Mr Hamayoun Mohammed RahimivSerco Australia Pty Ltd

[2011] FWA 6843

[2011] FWA 6843

FAIR WORK AUSTRALIA

DECISION AND REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Hamayoun Mohammed Rahimi
v
Serco Australia Pty Ltd
(U2011/9828)

COMMISSIONER CLOGHAN PERTH, 28 NOVEMBER 2011

Unfair dismissal.

[1] On 13 July 2011, Mr Hamayoun Mohammed Rahimi (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal.

[2] The Applicant alleges that he was unfairly dismissed from his employment with Serco Australia Pty Ltd (“the Employer”).

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).

[4] Mr Rahimi’s application was unable to be resolved at conciliation and referred to me for arbitration on 19 August 2011.

[5] Mr Rahimi was represented by Ms Palmer, Senior Industrial Officer, United Voice. Mr Rahimi gave evidence in support of his application as did Ms Amy Blacker, his de facto partner who was also employed by the Employer from 14 October 2009 to 30 June 2011 as a Client Service Officer. Further evidence for the Applicant was given by Mr Gary Hall who is also employed by the Employer as a Client Service Officer and a United Voice delegate. In addition, Mr Hugo McHugh, Client Services Manager and Ms Ella Davies, Director, WA Interpreters Pty Ltd gave evidence for the Applicant.

[6] The Employer was represented by Mr Kemp of Counsel. Evidence on behalf of the Employer was given by each of the following employees:

● Ms Vicki Bell, Centre Manager, Perth Immigration Detention Centre (PIDC)

● Mr Philip Booth, Senior Operations Manager, PIDC

● Mr Dean Caldwell, Acting Client Services Manager (formerly Client Services Officer)

● Ms Joanne Bell, Client Services Officer (CSO)

● Mr Mark Nangle, Intelligence Analyst, PIDC.

[7] Procedural Directions to assist in proceedings were issued on 22 August 2011 and later amended at the request of the Applicant’s representative. Having received material as a result of Directions which was incorporated into proceedings, heard submissions and oral evidence, I reserved by decision at the arbitration hearing on 5 October 2011. Having considered all the material, given appropriate weight to all the evidence and assessed the credibility of the witnesses, this is my decision and reasons for that decision.

RELEVANT BACKGROUND FACTS

[8] Officer Rahimi was employed by the Employer from 14 June 2010 to 30 June 2011 as a Client Services Officer (CSO) at the Perth Immigration Detention Centre (PIDC).

[9] The Employer is contracted to operate immigration detention centres across Australia on behalf of the Commonwealth Department of Immigration and Citizenship.

[10] The Employer operates the PIDC and alternative places of detention (APODs) around Western Australia.

[11] Officer Rahimi was based at PIDC but required to work at APODs as necessary.

[12] Officer Rahimi’s role and responsibility was to provide for the care, wellbeing and secure detention of those persons in detention.

[13] The Department does not accommodate families and children in the PIDC; they are accommodated in APODs.

[14] APODs are facilities where the Employer’s staff maintain observation (subject to privacy and cultural requirements) 24 hours per day providing security, supervision, monitoring and support to detainees.

[15] On 27 May 2011, Officer Caldwell and his wife, Officer Joanne Bell, were rostered to work the day shift at an APOD. Day shift rostered employees at the APOD are rostered to work from 6:15am to 6:15pm.

[16] Officers Rahimi and Blacker were rostered to work night shift from 6:15pm to 6:15am as CSOs at the same APOD as Officers Caldwell and Bell. For both Officer Rahimi and Officer Blacker, this was their second rostered shift at that particular APOD; the previous shift being 26 May 2011.

[17] On 27 May 2011, the APOD contained two detainees - a mother and child.

[18] Each APOD has an Occurrence Register which records staff movements and any other significant occurrences during a shift.

[19] The Employer has what is referred to as APOD Operational Orders which includes information regarding detainees and procedures to be adhered to by CSOs at the relevant APOD.

[20] On 27 May 2011, there existed an APOD Operational Order dated 21 May 2011 which stated that the mother at the relevant APOD was considered to be a “high flight risk” as her husband had previously escaped from another Perth APOD on 12 April 2011 leaving behind his wife and child. As a consequence, the Order states:

“This occurrence greatly raises the escape potential and also the need for close monitoring in regards the welfare of the remaining family” 1.

[21] On 27 May 2011, Officers Rahimi and Blacker travelled separately to work at the APOD.

[22] Officer Caldwell recorded in the Occurrence Register at 18:09 hours “hand over to CSO Blacker - briefed on day”.

[23] Officer Blacker recorded in the Occurrence Register at 18:10 hours “CSOs Rahimi and Blacker on post - handover completed. Ops Order read and understood”.

[24] On 28 May 2011, Ms Tania McCormack, Acting Client Services Manager sent an email to Mr Kelly, Client Services Manager responsible for rosters with a copy to Mr Neil Whatcott, Operations Manager, PIDC. The email states:

“The dayshift officers (Dean Caldwell & Joanne Bell) from yesterday Friday 28th May that were rostered on at [name deleted] APOD, informed me this morning that when Nightshift turned up there was only one officer (Amy Blacker) that started on shift.

Dayshift said they would stay on till the other officer arrived but she told them that it was ok the other staff member was her partner (Harry Rahimi) and he had been contacted by PIDC to start at the centre first and then go to [name deleted] at 2000hrs, and dayshift could go home.

Both dayshift staff questioned this procedure and Amy advised them that it was alright for them to leave and it had all been organised by PIDC.

Dayshift staff upon instructions from Amy departed [name deleted] APOD at 1815hrs.

I didn’t leave PIDC till 1900hrs last night and CSO Rahimi definitely was not onsite at the centre & no body had rung in to control or reception to advise he was not onsite at [name deleted].

According to the Log Book at [name deleted] APOD, CSO’s Rahimi & Blacker were signed in at 1809hrs by CSO Blacker.

Again this could not have been possible as dayshift staff left at 1815hrs and said only 1 officer was onsite which was CSO Blacker.

...

Dean & Joanne [Officers Caldwell and Bell] are concerned that they did the wrong thing by leaving the APOD, but were instructed by Amy that PIDC said they can leave.” 2

[25] On 3 June 2011, Mr Booth and Mr Nangle conducted separate and unscheduled meetings with Officers Rahimi and Blacker concluding at 2:25pm and 3:23pm respectively.

[26] At no time were Officers Rahimi or Blacker advised that they could have a support person present at the meetings.

[27] During Officer Blacker’s meeting, she advised Mr Booth that Officer Rahimi had arrived at the APOD at 7:15pm on 27 May 2011.

[28] On 3 June 2011, Officer Rahimi telephoned Mr Booth at approximately 7:30pm requesting a further meeting.

[29] On 6 June 2011, Mr Booth had a further meeting with Officers Rahimi and Blacker. At the meeting, Officer Rahimi informed Mr Booth that he had sent a text message to Officer Blacker at 6:05pm on Friday 27 May 2011 saying that he was five (5) minutes away from work. Officer Rahimi also informed Mr Booth that he had taken a wrong turn off the freeway on his way to work at the APOD. Having retraced his wrong turn off the freeway on Sunday afternoon, Officer Rahimi advised Mr Booth that he would have arrived at APOD 27 minutes after sending the text message to Officer Blacker at 6:05pm. Officer Rahimi estimated that he would have arrived at the APOD on 27 May 2011 between 6:32pm and 6:35pm.

[30] Officer Rahimi’s time sheet for the fortnight ending 5 June 2011 showed a commencing time of 6:15pm for Friday 27 May 2011. Subsequently this was changed by Officer Rahimi to 7:00pm and initialled.

[31] On 6 June 2011, Mr Booth forwarded an investigation report to Ms Bell which included the following findings:

● “CSO Caldwell and CSO Bell left the [name deleted] APOD about 1815hrs and the only person who was on site was CSO Blacker.

● On CSO Blacker’s arrival she was asked as to where CSO Rahimi was and she stated that he was called into the PIDC until 2000hrs.

● CSO Caldwell wrote in the Occurrence Book at 1809 that CSO Blacker had arrived at the [name deleted] APOD.

● CSO Blacker wrote in the Occurrence Book that at 1810 both her and CSO Rahimi had received a handover and read and understood the Operational Order.

● On investigation CSO Blacker as to the correct time that CSO Rahimi arrived she stated around 7.15.

● On investigation CSO Rahimi first stated that he arrived around 1815hrs, then wished to see me and changed his story that he was lost getting to the APOD and didn’t arrive till around 1835.

● On the timesheet for Rahimi it was entered that he commenced at 1815hrs on that day but then changed and initialled by Rahimi that it was 1900hrs start”. 3

[32] Officer Rahimi continued to work unsupervised at PIDC on 11, 13, 14 and 15 June 2011.

[33] On 14 June 2011, Ms Vicki Bell wrote to Officer Rahimi inviting him to attend a disciplinary hearing to be conducted by her relating to the findings of the investigation relating to a false entry in an official record. This correspondence was handed to Officer Rahimi by Ms Vicki Bell on 14 June 2011.

[34] On 22 June 2011, Ms Vicki Bell had a disciplinary meeting with Officer Rahimi. Officer Rahimi was represented by Mr Hall. Notes were taken of the meeting.

[35] On 29 June 2011, a second disciplinary meeting took place between Officer Rahimi and Ms Bell. Mr Hall represented the Applicant. Notes were taken of the meeting.

[36] On 30 June 2011, Officer Rahimi made a written submission to Ms Bell.

[37] On 30 June 2011, what has been described as a third disciplinary meeting took place between Ms Vicki Bell and Officer Rahimi. Mr Hall represented the Applicant. Notes were taken of the meeting. At this meeting, Officer Rahimi was given a letter terminating his employment immediately. The relevant parts of the letter are as follows:

“As you are aware, you have been the subject of an investigation where you presented to your workplace significantly late without providing notification and making a false entry on a timesheet that did not reflect your actual start time. This occurred on 27 May 2011. The workplace was an APOD holding a high risk client and your failure to appear on time left the APOD exposed and at risk by only having one staff member to supervise. At interview, you were given the opportunity to declare what time you started at the APOD and you consistently argued that you got there at the correct time. The findings of the Investigation which included Officer Reports and your partner’s admissions substantiated the misconduct.

Your behaviour was found to be contrary to the Code of Conduct and against Policy and Procedure. Serco’s Code of Conduct expects staff to act with honesty and integrity and to encourage others to do the same.

We met on 22 June 2011 where the nature of the incident was discussed and a response was sought. We met again on 29 June 2011 where you were given an opportunity to make submission of any mitigating circumstances prior to the meeting. We met again on 30 June 2011 where you made prior written submission by way of explanation of the error on your timesheet.

Regrettably, we have made the decision to terminate your employment effective immediately.” 4 (my emphasis)

APPLICANT’S CASE

[38] Broadly, the Applicant’s case was that he arrived 15 to 20 minutes late for work on 27 May 2011 and his colleague and de facto partner, unbeknown to him, incorrectly recorded his commencing time in the Occurrence Register.

[39] When questioned later on 3 June 2011 by the Employer, Officer Rahimi could not recall what time he arrived at work on 27 May 2011. After being questioned by Mr Booth and Mr Nangle, Officer Rahimi spoke to his de facto partner, Officer Blacker who reminded the Applicant that he was late on 27 May 2011. Further, that Officer Blacker had failed to record his late arrival and had written in the Occurrence Register that Officer Rahimi arrived at work at the same time she did.

[40] Officer Blacker, prior to reminding Officer Rahimi of his lateness for work on 27 May 2011, had already provided information to the Employer that he had arrived at 7:15pm.

[41] Realising that he was late on 27 May 2011, Officer Rahimi telephoned Mr Booth and sought a further meeting which took place on 6 June 2011.

[42] Between the meetings on 3 June 2011 and 6 June 2011, Officer Rahimi did two things. Firstly, when completing his time sheet for 27 May 2011 wrote 18:15 hours as his commencing time but changed this to 19:00 hours as he alleged he wanted to err on the side of caution on the time of his arrival. Secondly, he retraced his journey to work on 27 May 2011 and estimated his lateness to work as being between 15 and 20 minutes.

[43] Officer Rahimi claimed that he did not have a history of lateness for work and the Employer does not have a zero tolerance to late attendance to work. Further, not recalling his lateness in attending work on 27 May 2011 was reasonable in the circumstances, and finally, the initial recording of commencing work at 18:15 hours on 27 May 2011 was simply out of habit.

[44] The Applicant claims that he did not make a false entry in the Occurrence Register and he should not be held liable for Officer Blacker’s actions. Officer Rahimi concedes he should have checked Officer Blacker’s entry in the Occurrence Register, but even so, a single instance of lateness does not justify dismissal. Further, Officer Rahimi asserts that he did not deliberately make a false entry on his time sheet and no detriment was caused to the Employer, in fact, he claims there was an accrued benefit to his employer when he corrected the entry to 19:00 hours.

[45] Officer Rahimi asserts that there is a reasonable explanation for all his actions complained of by the Employer, the disciplinary process was flawed and the Employer’s response is dismissing him from his employment was disproportionate, and in all the circumstances, harsh, unjust and unreasonable.

EMPLOYER’S CASE

[46] The Employer’s case is that its actions in dismissing Officer Rahimi should be seen in context.

[47] Officer Rahimi was rostered to work at 6:15pm on 27 May 2011 with Officer Blacker. Officer Rahimi’s place of work was at APOD and, together with Officer Blacker, they were responsible for a detainee and her child who were the subject of a possible assisted escape attempt. The adult detainee was designated a high flight risk client. Accordingly, it was essential that two officers be on duty at all times.

[48] Officer Rahimi did not attend work at 6:15pm as required. Further, the Applicant failed to notify his employer that he would be late for work. In not attending work at the required time and in failing to notify his Employer, Officer Rahimi put at risk Officer Blacker and the security of the detainees.

[49] In view of the fact that employees in APODs are required to work independently, and without supervision, Officer Rahimi undermined the trust and confidence that the Employer needs to have in its employees in such circumstances.

[50] It is in this context of trust and confidence that Officer Rahimi, a week later after arriving late for work, made what it describes as a false entry on his timesheet, which was subsequently amended; neither of these times coincide with the time Officer Rahimi said he arrived at work.

[51] In addition, as a result of Officer Rahimi failing to give open and honest answers during the disciplinary investigation, he breached the Employer’s Code of Conduct which expects staff to act with honesty and integrity. As a consequence, the trust and confidence which the Employer must have in Officer Rahimi has been further eroded.

[52] The Employer asserts that Officer Rahimi was given an opportunity to provide an open and honest account of failing to attend work on time and having not done so, was dismissed for a valid reason in circumstances such that the dismissal was neither harsh, unjust nor unreasonable.

EVIDENCE

[53] It is common ground between the parties that Officer Rahimi did not commence work at the APOD at 6:15pm on 27 May 2011.

[54] Notwithstanding this common ground, the parties spent a considerable time in evidence, as a fact finding exercise, to determine what time Officer Rahimi did actually arrive at work. In considering this evidence, I am mindful of the differing motives of the parties. The Applicant’s motive combines the necessity of demonstrating his true arrival time at work and the relatively short period of lateness. For the Employer, Officer Rahimi’s actual arrival time at work, while important, is secondary to the consequence of that late arrival and the necessity of the Applicant to provide an open and honest account of his lateness to work.

[55] In determining when Officer Rahimi arrived at work, I will begin with the evidence of Officer Joanne Bell. Officer Bell gave evidence that when Officer Blacker arrived without Officer Rahimi at the APOD on 27 May 2011, she asked “where’s your other half?” Officer Blacker responded that Mr Rahimi had been called to the PIDC and would be arriving at the APOD at 8pm and that it was “all sorted” with the Client Services Manager.

[56] As a consequence of that response, Officer Joanne Bell asked whether she and her husband and work colleague, Officer Caldwell, could leave; Ms Blacker responded “yes” 5.

[57] Officer Joanne Bell’s evidence was contested on the basis that Officer Blacker was not her supervisor, so why would she accept such an assertion and direction from Officer Blacker. Secondly, Officer Joanne Bell’s evidence was challenged on the basis that she made it up because both her and Officer Caldwell had left the APOD with only one person to maintain the security of a high flight risk detainee.

[58] Officer Caldwell, who had listened to the conversation between Officers Blacker and Bell, mentioned to Officer Blacker that the adult detainee was a high flight risk, to which Ms Blacker responded that she had been “doing this [security work] for quite a while” 6.

[59] While Officer Caldwell, in cross examination, responded more directly and robustly to the assertion that both he and Officer Joanne Bell had “made up” the evidence to avoid blame for leaving one person at the APOD, their evidence was not disturbed. In my view their evidence is to be preferred to Officer Blacker who said the conversation did not occur; my reasons for preferring the evidence of Officers Joanne Bell and Caldwell will become clearer when considering the entirety of Officer Blacker’s evidence.

[60] I find, as an outer limit, Officer Rahimi was expected to arrive at the APOD some time up to 8pm on 27 May 2011.

[61] The second piece of factual evidence to consider when determining what time Officer Rahimi arrived at work is Officer Blacker’s meeting with Mr Booth on 3 June 2011. At that meeting, Officer Blacker advised Mr Booth that Officer Rahimi arrived at 7:15pm and in response to the question of why he was late, Officer Blacker answered that she did not know where he was. Further and finally, in answer to Mr Booth as to why she let Officers Joanne Bell and Caldwell leave the APOD, she stated, “no idea, they could go as they didn’t need to hang around” 7.

[62] When asked in examination in chief, why Officer Blacker informed Mr Booth that Officer Rahimi had arrived at 7:15pm she conceded that she knew exactly what Mr Booth was referring to at the interview, and responded, “I didn’t know what the time was. It was a guess when I said 7.00 or 7.15” 8.

[63] Whether it was guesswork or the actual time Officer Rahimi arrived at work, it is plain that the anticipated time of Officer Rahimi’s arrival by Officer Blacker on the evening of 27 May 2011 had now been reduced from 8pm to 7:15pm on 3 June 2011 and 7:00pm or 7:15pm in cross examination.

[64] In contrast to Officer Blacker’s immediate recollection that Officer Rahimi arrived late for work on 27 May 2011, Officer Rahimi gave evidence that he could not recall what happened the week before 9. However, Mr Booth’s contemporaneous notes are:

● “Amy says she arrived before you and she didn’t know where you were and you didn’t arrive until 7.15ish and she was by herself for an hour.

I don’t agree.

Why do you think she would say that?

I didn’t say I don’t agree with Amy, it was the statement. I don’t know why anyone would say that.

● Amy was just in here and told us that, I know you don’t know what goes on in her head but she just told us that. Did you arrive at work at 7.15 or not?

As I said it was around 6.15 I arrived at [name deleted].” 10 (my emphasis)

[65] In his written witness statement, while Officer Rahimi was critical of the manner of the interview in that he was being ambushed and interrogated, he concluded:

“I might have said that I arrived on time on 27 May 2011” 11.

[66] In cross examination, Officer Rahimi states that, despite it being put to him that his de facto partner and work colleague Officer Blacker stated that he arrived late for work on 27 May 2011, he was not sure what night Mr Booth was referring to when questioning him about his late arrival at work. Further, and notwithstanding what Officer Blacker had said about the time of his arrival, Officer Rahimi maintained it was approximately 6:15pm because she had entered his time of arrival and she “wouldn’t write a wrong entry” 12.

[67] I find that in his interview with Mr Booth and Mr Nangle, on 3 June 2011, Officer Rahimi did state that he arrived at the APOD at approximately 6:15pm as recorded by Mr Booth. Further, I find that in the interview on 3 June 2011, he rejected Officer Blacker’s assertion that he arrived at 7:15pm because he was “100 percent, you know, sure that I wouldn’t turn up at work an hour late and that’s why I said, ‘I don’t agree” 13.

[68] At approximately 7:30pm on 3 June 2011, Officer Rahimi telephoned Mr Booth and sought a further meeting with him. Officer Rahimi and Mr Booth scheduled a meeting for 6 June 2011.

[69] At the meeting on 6 June 2011 between Officers Rahimi, Blacker and Mr Booth, the Applicant asserted that it was his first shift driving to that APOD on his own, he came off the freeway and went the wrong way and had arrived 27 minutes late. Officer Rahimi advised Mr Booth that he had texted Ms Blacker at 6:05pm and informed her that he was five (5) minutes away from work, “not the 27 it did take” 14. When asked by Mr Booth, why Officer Rahimi was adamant on 3 June 2011 that he arrived at around 6:15pm, he stated, “as I said the other day [it] was a week ago”15. Having sent the text at 6:05pm, Officer Rahimi calculated that he arrived 27 minutes later at 6:32pm or 17 minutes after his required commencing time.

[70] Officer Rahimi estimated that it took him 27 minutes from the location of sending the text message by retracing the same route which he took on Friday 27 May 2011.

[71] Officer Rahimi stated in evidence that he could not use his mobile telephone while he was driving in “peak hour” 16 traffic and sent a text message at 6:05pm while on Canning Bridge turning right. Officer Rahimi turned right and gave evidence that he went so far, believed he was going in the wrong direction, did a U turn and crossed the Canning Bridge again. Having crossed the Canning Bridge, he realised at some point that he was going in the wrong direction by heading west towards Fremantle and did another turn and crossed the Canning Bridge heading east until he arrived at the APOD 27 minutes after he sent the text message.

[72] In cross examination, Officer Rahimi gave evidence that he retraced his route on Sunday afternoon 17. Officer Rahimi conceded that a Sunday afternoon was “not as busy but quite busy”18 as the Friday evening on 27 May 2011. Officer Rahimi also conceded that on a Friday evening “could possibly take just a little longer”19 but he did not know what the difference would be between both days/times but he was “strictly keeping at the speed limit”20.

[73] While Officer Rahimi’s alleged text message at 6:05pm was deleted, if that time is taken as the starting time for the time taken to arrive at the APOD (27 minutes), I find the comparator (Friday evening versus Sunday afternoon) questionable. I find, as Officer Rahimi conceded, it was possibly longer than 27 minutes.

[74] Having given detailed evidence of what occurred in attempting to get to work on 27 May 2011, a day in which he travelled alone without his de facto partner (which was unusual) had visited a friend in Kwinana who was going overseas and requesting him to take some things to his family overseas, the question has to be asked why Officer Rahimi could not recall these events a week later and state that he arrived around 6:15pm. Further, and despite all these events, Officer Rahimi denied Officer Blacker’s statement that he arrived at approximately 7:15pm. Officer Rahimi’s answer to the question I have posed is that: it was not explained to him what the meeting on 27 May 2011 with Mr Booth and Mr Nangle was about; he was confused by questions; he could not immediately recall what happened a week ago; he was nervous with Mr Nangle leaning over him; the situation was intimidating (Mr Booth and Mr Nangle had a police and army background) and “he did not know how to answer their questions and whether my answers might hit their hidden agenda” 21.

[75] In oral evidence, Officer Rahimi stated he felt “ambushed” 22, “questions after questions”23, I panicked”24 and “they were interrogating me”25.

[76] Mr Booth gave evidence that he was a police officer for 19 years, worked in security since ceasing as a police officer and is experienced in conducting investigations and interviewing witnesses. Mr Booth asked most of the questions on 3 June 2011.

[77] Mr Booth gave evidence that neither Officers Rahimi nor Blacker were made aware of the nature of the meeting beforehand or that they were to be the subject of a formal investigation at that time. As at 27 May 2011, the purpose of the meeting was to “gather information” 26 following information he had received from the email by Ms Tania McCormack which is set out in paragraph [24].

[78] Mr Booth’s evidence was to the point. Mr Booth made no attempt, in advance, to contact Officers Rahimi or Blacker about the purpose of his meeting on 27 May 2011. In Mr Booth’s words, “I had some information and I was finding out his side of the story” 27.

[79] While Mr Booth acknowledged that the purpose of the interview was to get information, he denied it was an interrogation 28 but did ask essentially the same question on four occasions29. Importantly, Mr Booth described the conduct of the meeting as follows:

“...during the course of the interview with Mr Rahimi I was writing down the question and then once I had finished writing down the question down, I stopped, asked the question and then his response. I wrote down, thought, wrote down the next question, asked that question and so on” 30.

[80] After the interview by Mr Booth and Mr Nangle had finished at 3:23pm, Officer Rahimi went directly to Officer Blacker who told him about her discussion with Mr Booth and Mr Nangle. Officer Blacker confirmed that she had said that Officer Rahimi had arrived at 7:15pm on 27 May 2011. Officer Rahimi gave evidence that he was very upset and very angry with Officer Blacker as he was sure the route he had taken was not one hour 31. At approximately 7:30pm on 3 June 2011, Officer Rahimi telephoned Mr Booth and sought a further meeting to discuss what had been said at the earlier meeting32. It was at this meeting on 6 June 2011 he gave the explanation about his inability to find the APOD and arriving approximately 27 minutes late.

[81] The second major fact finding which occurred in evidence involved the initial entry of 18:15 hours but later corrected to 19:00 hours on Officer Rahimi’s fortnightly time sheets. Notwithstanding the correction, Officer Rahimi claimed a total of 11.75 working hours when it should, consistent with 19:00 hours starting time, have been 11.25 hours.

[82] The time sheet was filled out two days after Officer Rahimi’s interview with Mr Booth and Mr Nangle and after Mr Booth had mentioned to Officer Blacker that “it was lucky that [Officer Rahimi] hadn’t filled out [his] time sheet or he [Officer Rahimi] would have been done for theft” 33.

[83] Mr Rahimi gave evidence that he “habitually” entered 18:15 hours and realising he had made a mistake, crossed it out and entered 19:00 hours to be on the “safe side” 34. Further, that it was a genuine error in stating that he worked for 11.75 hours35. Finally, he stated 19:00 hours as his commencing time before retracing his route on 29 May 2011 to arrive at the conclusion that he arrived at the APOD at approximately 6:32pm.

[84] The Applicant’s representative submitted that the circumstances of Officer Rahimi’s termination of employment were surrounded by “poor investigative procedures”.

[85] The Applicant’s representative submits that, in the first instance, Officer Rahimi should have been notified of the allegations before his meeting on 3 June 2011 in such a way as to enable him to properly respond to them and to organise a support person. Further, that Officer Rahimi should after each disciplinary meeting have had the opportunity to review and comment on the minutes of each disciplinary meeting 36.

[86] Following Mr Booth and Mr Nangle’s interviews with Officers Rahimi and Blacker on 3 and 6 June 2011, Mr Booth prepared an Investigation Report. Mr Booth’s findings are found at paragraph [31].

[87] In very clipped fashion, Mr Booth recommended that:

“...both CSO’s Rahimi and Blacker be officially spoken to and suitable consequences be delivered.” 37

[88] Officer Rahimi was invited to attend a disciplinary hearing by way of a letter dated 14 June 2011 and titled “Re investigation into false entry in an official record” 38 but refers to his false entry in a document. Officer Rahimi was advised that he could have a representative attend the hearing with him.

[89] The first disciplinary hearing took place on 22 December 2011; Officer Rahimi conceded in evidence that the minutes are a fair reflection of what was said 39. At the end of the meeting, Officer Rahimi was given seven (7) days to make submissions.

[90] Officer Rahimi’s submission of 27 June 2011 40 is essentially that when he stated that he could not recall the details of his journey to work and time of arrival on 3 June 2011, it was because it occurred one week previously and it was not his intention to mislead Mr Booth and Mr Nangle. Officer Rahimi did not want to make a false statement and was deeply repentant.

[91] A further disciplinary hearing took place on 29 June 2011. Again, Officer Rahimi concedes that the minutes of the hearing reasonably reflect what was said 41. At the end of the disciplinary hearing, Officer Rahimi was given 24 hours to respond to the initial entry in the fortnightly time sheet. Officer Rahimi responded on the following day.

[92] At the third disciplinary hearing at 4:30pm, Officer Rahimi was advised that a decision had been made to terminate his employment. Again, Officer Rahimi concedes that the minutes of the disciplinary hearing are a fair reflection of what transpired 42.

[93] In summarising the final disciplinary hearing, Ms Vicki Bell refers to Officer Rahimi breaching the Code of Conduct and that when participating in an investigation, the necessity to “give truthful information, act with integrity and honesty” 43.

RELEVANT STATUTORY FRAMEWORK

[94] Section 385 of the Act provides:

“A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) ...; and

(d) ...

[95] The criteria for considering whether a dismissal has been harsh, unjust or unreasonable is contained in s.387 of the Act:

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

CONSIDERATION AND CONCLUSION

[96] The evidence demonstrates that once Officer Rahimi failed to attend work at 6:15pm on 27 May 2011, the cause for an investigation, investigation and disciplinary hearing moved quickly.

[97] The departing day shift Officers Caldwell and Bell on 27 May 2011 discussed, on their way home, their concern at leaving Officer Blacker on her own with a high flight risk detainee.

[98] On the morning of Saturday 28 May 2011, Officer Bell raised with Ms McCormack, Acting Client Services Manager, her surprise at the arrangements relayed to her by Officer Blacker the previous evening and leaving Officer Blacker by herself with the detainees.

[99] On the same morning at 11:08am, Ms McCormack reduced her discussion with Officer Bell to an email and forwarded it to her supervisors with the comment that she was at the PIDC until 7:00pm and Officer Rahimi was not present and that nobody had telephoned the control room or reception to say he was not present.

[100] On or around 30 May 2011, Mr Booth became involved and enquired into what had been set out in Ms McCormack’s email of 28 May 2011.

[101] By 3 June 2011, Mr Booth assembled the relevant documentary material to enquire into what actually occurred on 27 May 2011. Having done so, Mr Booth and Mr Nangle met with Officers Rahimi and Blacker.

[102] Prior to meeting with Officers Rahimi and Blacker, I find that the Employer may have suspected that something untoward had occurred, but it had not reached any conclusion to the extent that formal allegations could be put to Officer Rahimi, as suggested, and preferred, by his representative. I make the observation that if, at this stage, the Employer had formalised allegations against Officers Rahimi and Blacker, the Employer would have been justly criticised for not giving them the opportunity to provide an explanation before commencing a disciplinary process.

[103] I find the Employer’s request for Officer Rahimi to state what time he arrived at work and to confirm whether Officer Blacker was correct in saying that he arrived at 7:15pm reasonable. While Officer Rahimi may have found the discussion anxious, having considered the evidence, there is nothing to suggest, other than Officer Rahimi’s assertion, that the Applicant was “interrogated”, “ambushed”, “confused” or “intimidated”. While Mr Booth pressed the question on a number of occasions of what time Officer Rahimi arrived at the APOD, that would not be unusual given it was a key issue. The Applicant was given the opportunity to consider his answer to this key question on each occasion.

[104] At this stage, I should interpose that, perhaps with one exception, the Employer did not question Officer Rahimi’s performance, ability, honesty or credibility until his meeting with Mr Booth and Mr Nangle on 3 June 2011. Therefore, it is necessary to consider whether Officer Rahimi’s responses on 3 June 2011 were reasonable, because it was at this stage, that the Employer began to identify that it may have an issue with the Applicant’s honesty, integrity and trustworthiness which would lead to the disciplinary hearing.

[105] From the evidence, I cannot say with any certainty what time Officer Rahimi arrived at work. However, I can say with certainty that, in the circumstances, the Employer was compelled to enquire into the matter after having heard Officer Rahimi’s responses on 3 June 2011. The Employer, in the circumstances, was also compelled to implement a disciplinary hearing into the Applicant not attending work at the designated time. This was no ordinary case of an isolated incidence of late attendance.

[106] For good reasons, it is necessary to have a minimum two Officers at the APOD at all times. The evidence is that Officer Rahimi should have arrived at 6:15pm; he did not. Officer Rahimi should have advised his Client Services Manager that he would be arriving late for work; he did not. After Officer Rahimi allegedly texted Officer Blacker at 6:05pm to say he was five (5) minutes away from the APOD, “I’m just around the corner” 44, he did not make any further contact with Officer Blacker until he arrived for work at, he asserts, 6:32pm.

[107] Finally, when asked by Mr Booth one week later what time did he arrive at work on 27 May 2011, he stated that he could not recall despite all the events leading up to his arrival at work and being told that his de facto partner and work colleague has stated that he arrived at 7:15pm. If any statement or question was intended to “refresh his memory”, it was Officer Blacker’s statement that he arrived at 7:15pm, yet Officer Rahimi maintained he could not recall or had arrived at 18:10pm because that was the entry in the Occurrence Register.

[108] Between 3:23pm and approximately 7:30pm on 3 June 2011 Officer Rahimi had a discussion with Officer Blacker regarding his lateness for work. At approximately 7:30pm, Officer Rahimi telephoned Mr Booth to discuss the issues raised in his earlier discussion with Mr Booth. At the meeting on 6 June 2011, Officer Rahimi clearly makes statements which are inconsistent, or contradict his earlier version of events to the Employer.

[109] At this point, it is necessary to say that the credibility of Officer Rahimi is, in many respects, dependent upon confirmatory statements by Officer Blacker who has already made an incorrect entry in the Occurrence Register and given misleading information to the departing officers at the APOD. Having read and heard all the evidence, the only conclusion I can draw is that Officer Blacker’s evidence is to sustain the credibility of her de facto partner but her account is unreliable. My impression is that: Officer Blacker knew her de facto and work colleague was going to be late for work; Officer Rahimi was late for work and, more importantly, they provided an explanation which is not credible.

[110] In my view, the correct starting point when considering the actions of Officer Rahimi is to examine them in the context of the workplace. It is for this reason that I am unable to accept the contention that Officer Rahimi’s actions are an isolated case of lateness and the Employer’s response of dismissing him was disproportionate to his conduct. Shortly stated, the Employer has a reasonable belief that Officer Rahimi was late and had not informed the Employer he was going to be late. By not informing the Employer that he was going to be late, he has jeopardised the safety of his work colleague, Officer Blacker and the security of a “high flight risk” detainee. However, and more importantly, when the Employer enquired into the circumstances of the lateness, it invited Officer Rahimi to provide an honest explanation.

[111] Having received Officer Rahimi’s initial response in which he said he was not late and/or could not remember whether he was late because it occurred seven (7) days previously, I find the Employer had a reasonable belief that he was not providing an honest explanation and that belief was based on reasonable grounds. I further find on the evidence presented to the Tribunal that Officer Rahimi was not telling the entire truth as to the events on the evening of 27 May 2011.

[112] Over the course of the discussions on 3 June 2011 and the disciplinary hearing, I find that the Employer’s doubt as to Officer Rahimi’s honesty, by reason of his explanation, was eroding and eventually destroyed the relationship of trust and confidence that is necessary in the employment relationship.

[113] Officer Rahimi’s lack of credible explanations are of themselves conduct which questioned the relationship of trust and confidence in the employment relationship, but when examined in the context of the duties he was employed to perform, his conduct became fatal.

[114] Plainly put, the nature of the work performed by Officer Rahimi in isolated APODs looking after detainees demands a “currency” of integrity, honesty and confidence. Officer Rahimi’s actions, omissions and subsequent explanations, even at the hearing, lacked credibility. I am satisfied that the objective evidence, especially the contemporaneous material, is to be preferred. Where there was a material and relevant conflict of evidence between Officer Blacker and Officers Caldwell and Bell, I prefer the evidence of the latter officers.

[115] I now return to the relevant legislative framework.

Was there a valid reason for dismissal?

[116] I have adopted the concept of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[117] A valid reason must be considered in the context of the employment relationship. Part of the Employer’s business is the care, wellbeing and secure detention of those persons in detention. The operational nature is that employees work in these circumstances independently and unsupervised.

[118] It is trite but necessary to state that an employee is expected to carry out their functions, duties and tasks with due care and in accordance with the performance expectation of the Employer. The nature of Officer Rahimi’s work demanded that he be honest, diligent, reliable and conduct himself with integrity. As I have said previously this is not an ordinary isolated instance of lateness but an Employer faced with an employee whose explanation for arriving late at work was replete with lack of credibility, lack of recall, contradictions and believability. In the circumstances of the nature of the work, the Employer was entitled, after gathering information, giving Officer Rahimi the opportunity to explain himself and a disciplinary procedure to reject his explanation and to adequately conclude that it no longer had confidence and trust in him.

[119] I consider that the loss of the Employer’s trust in Officer Rahimi which resulted from his conduct, constituted a valid reason for his dismissal.

Notification of the reason for termination of employment.

[120] The reasons for termination of employment are clearly set out in paragraph [37].

[121] While the Applicant took issue with the fairness of the termination, Officer Rahimi did not contest that he was aware of the reasons for his dismissal.

Opportunity to respond.

[122] For the reasons I have already outlined, Officer Rahimi had the opportunity to respond regarding his conduct on 3, 6, 22, 29 and 30 June 2011. On two occasions, 27 and 30 June 2011, Officer Rahimi provided written responses to his Employer.

Support person.

[123] On 22, 29 and 30 June 2011, Officer Rahimi had access and was represented by a United Voice workplace delegate.

[124] On 3 June 2011, Officer Rahimi did not have access to a support person in a meeting with Mr Booth and Mr Nangle. The facts are that the Employer carried out its investigation into a potential disciplinary matter without unreasonable delay. The investigation was simply, in my view, to collate information or facts.

[125] When it was established that Officer Rahimi had a question to answer regarding his lateness and explanation, the Employer established a disciplinary hearing in which he was advised that a support person could be and was present.

[126] It is notable that Officer Rahimi did not request a support person to be present at a meeting he instigated on 6 June 2011 with Mr Booth.

[127] With regard to the Applicant’s representative’s contention that the disciplinary procedure was flawed, some of her points have more substance than others. I need say no more than that because overall the disciplinary procedure was fair and transparent; it could not be said that Officer Rahimi did not have every opportunity to put his case.

[128] In my view, the Employer was entitled to be sceptical regarding Officer Rahimi’s responses on 3 June 2011. The responses would not and did not inspire confidence in the Employer that he was telling the truth.

Unsatisfactory performance.

[129] This was not an application for unfair dismissal based on performance. The termination of employment related to Officer Rahimi’s conduct in which the key issue was the Employer’s inability to have ongoing trust in his honesty and integrity.

Employer’s size and Human Resources.

[130] The Employer is of substantial size and has human resources expertise but this was not an issue in contest in the hearing of the application.

Other relevant matters.

[131] Any other relevant matters I have taken into account in my reasons above.

CONCLUSION TO APPLICATION

[132] For the reasons set out above, I had come to the conclusion that Officer Rahimi’s dismissal from his employment with the Employer on 30 June 2011 was not unfair. Accordingly, the application will be dismissed and an order issued to this effect.

COMMISSIONER

Appearances:

Ms Palmer, for the Applicant.

Mr Kemp, Counsel for the Respondent.

Hearing details:

2011:
Perth,
5 October

 1   Respondent’s Bundle of Documents (RBD) 1-3

 2   RBD - 7

 3   RBD 13-14

 4   RBD - 39

 5   Exhibit R9

 6   Exhibit R8

 7   Exhibit doc 8

 8   PN 784

 9   Exhibit A3

 10   RBD - 9

 11   Exhibit A3

 12   PN 154

 13   PN 157

 14   RBD - 11

 15   RBD - 11

 16   PN 53

 17   PN 198

 18   PN 202

 19   PN 206

 20   PN 203

 21   Exhibit A3

 22   PN 130

 23   PN 134

 24   PN 165

 25   PN 167

 26   Exhibit A6

 27   PN 1062

 28   PN 1085

 29   PN1090

 30   PN 1091

 31   PN 62

 32   Exhibit R6

 33   Exhibit R35

 34   Exhibit A3

 35   PN 339

 36   PN 1321

 37   RBD 13 - 14

 38   RBD - 16

 39   PN 367

 40   RBD - 31

 41   PN 372

 42   RBD - 37

 43   RBD - 37

 44   PN 117

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