Mr Richard Morgan v Serco Australia Pty Ltd T/A Serco Immigration Services
[2018] FWC 5835
•27 SEPTEMBER 2018
| [2018] FWC 5835 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Richard Morgan
v
Serco Australia Pty Ltd T/A Serco Immigration Services
(U2018/4615)
| COMMISSIONER WILLIAMS | PERTH, 27 SEPTEMBER 2018 |
Application for an unfair dismissal remedy.
This decision concerns an application made by Mr Richard Morgan (the Applicant or Mr Morgan) under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The Respondent is Serco Australia Pty Limited (the Respondent or Serco).
Background
Serco terminated Mr Morgan’s employment because of what occurred during an international escort in January 2018. Mr Morgan was the leader of a team of Serco Detainee Services Officers tasked with escorting a detainee from the Yongah Hill Immigration Detention Centre in Western Australia who was voluntarily returning to Albania.
The letter of termination states as follows,
“Your employment has been terminated as a result of a number of incidents arising from an international escort which commenced on 29 January 2018 during which you were the team leader. The incidents include that:
• You failed to properly review and discuss, as part of the escort briefing, the Detainee's Security Risk Assessment (SRAT) and other documents relating to the escort which resulted in the removal of a high risk detainee not being conducted in accordance with the assessed risk and written instructions;
• As team leader you gave permission to DSO Terito to enter the Qantas lounge to obtain refreshments resulting in the escort being compromised. This action also resulted in an altercation between DSO Terito and a Qantas lounge staff member;
• You behaved inappropriately and unprofessionally in your interactions with the Airport Services Duty Officer for Qatar Airlines following this altercation;
• You allowed the Detainee to visit the ATM and money changer, and to access his valuables at the Perth International Airport despite instructions that detainees are only to be handed their trust property on arrival at their final destination. In doing so you also allowed the escort formation to be broken;
• You failed to declare in the Transit/Discharge Form as well as the Escort Operational Order that the bag containing the detainee's valuables was opened and the seal broken at Perth Airport;
• You allowed the escort formation to be broken on a number of occasions, including removing yourself during the escort, which is contrary to the requirements to maintain formation;
• You breached Serco's procedures by driving the escort vehicle to the airport whilst also being in the role of team leader, contrary to the policies relating to international escorts;
• You failed to report the issues encountered with airport staff to the WA Regional Command as well as in the Escort Removal Report.”[1]
Serco considered what occurred constituted misconduct and neglect of duty and Mr Morgan’s employment was terminated with payment in lieu of notice.
Evidence and factual findings
Evidence for the applicant was given by Mr Morgan, Mr Daniel Pavlovich and Mr John Louie
Evidence for the Respondent was given by Mr Paul Moss and Mr Geoffrey Pitout.
Mr Morgan was employed for approximately 7 ½ years with Serco as a Detainee Services Officer (DSO) working at the Perth Immigration Detention Centre (the Detention Centre).
The Detention Centre houses high risk detainees predominantly comprised of those who have either been refused up visa had their visa cancelled on character grounds under section 501 of the Migration Act 1958.
His employment was terminated on 16 April 2018.
On 19 December 2012 Mr Morgan signed an offer of employment from Serco[2] that was dated 13 December 2012 indicating he accepted the offer and the conditions set out in the letter.
Paragraph 10 of the letter reads as follows:
“10. Company policies
You will be bound by the employment policies and procedures adopted by the Company from time to time, including but not limited to policies dealing with Occupational Health & Safety, Equal Opportunity & Anti-discrimination. You are required to be familiar with these policies and procedures.
The giving or acceptance of bribes to any third party in exchange for a business courtesy is unacceptable. Any employee found to have engaged in such conduct will be subject to disciplinary action.
You acknowledge and agree that the terms of such policies and procedures are not incorporated as terms of this letter of employment or are not otherwise included in this letter of employment or your contract of employment.”
Clearly Mr Morgan was bound by the policies and procedures of Serco and was required to be familiar with these.
The position description for a Detainee Service Officer[3] lists a series of key responsibilities such as Safety and Security, Maintain Paperwork, Transport & Escort, Logistics, Detainee Care and Mentoring and Self-Development.
“Transport & Escort
• Perform escorting duties in line with Serco policy and Transport & Escort guidelines including completion of risk assessment/s
• Carry out duties as delegated by DSMs/Senior Management
• Operate external to the Detention Facility, in a public environment, with limited supervision adhere to all protocols and procedures
• Perform duties of Team Leader which may include leading up to 5 people, writing
Operations Orders and delivering verbal briefings
• At all times ensure conduct reflects Serco Governing Principles
• Maintain ability to operate a number of vehicle types in a safe and professional manner
• Perform escorts domestically, nationally and internationally as required
• Ensure all escort documentation is completed professionally and accurately
• Input accurate data into computer systems operated by the Company, e.g. Portal”
As can be seen from the above extract the position description includes specific requirements to undertake transport and escort responsibilities in line with Serco policy and guidelines and when operating in a public environment to adhere to all protocols and procedures.
Serco has a twenty-one page Policy and Procedure Manual International Removals.[4]
The introduction to the manual explains that International Removal Escorts encompass the provision of Escort’s for detainees and their property on board an international flight while they are being removed from Australia and include ensuring detainees are cleared by immigration control and otherwise received by approved officials in the country of destination and ensuring that documentation associated with the removal is completed.
The manual includes particular responsibilities for a team leader which are set out below.
“3 Responsibilities
3.1 Team Leader
The Escort Team Leader is responsible for:
• International Escort Operational Order SIS-TE-DOC-0001
• Attending the Operational Departure Plan (ODP) briefing with ABF and the T&E Operations Manager.
• Ensuring that all facets of the operation are correct including; the EOO, itineraries, emergency contact requirements and that the appropriate risk mitigations are in place.
• Conducting pre-departure operational briefings for the escort team including Code of Conduct, uniform and equipment checks, operational updates, embarkation, disembarkation and in-flight procedures, allocation of staff responsibilities.
• Ensuring that the Detainee(s) are seated next to a window with an officer sitting next to them. When a Detainee is in the middle row of an aircraft an officer will need to be seated immediately on both sides of the Detainee.
• In-flight management of staff and Detainees in accordance with procedures including searching, provision of refreshments, rest breaks, etc.
• Ensuring any incident involving the use of force is video recorded when planned and that use of force reports are completed.
• Completion and handover of escort operational documentation, including escort log, use of force report, incident reports and Removal Report, scanned to [email protected].
• Ensuring the escort Team or the Detainee does not consume alcohol during the escort.
• Ensuring the Detainee does not have access to any items that could compromise the escort i.e. a High Risk Detainee would not have access to metal utensils.
A document initialled by Mr Morgan on 29 January 2008 headed “International Escorted Removal Task Briefing Sheet”[5] includes a list of standard items to be attended to during the briefing.
Relevantly these include some which require knowledge of Serco’s policies and procedures such as,
A requirement that the detainee be pat searched “..in accordance with Serco policy and procedure..”
During transit the detainee “..is to be escorted using approved escort formation..”
Mr Morgan also on that date signed a document headed “Transport and Escort Checklist” which has a list of documents that were provided and tasks and activities to be attended to.
Mr Morgan has said that he was never during his employment provided with a copy of the Policy and Procedure Manual on International Removals.[6]
The evidence of Mr Moss was that Serco’s records of staff attending toolbox briefings show that the Policy and Procedure Manual on International Removals was received by the Applicant in July 2016.[7]
Mr Morgan disputed this.
Mr Moss’s evidence was that Mr Morgan most recently completed aviation escort training in October 2016.
Mr Morgan’s evidence confirmed this and was that he completed his aviation training in October 2016 probably on the fifth.[8]
Mr Moss’s evidence was also that that Mr Morgan attended various Toolbox Talks which related to the Policy and Procedure Manual on International removals.
One of those Toolbox Talks was held in February 2015 and the attendance record for the “Transport Escort Briefing”[9] was signed by Mr Morgan. The attendance record indicates the training commenced on 21 February 2015 and was completed on 22 February 2015. Mr Morgan’s evidence was that he recognised his signature but that he had no memory of attending this.[10]
The detail of this particular Toolbox Talk[11] refers to the Policy and Procedure Manual (PPM) International Removals a number of times including under a subheading “References”.
Under another heading “Key Points” and the subheading Operational Changes it is stated that,
“All staff will need to have read and understood the PPM prior to conducting the task. The Team Leader is to ensure that each member of the Escort has acknowledged they have read the relevant PPM and understood its contents prior to accepting/facilitating the task.”
Under another subheading “Resources” it is stated that,
“The Team Leader is to ensure that all the following resources are available for the task:
· Escort bag
· A laminated PPM relevant to the task is included with the Escort bag i.e. International Removals PPM
· The T & E Contingency PPM is included with the escort bag
….”
Under another heading “Demonstration” it is stated that,
“The facilitator will outline the following:
· The implications if we do not meet this requirement
· The PPM’s relevant to T& E tasks”
Mr Moss’s evidence was that on 22 January 2016 Mr Morgan also attended an Escort Formations and Vehicle Seating Positions Toolbox Talk.[12] Mr Morgan neither agreed nor disputed this.[13]
Mr Morgan however agreed he was familiar with Escort Formations as set out in that Toolbox Talk.[14]
The detail of this Toolbox Talk[15] again refers to the Policy and Procedure Manual (PPM) International Removals under a heading “References”.
Amongst the Key Points detailed in this Toolbox Talk are the following,
“When conducting an Escort task, Officers are to ensure that the safety and security of the escort is maintained at all times. When practicable, Detainees are to be at arm’s length of the escorting officers for the duration of the escort.”
Under another heading “Demonstration” it is stated that,
“The facilitator will outline the following:
· The implications if we do not meet these requirements.
· Escapes have occurred previously with staff have not adhered to escort formations.”
Mr Moss’s evidence was the records show that on 4 March 2016 Mr Morgan attended a Toolbox Talk on Escort Briefings.
Mr Moss’s evidence was that on the same date Mr Morgan attended a Toolbox Talk on Use of Enhanced Escort Position.
Mr Morgan disputes that where on the associated Toolbox Attendance Sheet[16] it shows his first name, his surname and his signature that he ever signed this or printed his name.[17]
Mr Moss’s evidence was that Serco’s policies and procedures are located on the Serco intranet in a folder named “Policies and Procedures”. His evidence was that all staff at the Perth immigration detention Centre including Mr Morgan have access to that folder on the G drive of Serco’s intranet and are required to familiarise themselves with its contents.[18]
Mr Morgan’s evidence under cross-examination was that he is aware of the G drive. He says he never looked at it for the Policy and Procedures Manual International Removals, didn’t know it was there, but he did access the G drive for detainee forms.
Mr Pavlovich confirmed that all policies and procedures are held on the G drive.[19]
Mr Pavlovic's evidence was that Mr Morgan was a member of a select group of staff who were provided training to undertake air aviation escorts of unlawful non-citizens both domestically and internationally on both commercial and chartered aircraft.[20]
The notification of a disciplinary meeting that was sent to Mr Morgan by letter on 23 February 2018 detailed nine specific allegations that would be put to him regarding the international escort to Albania. The letter went on to notify him that Serco alleged these particular actions were contrary to the Serco Code of Conduct, the Serco Immigration Services Code of Conduct, the Department of Immigration and Border Protection Code of Conduct and finally the International Removals Procedure.
“International Removals Procedure specifically statements making reference to
· The responsibility of the team leader;
· Escort team briefing;
· Airport procedures;
· Checking in and security arrangements.”
The evidence of Mr Pitout regarding that formal disciplinary meeting with Mr Morgan on 28 February 2018 was that he began the meeting by explaining amongst other things that the allegations against Mr Morgan were that he may have acted contrary to various Serco policies and procedures.
Mr Pitout’s evidence as to what was said by Mr Morgan during this meeting was consistent with his detailed notes that he took.[21] I note that Mr Pitout’s evidence was that on a number of occasions Mr Morgan answered questions about the allegations that were being put to him by referring to specific parts of the Policy and Procedures Manual International Removals by their relevant section number specifically section 6.11 Checking in and Security Arrangements, section 3.4 Vehicle Selection, section 2.9 Escort Risk Assessment Process, section 3.5 Escort Operational Order Process. Mr Morgan did not challenge Mr Pitout’s evidence that he responded in this way at this meeting.
During this meeting Mr Morgan did not say that he had not previously seen the Policy and Procedures Manual International Removals.
I accept Mr Moss’s unchallenged evidence that at no time during the investigative and disciplinary process which led to Mr Morgan’s employment being terminated did he contend that he had not sighted or had no knowledge of the Policy and Procedures Manual on International Removals and/or his obligations pursuant to this document.[22]
The evidence is that Mr Morgan had over a number of years conducted numerous international escorts as the Team Leader.
Considering all of the evidence regarding training, and accepting Mr Morgan’s specific evidence that he did not receive a copy of the Policy and Procedure Manual on International Removals in July 2016 (which does not exclude him having been provided it on another date)[23] and accepting he did not attend the Toolbox Talk on 4 March 2016, I am still satisfied that the existence and importance of the Policy and Procedure Manual on International Removals was repeatedly made known to Mr Morgan through the training and toolbox talks he had participated in.
I find that on the balance of probabilities Mr Morgan had been provided with a copy of the Policy and Procedure Manual on International Removals, most likely some time in 2016, and that he did throughout his employment have access to this particular policy and procedure manual and the other policy and procedure documents on Serco’s intranet.
Next it is useful to have an outline of what was involved in the international escort that Mr Morgan led.
According to the Escort Operational Order, the escort started on 29 January 2018 and was planned to finish on 2 February 2018. The risk assessment was “High”. It was an escorted removal of one detainee. The escort comprised three allocated staff.
The detainee was to be escorted from Yongah Hill Immigration Detention Centre to Tirana International Airport Albania.
For the road component, driving from Yongah Hill Immigration Detention Centre to Perth Immigration Detention Centre, the allocated escort staff were Mr Morgan, DSO Savage and DSO Watkins supported by DSO Pope.
The escort and detainee arrived at the Perth Immigration Detention Centre shortly after 18:00 hours.
The international removal escort was made up of Mr Morgan, DSO Nasir and DSO Terito supported by DSO Pope up to the time of the aircraft departure from Perth.
Mr Morgan, Mr Nasir, Mr Terito and Mr Pope attended a briefing given by the Acting Deputy Services Manager Mr Khan.
The escort with the detainee departed by vehicle from the Perth Immigration Detention Centre and arrived at the Perth International airport at 19:50 hours.
The escort team, excluding Mr Pope, and the detainee were booked on a Qatar Airways flight to Doha as the first leg of their journey.
Check-in, passport control and security were cleared without incident.
At 20:20 hours the escort team was seated at gate 52.
At 21:50 hours the escort team and detainee proceeded to board the flight. Mr Pope remained at the airport.
At 22:50 the flight takes off.
The flight lands Doha, the escort team and detainee board the next flight at 12:40 hours which then lands at Vienna at 18:27 hours.
At 19:25 hours the escort team and detainee board the final flight which later lands in Tirana, Albania at 21:22 hours.
The escort team and detainee progress through passport control and immigration and at 22:00 hours the detainee is no longer in Serco custody. The escort team are transported to their hotel in due course undertake the return journey to Perth.
Unbeknownst to Mr Morgan at the time, on Monday, 29 January 2018 at 11:27 PM an email was sent from the Qatar Airways Airport Services Duty Officer to Mr Alex Willis the Qatar Airways Airport Services Manager – Perth, as follows,
“Hi Alex,
Last night on QR901/29JAN, we had one of the 3 escorts ( TERITO CONNOR ), who had accessed the QF lounge with his platinum card.
When he presented the card to Jenny as his Frequent Flyer number was not in the booking she asked him his card so that she can input it for him but he refused.
He then accessed the lounge and took 3 coffee and 3 cups of nibbles and attempted to take it out of lounge. At this stage Jenny stopped him and advised him that he is not allowed to remove items and take it out of the lounge and that all food must be consumed in the lounge. She suspected he was an escort and rang the service desk to confirm his status as they do get escorts in the domestic lounge attempting to access the lounge which they are not allowed to do if they are escorting deportees.
When she asked him who he worked for earlier in the conversation when he did not want his Frequent Flyer Number to input, he told her that he rather not disclose that information.
I was informed about this situation after they were boarded and went to see them and speak to TERITO but was intercepted by escort Morgan who was reluctant to let him talk to TERITO.
I explained to Morgan that when they are escorting deportees, despite being platinum they should be with the deportee and shouldn't be utilizing the lounge.
He was not prepared to accept that and since that was the case I told him that I will pursue this through official channels.
Hope you can pass this on to the appropriate people.”
Mr Willis on 31 January 2018 forwarded this email on to David Williamson of Australian Border Force.
“Hi David
Hope you are well and 2018 is treating you kindly.
What is your policy in relation to escorts? I would assume they are meant to be escorting not utilising the lounge.
Additionally it is disappointing to note that he attempted to remove items from the lounge.
Your team should note we are entitled to speak with any customer on our flight including escorts should we have a reasonable need to do so.
Thanks”
Mr Williams, who is the Inspector WA Removal and Character Operations, Enforcement Command, Australian Border Force, forwarded the complaint from Qatar Airways on to Mr Pitout on 2 February 2018 as follows,
“Good morning Geoff,
Please see the complaint from Qatar Airways below.
I understand the escorts have only just returned from this removal but would appreciate their, and your, response to the issues raised at your earliest convenience. Our particular concerns, if they are as alleged include the escort not staying with the detainee, and the issue we have spoken about a number of times being the tenuous relationship with commercial carriers and the need for constant professionalism in all dealing with them.
Thanks and regards”
Having received the Qatar Airways complaint (the complaint) from the ABF Mr Pitout arranged an investigation into what had occurred.
On 2 February 2018 Mr Morgan was advised by letter that he was to be removed from all escort duties until advised otherwise as a result of the complaint.
The following day Mr Morgan submitted an Officers Report which gave his version of events related to the Qatar Airways complaint.[24] His report relevantly noted as follows.
“DSO Terito offered to use his lounge pass and pick up the refreshment for the detainee from the Qantas lounge. As I did not carry petty cash and as the lounge was extremely close, just opposite the boarding gate I considered it a quick option. The view was to use the lounge simply as a take away service and not to utilise the actual facility. DSO Terito returned promptly with hot chocolate and cuppa soup for the detainee and also provided coffee for the rest of the team. The escort log records the detainee receiving his refreshment at 2025 hrs to which he acknowledged his appreciation.
The escort party boarded flight QR901 at 2155 hrs with deportee seated in 43A, DSO Nasir 43B, DSO Terito 42C and myself across the aisle in 43D as per the airline seating plan. DSO Pope maintained a static post on the airbridge outside the aircraft.
Approximately two or three minutes after we were seated a man who I recognized from the front desk as an airline supervisor and a female co-worker also from the front desk, came on board. The supervisor who did not identify himself asked me who the team leader was and we stepped to the rear of the plane.
The supervisor who appeared agitated, stated he was not going to report us but explained there was an issue with an officer accessing the Qantas lounge as he was not allowed to. I accepted his advice and to give some background information I went to explain it was for reasons of welfare and we also have the assistance a ground support officer. The supervisor cut me off saying that staff are not allowed and said he should just send an email to report us. He more or less demanded to speak to officer Terito as that was the name he had as the officer accessing the lounge. I asked if there was any further issue to which he replied 'no'. I went to reply, as team leader it is my duty to speak staff, to which he became impatient and said words to the effect 'I could have you thrown off this plane' and made several steps to leave. I explained that I would ask DSO Terito have a chat with him and they had a brief conversation at the rear of the plane while I returned to my seat. During my conversation with the supervisor his co-worker did not speak but I observed what appeared to be a look of astonishment or disbelieve from her.
As the supervisor left I shook his hand believing that his message had been received and the matter was dealt with. It was this reason I did not record the interaction in the escort log and I felt it did not deal directly with the deportee, however some of the conversation was overheard by the deportee and DSO Nasir with DSO Nasir explaining to the deportee not to worry. As stated, I accepted that the lounge is not to be used for any purpose and passed this onto the other escort officers.”
The investigation into the complaint was conducted by Mr J Koh the Security and Risk Manager of the Detention Centre.
A letter to Mr Morgan dated 6 February 2018 notified him of the complaint that was being investigated. The letter referred to a complaint in relation to unprofessional conduct by officers during the removal to Albania. The letter explained the complaint alleged that a Qantas manager boarded the plane to speak to DSO Terito but Mr Morgan was reluctant to let him speak to DSO Terito and secondly that when the Qantas manager explained his view about not using the lounge when on escort duties Mr Morgan do not accept his advice.
The letter explained that the meeting regarding this was for the purposes of investigation rather than a disciplinary meeting.
Mr Pitout’s evidence was that as part of the investigation Mr Koh interviewed Mr Morgan and DSO’s Nasir, Terito and Pope.
Having completed the investigation Mr Koh identified the following issues and made the following observations.
“(a) Escort officers, (including the Applicant, DSO Terito and DSO Nasir) did not verify with the duty Detainee Services Manager whether the detainee had consumed his dinner other than assuming the detainee had not finished his food with leftovers inside the visit room of the PIDC;
(b) The assigned driver for the route from the PIDC to the Perth International Airport, DSO Pope, did not have a valid Airside Driver 2 qualification and therefore, the Applicant decided to take over the role of driver:
(i) This was contrary to Section 2.5 of the PPM which stated "[e]nsure the driver is not simultaneously tasked with the duties of escort". Mr Koh also identified that the Acting DSM was not notified about the non-qualified assigned driver, DSO Pope;
(c) The officers (that is, the Applicant, DSO Terito, DSO Nasir and DSO Pope) allowed the detainee to change money at the money-changer:
(i) This was contrary to the ODP procedures for post arrival. Furthermore, section 6.16 of the PPM stated "staff must ensure that ... the detainee is not taken through areas where there is access to alcohol or shopping outlets". Section 6.20 of the PPM also stated "Valuables are not to be handed to the detainee ... prior or during a transit point";
(d) The Applicant and DSO Terito had both admitted that they had not explored alternative options to obtain refreshments for the detainee and DSO Terito attending the Qantas Lounge was the wrong decision in terms of the officers' use of judgment;
(e) Pursuant to Section 5 of the PPM, the Applicant as Team Leader was required to prepare an expenses form for expenses incurred. This was indicative of the fact that escort officers could obtain refreshments from the cafeteria within the airport for the detainee and claim expenses at a later time but the Applicant did not do so;
(f) DSO Pope, (being the designated ground support officer), did not understand exactly what his assigned duty was. DSO Pope understood that aside from being assigned the driver of the escort vehicle to Perth International Airport, he was to stay at the Airport and provide logistic/administrative support whilst at the Airport;
(g) As the Team Leader, the Applicant accepted that the decision made to obtain refreshments from the Qantas Lounge was not the ideal option. The Applicant also accepted responsibility for his team member, DSO Terito's actions in this instance;
(h) As the Team Leader, the Applicant should have assigned DSO Pope (as the designated ground support officer) to help in term of logistics support (such as obtaining refreshments for the detainee);”
Mr Pitout having reviewed Mr Koh’s investigation identified a significant number of additional concerns beyond the scope of the original Qatar Airways complaint.
Consequently a letter dated 23 February 2018 was sent to Mr Morgan regarding a formal disciplinary meeting.
The letter set out the following,
“(a) that the Applicant was directed to attend a disciplinary meeting on Wednesday, 28 February 2018
(b) during the formal disciplinary meeting, the following allegations would be put to the Applicant regarding the international escort operation to Albania that took place on Monday, 29 January 2018:
Allegation 1: that the Applicant failed to review and discuss, as part of the escort briefing, the detainee's Security Risk Assessment ( “SRAT”) and the information contained therein that indicated the detainee may be an escape risk;
Allegation 2: that the Applicant failed to verify with the duty Detainee Service Manager, Junaid Khan, whether the detainee had consumed his meal prior to leaving the PIDC;
Allegation 3: that the Applicant breached Serco's procedures by driving the escort vehicle to the Perth International Airport when the Applicant was part of the international escort team and being the assigned driver is contrary to the Policy and Procedure Manual on International Removals and in particular Section 2.5 which states that "the driver should not be simultaneously tasked on other duties of escort";
Allegation 4: as Team Leader on the escort, although the Applicant did not direct DSO Terito to enter the Qantas Lounge, the Applicant also did not stop him from doing so. This resulted in the escort being compromised with an elevated risk of the detainee escaping given the information on the SRAT;
Allegation 5: that the Applicant allowed the detainee to visit the ATM and money changer, and to access his valuables at the Perth International Airport despite receiving instructions that detainees are not to have access to shopping outlets and are only to be handed their trust property on arrival at their final destination;
Allegation 6: that the Applicant failed to declare in the Transit/Discharge Form as well as the Escort Operational Order that the bag containing the detainee's valuables was opened and the seal broken at Perth International Airport. Instead, the form stated that the detainee's valuables were only returned to him upon arrival at his final destination, Albania;
Allegation 7: that as Team Leader, the Applicant failed to report the issues encountered with the Qatar Airlines staff to the WA Regional Command as well as in the Escort Removal Report. An Officer's Report on the incident was only received by Serco on 3 February 2018 after the Applicant had received a letter from Adrian Rodgers, PIDC Centre Manager, advising the Applicant that he had been removed from all escorts due to the recent complaint received from the airport;
Allegation 8: that the Applicant's interactions with the Qatar Duty Manager on the plane was unprofessional and inappropriate;
Allegation 9: that the Applicant's interactions on the international escort operation have negatively impacted upon the relationship between the ABF and Qatar Airways, and jeopardised Serco's relationship with the ABF,
(c) that the Applicant was entitled to bring an appropriate support person to the meeting;
(d) that the Applicant's responses would be considered during the meeting, along with any relevant documentation, to enable Serco to make a fully informed decision as to the veracity of the allegations and whether any misconduct had occurred;
(e) that the allegations, if proven, may be contrary to, amongst other things, the Serco Code of Conduct, the Serco Immigration Services Code of Conduct, the Department of Immigration and Border Protection Code of Conduct, the International Removals Procedures and the Applicant's employment contract, including the requirement to act in good faith at all times and perform work to the best of his abilities.”
This letter was emailed to the Applicant and that email attached the Policy and Procedures Manual for International Removals and both the Serco and Department of Immigration and Border Protection Codes of Conduct.
The day before the disciplinary meeting was scheduled Mr Morgan indicated he wished to have Mr Pavlovic, a former Serco employee, attend as his support person. Serco however were concerned because Mr Pavlovic currently works for a competitor business.
Having initially advised Mr Morgan Mr Pavlovich was not viewed as an acceptable support person, and offering him additional time if that caused a difficulty, Serco then confirmed by text message and email to Mr Morgan that they would allow Mr Pavlovich to attend the disciplinary meeting.
The meeting proceeded as planned on 28 February 2018 Mr Morgan attended by himself and insisted he wanted to proceed without a support person.
For Serco the meeting was attended by Mr Pitout as well as Ms Chantele van Wieringen, a Serco People and Culture Advisor. Comprehensive typed notes of the meeting were provided by Mr Pitout as part of his evidence at the hearing of this matter.[25]
Formal individual disciplinary meetings were also held with the other DSO’s involved.
Having considered the meeting with Mr Morgan and all of the other information available to him Mr Pitout concluded that the nine allegations concerning Mr Morgan which had been specified in the letter to him dated 23 February 2018 had each been substantiated.
These were subsequently documented and Mr Pitout’s conclusions communicated to Mr Paul Moss, Serco’s Employee Relations Specialist-West.
Mr Pitout’s evidence was not challenged in cross examination and I accept his evidence.
Mr Moss then reviewed Mr Pitout’s conclusions about the final allegations and considered all of the circumstances which included Mr Morgan’s length of service, his experience as a DSO, his experience for some six years in undertaking international aviation assignments and regularly having acted in the position of Team Leader, the training he had undertaken and the fact that neither of the incidents involving the detainee using the ATM and money changer nor Mr Morgan’s interaction with the Qatar Services Duty Officer were recorded by Mr Morgan in the Escort Removal Report. Mr Moss on this basis formed the view that Mr Morgan’s actions constituted misconduct warranting the termination of his employment. He viewed Mr Morgan’s actions as demonstrating a deliberate disregard for his responsibilities as a team leader during the international escort.
Mr Moss recommended to Serco’s management that Mr Morgan’s employment be terminated. Subsequently a termination letter for Mr Morgan was drafted.
Emails were then sent to Mr Morgan advising him to attend a meeting to discuss the outcome of the disciplinary process. A meeting was scheduled for 4 April 2018 however this was cancelled due to Mr Morgan being on annual leave until 14 April 2018.
A further email was sent to Mr Morgan on 13 April 2018 directing him to attend a meeting on Monday, 16 April 2018 to discuss the outcome of the disciplinary process. The email also directed him not to attend his scheduled shift on Sunday, 15 April 2018 but advised he would be paid for that shift.
On Monday, 16 April 2018 Mr Morgan sent an email to Serco at 8:29 AM advising them that notwithstanding their direction he had attended his Sunday Day shift. He advised he was not available to attend the scheduled meeting at 9 AM that day.
His email went on to advise that he had submitted
“..a FW order to stop bullying against Serco as I feel I have been unfairly treated. As such I think it would be better to postpone the meeting until we have had a chance to discuss my complaint.”
Attempts were made to contact Mr Morgan by phone on 16 April 2018 without success and a text message was sent at and 9:11 AM asking him to call urgently.
Mr Morgan did not respond to the phone calls or to the text message.
Ultimately Mr Morgan did not attend the outcome meeting on 16 April 2018. Consequently Serco’s letter terminating his employment was sent to him by email that day.[26]
The termination letter states his employment was terminated as a result of a number of incidents arising from the escort on 29 January 2018. These were listed as below.
“• You failed to properly review and discuss, as part of the escort briefing, the Detainee's Security Risk Assessment (SRAT) and other documents relating to the escort which resulted in the removal of a high risk detainee not being conducted in accordance with the assessed risk and written instructions;
· As team leader you gave permission to DSO Terito to enter the Qantas lounge to obtain refreshments resulting in the escort being compromised. This action also resulted in an altercation between DSO Terito and a Qantas lounge staff member;
· You behaved inappropriately and unprofessionally in your interactions with the Airport Services Duty Officer for Qatar Airlines following this altercation;
· You allowed the Detainee to visit the ATM and money changer, and to access his valuables at the Perth International Airport despite instructions that detainees are only to be handed their trust property on arrival at their final destination. In doing so you also allowed the escort formation to be broken;
· You failed to declare in the Transit/Discharge Form as well as the Escort Operational Order that the bag containing the detainee's valuables was opened and the seal broken at Perth Airport;
· You allowed the escort formation to be broken on a number of occasions, including removing yourself during the escort, which is contrary to the requirements to maintain formation;
· You breached Serco's procedures by driving the escort vehicle to the airport whilst also being in the role of team leader, contrary to the policies relating to international escorts;
· You failed to report the issues encountered with airport staff to the WA Regional Command as well as in the Escort Removal Report.”
The letter went on to say that he had failed to comply with Serco’s policy and procedure manual on international removals and directed other members of the escort team to behave in a manner inconsistent with those requirements, which created an increased risk of escape with respect to a high risk detainee and brought Serco’s reputation into dispute. It stated the Serco was also of the view that he had been untruthful both in terms of responses provided during the investigation and in completion of his reports.
The letter concluded by saying Serco had considered his responses provided and considered the incidents constitute misconduct and neglect of duty which is inconsistent with the continuation of his contract of employment.
Mr Morgan was dismissed with immediate effect as of 16 April 2018 with payment in lieu of notice.
Mr Morgan gave evidence regarding the allegations that were made against him. Much of his evidence does not challenge the factual basis to the respective allegations but rather raises matters of mitigation or context which he says the Respondent has not properly had regard for.
Mr Pavlovic's evidence was that he was aware of one occasion where at the instruction of the then Department of Immigration the escort team leader was required to break formation to withdraw cash from his own account which was provided to the detainee who had refused to board the aircraft because he was not being provided with a post-support monetary allowance from the Department. The team leader was reimbursed by Serco upon his return to Australia.[27] Mr Louie also confirmed this had occurred in circumstances where it had been approved by a manager.[28]
Mr Pavlovic in his evidence agrees that petty cash could have been provided by Serco to allow the DSO’s to purchase refreshments as necessary.[29]
The evidence of Mr Louie is that DSO’s during escorts commonly buy detainee's refreshments using either petty cash or their own monies.[30]
In terms of the evidence before the Commission as to what occurred during the international escort in question my conclusion regarding each of the incidents the Respondent relied upon in the letter of termination is that the evidence supports Serco’s statement regarding each incident with the following exception.
One of Serco’s findings was that Mr Morgan had behaved inappropriately and unprofessionally during the interaction with the Qatar Airlines Airport Services Duty Officer when he boarded the plane to speak to DSO Terito.
Contrary to this I accept the evidence of Mr Morgan that he was not obstructive to the Airport Services Duty Officer from Qatar Airlines when he boarded the plane. The evidence does not support a conclusion that Mr Morgan behaved inappropriately or un-professionally during this interaction.
Submissions
Mr Morgan variously submitted that he could not be expected to fully comply with the Respondents policy and procedure manual because it is overly legalistic and complex, he received no adequate training and he had never seen the document prior to the disciplinary meetings.
He submits that in a number of cases common practice during an escort does not reflect the policy and procedure.
Mr Morgan submits he felt he had no choice but to accept the role of team leader.
Mr Morgan disputes that allowing Mr Terito to move away from the escort and enter the Qantas lounge compromised the escort. He also submits that difficulties in obtaining petty cash and reimbursements explain why he allowed DSO Terito to use the Qantas lounge to obtain refreshments.
He submits that allowing the detainee to access an ATM and money changer is a practice sometimes utilised by escort teams. He submits it as a way to win the trust of the detainee and build rapport with him to facilitate a smooth removal.
He says that when this occurred two officers remained in arm length of the detainee so it is not correct that the escort formation was broken.
Mr Morgan’s submission was that the amount withdrawn from the ATM and exchanged at the money changer was between €500 and €700. He submits he did not count the money as it was in a public area but instead placed it in the valuables bag with the receipt. He says opening detainee valuable bags was common practice by escorts.
Mr Morgan says that he was directed by the duty services manager transport and escort to drive the escort vehicle to the airport.
Mr Morgan submits he did not record and report the interactions with the Qatar Airways Airport Services Duty Officer because he did not consider at the time it should be drawn to the attention of the Department and he believed the matter had been resolved.
Mr Morgan also submits that termination of his employment was disproportionate to the conduct and not consistent with more lenient discipline Serco had applied to other DSO’s previously.
The Respondent submits that the evidence supports the conclusion that Mr Morgan was required to be familiar with and comply with the Respondents Policy and Procedure Manual on International Removals and the evidence demonstrates he was well aware of the contents of these policies and procedures.
Serco submits that where an employee fails to observe the requirements of its policy and procedures any termination that followed such breach would involve a valid reason for the dismissal.
Such is the case in this matter.
Mr Morgan was afforded procedural fairness in the investigation and disciplinary process.
He was made aware of the allegations against him and provided with an opportunity to respond to those.
In all the circumstances Mr Morgan’s dismissal was not unfair.
The legislation
Section 387 of the Act sets out the matters the Commission must have regard for when determining an unfair dismissal remedy application.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Consideration
Some observations can be made about Mr Morgan’s multiple failures to comply with Serco’s policies and procedures.
As I have found above Mr Morgan by virtue of the offer of employment he had accepted was bound by the policies and procedures of Serco and was required to be familiar with these.
Mr Morgan had been provided with a copy of the Policy and Procedures Manual for International Removals. He had undertaken training and other educational sessions such as toolbox talks that concerned elements of Serco’s policy and procedure for escorts and which made particular reference to the Policy and Procedure Manual for International Removals.
Mr Morgan was at all times able to access Serco’s various policy and procedures on its intranet.
With respect to the international escort which Mr Morgan led commencing on 29 January 2018, the detainee being escorted according to the security risk assessment tool provided to Mr Morgan was rated as having a high risk of escape.[31] The security risk assessment tool contains significant detail and refers to occasions when the detainee had talked about escape, asked about the consequences for escaping from detention, claimed to be a cousin of an ex-detainee who successfully escaped and concluded it is possible that he will attempt escape based on all of the information. The intelligence comments also noted the detainee has been diagnosed with Bipolar Affective Disorder and was involuntarily admitted to a psychiatric facility and officers who have had contact with him report he has a short fuse and has been involved in previous incidents of self-harm.
I note notwithstanding the detail and conclusion of this risk assessment that even after the hearing Mr Morgan continued to downplay the risk posed by this detainee. In his closing submissions Mr Morgan noted “..the detainee’s removal pathway was voluntarily and he was an overstayer with no criminal history.”.[32] However contrary to this submission the evidence is that during the disciplinary meeting on 28 February 2018 Mr Morgan stated that the detainee was a physical threat, that he was 6 foot 3 and had a history of violence and had mental health issues.[33]
Mr Morgan’s decision at the Perth Airport not to obtain refreshments using previously arranged petty cash or using the officers own funds and seeking reimbursement afterwards, but instead allowing DSO Terito to obtain refreshments from the Qantas lounge was based entirely on the perceived inconvenience of obtaining petty cash or reimbursements. This is hardly a compelling reason for choosing this approach. The evidence of Mr Pavlovic and Mr Louis confirm Serco’s position that either petty cash arranged in advance or later reimbursement is the usual practice consistent with the policy and procedure.
There is no evidence the detainee exhibited any agitation during the period of the escort that necessitated allowing the detainee to withdraw money from the ATM and money changer as a way to build rapport with him as Mr Morgan submitted. It would be difficult to understand how using this particular method to build rapport could be justified given the risk created. Any thoughts a detainee might have about attempting escape could well be encouraged by the knowledge that if he were able to overpower the escort and get control of the valuables bag he would not only then have his passport but also a significant amount of money. Creating this opportunity increased the risk of an escape being attempted throughout the period of the escort and if an escape occurred the possibility of it being successful was increased because the detainee having access to money would be more able to evade authorities.
The evidence of Mr Pitout which was not challenged was that Mr Morgan’s version of what occurred when the detainee visited the ATM and money changer differed from that given by DSO Nasir, Pope and Terito. Mr Pitout’s conclusion was that Mr Morgan had authorised DSO Terito to leave the escort and attend the Qantas lounge whilst Mr Morgan remained seated and that this resulted in the detainee being escorted by only two officers namely DSO Nasir and Pope at the money changer. His evidence was this increased the escape risk and was contrary to the requirements given the elevated risk of escape involving this detainee and that the request of Australian Border Force Removals Team had been that three officers be utilised.[34]
The example given by Mr Morgan's witnesses of cash being withdrawn for a detainee whilst being escorted were importantly different from Mr Morgan's actions. In Mr Pavlovic's evidence the withdrawal was done by the team leader not the detainee himself and occurred only at the direction of the Department of Immigration in the particular circumstance where the detainee was refusing to board the aircraft and Mr Louis evidence was of a cash withdrawal having been approved by a manager.
There is no suggestion that allowing the detainee to withdraw money was anything other than Mr Morgan’s decision. There certainly was no request to do so by the Department of Immigration and Border Protection as may have occurred on one previous occasion according to the evidence of Mr Pavlovic.
Failing to formally record that the detainee withdrew money at the time this occurred and not counting it before it was secured in the valuables bag left the escort officers and Serco exposed should there be any accusation by the detainee that some or all of his money was missing.
Whilst I can accept that a team leader of an international escort might believe it is appropriate for good reasons in a particular circumstance to depart from an aspect of the policy and procedure manual that they are otherwise bound to follow what occurred in this instance goes well beyond that.
Mr Morgan’s non-compliance with Serco’s policies and procedures was more fundamental than could be justified and so excused by his employer. Whilst reasonable minds may differ on this judgement it is not for the Commission to put itself in the shoes of the employer. It is Serco that is responsible for maintaining the security of the detainees in its care.
Separately whilst the Commission can accept that other Serco escorts from time to time in the past may not fully have complied with Serco’s policies there is no evidence that this was known to their employer Serco let alone condoned by Serco such that it would excuse all of Mr Morgan’s failures to comply with policy and procedure on this occasion.
As Mr Pitout explained he was aware there had already been previous escapes of detainees housed at Serco immigration detention facilities. Any deviation from the required escort standards consequently had to be viewed seriously because it had the potential to place Serco in a compromising position. He considered that it would be very difficult for Serco to justify its actions if an escort operation had resulted in a detainee escaping and Serco escort officers had not followed the correct procedures.
The relevant policies and procedures in this case have unsurprisingly a significant emphasis on taking steps to reduce the risk of a detainee escaping. Securing the detainee at all times obviously also protects the safety of Serco’s employees and the general public.
Whilst there is merit in responding to a detainee in a sensitive and compassionate manner that does not extend to ignoring policy and procedures in ways that compromises security of the detainee.
The argument that the non-compliance with policy and procedure in this case were not serious can only be put forward because perchance this detainee under escort was well behaved, a circumstance which disguised the seriousness of the risks such failures to follow the policy and procedures created.
Valid Reason
It is clear from the evidence that during the Albanian escort, whilst Mr Morgan was the Team Leader, he committed multiple breaches of the Respondents policies and procedures. This failure to comply with the Serco’s policy and procedures was a valid reason for his dismissal.
Notification of That Reason
Mr Morgan was notified in writing of the reasons why Serco was considering terminating his employment.
Opportunity to Respond
Mr Morgan was provided with an opportunity to respond to the reasons Serco was considering terminating his employment and did so during the formal disciplinary meeting with Mr Pitout and Ms Van Wieringen on 28 February 2018.
Mr Morgan was also directed to attend a meeting to discuss the outcome of the disciplinary process on 16 April 2018 but advised Serco he would not attend that meeting. Notwithstanding multiple efforts by Serco after this advice from him was received to ensure he did attend that meeting Mr Morgan did not do so.
Mr Morgan was given every opportunity to respond to the reasons Serco dismissed him for.
Unreasonable Refusal to Allow a Support Person
There was no unreasonable refusal to allow Mr Morgan to have a support person present during the discussions relating to his dismissal. The unchallenged evidence of Mr Pitout is that Mr Morgan chose to proceed with the disciplinary meeting without a support person.[35]
Unsatisfactory Performance Warnings
Mr Morgan had not previously received any unsatisfactory performance warnings.
The Size of the Employer's Enterprise and Dedicated HR Management Specialists or Expertise
The employer is large and does have dedicated human resource management specialists and expertise and the procedures adopted during the investigation and disciplinary process properly reflect this fact.
Other relevant matters
Mr Morgan is 55 years old and at the time of his dismissal had been employed for over seven years.
Mr Morgan made a number of submissions to the effect that he has suffered differential treatment compared to others. There is however not sufficient evidence regarding all the facts and circumstances of other examples for the Commission to properly draw any conclusion regarding these other examples.
Whilst Mr Morgan admits that some of his actions were contrary to the policies and procedures of Serco he does not accept that there was a valid reason for his dismissal. Mr Morgan acknowledges Serco’s concerns and that the complaints against him are serious but continues to deny all the allegations made against him.
Mr Morgan has shown no contrition and little insight into his actions.
Mr Morgan’s refusal to accept the wrong doing on his part or acknowledge the requirements on him to comply with the policies and procedure excluded consideration by Serco of alternative disciplinary action short of dismissal.
Conclusion
Mr Morgan believes he was right to exercise his judgement during the international escort to depart from Serco’s policy and procedures as he did and believes he should not be sanctioned for this.
Mr Morgan does not willingly accept his obligations as an employee to comply with Serco’s policy and procedures.
Considering all of these circumstances the dismissal of Mr Morgan cannot be said to be harsh, unjust or unreasonable.
Mr Morgan has not been unfairly dismissed.
An order will now be issued dismissing this application.
Appearances:
R Morgan Applicant
C Graham Respondent
Hearing details:
2018
Perth
July 31
Final written submissions:
Applicant, 22 August 2018
Respondent, 14 August 2018
<PR700468>
[1] Annexure PM6 to the Statement of Paul Moss dated 11 July 2018 (Exhibit R1).
[2] Annexure PM3 to the Statement of Paul Moss dated 11 July 2018 (Exhibit R1).
[3] Annexure PM2 to the Statement of Paul Moss dated 11 July 2018 (Exhibit R1).
[4] Annexure PM5 to the Statement of Paul Moss dated 11 July 2018 (Exhibit R1).
[5] Annexure PM15 to the Statement of Paul Moss dated 11 July 2018 (Exhibit R1).
[6] Transcript at PN95 and PN121.
[7] Supplementary Statement of Paul Moss dated 30 July 2018 at paragraph 7.
[8] Transcript at PN131 to PN132.
[9] Annexure PM25 to the Supplementary Statement of Paul Moss dated 30 July 2018 (Exhibit R2).
[10] Transcript at PN135, PN137 and PN160.
[11] Annexure PM25 to the Supplementary Statement of Paul Moss dated 30 July 2018 (Exhibit R2).
[12] Annexure PM26 to the Supplementary Statement of Paul Moss dated 30 July 2018 (Exhibit R2).
[13] Transcript at PN140, PN142.
[14] Ibid., at PN139.
[15] Annexure PM26 to the Supplementary Statement of Paul Moss dated 30 July 2018 (Exhibit R2).
[16] Annexure PM29 to the Supplementary Statement of Paul Moss dated 30 July 2018 (Exhibit R2).
[17] Transcript at PN153, PN155.
[18] Supplementary Statement of Paul Moss dated 30 July 2018 at paragraph 12 (Exhibit R2).
[19] Ibid., at PN703.
[20] Statement of Daniel Pavlovic, undated, at paragraph 3 (Exhibit A2).
[21] Annexure GP19 to the Statement of Geoffrey Pitout dated 11 July 2018 (Exhibit R3).
[22] Supplementary Statement of Paul Moss dated 30 July 2018 at paragraph 6 (Exhibit R2).
[23] See transcript at PN913.
[24] Annexure GP6 to the Statement of Geoffrey Pitout dated 11 July 2018 (Exhibit R3).
[25] Annexure GP19 to the Statement of Geoffrey Pitout dated 11 July 2018 (Exhibit R3).
[26] Annexure PM6 to the Statement of Paul Moss dated 11 July 2018 (Exhibit R1).
[27] Statement of Daniel Pavlovic, undated, at paragraph 6 (Exhibit A2).
[28] Statement of John Louie dated 15 June 2018 at paragraph 8 (Exhibit A3).
[29] Statement of Daniel Pavlovic, undated, at paragraph 9 (Exhibit A2).
[30] Transcript at PN 822.
[31] Statement of Geoffrey Pitout dated 11 July 2018 at paragraph 44 (Exhibit R3).
[32] Allegation 1, Page 4 to closing submissions of Richard Morgan.
[33] Statement of Geoffrey Pitout dated 11 July 2018 at paragraph 44 (Exhibit R3).
[34] Statement of Geoffrey Pitout dated 11 July 2018 at paragraph 59 (Exhibit R3).
[35] Statement of Geoffrey Pitout dated 11 July 2018 at paragraph 43 (Exhibit R3).
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