Nadeem was clearly aware of the concept of “positive control” in the context of the EEP.

[37] Whilst I have not made findings about the extent to which the Security Officer’s actions in these respects actually permitted the detainee to escape I am satisfied that the reason for their employment terminations primarily related to their failure to comply with the required procedure. Suffice to say that the security element of that enhanced escort procedure, combined with the need to ensure the safety of a hand cuffed detainee means that the procedure appears to me to be both logical and appropriate and that the failure to comply with this procedure meant that the chance of an escape was substantially higher.

[38] In terms of the investigation procedure applied by Serco, I accept that Mr Nadeem was injured and most probably in pain when he completed his initial report into the incident. However, his failure, to include references to various matters such as the extent to which the EEP was not applied, in the log record 11 was a significant omission which I have concluded was deliberate. Further, the notes of the meetings which Ms Bonser conducted with the members of the security detail on 12 January 2016 do not confirm Mr Nadeem’s and Mr Chukwu-Ike’s subsequent advice about the asserted discussion that the security officers had where they collectively decided not to apply the EEP. Consequently I have significant reservations about the extent to which Mr Nadeem is being truthful when he asserted that the security officers made a collective decision not to apply the EEP but to apply a special grade of care to the detainee.12

[39] I am satisfied that the information available to Ms Bonser from the initial interviews of Serco personnel enabled her to reasonably form concerns about the extent to which Mr Nadeem complied with the standing escort instructions.

[40] The Serco request that Mr Nadeem participate in a formal disciplinary interview provided him with detailed information about the issues of concern to Serco and the allegations that were made against him. 13

[41] Section 387 states:

“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.”

[42] I have considered each of these factors in the context of all of the information before me.

Valid Reason

[43] Notwithstanding subsequent changes to the legislation, I have applied the principles set out in Selvachandran v Peterson Plastics Pty Ltd. 14

[44] I have concluded that, even if there was a collective decision made by the Security Officers, including Mr Nadeem, to not apply the standing instructions which required that the detainee be escorted in accordance with the Enhanced Escort Position procedure, the failure to apply that Enhanced Escort Position represented a valid reason for the termination of Mr Nadeem’s employment. Mr Nadeem was on notice, from the briefing given to him before his escort duty commenced, that the detainee was a high risk person. He was aware of the importance of the task. That is clear from Mr Nadeem’s log record. 15 I have concluded that Mr Nadeem was aware of the requirement to comply with the standing instructions and that he could have sought guidance and further advice from the appropriate Serco personnel. His failure to follow those standing instructions exposed Serco to unnecessary risks and was a clear and significant breach of the procedures that he had been properly trained to adhere to.

[45] I have concluded that, as a long term Serco employee, albeit as a regular casual employee, Mr Nadeem was aware of the sensitivities of his security tasks. It may well have been that he had the best interests of Serco in mind when he decided not to follow the requisite procedure but the Serco instructions simply did not allow him that discretion. I have also concluded that he was aware that he needed to have approval to deviate from the standard procedure but that he elected not to do so.

[46] It is appropriate at this point that I note that there is nothing in the evidence before me that indicates that Mr Nadeem was forced, in any way, by the position adopted by the other members of the security detail, to not apply the standing instructions. Indeed, his own evidence about his aborted attempt to telephone Serco’s Perth IDC appears to indicate that he recognised that he had a lead role to play in this regard.

Notification of the reason

[47] Mr Nadeem was notified of the reason for the termination of his employment through the employment termination advice provided to him. He was also put on notice of this in the formal disciplinary meeting held on 20 January 2016.

Opportunity to Respond

[48] Mr Nadeem was given an opportunity to respond to the possibility of the termination of his employment at the meeting held on 20 January 2016. At this point he was clearly aware that termination of employment was a possibility. His responses at that meeting and the majority of the arguments that he presented in this matter are not easily reconciled with the advice he provided directly to me at the conclusion of the hearing which I have set out in PN27.

Unreasonable refusal to allow a support person

[49] Mr Nadeem was offered and had a support person in the meeting of 20 January 2016.

Warnings about unsatisfactory performance

[50] Mr Nadeem was not dismissed for reasons relating to unsatisfactory performance. That said, I have taken into account that his employment record up to 11 January 2016 clearly indicated that he had performed satisfactorily.

Size of the Serco Enterprize - impact on policies and procedures and access to human resource management expertise

[51] Serco is a very substantial organisation. I am satisfied that it had policies and procedures in place to address situations of this nature and that it had, and utilised access to human resource management expertise.

Other factors considered relevant

[52] Notwithstanding my reservations about the accuracy of this evidence, I have reviewed the extent to which the evidence of Mr Nadeem and that of Mr Chukwe-Ike assert that the decisions made by the security detail on 11 January 2016 were made collectively. Each of the members of that security detail were dismissed. I am not satisfied that the evidence before me indicates that Mr Nadeem’s actions could be characterised as being at the initiative or the fault of others.

[53] I have also considered the impact of discussions between Mr Nadeem and Ms Bonser with respect to a statement in support of Mr Nadeem which was provided to Serco as part of the investigation process. That statement is referenced in the record of that discussion. 16 That statement was to be provided to Mr Nadeem but this does not appear to have happened. I am not satisfied that this statement was significant to the employment termination decision. Had it been the case that the statement was critical of him or that it was more significant to the termination decision, I would have been more concerned about this matter but in these circumstances I do not regard it as significant to the fairness of the approach to the termination of Mr Nadeem’s employment.

[54] I have also noted that, whilst he was a long term regular casual employee, 11 January 2016 was Mr Nadeem’s first day as a weekly hire employee. Given the training he had received as a casual employee I think this is significant only to the extent that I would have expected that he would be even more inclined to follow the standard procedures given that this was his first day as a permanent employee.

[55] Mr Nadeem’s submissions and arguments to me were made in the context that he asserted that the training and information provided to him left room for uncertainty about what was expected of him. For the reasons I have already detailed, I do not believe that to be the case and his own advice to me at the conclusion of the hearing indicates that his reliance on superceded policies and other instructions was part of an argument that was intended to create a distraction from the reality of this matter.

[56] Mr Nadeem submitted that his workers compensation injury should be taken into account in considering the fairness of his dismissal. There is no dispute that Mr Nadeem is continuing to receive workers compensation payments. Those payments are being made pursuant to a scheme which does not differentiate on the basis of fault. I am not satisfied that there is any evidence that payments being made to him under that scheme are impacted on by this application. In these circumstances I am not satisfied that either the injuries suffered by Mr Nadeem or his workers compensation situation go to the fairness of the termination of his employment.

[57] Finally, I have noted that Mr Nadeem was summarily dismissed. In the circumstances here I do not consider that represents harshness, injustice or unreasonableness.

Conclusions - harsh, unjust or unreasonable

[58] I have applied the considerations detailed by McHugh and Gummow JJ in Byrne and Frew v Australian Airlines Pty Ltd, 17 to this matter. I am satisfied that the termination of Mr Nadeem’s employment was not harsh in that Mr Nadeem’s non adherence to the standing escort instructions was a significant breach of the policies about which he was well aware such that termination of employment was appropriate.

[59] The termination of Mr Nadeem's employment followed a thorough and fair investigation process. Notwithstanding that Mr Nadeem was one of three Security Officers who breached the policy, the Serco findings were properly founded so that I do not consider the termination of his employment to be unjust.

[60] Finally, the termination of Mr Nadeem's employment occurred after he was given a fair opportunity to participate in an appropriate investigation process such that this termination was not unreasonable. The termination decision was not based on inferences but on findings that were established through that appropriate investigation process.

[61] Consequently, I have determined that Mr Nadeem’s dismissal was not unfair. The application will be dismissed accordingly. An Order (PR579871) to this effect will be issued.

Appearances:

I Nadeem on his own behalf.

C Grahame for the respondent.

Hearing details:

2015.

Perth:

May, 3.

 1   [2016] FWC 2237

 2   Exhibit R3, LB-20

 3   Exhibit R3

 4   Exhibit R3, Annexure LB-9

 5   Audio, Transcript of 4 May 2016, 12:32:24 pm to 12:33:50 pm

 6   Exhibit R3, Annexure LB-20, Escort Observation

 7   Exhibit R3, Annexure LB-14

 8   Exhibit A2, para 20.

 9   Audio, Transcript of 3 May 2016, 11:18 am

 10   Audio, Transcript of 3 May 2016, 3:08 pm to 3:10:45 pm

 11   Exhibit R3, Annexure LB-20

 12   Audio, Transcript of 3 May 2016, 11:16 am

 13   Exhibit R3, Annexure LB-17

 14 (1995) 62 IR 371 at 373

 15   Exhibit R3, Annexure LB-20

 16   Exhibit R3, Annexure LB-19

 17 [1995] HCA 24

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