DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Medhat Morcos
v
Serco Australia Pty Ltd
(U2019/5112)

DEPUTY PRESIDENT BULL

SYDNEY, 21 NOVEMBER 2019

Application for relief from unfair dismissal – random alcohol testing – positive result – alleged serious misconduct – policy did not specify that conduct was serious misconduct – policy provided for lesser disciplinary measures – dismissal was unreasonable and therefore unfair – application granted – reinstatement ordered with continuity of service – no order to restore lost pay.

[1] Mr Medhat Morcos has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he was unfairly dismissed by Serco Australia Pty Ltd (Serco). Mr Morcos seeks an order from the Commission to be reinstated with back pay or, in the alternative, compensation equivalent to six months’ wages, less any Commission-determined deductions.

Permission to be legally represented

[2] Both the Applicant and the Respondent sought permission to be legally represented before the Commission. Taking into account the complexity of the matter, the Commission was satisfied that, pursuant to s.596(2)(a) of the Act, legal representation would enable the matter to be dealt with more efficiently. Accordingly, permission was granted for both parties to be legally represented.

[3] As was evident in the presentation of both parties’ cases before the Commission, including the examination of witnesses, legal representation did in fact enable the matter to be dealt with more efficiently than may otherwise have occurred.

Background

[4] Mr Morcos is 67 years of age. He was born in Egypt and settled in Australia in 1984. In May 2011, he commenced working full-time for the respondent as a Client Service Officer at the Christmas Island Detention Centre, where there was a demand for employees who spoke Arabic, as Mr Morcos does. He would travel back to Sydney every six months to see his family.

[5] In April 2016, Mr Morcos transferred to the Villawood Immigration Detention Centre in New South Wales (Villawood) as a Detainee Service Officer to be closer to his family, where he remained until his summary dismissal on 18 April 2019.

[6] The reason for Mr Morcos’ summary dismissal is contained in correspondence from the Villawood Immigration Detention Centre Facility General Manager Mr Don Taylor, dated 18 April 2019. It refers to five specific allegations said to have been substantiated after conducting an investigation and considering Mr Morcos’ response to the allegations. As a consequence, Mr Morcos was said to have breached the following:

• Contract of Employment

• Serco Code of Conduct

• Serco Immigration Services Agreement 2018

• DSO Position Description

• Serco Drug and Alcohol Policy

[7] Serco has a Drug and Alcohol Policy 1 (the Policy) and a Drug and Alcohol Procedure (the Procedure).2 In summary, the substantiated allegations as put by Serco in the dismissal letter are that Mr Morcos:

1. On Saturday, 16 March 2019, on his day off, accepted an additional shift without declaring that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 7675
Decision Date: 21 NOVEMBER 2019

CaseChat Overview and Summary

The applicant, Medhat Morcos, sought relief from an unfair dismissal against his employer, Serco Australia Pty Ltd. The dispute arose after Mr Morcos tested positive in a random alcohol test and was subsequently dismissed. The Federal Circuit and Family Court of Australia was tasked with determining whether Mr Morcos's dismissal was unfair and if so, what remedy should be granted.

The central legal issues before the court involved whether Mr Morcos's dismissal was justified and whether the company's alcohol testing policy was properly applied. The policy in question did not explicitly state that a positive alcohol test constituted serious misconduct, and it provided for lesser disciplinary measures such as counselling and retraining. The court had to determine if the dismissal was a proportionate response to the positive test result and whether the policy's procedural fairness was maintained.

The court found that the dismissal was unreasonable and thus unfair. It concluded that the alcohol testing policy did not clearly define the positive test result as serious misconduct, and there were alternative disciplinary measures that could have been applied. Furthermore, the court determined that Mr Morcos's dismissal was disproportionate to the offence, given the lack of clarity in the policy and the availability of lesser penalties. Consequently, the application for relief from unfair dismissal was granted, and Mr Morcos was ordered to be reinstated with continuity of service. However, no order was made to restore lost pay during the period between dismissal and reinstatement.

Orders