Jake Ngaia v Serco Australia Pty Limited
[2025] FWC 1043
•16 APRIL 2025
| [2025] FWC 1043 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Unfair dismissal
Jake Ngaia
v
Serco Australia Pty Limited
(U2024/10231)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 16 APRIL 2025 |
Application for unfair dismissal remedy – applicant employed by the Respondent as a Detainee Services Officer at the Villawood Immigration Detention Centre – applicant involved in a physical interaction with a detainee – applicant dismissed for serious misconduct – whether valid reason for dismissal – whether dismissal procedurally fair – whether dismissal unfair – valid reason for dismissal – application for unfair dismissal dismissed
Mr Jake Ngaia (Applicant) has filed an unfair dismissal application (Application) with the Fair Work Commission (Commission) alleging that he was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by his former employer, Serco Australia Pty Limited (Respondent).
The Respondent denies that the Applicant was unfairly dismissed. The Respondent says that the Applicant was dismissed for serious misconduct at the end of a procedurally fair disciplinary process, concerning the following (in summary) substantiated allegations:
a) the “unreasonable, disproportionate, and excessive use of force”[1] by the Applicant against a person lawfully detained at the Villawood Immigration Detention Centre in New South Wales (Villawood) (that the Respondent was contracted by the Australian Government to manage); and
b) multiple breaches of the Respondent’s policies and procedures (e.g. a failure to apply de-escalation techniques prior to physically engaging with the detainee, and a failure to include important factual details of the interaction with the detainee in the Applicant’s individual written report of the Incident).
A hearing was conducted to determine whether or not the Applicant was unfairly dismissed. At this hearing, the Applicant appeared for himself, and Mr Paul Brown, Partner, Baker McKenzie lawyers, appeared (with permission) on behalf of the Respondent.
Overview
I make the factual findings set out in paragraphs [5] to [16] following.
The Respondent manages or provides services to detention centres both in Australia, and overseas, and has approximately 2,400 employees.
The Applicant worked for the Respondent from 20 January 2020 to 23 August 2024 in the role of Detainee Service Officer (DSO) in the ERT (Emergency Response Team) at Villawood. For the purposes of this Decision, the Applicant’s role, and those of his colleagues in the same roles, are referred to as ‘ERT Officer’.
In the ERT Officer role, the Applicant worked to safeguard staff, stakeholders, and persons being detained at Villawood, by maintaining stability within the centre, delivering security services, and otherwise engaging in direct assistance when emergencies arise.[2] In certain circumstances, an ERT Officer/s is permitted to use control and restraint techniques on persons being detained.
On 31 May 2024, the Applicant was involved in an incident at Villawood, wherein a detainee was brought to the ground by the Applicant and a fellow ERT Officer (Mr Ioane Va’a Ioane) (Incident).
CCTV video footage of the Incident, along with body camera footage from the Applicant and Mr Ioane, was tendered in the proceedings by the Respondent, and viewed at the hearing. In relation to the Incident itself, I do not understand the following matters to be disputed:
a) An unidentified male detainee can be seen sitting in a transitional holding room, on the edge of a bench, with his arms behind his back, physically restrained at his wrists (i.e. his hands are hand-cuffed behind his back). He is only wearing one shoe, being a white sneaker on his right foot. He has a sock on his left foot. The detainee is maintaining his legs widely whilst sitting on the bench. From time to time, the detainee swings his left leg outward in a sweeping motion, and taps his feet in a somewhat aggressive or over-confident manner.
b) There are three ERT Officers in the holding room, standing in front of the detainee; one ERT Officer is on the detainee’s front left (being Mr Ioane), another is on the detainee’s front right (being the Applicant), and yet another ERT Officer is standing in the front middle (i.e. opposite the detainee). A further three ERT Officers are standing in the doorway of the holding room, at times together, and at other times separately. These (doorway) ERT Officers intermittently move between the doorway, and the room outside of the holding room.
c) The detainee lies down on the bench, and sits back up again of his own accord. Mr Ioane walks past the detainee twice, and in doing so, intentionally steps on the detainee’s left foot (being the foot with no shoe on it). Mr Ioane is wearing large black boots, with thick soles. On the third occasion, Mr Ioane intentionally steps hard on the detainee’s foot. The detainee immediately kicks back at Mr Ioane with his right shoed foot, striking Mr Ioane in the shin. I note that the detainee kicks Mr Ioane from his seated position on the bench, in a swinging motion with his right leg.
d) This prompts the Applicant to immediately lay his hands on the detainee, and grabs/pushes the detainee’s right shoulder, pushing the detainee off the bench and onto the floor (at the end of the left side of the bench. The Applicant then jumps on top of (or mounts) the detainee, and holds him down on the floor.
e) Mr Ioane joins the Applicant in holding down the detainee on the floor. The Applicant and Mr Ioane then lift the detainee from the floor, reposition him (per their training), and put him back down in the floor in a face down position and hold him there heavily restrained for nearly 50 seconds. Two other ERT Officers stand-by to assist if needed, but are not required to do so. Whilst being held down on the floor, the detainee repeatedly states to the Applicant words, or words to the effect of: “he [Mr Ioane] stepped on me three times”, “he stepped on me”, and “look at the camera [to see that Mr Ioane stepped on me]”.
f) The detainee is ultimately returned to a seated position on the bench (from the floor), and things calm down, however, the detainee repeated to the Applicant (and others present in the room) what he had already stated in subparagraph (e) above. In response, the Applicant advised the detainee that he did not see Mr Ioane stepping on the detainee’s foot (i.e. prior to the detainee kicking Mr Ioane in the shin).
The detainee suffered some minor skin abrasions from the incident, and declined medical review and care when offered same.
The detainee has never made a further or formal complaint about the Incident. The Applicant says that the detainee stated to him (words to the effect of) “don’t worry about it”, post the Incident.
I note that the detainee was in the transitional holding room as he had recently assaulted another ERT Officer at another location of the centre, resulting in the detainee being immediately put to the floor (via full body grounding), handcuffed and removed to the holding room. The detainee was handed over to the custody and control of the ERT Officers in the holding room (including the Applicant) from the ERT Officers who had just been involved in the previous assault by this detainee (i.e. it was those other ERT Officers, prior to the Applicant’s involvement, that had handcuffed the detainee, and removed him to the holding room).
On 25 June 2024, the Applicant was suspended on pay pending the outcome of the Respondent’s investigation into the Incident.[3]
On 17 July 2024, the Applicant received a letter to attend a Formal Disciplinary Meeting on 19 July 2024 in relation to the Incident.[4] In this letter, the Applicant was advised that (at the Formal Disciplinary Meeting) he would need to respond to the following allegations (Allegations) in relation to the Incident:
a) You (the Applicant) engaged in unreasonable, disproportionate, and excessive use of force in the course of the Incident, in breach of the Department of Home Affairs Use of Force Statement of Principles;
b) The detainee made a direct complaint to you (the Applicant) during or at the time of the Incident, and you failed to report this complaint, noting that the Respondent’s policies and procedures allow for complaints to be received that have been made verbally by a detainee;
c) You (the Applicant) failed to accurately report and provide sufficient visibility of the Incident. More specifically, you failed to report any provocation of the Applicant immediately prior to the Incident, and you failed to note in your written report made that day about the Incident that the detainee had raised a complaint with you directly, being a breach of the Department of Home Affairs incident reporting policy;
d) You (the Applicant) failed to apply the principle of de-escalation, being a breach of the Respondent’s training principles;
e) You (the Applicant), during the Incident, failed to adopt a balanced and positive approach, failed to demonstrate emotional resilience in your role, did not to act in a professional and ethical manner, and therefore did not meet the minimum requirements of your role as outlined in the Respondent’s DSO [Role] Success profile – Job Behaviours;
f) You (the Applicant) compromised the integrity and good reputation of the Respondent company, the Immigration Detention Network, and the Australian Border Force (the client of the Respondent) through your use of unreasonable, disproportionate, and excessive use of force against the detainee, and your failure to report the surrounding circumstances, including the detainee’s complaints.[5]
The Applicant provided his responses to the Allegations orally at the Formal Disciplinary Meeting on 19 July 2024. Mr Patrick Wetere, Acting Security Manager at Villawood, sets out a comprehensive account of the discussions that occurred at the Formal Disciplinary Meeting.[6]
On 23 August 2024, having considered the Applicant’s responses,[7] the Respondent found that the allegations against the Applicant were substantiated, and dismissed the Applicant in writing for serious misconduct, effective immediately, and absent any payment in lieu of notice.[8]
Relevant law regarding unfair dismissal
Section 385 of the Act qualifies a claim for unfair dismissal:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a)the person has been dismissed; and
(b)the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The parties are not in dispute as to the following:
(a)the unfair dismissal application was made within the period required by s.394(2) of the Act.
(b)the Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act;
(c)the Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Act;
(d)the Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply; and
(e)the Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
I accept and make findings consistent with the foregoing position of the parties. It follows that the Applicant is an employee protected from unfair dismissal in respect of his employment with the Respondent, and has filed a valid unfair dismissal application.
Whether the Applicant’s dismissal was harsh, unjust, and/or unreasonable
Section 387 of the Act provides what matters must be taken into account in determining whether a 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”.
The terms “harsh”, unjust” and “unreasonable” are to be given their ordinary meaning.
An Applicant (employee) carries the onus to prove that his or her dismissal was unfair.
It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne v Abel[9]:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”[10]
(my emphasis)
s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to his capacity or conduct
An employer bears the persuasive onus of establishing or proving that there was a valid reason for an employee’s dismissal.[11] The level of proof is on the balance of probabilities, at a reasonable level of satisfaction.[12] The fact that serious allegations are made does not alter the position in civil proceedings that the level of proof is based upon the balance of probabilities.[13]
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”.[14] Further, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[15]
Where a dismissal relates to conduct, the reason for the dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal.[16]
The question of whether the alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.[17]
By way of summary:
a) the Respondent’s position is that:
i)the Incident could have been avoided by way of de-escalation (which was not attempted by the Applicant);
ii)the Applicant removing the detainee to the floor (including repositioning his body, and then holding him down again for 50 seconds) was unjustified, disproportional, contrary to the training that the Applicant had received from the Respondent, and contrary to the Respondent’s relevant policies, procedures, and code of conduct;
iii)the Applicant excluded important information in his report of the Incident (i.e. that Mr Ioane provoked the detainee by repeatedly stepping upon his shoeless foot, and/or that the detainee complained about it), giving rise to a lack of proper transparency about the Incident (which the Respondent cannot condone in its workplace);
iv)the Applicant should have formally followed up on the detainee’s verbal complaints to him about provocation and unjust treatment; and
b) the Applicant’s position is that:
i)he was simply controlling risk arising from a threat (being the detainee’s behaviour), in line with his training;
ii)he was aware that this same detainee had on three previous occasions assaulted an ERT Officer;
iii)the detainee stated in the holding room, and prior to being taken to ground, that he had recently ingested the drug ICE (or crystal methamphetamine);
iv)he accepts that he did not attempt to de-escalate the situation before pushing the detainee to the ground;
v)he did not see or otherwise notice Mr Ioane stepping on the detainee’s foot at any time;
vi)he did not follow up, or pass on to anyone else (i.e. his supervisor or more senior management), the detainee’s verbal complaints as they had not been made formally; and
vii)his actions in dealing with the detainee, in all of the circumstances, were warranted or otherwise justified.
At the hearing, the Applicant gave evidence that (during the Incident) the detainee swore and made abusive slurs to the ERT Officers present, including about their mothers and/or sisters. The Applicant says that the detainee also stated that he had just ingested the drug ICE (crystal methamphetamine), and would assault ERT Officers (again) if given the opportunity or thought it appropriate to do so. The Respondent points out that none of these details were included in the Applicant’s report of the Incident.[18]
In my view, an overall assessment of the Applicant’s involvement in the Incident, including his conduct post the Incident, provides a sound, defensible and well founded (i.e. valid) reason for his dismissal (based upon conduct in fundamental breach of the Respondent’s policies and procedures). Relevantly, the Applicant did not apply any de-escalation techniques prior to engaging physically with the detainee (noting that the detainee was seated and had his arms retrained behind his back).[19] The Applicant also failed to note in his individual report of the Incident that the detainee had made various complaints (or repeatedly raised concerns) about his foot being stood on by Mr Ioane, and equally made no attempt to raise the detainee’s complaints or concerns in this regard with anyone.[20]
My finding that the Respondent had a valid reason for dismissing the Applicant weighs against any finding that the Applicant’s dismissal was harsh, unjust, or unreasonable. I treat the criterion of ‘valid reason for dismissal’ in this case, based upon conduct, as one that weighs in favour of the Applicant’s dismissal not being unfair.
s.387(b) - Whether the Applicant was notified of the valid reason for dismissal
Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same.
Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.[21] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[22] and in explicit, plain and clear terms.[23]
The Applicant was notified of the reason for his dismissal. I treat this criterion as a neutral consideration in this case.
s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct
In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee’s conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra:[24]
“the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That… does not constitute an opportunity to defend.”[25]
I find that the Applicant had an opportunity to respond (or defend himself) against the allegations being made against him, prior to a decision being made by the Respondent to terminate his employment. I treat this criterion as a neutral consideration in this matter.
s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
The Applicant was offered and took up the opportunity to bring a support person to the Formal Disciplinary Meeting. I treat this criterion as a neutral consideration in this case.
s.387(e) — Whether the Applicant was warned about that unsatisfactory performance before his dismissal
This is not a case about unsatisfactory work performance. Given that the Applicant was dismissed for serious misconduct, no issue of unsatisfactory performance arises. I treat this criterion as a neutral consideration in this case.
The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and 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 (s.387(g))
The Respondent is not a small business. I understand that it employs dedicated human resources management specialists. There is no evidence to suggest that the size of the Respondent’s enterprise impacted upon the procedures it followed in effecting the Applicant’s dismissal. Neither party put forward any substantive or relevant submissions that go directly to either of the criteria under ss.387(f) and (g) of the Act. I therefore treat both of the criteria under ss.387(f) and (g) as neutral considerations in this case.
s.387(h) - Any other matters that the Commission considers relevant
The Applicant submits that he has always been a hardworking, dedicated, and passionate employee, with a long period of service with the Respondent, and that his dismissal has taken a toll upon him personally and financially. He also says that his dismissal was a disproportionate response to his conduct, i.e. his conduct in all of the circumstances did not justify dismissal.
The Respondent submits that none of the foregoing matters should be given any weight in my assessment of the Applicant’s dismissal as being harsh, unjust or unreasonable.
I do not consider that any of the matters raised by the Applicant, in the overall facts and circumstances of this case, travel beyond the level of neutral considerations. I treat the matters raised by the Applicant under s.387(h) of the Act as weighing neither for nor against any ultimate finding as to unfairness in this case.
Was the Applicant’s dismissal unfair?
I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion therein as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.[26]
In relation to the criterion set out under s.387 of the Act, I have found that:
(a) the presence of a valid reason for the Applicant’s dismissal weighs against a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and
(b) other relevant criterion are neutral considerations.
In view of the findings and conclusions set out in this decision, I find that the Applicant’s dismissal was not harsh, unjust and unreasonable (i.e. unfair). It is therefore necessary to dismiss the Applicant’s unfair dismissal application, and an order to this effect will be issued contemporaneously with this decision [PR786093].
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Appearances:
The Applicant, Mr Jake Ngaia, appeared for himself.
Mr Paul Brown, Partner, Baker McKenzie lawyers, appeared (with permission) for the Respondent.
<PR786072>
[1] Respondent’s Outline of Submissions dated 16 December 2024; Court Book (CB), p.137.
[2] Statement of Tutekohi Nikora dated 16 December 2024, Annexure TN3; CB, p.167.
[3] Letter of Suspension dated 25 June 2024; CB, pp.76-77.
[4] Notification of Formal Disciplinary Meeting dated 17 July 2024; CB, p.85.
[5] Notification of Formal Disciplinary Meeting dated 17 July 2024; CB, pp.84-89.
[6] Exhibit R2, at [8]-[19].
[7] Ibid, at [20]-[33].
[8] Respondent’s Form F3 Employer Response, Section 3.2; Dismissal Letter dated 23 August 2024; CB, pp.59-64.
[9] (1964) 38 ALJR 293.
[10] Ibid, at 301.
[11] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.
[12] Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362 (per Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).
[13] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).
[14]Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
[15]Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
[16] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen[2016] FWCFB 5520, 263 IR 1, at [28].
[17] King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019, Print S4213, at [23] to [24].
[18] Exhibit R2, Annexure ‘PM-4’.
[19] CB, pp.137-138 (Respondent’s allegations and asserted factual findings); CB, pp.145-150 (Statement of Mr Tutekohi Nikora, at [21]-[33]); CB, pp.224-233 (Complaints Handling Policy); CB, pp.235-251 (Incident Reporting Policy at Clause 4.10.1); CB, p.561 (The Report of the Incident completed by the Applicant specifically states (or requires): “please provide all details, including but not limited to: what was said/heard, and what others said/did”). See also Annexures “TN-18” (CB, pp.407-487) and “TN-21” (CB, pp.521-536).
[20] Ibid.
[21] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[22] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[23] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc[2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49].
[24] [1996] IRCA 568.
[25] Ibid.
[26] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; Edwards v Justice Giudice [1999] FCA 1836, at [6] to [7].
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