Mr John Sequeira v G4S Custodial Services Pty Ltd

[2012] FWA 7696

[2012] FWA 7696

FAIR WORK AUSTRALIA

DECISION

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

Mr John Sequeira
v
G4S Custodial Services Pty Ltd
(U2012/7382)

COMMISSIONER ROE MELBOURNE, 20 SEPTEMBER 2012

Termination of employment – gross misconduct.

[1] The matter arises from an application filed on 23 April 2012 under s 394 of the Fair Work Act 2009 (the Act) by Mr John Sequeira (the Applicant) for relief in respect to the termination of his employment from G4S Custodial Services Pty Ltd (G4S or the Respondent). The Application named the employer as Port Phillip Prison T/A G4S Custodial Services, however, during proceedings the Respondent confirmed the correct name of the employer. Accordingly, I vary the Application to amend the name of the Respondent.

[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing.

[3] The Applicant was represented by the CPSU.

[4] Given the complexity of the evidentiary matters in this case, I prepared a “draft summary of issues” document utilising the submissions and witness statements provided by the parties in advance of the hearing and requested that the parties advise issues of disagreement with the draft summary at the commencement of proceedings.

[5] As a consequence I am satisfied that and it is not contested that:

• The Applicant was employed at Port Phillip Prison for approximately 15 years.



• The Applicant was dismissed following an investigation at a meeting with Mr Roach on 12 April 2012.



• The Applicant was dismissed for gross misconduct and the termination took effect on 12 April 2012. However, the Applicant was paid 5 weeks in lieu of notice.



• The Applicant received a letter dated 23 April 2012 which put the reasons for the termination in writing.



• The gross salary of the Applicant was $94,545. The Applicant earns less than the high income threshold.



• The Respondent is not a small business employer.



• The Respondent is a national system employer.



• The Applicant is protected from unfair dismissal.

[6] The reasons given for the termination were serious dereliction of duties, placing prisoners and other staff at risk of harm or injury, a serious breach of security that could have resulted in an escape of prisoner(s) from Port Phillip Prison, direct contravention of a range of procedures that were adopted and implemented to mitigate the risk of escape and harm to others and placing G4S in a position where a serious contractual penalty may apply.

[7] Port Phillip Prison (“PPP”) is a maximum security men’s prison. The Respondent operates PPP on behalf of the State. The Respondent owes contractual obligations to the State and also owes duty of care obligations to prisoners in PPP.

[8] The Applicant was originally appointed as a supervisor. In 1994 he became a manager. As a Prison Services Manager the Applicant reported to the Operations Manager. At the time of the security incident he was employed in the role of Project Security Manager (Fishburn Unit). This was a major construction project which was taking place within the walls of PPP. The Applicant was appointed to a dedicated position specifically created to ensure that appropriate security protocols were developed and then implemented by his staff in relation to the site. The Applicant had a few years earlier worked in a similar role for a major construction project at the Salamander Unit.

[9] In the late afternoon and evening of 11 April 2012 a security incident occurred at the Fishburn construction site when a container belonging to Walkers Plumbing was found open (the Easter 2012 Security Incident). Subsequent investigations took place on the morning of 12 April 2012.

[10] G4S detailed the circumstances arising from this incident which led to a finding of gross misconduct as:

a. The open container not having two independent locks on it for security reasons and an admission from the Applicant that he was aware the builders lock had, some one week prior, been damaged and had not been replaced.

b. Failure to have an up to date tool inventory in the open container which provided no confidence regarding the tools which should have been in there;

c. A second container used by Walkers plumbing was opened and the large shadow board displayed numerous tools missing and not able to be accounted for.

d. No evidence that the procedure requiring twice daily checking of tools in these containers (in the morning and at night) was taking place.

e. Failure to demonstrate that a builders scissor lift inside the compound had been correctly disabled in accordance with security procedures and which in fact had been started by inserting and turning a locker room key.

f. A subsequent review of compliance meeting minutes which revealed that these security processes were reported back as being compliant when the investigation on the night and the following morning had revealed that this was inaccurate. 1

The Easter 2012 Security Incident.

[11] The parties agreed with the following summary of the incident and the issues based upon a draft which I prepared. 2 The parties made some amendments at the commencement of proceedings which have been included. It was not suggested that the summary covered all issues.

“THE INCIDENT

• The relevant events took place in the late afternoon and evening of 11 April 2012 and subsequent investigations which took place on the morning of 12 April 2012. A security incident occurred at the Fishburn construction site when, on 11 April 2012, a container belonging to Walkers Plumbing was found open.



• The security camera shows that the container was not open when the worksite was closed for the Easter Break on 5 April 2012.



• The security camera shows that the container was open on 9 April 2012.



• The Applicant was given specific responsibility for ensuring the construction site was kept secure and the various risks arising from having a construction site inside the walls of a maximum security prison were controlled and mitigated. The CPSU disagrees with this summary of the Applicant’s responsibilities.



• The principal contractor oversaw various tradespeople on site. Contractors provided their own locks to the containers. There were also prison locks which had to be opened by prison personnel before work began each morning. The workers also had to be escorted onto the site each morning.



• The site was closed during the Easter break from 5 April and prior to this the security of the building site was confirmed by radio by the Corrections Officer on duty and a later camera scan confirmed the site was secure. On 11 April a Corrections Officer reported that a shipping container was open and the container was then opened and checked.



• The Applicant was not required to be on duty at the site from 5 April to 11 April.



• The Applicant was not present at worksite when work was completed on 5 April - he was overseeing vehicle checks.

THE ISSUES IN RESPECT TO THE INCIDENT AND REVEALED BY THE INCIDENT

1. Locking of large container.

• The security procedures required (or it was a reasonable expectation that the Applicant should have had systems to require and verify) that the container have a builders lock and a G4S lock on it and it be secured at nights and weekends. The CPSU argue that this was not in the form of specific written procedure provided to the Applicant.



• It was established on 11 April 2012 that there was no working builders lock on the container when the worksite was closed on 5 April 2012. The builders lock was damaged approximately one week prior to the 5 April 2012 and had not been replaced.



• The types of equipment kept in this open container presented an extreme risk in a maximum security prison. They included OxyAcetyline equipment which was used for welding and cutting through thick metal, heavy duty cutting equipment, grinders and hacksaws. It was the type of equipment which could easily be used to facilitate a prison escape.



• G4S say that the Applicant admitted on 11 April 2012 that he had been aware of the builders lock being damaged. The Applicant says that he was first made aware of the lock being damaged on 11 April 2012 just prior to speaking to the relevant senior manager.



• The G4S lock was still on the container on 11 April 2012 but the container was open not locked.




2. Lack of up to date tool inventory in container.

• The security procedures required (or it was a reasonable expectation that the Applicant should have had systems to require and verify) that there be an up to date tool inventory in the container. The CPSU argue that this was not in the form of specific written procedure provided to the Applicant.



• The tool inventory in the container was more than 3 months old and provided no confidence regarding the tools which should have been in there.



• Tools could be used as weapons by prisoners.



• At least once each week the Applicant was required to observe his staff correctly using tool inventory lists to check tools in a container at the beginning and the end of each day. The CPSU argue that this was required in respect to records of tools in and out either at the entry and exit to the site (Sallyport) or on site at the containers. The CPSU argue that the requirement to check the tools in a container or on site was not in the form of specific written instructions provided to the Applicant. The CPSU argue that the container or on site tool inventory was a responsibility of the contractors.



• The Respondent says that the Applicant reported that he had observed a tool issue and return by Walkers Plumbing on 1 March 2012. The Applicant cannot recall this.




3. Checking of tools: shadow board

• The security procedures required (or it was a reasonable expectation that the Applicant should have had systems to require and verify) that shadow boards be used for small tools kept on site. The CPSU argue that this was not in the form of specific written instructions to the Applicant.



• A second container used by Walkers plumbing was opened on 11 April and the large shadow board displayed numerous tools missing.



• Subsequently it has been established that the tools were taken off site by a contractor.



• The Applicant says that the movement of these tools was recorded in the tool issue and return register. The Applicant says that he gave this register to Compliance Coordinator Mr Dickson on 11 or 12 April. The Respondent says that the movement of the tools was not properly accounted for.




4. Checking of tools: requirement for twice daily checking

• The security procedure required (or it was a reasonable expectation that the Applicant should have had systems to require and verify) twice daily checking of tools in these containers (in the morning and at night). The CPSU accept that there was requirement to check tools entering and leaving the site at the Sallyport but they argue that there was no formal written procedure requiring container tool inventory checks provided to the Applicant.



• This was not taking place.



• The Applicant says that this procedure was impractical on a building site and that this had become evident on an earlier project and that the previous Governor had suggested a less rigorous and intrusive approach be adopted.




5. Disabling or Immobilisation of equipment.

• The security procedure required (or it was a reasonable expectation that the Applicant should have had systems to require and verify) that plant and machinery be properly secured and checked that it was disabled at nights and weekends. The CPSU argue that this was not in the form of specific written instructions to the Applicant.



• On 11 April a builders scissor lift inside the compound was able to be started by inserting and turning a locker room key.



• At least once each week the Applicant was required to observe and confirm that all machinery left on the site had been disabled and that this had been correctly noted on the daily checklist. The CPSU agree that this was a requirement but not a personal requirement of the Applicant. The CPSU argue that the Applicant was entitled to rely on the contractors who they say were responsible to disable the machinery.



• The Respondent says that proper procedures for the immobilisation and disabling of the plant and machinery were not being implemented and verified. The Respondent says that they established that if the motor could be started then the machine could be moved and operated. The Respondent says that the machine could have been driven to the wall, the crane lifted and propelled over the wall to facilitate an escape. The Respondent says that the Applicant did not need to understand how the machines worked but as a minimum he should have satisfied himself and ensured that the staff working under him were capable of being satisfied that the machines had in fact been disabled. The Applicant says that other processes ensured that the plant and machinery was in fact immobilised and secure including other barriers and storage systems. The Applicant says that it was not reasonable that the Applicant could be expected to understand all the processes associated with a particular piece of plant and equipment and that this was a contractor responsibility. The Applicant did not know how to operate the large machinery. The Applicant says that it was not demonstrated that the builders scissor lift was able to be moved even it was possible for it to be started.




6. Compliance Reporting.

• Compliance documents were signed each week and there was no evidence of non-compliance raised before 11 April.



• The April 9 compliance document was signed off despite the fact that there was an open container. The Applicant was not responsible for signing off on April 9. G4S argue that there is no time on the compliance sign off so it is impossible to know if the container was open when the control room checked the site.



• A subsequent review of compliance meeting minutes revealed that these security processes were reported back as being compliant when the investigation on the night and the following morning had revealed that this was inaccurate.



• The Applicant says that he did develop the appropriate procedures for tool register, locking procedure, machine disabling and security which were conveyed to contractors and G4S personnel.




7. Results of investigation.

• On the morning of 12 April Dennis Roach spoke to Gawaine Lee and Ian Dixon. He told them that he wanted a full risk assessment completed of the Fishburn building site and wanted them to identify any risks that remained. Later that morning they returned from this assessment of the site and presented him with photographs showing various building materials which they had found unsecured on the site. This included; iron poles, rope, loose clips, metal scaffolding and trowels. All of these were laying around loose on the site. All these building materials should have been inside the containers or if not then made secure. This equipment laying around on the site created a significant security risk and it was not difficult to imagine how it could be used by prisoners to facilitate an escape if they were able to get hold of it. The CPSU disagree that items such as reinforcing represented an escape risk.




8. Consistency of approach

• The CPSU say that G4S were aware of problems with the security integrity of the temporary fence and in respect of building waste products and took no action against those responsible.”

What was required of the Applicant.

[12] Dennis Roach, Nick Selisky, Stafford Miller and Paul Dunmall gave evidence for the Respondent concerning the role and expectations of the Applicant in his capacity as Project Security Manager (Fishburn Unit) and the compliance reporting obligations. The Applicant, Mr Graham, Mr Wesley and Mr Angus also gave evidence relevant to an assessment of those obligations.

[13] The Applicant describes his understanding of the responsibilities of the position in somewhat different terms but I am satisfied that an examination of the position description for the Applicant’s role as a Prison Services Manager 3 together with the evidence concerning the specific responsibilities of the Applicant as Project Security Manager (Fishburn Unit) demonstrates that the Applicant was given specific responsibility for ensuring the construction site was kept secure and that the various risks arising from having a construction site inside the walls of a maximum security prison were controlled and mitigated. This was in the context of the general responsibilities of a Prison Services Manager which include:

• Comply with company policies and procedures ensuring all operations are conducted in a safe and responsible manner.



• Identify and implement corrective actions where necessary.



• Visit all areas of responsibility daily, providing guidance, leadership and support to staff and maintaining good order of the prison. 4

[14] I am satisfied that in carrying out his role the Applicant had to comply with company policies and procedures and he had to be proactive and identify and implement corrective actions including appropriate procedures.

[15] The responsibilities of the Applicant in respect to the security of the Fishburn Unit construction site according to G4S were set out in:

• Various policies and procedures which G4S applied to security in the prison regardless of location and which the Applicant as a manager was expected to be aware of and to implement. Most notable of these was the policy in respect to tools. 5



• A risk assessment document which included the required actions to mitigate risks.



• Compliance records completed by the Applicant and reported at weekly compliance meetings. Those records set out what the Applicant is required to do on a weekly basis to directly verify that those who report to him are doing what is required and to satisfy himself that the processes are adequate to mitigate the identified risks. 6

• The generic job description for a Prison Services Manager and communications from the Applicant’s managers.

[16] In respect to the policies and procedures the CPSU argue that the tool policy essentially relates to tools used by prisoners inside the prison. The G4S witnesses accept that this is the main focus of the document however they argue that the document applies to the management of tools regardless of whether they are designed for prisoner use or not. The Tool Operational Instruction provides that tool registers must be kept and must be updated and reconciled daily. Tools must also be checked and listed when they move in and out of the prison through a Sallyport. Tools on site must be checked and accounted for four times daily. Considering all of the evidence and the document itself I accept that the document has the more general application suggested by G4S however it is clear that the policy must be read in conjunction with the risk assessment document specifically for the Fishburn Unit construction. The evidence of both the Applicant and G4S is that the number of checks required was reduced for the Fishburn Unit site. It is not in contention that policies such as the policy in respect to the secondary Sallyport 7 did apply to movement of vehicles and personnel in and out of the construction site which was through a secondary Sallyport.

[17] In respect to the risk assessment document 8 there is no dispute that a document was developed for the Salamander construction project and that the Applicant was aware of and participated in the development of that document. The Applicant understood that the compliance actions and reporting which he was required to follow in respect to the Salamander project derived from this document.9 The evidence of the G4S witnesses was that the document was amended for the Fishburn Unit project. The document shows the tracked changes from the Salamander document. The changes are not extensive. G4S witnesses gave evidence that the main change in practice from the Salamander project to the Fishburn project was to reduce the number of tool checks per day “on site” from four to two but the number of checks is not specified in the document. The evidence of Mr Selisky was that this change was the subject of some debate between the relevant managers. The Applicant and the other G4S managers gave evidence that the process of four checks per day required by the Tool Operational Instruction and applied on the Salamander project proved impractical in a construction environment and held up the construction process.

[18] Mr Selisky says that the Applicant was directly involved in this process of amending and finalising the risk assessment and compliance actions document for the Fishburn Unit project. Mr Selisky also says that the Applicant was involved in the discussion which resulted in the approach of two checks per day being adopted. The Applicant denies this. I prefer the evidence of Mr Selisky on this point for the following reasons:

• The requirements in the risk assessment document are so central to the job that the Applicant was tasked with performing it is difficult to imagine how he could have carried out his function without knowledge of the contents of the document.



• The evidence supports a conclusion that the processes in the prison are generally hierarchical and documented.



• The evidence of Mr Selisky is supported by other G4S witnesses although indirectly.



• The level of consistency between the risk assessment document requirements and the compliance reporting documents which were completed by the Applicant each week also support a conclusion that the Applicant must have known of the risk assessment document. It would have been difficult to complete the compliance reporting document without a clear understanding of the requirements in respect to each item. The risk assessment document together with the relevant G4S policy and any other agreed amendment such as around tool audits was required for this.



• The fact that the Applicant was involved in the development of the document in respect to the Salamander site and understood its role in underpinning the requirement of his job as responsible for site security and the reporting requirements around that job also supports a conclusion that the Applicant must have known about the document in respect to the Fishburn Unit job.



• Mr Wesley, a witness for the Applicant, gave evidence of what he understood the security requirements to be and these reflected the requirements as understood by the G4S witnesses - e.g. two locks on the container and inventory lists updated and in the containers. 10

• Mr Angus, a corrections officer who reported to the Applicant and who gave evidence for the Applicant, confirmed his understanding of security requirements on site in respect to tool containers to be consistent with that understood by the G4S witnesses.

• The Applicant required two locks on each container on site. This is directly consistent with the requirements in the risk assessment policy. There seems little point in the two locks policy unless it is to ensure that a G4S security guard and the responsible contractor are both present at the opening and closing of the container in order to verify the tools which are taken in and out of the container and to audit them against an inventory.

[19] If I was to accept that the Applicant did not actually participate in the amendments to the Salamander document, which I do not, I consider it was reasonable to conclude that the Applicant assumed that the requirements of the work in the Salamander context carried over to his role at the Fishburn Unit except where policy had been explicitly changed. The Applicant says that he acted on this basis including in respect to requiring two locks on the containers. 11

[20] In respect to the compliance records there is no dispute about the fact that the Applicant was required to comply with these requirements, verify they have been completed on the report form each week and report in respect to these matters at the weekly compliance meeting which lasted approximately two hours. The G4S witnesses gave evidence that the requirement was that the Applicant must personally each week verify that certain tasks have been done as required. Some tasks according to both the compliance record form and the risk analysis document were required to be performed by the corrections officers reporting to the Applicant on a daily basis and sometimes on many occasions each day. So for example every vehicle going in and out of the site through the Sallyport had to undergo inspection and certain matters, including tools in and tools out had to be documented. Certain checks had to be undertaken of the security of the site at the beginning and end of each day. The Applicant was required to either conduct certain checks himself to verify the system or to closely and directly observe that it was correctly performed by others. None of the evidence of the Applicant’s witnesses contradicted this.

[21] The CPSU submitted that the Applicant did not have to always carry out the tasks himself and that on some occasions the tasks might be performed by contractors or by those who reported to the Applicant. This is accepted by G4S. However, what is made clear by the compliance records, the risk audit document and the evidence of the G4S managers is that the Applicant and no one else was responsible for personally verifying that the system was working by personally conducting or closely observing checks at least weekly and completing the compliance record. I am satisfied that the Applicant was required to undertake, observe and understand what was happening to the extent necessary so that he could testify that he was sure that the required tasks had been done, had been done correctly and that the system was effective in mitigating the indentified risk. I cannot accept the submissions of the CPSU which suggest that these matters are the responsibility of the contractors or of those who report to the Applicant. Such an approach would not be consistent with the effective operation of a maximum security prison.

[22] The Applicant argued that checks on the tools going in and out of the Sallyport was what was required and that there was no requirement for twice daily checks of the tools going in and out of containers or for these movements to be verified against an updated inventory in the container. Mr Graham, 12 a corrections officer who reported directly to the Applicant, says that:

“There was supposed to be a procedure for an inventory of tools in the containers but it was practice to keep a tool register at the front Sallyport desk. There was no written procedure to check the tools against the inventories on site. But Manager Sequeira would verbally reinforce his expectations and company expectations and requirements on a regular basis......Without tool inventories available at the building sites it was impractical to conduct tool audits.” 13

Mr Angus, a corrections officer who reported to the Applicant and who mainly worked carrying out the checks at the Sallyport rather than at the containers on site, also gave evidence that it was not possible to track tools through a register of movements of tools on and off site as such an approach did not identify whether or not tools stored in containers had been removed. Mr Angus also believed that there was a requirement for regular checks of tools going in and out of containers and for these movements to be verified against an updated inventory in the container. 14 Mr Angus gave evidence that he did not do the job on the site and therefore could not be sure about the requirements however I regard the evidence to be of some significance as it illustrates what G4S senior management had communicated as the appropriate culture and requirements.15

[23] The Applicant gave evidence that Mr Roach and the prison governor at the time, Mr Myers, had suggested that a less rigorous and intrusive approach to tool checks should apply. 16 Mr Roach strongly denies this. I accept that Mr Roach and G4S agreed to two checks per day rather than four checks per day to reduce the interference with the building work however I accept the evidence of Mr Roach that he did not suggest that regular checks should be abandoned. In my assessment such an instruction would be completely out of character for Mr Roach. Mr Myers was not called as a witness. However, assuming the Applicant’s account of what Mr Myers said is accurate the Applicant does not claim that Mr Myers told him not to use the procedures to verify tools but rather told him “to utilise the prison procedures to the maximum extent possible but remember this is a worksite and we need the construction done.”17 The evidence of the G4S witnesses suggest that this could have been the reason why the number of daily checks was changed from the normal “prison procedure” of four per day to two per day.

[24] A reading of the requirements set out on the compliance reports, in the context of the evidence given and the risk assessment document, supports the contentions of G4S. It is very hard to read the requirements for site checks as being confined to checks of vehicles and associated tool movements at the Sallyport. The compliance document refers, amongst other things, to vehicle search on entry and on exit and recorded in the Sallyport log; tool issue and return and recorded on daily site checklist; AM and PM site security check and recorded on daily site checklist; all machinery left on site disabled and recorded on daily site checklist and all logs/registers completed. I am satisfied that these compliance requirements provide for recording of on site matters separately from movements on and off site at the Sallyport. The matters which were required to be checked and recorded on site included matters associated with tools. I am satisfied that this is a reference to the requirement, amongst other things, to an up to date inventory of tools in each container and to daily checks of movement of tools in and out of each container.

[25] I therefore conclude that the Applicant was required to ensure a number of tasks were carried out by those who worked for him. This included providing those who worked for him and contractors with appropriate instructions, work systems and coaching. It also included a requirement that he verify by direct checking or close observation of each requirement at least once per week and that he record this in the compliance log and report it at the weekly compliance meeting and that he confirm that the approach being taken was adequate to minimise the identified risks. The tasks included:

• Twice daily security site checks including that containers are locked with two locks - a builders lock and a prison lock.



• Searches of all vehicles on entry and exit and a record of tool movements on and off site.



• Twice daily confirmation of movement of tools in and out of containers “on site” and check against an up to date inventory in each container.



• Verify the correct use of shadow boards for small tools in containers.



• Confirmation at the end of each day that all machinery left on site is disabled.



• Ensuring site security through morning and afternoon checks including securing building materials around the site after working hours to reduce escape hazards.

What did the Easter Security incident reveal?

[26] Measured against the requirements of the Applicant’s job I am satisfied that the following deficiencies were established:

• The large Walker’s container was open and it had not been secured by two locks. One of the locks had been broken for a week prior to 5 April. It is clear that the daily check on 5 April 2012 failed to identify this problem. It is clear that adequate action to ensure that there were two locks had not been taken for some time.



• Neither of the Walker containers had an up to date inventory. This meant that an audit of tools and tool movements in and out of the containers could not occur. It is reasonable to assume from the date of the inventory which was found that this had not occurred for at least three months. The evidence of Mr Graham also confirms that it was not the practice to check movements in and out of the containers or to update the inventories.



• Given the evidence of the Applicant that he was not requiring daily checks of movements against up to date inventory in and out of the containers it is reasonable to assume that this had not been occurring. The evidence of Mr Graham also confirms this.



• Given the evidence of the Applicant and of Mr Graham that they relied on the contractors to advise them that the machinery had been disabled, the Applicant did not have adequate systems in place to verify that the machinery was disabled. This was not confined to an isolated incident.



• Shadow boards were not being correctly used and correct use was not being adequately verified. The absence of a system for effective checking of movement in and out of containers demonstrates that this was not confined to an isolated incident.



• Inspection on 12 April 2012 revealed that various building materials were found unsecured on the site. This included: iron poles, rope, loose clips, metal scaffolding and trowels. To the extent that these materials represented an escape hazard they should have been inside the containers or if not then made secure. The evidence of Mr Selisky is that he had previously raised the importance of this matter with the Applicant and advised that it was not being performed adequately.

[27] It is possible that the problem with the locks on the container was an isolated incident. Given that the Applicant was only required to view and verify one daily morning and one daily afternoon check of the site security each week it is possible that he could have missed observing the missing lock. However, I accept the evidence of G4S that the site was not large, approximately 100 meters square, 18 and the Applicant had only a small team of half a dozen security staff to manage. This makes the oversight more significant. At the very least it suggests that the Applicant had not been effective in creating the right culture and expectations amongst those who reported to him and it also raises serious questions about the accuracy of his reporting that the procedures in place were compliant and effective.

[28] The CPSU argues that there was a record of the tool movement on and off site through the Sallyport of the tools in the smaller Walker’s plumbing container. G4S gave evidence that the document could not be found. It is not necessary to determine this question. Even if the Applicant’s evidence is accepted, and I am inclined to that position given that it is supported by the evidence of Mr Angus and to some extent by Mr Wesley, 19 there is no doubt that the Applicant did not verify or require twice daily checks to be performed of movements in and out of the container and did not require up to date inventory for this purpose in the containers. Also, the evidence of the plumbing contractor, Mr Wesley, was that tools in a box in his ute were not required to be documented when entering and leaving the prison.

[29] Mr Wesley had this to say about the security measures for which the Applicant was responsible:

“So in terms of the container, there might have been an inventory on the wall but wasn’t always updated.” 20

“With tools I might have had in the car, either coming in the morning or leaving at night, there was no inventory made of the tools I actually had in the car.” 21

“If there were tools in the container that had the shadow board and then someone decided to take those tools home - say, to do a quick job on the house - they are supposed to be recorded coming in and out, but that wasn’t always the case.” 22

“It happened but was lax. Tool lists happened but as far as I was concerned we were one of the better trades. The other trades, I don’t know if tool lists even existed...” 23

“Tool lists weren’t policed or audited. Although there was concern about tools such as screwdriver, other things like scrap metal and reobar were left around. I thought there was some hypocrisy about security.” 24

“In terms of the second container the one with the shadow board, they opened up that container and we had some tools - pump, hammer, drills etc in there. There was an inventory in that but I’m not sure if is up to date....It was our responsibility and the guards were supposed to also do that but they didn’t always check the inventory. There was a week when that didn’t really happen. I’m not sure whether a check was meant to be daily or random. .. But we weren’t using the shadow board as we should have.” 25

[30] I accept this evidence which demonstrates that Mr Wesley as a contractor was aware of the need for tool checks, inventories, shadow board use and audits but that these requirements were not consistently implemented or enforced. Mr Wesley said that the checks were happening at the Sallyport but not regularly at the containers. 26 It was the Applicant’s responsibility to have the right practices and procedures understood, implemented and verified. The evidence of Mr Wesley is strong evidence that the Applicant had failed in his responsibility and his regular reports of compliance were misleading.

[31] The Applicant accepted that an up to date inventory was required in each container. 27 However, he did not provide evidence as to the system he had in place to ensure it was done. He also accepted that there should be two locks on each container and it should be checked each night and morning.28

[32] I accept the evidence of the Applicant that he only became aware of the missing or broken builders lock on the large container on 11 April 2012. I accept that a corrections officer, Mr Graham, and the contractor, Mr Wesley, were aware of the situation and did not report it or do anything about it for a week. The Applicant says that he was aware of and communicated the policy in respect of the requirements for two locks. In fact the Applicant says he developed the policy. The policy was applied on the Salamander job and it remained a risk assessment policy for the Fishburn Unit job. I also accept the evidence of Mr Dunmall 29 that there was no builders lock on the small Walker’s plumbing container. It was reasonable for G4S to doubt from the evidence the accuracy of the compliance reports made by the Applicant. It was also reasonable based on the evidence for G4S to have doubts that the Applicant had taken adequate steps to ensure that contractors and staff had received adequate instruction, guidance and education in respect to the need to ensure that the containers had the two locks.

[33] I accept that the Applicant cannot be held directly responsible for the large container being found open. I accept that the Applicant made the appropriate visual inspection by camera of the site before leaving on 5 April 2012. I accept that the Applicant was not on site or required to be on site over Easter. I accept that the Applicant was at the Sallyport not on site at the time the containers were locked at the end of work on 5 April 2012.

[34] I understand from the evidence of G4S and Mr Roach in particular that the most significant problem in respect to the incident on 11 April 2012 was that G4S was not able to immediately locate and verify the location of all tools because of the failure of the systems for proper monitoring and recording of tools and tool movements. I understand that it is precisely because mistakes or oversights do happen that it is essential to have systems in place to verify that policies and procedures are being observed and that those policies and procedures are adequate to minimise risk. This was the essence of the Applicant’s job. More than one system and more than one check needs to be in place to provide for security and in addition to that the Applicant was required to directly verify compliance with each of the systems and checks and the adequacy of the systems to minimise the indentified risks.

[35] I accept the evidence of Dennis Roach and Nick Selisky that they confirmed through discussions with a contractor that if the motor on the builders lift could be started then the machine could be moved and operated. I am satisfied that it could have been driven to the wall, the crane lifted and propelled over the wall to facilitate an escape. I am satisfied that it is not an excuse, as is proposed by the Applicant, that he was wholly reliant on the builders confirming to him that the machines were disabled. The Applicant did not need to understand how the machines worked but as a minimum he should have satisfied himself and ensured that the staff working under him were capable of being satisfied that the machines had in fact been disabled. I am satisfied that there were other obvious means available to disable the machines such as locking a cover over the control panel and making sure that a lock around the battery was in place but that the Applicant did not take any actions to verify this or to require those who reported to him to verify this.

[36] Mr Wesley gave evidence in respect to the machinery that:

“We were instructed to lock these up. Walker Plumbing has guards we lock - that’s standard whether on a prison or other building site. We did our best to immobilise - pull the battery or pull the terminals off to do everything to make sure it was immobilised, to disable it.” 30

[37] I am satisfied that on 11 April the battery was not secured or disabled and guards on the control panel or elsewhere were not locked. I am also satisfied that the Applicant and those who worked for him could have become familiar with the techniques utilised to disable or immobilise the machinery. This would have enabled them to be able to verify if the machines were disabled or immobilised as required. I am satisfied from the evidence of Mr Roach that the Applicant did not demonstrate that he had acquired this knowledge.

[38] Even if I accept that it might have been difficult to move the machine without adequate training, there is no reason to assume that prisoners would not have such training. Further I doubt that a prisoner engaged in an escape would be too concerned to ensure that he only operated the machinery when properly trained or in a manner consistent with occupational health and safety requirements.

[39] I accept that the compliance reports provided each week by the Applicant to the effect that the process for securing machines were verified were not reliable. The Applicant did not have appropriate procedures in place for himself, for those who worked for him and for the contractors to ensure that this risk was minimised

[40] I accept the evidence of Mr Selisky that he had put the Applicant on notice in February about the need to better secure materials on site. I reject the evidence of the Applicant that reinforcing mesh does not constitute an escape hazard and accept the evidence of the G4S witnesses concerning how the material could be utilised for this purpose. The Applicant said that he had shown those who worked for him the advice from Mr Selisky about the dangers of these building materials but Mr Graham does not recall being shown the document. I do accept that on a building site it is a difficult task to secure such materials. Given that this is a matter of degree it is a matter in respect to which it would have been reasonable to give the Applicant more opportunity to respond and to demonstrate improved performance.

Consistency of approach by G4S

[41] The Applicant argues that G4S have not had a consistent approach to the security issues. They argue that as a consequence the treatment of the Applicant must be regarded as harsh.

[42] The Applicant argues that the temporary fence built between the building site and the Salamander Unit was inadequate. It is not in contest that at one stage the fence blew down. The Applicant says that concerns about the fence were raised with senior management but the concerns were rejected. Mr Roach gave evidence that the fence was adequate. Mr Wesley gave evidence that he was concerned about the fence and that there was a gap under the fence through which a prisoner could access the building site. Mr Wesley said that the fence was then replaced which improved the situation but did not remove the problem as he saw it. Mr Wesley and the Applicant also referred to wire and stakes left lying around after the fence construction. The issue of materials left lying around is a matter in my view which the Applicant had some responsibility to address hence I do not regard this as an illustration of inconsistency by G4S. I am not in a position to judge whether or not a temporary fence was adequate. The dismissal of the Applicant was linked to inadequate procedures and verification of security compliance. The issue of the quality of the fence does not illustrate any inconsistency in approach to these matters by G4S.

[43] I accept the evidence of the Applicant that the compliance checks were inadequate. Mr Miller could not confirm that the compliance team had made the required weekly visits to check on compliance in the Fishburn Unit. I accept that there were some shortcomings in the work of those responsible for security over the Easter Break as the open container was not discovered between 9 April and 11 April 2012. No action appears to have been taken against those responsible for these shortcomings. I am therefore satisfied that the complaint of inconsistency of treatment has some merit in these respects. However, I do not suggest that these shortcomings were of the same seriousness as those of the Applicant.

Prior conduct.

[44] A former General Manager, Mr Spadano, gave evidence that concerns had been raised with the Applicant concerning a lack of compliance with security requirements by his team when working on the Salamander project. 31 The Respondent argues that some concerns about the standard of security work were raised in respect to the Fishburn Unit construction site by Mr Selisky prior to the incident of 11 April 2012.32 The Applicant says that he was asked by his manager to respond to certain security issues observed by his manager but that these matters were not raised as concerns about his performance. G4S did not rely on these matters to justify the termination of the Applicant. Having considered the emails and evidence provided I conclude that the Applicant was justified in his assessment that these were security concerns raised for his attention and they were not warnings or counselling about his performance. I do not consider the evidence concerning the issue raised in respect to the Salamander project to be of any significance. If it was of significance the Applicant would never have been asked to perform the role on the Fishburn Unit project. However, I accept that the correspondence of Mr Spadano and the discussion with Mr Selisky is evidence that the Applicant was on notice of what was expected of him particularly in respect of building materials being left unsecured and in respect to the importance of tool audits and inventory.

Potential consequences and level of responsibility.

[45] It was not disputed that apart from the obvious safety and security issues (e.g. risk of harm to others and the community in the event of an escape), if an escape had eventuated the Respondent would have incurred significant contractual penalties in the form of abatements pursuant to the contract in place between the Applicant and the State. The Respondent could have been subject to a termination notice for a material breach of the contractual obligations owed to the State. In addition, reputational damage could have been caused to the Respondent’s business.

[46] However the CPSU argues that the actions of the Applicant did not lead to these risks. For example the CPSU argue:

• The Applicant was not required to be on site from 6 April to 12 April 2012.



• He was not responsible for the compliance report of 9 April 2012.



• The compliance manager had not to his knowledge previously visited the site or taken any steps to verify compliance as required in the risk management system.



• He was not aware of the missing lock prior to 11 April 2012.



• He was not aware that the machinery could be started.

[47] I accept that the Applicant cannot be expected to prevent every shortcoming of the contractors and those who report to him. However, I accept that Mr Selisky did directly raise with the Applicant concerns about unsecured building materials including reinforcing mesh which indicates at least some level of compliance checking. I have found earlier that:

• The Applicant is responsible for the procedures and culture which is in place and it is clear that there were serious shortcomings in this respect.



• The Applicant failed to carry out some of the direct requirements of the job including in respect to tool inventories and checks on the tool containers and also in respect to adequate processes to check that the machinery was disabled.



• The compliance reports completed by the Applicant were not accurate at least in these respects.

Criteria for determining whether a termination is unfair.

[48] The legislation provides as follows:

“s387 Criteria for considering harshness etc.

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.”

Was there a valid reason for termination? (S 387(a))

[49] Taken as a whole I am satisfied that the findings I have made in respect to the evidence demonstrate that there was a valid reason for the termination of the Applicant. The evidence establishes significant shortcomings in the Applicant’s conduct and performance in carrying out the requirement of his job. In reaching this decision I particularly rely on the findings I have made in respect to the requirements of the job and associated policy and procedures. Those shortcomings had particularly severe potential consequences. The management position of the Applicant raises the level of responsibility which can properly be expected for consistent performance in respect to the established job and reporting requirements. In the particular circumstances of this case the Applicant does have responsibility for the conduct and performance of those who directly report to him. He had responsibility to verify that the security procedures were being implemented and that they were effective. There was a valid reason for the dismissal related to the Applicant’s capacity or conduct. That reason related directly to the potential effect of the Applicant’s failures on the safety and welfare of other employees and on the reputation of the employer’s business.

Gross misconduct

[50] The Applicant was dismissed for serious or gross misconduct.

[51] The Fair Work Regulations 2009 define serious misconduct for the purposes of the Act.

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”

[52] The parties made submissions in respect to whether or not the conduct of the Applicant was serious or gross misconduct. The evidence does not support a conclusion that the conduct was such that it made employment during the period of notice unreasonable. I accept that the conduct complained of goes to the heart of the requirements of the job the Applicant was required to perform. The position description for Prison Service Managers 33 includes the requirements in respect to following policy and procedures, visiting all areas of responsibility daily, and identifying and implementing corrective actions.

[53] The Respondent referred to the following authority:

“In Rankin v Marine Power International Pty Ltd [2001] VSC 150 the Court held that:

"The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature."”

[54] The actions of the Applicant were not isolated conduct. I have found that at least in some respects the failure to implement the required security regime occurred over a period of time. However, the actions did not represent a repudiation of the essential obligations of the Applicant’s employment contract because there is no evidence that it was a wilful refusal to carry out or implement those policies and procedures. In the absence of prior warning it is difficult to describe negligence or omission in these circumstances as a repudiation of the essential obligations of the Applicant’s employment contract.

[55] The conduct of the Applicant did indirectly, that is by negligence or omission, lead to a serious risk to health and safety and to the reputation of the employer’s business. However, the Applicant himself did not leave the container open, did not fail to check the container on 5 April, and did not fail to check the particular machine. There is no evidence to suggest that the Applicant deliberately departed from accepted standards. If his failure to follow the accepted standards had been discovered, and if he had been warned about the matter and then continued with his actions, then there is no doubt such a conclusion could be drawn. There is no evidence to suggest that the Applicant was indifferent to the consequences of any security breach. The conduct complained of was the failure of the Applicant to put in place the required systems and culture and to verify those systems in the required manner. This was a valid reason for dismissal but it was not serious misconduct.

[56] I am satisfied that the Applicant was not guilty of serious or gross misconduct. However, notice was paid so the fact that the dismissal was said to be on the grounds of gross misconduct does not in itself create unfairness.

The absence of a warning. Conduct or Performance.

[57] The problem which does arise in a situation where dismissal is said to be for gross misconduct but such a characterisation of the conduct is not justified is that one of the criteria for determining whether or not a termination is unfair is “if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal.” I have already found that although the Applicant was on notice about the importance G4S attached to compliance with procedures in respect to security of building materials and tool inventories the Applicant did not receive any warning about his conduct or his performance prior to the dismissal. Nor did he receive any specific advice during the current project about perceived problems in respect to the most important breaches of security process which led to the dismissal.

[58] This matter is significant because I regard the conduct which led to the termination as being related to unsatisfactory performance. If the Applicant had disobeyed a direct and reasonable instruction, that action could be regarded as a matter of conduct and not performance. However, in this case the conduct was essentially a failure to properly put in place, verify and report on the required procedures. That is a performance failure. The only aspect which could in some circumstances be regarded as being a matter of conduct and not performance is the alleged failure to report accurately to the compliance meetings. However, the evidence does not support a conclusion that this was a deliberate falsification of records. I regard this as a failure of omission or negligence and therefore it is also a matter of performance.

[59] The absence of any warning does in the circumstances of this case mean that in respect to the criteria in S387(e) the findings tend to support a conclusion that the termination was unfair or unreasonable.

Other procedural issues.

[60] The Respondent argues that in reaching the decision to dismiss, the Respondent implemented a dismissal process that was fair to the Applicant and was in accordance with the G4S Disciplinary Policy. 34 The Applicant was provided with an opportunity to respond to all allegations before the decision to dismiss him was taken, was allowed to have a support person present at the meeting and was provided with a letter which set out the reasons for the dismissal.

[61] The CPSU argues that the Applicant did not have adequate time to consider the allegations, the allegations should have been provided in writing, the Applicant should have been given a copy of the disciplinary procedure, the Applicant should have been given time to prepare a defence, and the significant issue in the termination which was a failure to follow procedures was not raised at the time of termination but only in a letter two weeks later. CPSU argue that the offer of a support person was “off the cuff” and inadequate in a situation when the Applicant did not know the meeting was likely to lead to dismissal.

[62] The Applicant and the Respondent’s witnesses disagree over the length of the meeting on 12 April 2012. The Applicant says that the meeting only went for 10 minutes and then there was a ten minute break. The Respondent says that the meeting went for much longer. In my experience it is very common for there to be problems with the estimates of time taken in such a stressful situation. On balance I prefer the evidence of the Respondent in this respect.

[63] The evidence suggests that the Applicant was probably not shown the photos of the poorly secured building materials.

[64] Mr Roach does not claim he used the term gross misconduct before the meeting to the Applicant. Mr Selisky thinks that the term was used. The Applicant says that he was not told he could be dismissed prior to the meeting. I am satisfied that the Applicant was well aware of the seriousness of the situation. The Applicant was well aware that there had been a prison lock down. He was well aware of how concerned Mr Roach was about the situation from his presence on 11 April 2012. I am also satisfied that the Applicant was not told that the meeting could result in termination or termination for gross misconduct. However, the Applicant was aware that disciplinary consequences were likely.

[65] I do not accept the argument of the CPSU that the significant issue in the termination which was a failure to follow procedures was not raised at the time of termination but only in a letter two weeks later. The specific matters that the Applicant agrees were raised at the meeting directly relate to required procedures and I am satisfied that the linkage to failure to follow procedures is quite apparent from the manner in which they were raised.

[66] I do not believe that the evidence suggests that the Applicant was effectively denied the opportunity for a support person.

[67] I do accept the argument of the CPSU that the investigation and termination meeting were rushed and it would have been fairer in the circumstances for the Applicant to have been suspended from duty with pay, been provided with the allegations in writing, given a copy of the disciplinary procedure, and given a limited time to respond. However, in the circumstances it is understandable that G4S wished to respond to what they perceived as a serious security incident without delay. I am satisfied that the Respondent failed to follow the Staff Disciplinary policy 35 in that the policy requires that “the Manager will give the employee reasonable prior notice of the allegations made against them.” The CPSU point to some other factors in the policy which they say were not followed. In the circumstances of this case I am not satisfied that there were other substantial breaches of the policy particularly given the senior position held by the Applicant.

[68] Although I accept that there were some shortcomings I do accept that the Applicant was given details of the alleged misconduct and an opportunity to respond to the alleged misconduct.

[69] On balance consideration of the matters in S387(b), (c), and (d) in this case do not support a conclusion that the termination was unfair.

[70] The size of the employer is not one I found had an impact on the procedures followed (Section 387(f)).

[71] The respondent does have a dedicated human resource manager and hence Section 387(g) is neutral in considering the fairness of the termination.

Other relevant matters. (S387(h))

[72] There are three other matters I regard of relevance.

[73] Firstly, I consider that the age of the Applicant, his very long period of service with the Respondent, and his generally good employment record are factors which are relevant. I consider that the Applicant will have considerable difficulty in finding suitable further employment given the circumstances. I consider that these factors tend to support a conclusion that the termination may be harsh.

[74] Secondly, the findings I have made about the inconsistency of approach towards the Applicant when compared with the failings of others in respect to security procedures are factors which are relevant. These factors tend to support a conclusion that the termination may be unjust or unreasonable.

[75] Thirdly, the findings I have made about the particular responsibilities of a manager and particularly a manager in the environment of a maximum security prison are relevant. These factors tend to support a conclusion that the termination may not be unfair. Managers responsible for the integrity of security systems in a maximum security prison are in some ways like managers responsible for air traffic control or aircraft maintenance or health care systems. Acts of omission in these circumstances are of great significance in these positions and must be regarded as significant as, or more significant than, failures to follow procedures or directions, or omissions by those who report to such managers. Unsatisfactory performance in a job where the worker is responsible for the management of risk in a situation where the consequences of failure are great, particularly for the health and safety of others, must be regarded differently from other forms of unsatisfactory performance.

Conclusion as to whether the termination unfair.

[76] The lack of a warning, the age and long service of the Applicant, the good employment record of the Applicant and the lack of consistency of approach by the Respondent tend towards a finding that the termination was unfair. However, the valid reason for termination, the seriousness of the unsatisfactory performance, and the particular circumstances surrounding the nature of the Applicant’s job and his responsibilities as a manager stand strongly against a finding that the termination was unfair. These matters are not always a balance. A finding in respect to one of the statutory elements can be sufficient to make a termination unfair. However, in these particular circumstances, because of the strength of the valid reason, I conclude that the termination was not unfair and that the Application must be dismissed. An Order will be issued accordingly.

COMMISSIONER

Appearances:

Ms Robyn Edwards from the CPSU appeared for the Applicant.

Mr Andrew Dewsnap appeared for G4S.

Hearing details:

2012

Melbourne

September 3, 4 and 5

 1   G4S Submissions paragraph 3

 2   Exhibit G4S 1.

 3   Exhibit G4S 2 Attachment 11.

 4   Exhibit G4S 2 Attachment 11.

 5   Exhibit G4S 2 Attachment 12.

 6   Exhibit G4S 2 Attachment 10.

 7   Exhibit G4S 2 Attachment 13.

 8   Exhibit G4S 2 Attachment 8.

 9   Transcript, PN358 - PN373.

 10   Exhibit S 3 paragraph 9 and 16

 11   Exhibit S1 paragraph 9.

 12   Exhibit S4

 13   Exhibit S4 paragraph 17

 14   PN827 - PN838, PN852 - PN854.

 15   PN862.

 16   Exhibit S1 paragraph 7 and 8

 17   Exhibit S1 paragraph 8

 18   Evidence of Mr Selisky; Transcript, PN886.

 19   Exhibit S3 paragraph 24.

 20   Exhibit S3 paragraph 17.

 21   Exhibit S3 paragraph 19.

 22  (Exhibit S3 paragraph 22.

 23   Exhibit S3 paragraph 25.

 24   Exhibit S3 paragraph 26.

 25   Exhibit S3 paragraph 37-39

 26   Transcript, PN637 - PN643.

 27   Transcript, PN402 - PN405.

 28   Transcript, PN412 - PN413, PN398-402

 29   Exhibit G4S4 paragraph 5.

 30   Exhibit S3 paragraph 48-49.

 31   Exhibit G4S3 Attachment 16.

 32   Exhibit G4S 6 Attachment 14.

 33   Exhibit G4S2 Attachment 11.

 34   Exhibit G4S 2 Attachment 21.

 35   Exhibit G4S 2 Attachment 21.

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