Mr Tom Martin v Serco Australia Pty Ltd
[2014] FWC 726
•3 FEBRUARY 2014
[2014] FWC 726 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Tom Martin
v
Serco Australia Pty Ltd
(U2013/12435)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 3 FEBRUARY 2014 |
Summary: whether dismissal for detainee escape from international escort is unfair - Department of Immigration and Border Protection - Serco - detainee being returned to country of origin - criminal charges - mitigation - whether permission to appear should be granted under s.596 - representation contested.
[1] On 12 August 2013, Mr Thomas Martin (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking a remedy in relation to his allegedly unfair dismissal by Serco Australia Pty Ltd (“the Respondent”) on 29 July 2013.
Contest on representation - s.596 of the Act
[2] At the outset I indicate that the Applicant’s representative (United Voice) resisted representation by a lawyer as sought by the Respondent. United Voice contended that the requirements of s.596 of the Act had not been made out.
[3] I granted the Respondent’s lawyer permission to appear prior to commencement of the hearing and undertook to provide my reasons in the substantive decision, which I now do.
[4] This was a matter, I observe, that was attended by a very large volume of materials involving numerous witness statements and other documents. United Voice had put into argument a wide body of claims relating to the manner in which the Commission exercises its jurisdiction, referring to various apparent authorities, including argument about the role and relevance of similar fact circumstances, and cases in which there had been a history of toleration or condemnation of misconduct by an employer. Argument may also arise in respect of the weight to be given to company policies and procedures, and the interaction of those policies and procedures with those of the company’s client with which it holds a commercial contract.
[5] In my view, the conduct of the case would be assisted by the participation of a lawyer for the purposes of ensuring the cross examination is conducted professionally and efficiently and that the relevant documents are addressed in a manner that does not lead to excessive delay or confusion. Ordinarily a lawyer, in my experience, brings a trained and orderly mind to proceedings in which there is a large amount of documentary material to be read into the witness evidence.
[6] This observation is underpinned by the fact that the lawyer in question has extensive experience with the matter from its embryonic point, along with experience in a matter which is related these proceedings. Prior involvement of a significant degree ordinarily will allow a lawyer or paid agent to conduct proceedings more efficiently than may otherwise be the case.
[7] The role of a lawyer in circumstances where references are made to a number of relevant authorities and other cases would also be of advantage as well. This is because being represented by a trained person who is familiar for reason of his or her professional function with the authorities relevant to the jurisdiction would further minimise confusion, ensure efficiency in the conduct or the proceedings when those arguments are raised, and also enable the Respondent to represent itself more effectively in such a context.
[8] I add that the complexity of the matter, however defined, is only one factor that must be taken into account. Section 596(2)(b) of the Act does not suggest that “complexity” is an exclusive precondition to contextualising “efficiency”. The efficient conduct of a matter may be assisted by other factors (some of which I have touched upon).
[9] It is asserted, and I accept, that the Respondent does not employ a person who has experience in presenting cases, let alone cases involving the scope of materials and issues as this one, in the tribunal or court system. In such circumstances it would be unfair not to allow the Respondent to be represented by a person of its choosing - in this case a lawyer. The Respondent would not be able to represent itself effectively if permission to appear was not granted.
[10] United Voice will provide experienced representation on behalf of the Applicant by a person (an industrial officer) with significant familiarity with the Commission’s jurisdiction and its procedures and protocols.
[11] In the circumstances, as I have set them out, I discern no issue of relative unfairness arising from extending permission for a lawyer to represent the Respondent, if unfairness can be said to arise by providing for legal representation in any event.
[12] On these grounds, I grant permission for a lawyer - in this instance Mr Paul Brown of Baker McKenzie - to represent the Respondent in these proceedings.
Background summary
[13] The background to this matter in brief summary is as follows.
[14] The Applicant had been employed as a Client Services Officer based at the Brisbane Immigration Transit Accommodation (“BITA”). The Applicant had performed this role with the Respondent since January 2010.
[15] In this role, the Applicant was nominated to perform duties as an Escort Team Leader. As such, the Applicant was required to transport and escort a German national - Mr Carlos Kohl - from Wolston Correctional Centre to Frankfurt (departing Brisbane) via a transition flight from Bangkok. These duties were performed in the context of the Respondent holding a service contract with the then Department of Immigration and Citizenship (“DIAC”) (now Department of Immigration and Border Protection (“DIBP”)).
[16] On 15 May 2013, the Applicant was to perform the transport and escort function along with another employee of the Respondent, Ms Kaaron Janner. Ms Janner was a Client Services Manager for the Respondent.
[17] The Applicant had prior experience in such functions (having carried out four international escorts at earlier times).
[18] Mr Kohl was considered a “medium risk”. He was 25 years old and had been imprisoned in Queensland for a variety of criminal activities, including drug trafficking, burglary, fraud, break and enter, enter whilst armed, and some stolen goods offences. Mr Kohl had left Germany whilst on parole. His international criminal profile included stealing, wilful damage and aggravated assault. A warrant had been issued in Germany for his arrest.
[19] Mr Kohl was defined as a “dangerous person” under the Aviation Transport Security Regulations 2006. On what was put to me, that is a broad definition applicable to a very wide range of attributes, including whether the person had a criminal history.
[20] Notwithstanding, Mr Kohl was also classified as a “voluntary removal”. That is, he had consented to return to his native country. Such a removal is said to present a “lower level” of risk than a forced removal. Mr Kohl could at any time have elected not to have been repatriated.
[21] The Applicant was made aware of the risk posed by the Applicant a day or so prior to the movement.
[22] Mr Kohl was discharged from the Wolston Correctional Centre into the custody of the Applicant and Ms Janner on 15 May 2013 and flown on the first leg of their trip to Bangkok.
[23] In the course of the flight to Bangkok, the Applicant provided Mr Kohl an amount of money in cash, which he (the Applicant) had taken possession of at the time Mr Kohl was released into his custody. The cash appears to have been Mr Kohl’s earnings whilst in prison (or money that was held by him prior to being imprisoned). I will return to this matter below.
[24] Upon arriving in Bangkok the party faced an unanticipated development: the flight for the second leg of their trip to Frankfurt had been cancelled and it was necessary for the party to overnight at a hotel inside the perimeter of the Bangkok International Airport. The party checked in at the hotel at 12:30 AM Brisbane time.
[25] Over the course of the night, Mr Kohl made two visits to the toilet and was accompanied by the Applicant on both occasions. The toilet facilities were located some 15 metres down the corridor from the hotel room. They comprised combined closed shower stalls and toilet cubicles. No rooms with en-suite facilities were available.
[26] The transport and escort operations log reveal that the Applicant showered at 3:54 AM, while Ms Janner maintained a watch on Mr Kohl.
[27] At 7:20 AM, Mr Kohl himself was escorted to the shower by the Applicant. Ms Janner remained in the room to pack relevant articles prior to check out and possibly also attended the female bathroom down the hallway.
[28] Whilst Mr Kohl was within the closed shower stall, the Applicant visited the toilet cubicle in the same bathroom area. The Applicant was in the toilet cubicle for some 3 minutes. When he emerged from the toilet cubicle he found the shower was still running, the shower stall door was closed, but that Mr Kohl had absconded.
[29] The operations log maintained by Ms Janner at the time shows the Applicant left for the shower with Mr Kohl at 7:20 AM, and returned 10 minutes later to the room (at 7:30 AM) in search of the detainee. A search of the immediate environs was then conducted by the Applicant and Ms Janner. This was hampered to some extent as they were required to carry their luggage and a suit bag with them. Airport security was alerted, though language barriers delayed the effectiveness of such assistance in the search for a period.
[30] The Applicant claimed that he persisted with the search for some time because the Thai police had informed him that Mr Kohl would be unable to leave the airport without documentation (which he did not have).
[31] The Applicant notified his duty Customer Service Manager (“CSM”) some 3.5 hours or so after Mr Kohl had absconded. In his formal response to the Respondent’s allegations as to why there had been such a delay in reporting the incident, amongst other things, the Applicant claimed that:
“I believe I made contact with the CSM within or around 4 hours after the incident and I thought no help would be forthcoming by notifying earlier”. 1
[32] Despite this, the Applicant claimed that contact was made with the duty CMS following a number of prior attempts to communicate the developments, the Applicant claimed, all of which had been to no avail (possibly) because of difficulties with the Thai telephone network.
[33] The detainee was not re-captured.
[34] The Applicant returned to Brisbane on 18 May 2013. He was interviewed on 24 May 2013 as part of an investigation into the incident. Following the interview, a copy of the transcript was provided to the Applicant and he was asked to read and sign the same and return it to the Respondent. He did not. This caused the Respondent to initiate correspondence seeking clarification of the Applicant’s position on 19 June 2013. The Respondent was of the view that the Applicant had advised it that he had sent in a signed statement by priority post, but the signed statement had not been received.
[35] On 21 June 2013, United Voice directed correspondence to the Respondent raising concerns about the quality of the transcription of the interview and providing related clarifications of the Applicant’s claims. United Voice claimed that the Applicant had not intended to sign the transcript and had so indicated at the time of the earlier interview (on 24 May 2013). None of these matters had any material bearing on the case in hand.
[36] On 5 July 2013 the Respondent advised the Applicant of the adverse findings made against him in the investigation findings and asked him to show cause.
[37] In correspondence dated 10 July 2013, United Voice responded in detail to the investigation findings. I will set the various claims and responses out immediately below (incorporating the further materials led in these proceedings).
[38] A show cause meeting was conducted on 12 July 2013 (after a delay at the request of the Applicant). The Applicant was represented by United Voice at the meeting. Written responses to the various allegations as asserted were provided to the Respondent at that time.
[39] The Applicant’s employment was terminated by the Respondent on 29 July 2013, with payment in lieu of notice.
The claims and responses
[40] The Applicant was faced with a number of specific allegations, by way of the Respondent’s correspondence of 5 July 2013 which contained the findings of the investigation it carried out. I will set these various claims out, including the Applicant’s response, and then proceed to make discrete findings as I proceed.
First claim
[41] The Respondent claimed that the Applicant failed to maintain the security of the escort while Mr Kohl was showering by leaving his static guarding position to attend a toilet.
[42] This was said to be a breach of sections 2.2 and 2.3 of the Respondent’s Transport and Escort Policies and Procedures (“TEPP”).
[43] Section 2.2 reads in part that an Escort Officer must:
Ensure the security and safety of the person in detention, staff and public, particularly at international airports
[44] Section 2.3 reads in part that the responsibilities of an employee during static guard and escort duties include that:
- Escort officers must observe the person in detention regularly and carefully, and not assume that a compliant, self-managing person in detention will remain that way. Escort officers must not sleep or allow themselves to be distracted from their duties; and
- Escort officers must be diligent in their observation of the person in detention in all situations, e.g. escorting person in detention for cigarette break or toilet break
[45] The Respondent contended that the Applicant was aware of these protocols from his training.
Applicant’s response
[46] The Applicant contended that he had acted in compliance with the TEPP, and carried out his duties in a manner that was safe, secure, humane and respectful to Mr Kohl. More generally, the Applicant complained that this allegation was lacking any specificity such that he could properly understand the allegation put to him.
[47] In any event the Applicant contended that he did not so much leave a static guard position to attend a toilet as he entered a shared shower and toilet block with the Applicant (and used the toilet cubicle while the Applicant showered).
[48] The Applicant also came to argue that there were important mitigating circumstances. The most important of these was that because of the delayed flight from Bangkok to Frankfurt he had been required to be vigilant for a period of some 24 or 25 hours or so. As such he was affected by fatigue, which in turn affected his judgement (and thus his vigilance) at the time.
[49] The Applicant also contended that “it was widely recognised” that a medium level risk such as Mr Kohl should have attracted three escorts for a long haul destination, and not two as in this case. Further, the fact that the second escort was female meant that issues would arise as to the capacity of the Applicant to take toilet breaks. That is, the Applicant was conscious of not leaving Mr Kohl alone with his female colleague owing to security and safety reasons.
[50] The Applicant also contended that the Respondent should have provided for a larger escort given that the Applicant faced an arrest warrant in Germany. Following Mr Kohl’s escape, the Applicant claimed that three escorts have accompanied a detainee to Papua New Guinea from Brisbane for only a short 3 or 4-hour flight, while three escorts accompanied a person to South America. Long haul destinations are also said to require three escort officers and not two as assigned to Mr Kohl.
[51] It was also argued that the pre-transport process conducted by the Respondent had failed to give sufficient weight to Mr Kohl’s criminal history and identify the risks associated with escorting Mr Kohl.
First claim - findings
[52] The Applicant did not comply with the Respondent’s procedures as set out above. He moved from a static guard situation to one in which the detainee, Mr Kohl, was left to his own devices, in effect. There was no line of sight maintained. There was no proximity supervision. The Applicant had not engaged Ms Janner to assist him in maintaining supervision of Mr Kohl outside the facilities.
[53] It appears to me that the Applicant failed to fulfil what is in essence an essential element of his duties: to ensure the security of the detainee being escorted.
[54] Much was made in the course of the hearing about the need to have increased escort resources - three rather than the two utilised here. But the escape did not take place because there was a resource deficiency. It took place because the Applicant did not keep eye contact on Mr Kohl or stand guard outside his shower. Or in the alternative, the escape occurred because the Applicant did not advise Ms Janner that he needed to use the toilet urgently and further, did not, as Team Leader, advise her to keep guard over the exit from the ablutions area whilst he was distracted.
[55] That is, the Applicant knew he had to utilise the toilet urgently, and he recalled that Ms Janner had informed him that she might freshen up in the female bathroom and/or else complete packing prior to departure. But despite this knowledge, and its implication in relation to the continued surveillance of Mr Kohl, the Applicant took no steps to secure the detainee or to evaluate the situation into which he was moving (which is contrary to his training).
[56] While I can only speculate, it would appear the Applicant took the view that Mr Kohl was a low security risk, who had shown no intention of acting in an untoward way or escaping, and had acted in a convivial manner hitherto. That is, the Applicant became complacent about the risk he was managing (something in respect of which his training provides cautionary warnings). I return to this matter to some extent in respect of my discussion under s.387(h) of the Act below.
[57] I return briefly to the escort resourcing. There does not appear to me to have been any fundamental deficiency in the paired escort arrangement, such that a three person team was required in the circumstances. Because the Applicant did not wish to communicate any information about matters he considered “private” such as the need to use the toilet, there is no guarantee that a larger escort contingent would have changed anything, in any event. Would the Applicant have communicated his “private” circumstances to a wider team?
[58] In the end, the escape occurred because of a failure to comply with a basic supervisory requirement, arising from a serious lapse in judgment, not because a larger escort team was required in the circumstances. Put another way, if the Applicant had maintained supervision of the detainee (personally, or through the agency of Ms Janner), Mr Kohl may not have absconded. And further, in not engaging Ms Janner in the continuous supervision of Mr Kohl, the Applicant did not use the resources at his disposal to give effect to the escort.
[59] If the Respondent has reviewed its operations subsequently and adjusted its formations in the context of identical risk assessments, I cannot say that such a development - if it has occurred generally - arises from this particular case and/or betrays a circumstance that led to the detainee absconding (in this particular case). As I have indicated above, the detainee escaped here because he was not under surveillance, and his movements went unsupervised.
[60] Somewhat relatedly, the Applicant also claimed that he was “conscious”, presumably at the time he took Mr Kohl to the bathroom facilities, that he did not wish to leave Ms Janner alone with the detainee.
[61] But this is what the Applicant did, according to the operations log, when he went for a shower that morning. The running sheet maintained by Ms Janner recorded:
3.37 [Mr Kohl] returns from toilet - lay on bed.
3.54 [Mr Kohl] appears asleep. T[eam] L[eader] Martin goes for shower.
Fatigue
[62] Though I will return to the matter below, the Applicant also raised the issue, though somewhat only as a closing claim in his initial interview with his employer on 24 May 2013, that he was fatigued by the unexpected delay in the flight and the need to supervise the detainee in such circumstances.
[63] I observe in the Applicant’s materials that he firstly claimed to his employer in closing in his interview of 24 May 2013 that a person affected by fatigue is “not on the game as well as he might be” and that decision making “might” be affected.
[64] The question here for resolution is whether the Applicant was indeed - on the evidence available - fatigued to the point at which his judgment was impaired, and he was unable to carry out his duties reliably. If the operational circumstances gave rise to such a situation, it may be a mitigating factor in the statutory evaluation
[65] The initial point to make is that the escorted transfer as originally planned was going to take place over the period of time the Applicant had been operational when the escape took place. That is, the Applicant knowingly had always been required to maintain the escort for the same period of time regardless of the escape. Indeed, at least arguably, the circumstances of the stop over may have been less arduous (and at risk of generating fatigue) than the continuation of the flight over the same period.
[66] I note that the Applicant was expressly asked at his interview on 24 May 2013 if he had slept during the overnight stay in Bangkok, but his answer was evasive, or at least unclear:
Did you get any sleep that night?
Kaaron probably got a brief break at certain times. I am not certain, she would have put that in her report. [...] She wasn’t away for very long. So as far as that I was with him the whole time and took him to the toilet both times [...].
[67] If fatigue been a genuine defence in respect of his decision making that day, the Applicant would have said so directly and expressly in the course of his interview when the clearly relevant question was raised. He did not do so, even though he took up the issue in general terms at the close of the interview. Further, the issue of tiredness and the duration of the escort was raised on at least two occasions in the initial interview by third parties to assist in contextualising the Applicant’s conduct, but the Applicant did not take the matters up in any express way.
[68] That said, at a finer level of particularity, the Applicant’s evidence itself does not give evidence of any quality as to the manner in which his decision making had been affected by the duration of the escort. As I will discuss below, the Applicant gave no evidence himself expressly about not having any sleep when asked at his interview, even though fatigue was to become a primary argument in mitigation (or at least so in his materials as filed subsequent to the interview of 24 May 2013). This was a point made generally by the Respondent in its response to the application (under Form F3).
[69] Far from setting out how he had been, perhaps, “fuzzy headed” or “sleepy” not “fully engaged” or “unfocussed” or “drowsy” or had “blurry eyes” at the time he took the detainee to the shower, the Applicant revealed quite lucid decision making.
[70] The Applicant recalled that he was struck by an urgent desire to go to the toilet as he escorted Mr Kohl to the shower, but he recalled equally at the very time, he did not wish to confide in Ms Janner about such “private” matters.
[71] There were other explanations suggested in passing. The Applicant claimed he did not wish to leave Ms Janner alone with Mr Kohl (as I have discussed above), or even (as floated in the course of the proceedings) he did not wish to have Ms Janner standing in a darkened hallway standing guard.
[72] In any respect as set out, the Applicant’s decision making was lucid and based on particular rationales. As such, the Applicant’s state of mind therefore is unable to be characterised (on the Applicant’s own evidence) as exhibiting fatigue or confusion to the point where ordinary, functional decision making was impaired or impossible.
[73] I note too that the Applicant retained a very finely structured recollection of the lay-out of the toilet block, and the minutiae of his exchanges with Mr Kohl while in the toilet area, and even Mr Kohl’s state of dress as he entered the shower. The Applicant even recalled the sound of the shower running. Reasonably, an individual who is fatigued to the point that his decision making is impaired might not retain such vivid and detailed images and recollections.
[74] Whether or not in this context, the error in the Applicant’s decision making was so basic to his essential and relatively uncomplicated duty (to keep supervision of the detainee at all times), that it is difficult to believe he could have neglected to carry out that duty in any but the most extreme circumstances (which are certainly not accommodated in his evidence). The Applicant was not required to carry out nuanced evaluations or perform complicated procedures. The Applicant simply needed to keep line of sight or close proximity to the detainee to minimise the risk of escape, and he did not do so. The Applicant’s own evidence, as I have suggested, does not explain away or mitigate this elemental departure from his core duty.
Escort formation
[75] I add that I see nothing that is unreasonable in the Respondent’s expectation that an employee trained in conducting escorts, and who is very experienced in the requirements thereof in relation to both domestic and international escorts, should maintain line of sight of a detainee, or else supervision by retaining close proximity. There can be no more (as I have described it above) ‘elemental’ requirement to the role of an escort than this.
[76] Of course, had the Applicant been genuinely concerned at the time about fatigue or the risk of fatigue that this elemental function could no longer be carried out, he had contact numbers to telephone to request assistance. But he raised no such issues.
[77] The Applicant set out in his documentation, as developed over time, a long list of matters that should be taken in “mitigation” in relation to his conduct. I have dealt with some of these, but others are considered below, to the extent that they bear materially on the issues.
Second claim
[78] The Respondent further contended that the Applicant did not advise Ms Janner that he needed to leave his guarding position to attend the toilet while the detainee was in the shower. The Respondent contended that had the Applicant done so, he would have maintained the security of the escort. In essence, the Respondent contends that had Ms Janner been directed to wait outside the toilet block while Mr Kohl showered and the Applicant used the toilet, Mr Kohl would not have escaped custody. In this respect, the Respondent contended that the Applicant had breached sections 2.2 and 2.3 of the TEPP.
[79] The Transport and Escort Operational Order (“TEOO”) states relevantly in this regard that:
The presence of at least two escort officers allows one to be absent for short periods of time (e.g. comfort breaks) but the escort officer must return promptly to resume static guard.
Applicant’s response
[80] The Applicant again complained that the references to the TEPP lacked specificity.
[81] The Applicant contended, nonetheless, that he did not inform Ms Janner of his intentions to use the toilet as that was a private matter.
[82] In any event, the Applicant also argued that it was:
“well-known and widely recognised in the (Transport and Escort) community that in APODS (Alternative Place of Detention) that “good security practice” suggests it is preferable to take a toilet break whilst they client/detainee is showering. For this reason I did not leave the static guard position.”
[83] The Applicant had also reached the view that Mr Kohl had been compliant and polite throughout the escort and had previously given no indication that he would abscond or was otherwise a flight risk.
Second claim - findings
[84] The Applicant’s decision making departed from his employer’s expectations and instructions provided by his training. The Applicant ceased to have direct observation of Mr Kohl for a period of three minutes and he failed to communicate his intentions (to use the toilet) to Ms Janner, which meant there was no guard placed outside the bathroom. Mr Kohl escaped as a consequence. I have made comment elsewhere in relation to this general matter and the circumstances.
Third claim
[85] The Respondent contended that the Applicant had failed to ensure that it was notified of the escape within a reasonable period of time and the delay in notification was said to have been a breach of sections 2.3 and 2.4 of the Incident Reporting Policy and Procedure Manual and was contrary to the instruction in the TEOO. This latter order required the Applicant to contact the duty CSM immediately should any issues or concerns emerge in the course of the escort:
Should any issues or concerns be raised, immediately contact the duty CSM
[86] Section 2.3 of the Incident Reporting Policy and Procedure Manual provides as follows, in part:
2.3 Internal Reporting
The internal reporting does not remove the responsibility for External Reporting to DIAC, the DIAC Regional Manager or other regulatory Authorities.
The incidents below must be immediately reported by the telephone to the National Duty Manager on [...]
[...]
2. Escape from facility/escort
[...].
[87] Section 2.4.1 of the Incident Reporting Policy and Procedure Manual sets out incident reporting timeframes and states that a category “critical” incident must be reported verbally immediately within 30 minutes.
[88] A critical incident is defined at section 2.4.2 as including an “escape”.
[89] The Respondent contended that the Applicant was familiar with these documents.
[90] The Respondent also tendered refresher training materials that showed that the Applicant had completed refresher training in 2013, some of which went to the issue of the time period within which a critical incident report should be made verbally. That training required that a serious incident should be notified to the Respondent within a 30 minute window. The Applicant had so indicated the correct answer in his refresher training. The refresher training also went to wider issues about the role and importance of incident reporting.
[91] The Respondent’s evidence was that the Applicant had conveyed by telephone to it that he had not met the 30 minute notification timeframe because he “thought [he’d] get him back.”
Applicant’s response
[92] Again, the Applicant complained that the references to the Respondent’s procedures were insufficiently precise.
[93] The Applicant also contended broadly that he had made all reasonable attempts to ensure that the Respondent was notified of the escape within a reasonable period of time (which was some 3 - 4-hours after the escape). The Applicant contended that he had made efforts to contact the duty CSM but that these were undermined by the reliability of the Thai telephone network.
[94] The Applicant contended that he used the company-issued mobile phone and his own personal phone to attempt to contact the duty CSM, but on both occasions the call could not be connected.
[95] In any event, the Applicant contended that the “primary focus” was on searching for Mr Kohl and seeking the assistance of the Thai security personnel.
[96] The Applicant contended further in his responses to his employer in the investigation process that he “thought that no help would be forthcoming by notifying [the duty CSM] earlier.”
[97] He also conveyed to the Respondent that the telephone calls that followed his communication of the escape only “slowed us in our efforts to keep searching sectors of the airport”.
[98] The Applicant further claimed that he had not been given a copy of sections 2.3 and 2.4 of the Incident Reporting Policy and Procedure Manual. Indeed, the Applicant contended that he had not seen the latter document at all at any point, so could not reply meaningfully as a consequence.
Third claim - findings
[99] I find that the Applicant’s claim that he delayed contacting his employer because he did not think help would be forthcoming and that he did not wish to be hindered in his search for Mr Kohl sits particularly uncomfortably with his other claim that on two occasions he had sought to make earlier contact with the Respondent by mobile phone (but presumably was let down by the unreliable Thai telephone network).
[100] These claims do not sit comfortably at all with one another. This is more so the case when it is understood that the Applicant had completed training and testing in relation to the very issue (in which he was required to identify the circumstances in which he was to make verbal contact following a critical incident such as an escape). The Applicant had completed this Refresher Training in May 2013, only a short time prior to the incident.
[101] Overall, I have no doubt that the Applicant was aware of the obligation in the context of a critical incident to contact the Respondent within the required 30 minute window, but in the circumstances elected not to do so for other reasons that he had prioritised personally.
[102] I add that contacting the Respondent verbally within the 30 minute window in the event of a critical incident such as escape is not a mere procedural requirement. An escape of a detainee can give rise to many risks; personal, public and commercial (and perhaps even diplomatic risks as well, given the newspaper reports). The Respondent also claimed it had access to resources than can assist in recapturing escaped detainees or supporting teams in any searches. Conforming with the Respondent’s expectations as expressly indicated in this respect is therefore an important element of the employment relationship.
Fourth claim
[103] The Respondent contended that the Applicant had not followed the training that he had been provided in respect of International Removals and the role of an Escort Team Leader.
Applicant’s response
[104] The Applicant claimed to the contrary that he had made all reasonable attempts to follow the training that he had been provided. In this respect, the Applicant contended that he was only afforded generic training which could not be applied to the specific circumstances he encountered. He also argued in mitigation that he had done everything possible in the circumstances of a challenging situation and that he had worked very long hours over the course of the escort. Indeed, the Applicant contended that the Respondent did not follow its fatigue management guidelines and provide him with a break in his work of the prescribed duration. He contended that at the time of the escape he was suffering from fatigue.
[105] The Applicant otherwise argued that he was not aware of any particular training that distinguished the additional responsibility of Escort Team Leaders, or that provided him with any guidance in relation to the circumstances that the Applicant faced upon arriving in Bangkok.
Fourth claim - findings
[106] This claim is a generalised claim that refers to the discrete allegations made elsewhere above (and below). I make no finding as a consequence and refer, instead, to my more particularised comments.
Fifth claim
[107] The Respondent also contended that the Applicant had given Mr Kohl money so that it was in his possession when the escort landed in Bangkok. This, it was claimed, was a contravention of the Transport and Escort Operational Order instruction relating to Mr Kohl’s money. It was the Respondent’s position that Mr Kohl was only to be provided money immediately prior to the escort landing in Frankfurt.
[108] The Respondent referred to the TEOO instruction applicable to the escort. The TEOO stated that a:
“client’s travel document and valuables are to be handed over to the client prior to him disembarking the aircraft in Frankfurt”.
[109] The TEOO provides a detailed prescription in relation to the circumstances of the escort including various instructions.
Applicant’s response
[110] The Applicant contends that he returned Mr Kohl’s money during the flight from Brisbane to Bangkok in accordance with the (then) DIAC “General Information for Escorts” document. The Applicant contended that the document stated that:
“the escorting officer should maintain possession of the property of the person being removed (except money), any medication and travel documents until the conclusion of the escort.”
[111] The Applicant claimed in essence that he was bound by the DIAC directive and not that of his own employer by way of the TEOO.
Fifth claim - findings
[112] The Applicant also gave evidence about his familiarity with the TEOO at the time of his interview on 24 May 2013.
[113] He was asked on a number of occasions as to whether he had read the TEOO for the escort:
Did you read the order prior to meeting with the international transport escort team?
I'm not sure what you mean, I was asked to start at 8 AM that morning, so we had a very brief meeting with Ms McCarthy so that...
I will rephrase the question. Did you read the operational order prior to starting [?]
Well I was in a bit before 8 AM so that is when the process commenced, that is when we took some instructions and I had a look through some of the documentation.
Did you recall looking through one of those documents as being the operational order[?]
Yes there was the departure plan as well as the operational order.
Do you recall what information the operational order provided to you?
These current operation orders are currently with escort material, there was more detail in this one and I'm not sure what was disclosed there [,] it is a standard document with all the relevant information to guide you through the escort.
[...]
So can you confirm that the operational order was complete?
I'm not sure if there is anything missing so, I don't really know.
[114] The Applicant did not assist his employer in reaching a high level of confidence as to the extent to which he had comprehended the TEOO for his escort task and role as Team Leader (which is prescribed in his training documentation). Indeed, the Applicant’s evidence may be read as being evasive, and representing an attempt to ensure that he is able to distance himself from any purported obligation and instructions arising from the TEOO.
[115] That said, in respect of his conduct in having handed over to the detainee a sum of cash prior to arrival at the point of destination, the Applicant did give evidence in his statement and during the hearing that in hindsight it might not have been a wise course. But even when this concession was made, the Applicant suggested that it was a course of action that was unwise given the duration of the stop over, not the more relevant fact that the flight was not intended as a direct flight regardless.
[116] Clearly, the TEOO embodied the particularised directions or instructions for the removal. If the Applicant felt confused or could not resolve tensions between the TEOO and another document, it was always open to him to seek guidance. But he never raised the issue, if it ever had been an issue at the relevant time.
LEGISLATIVE PROVISIONS
[117] The relevant legislative provisions arise under s.387 of the Act which reads as follows:
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.
[118] I turn to the substantive requirements of s.387 of the Act.
(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)
[119] The Applicant had failed to maintain personal (and otherwise ensure) close observation of the detainee under supervision, as I have found above. He failed also to inform his employer within the required timeframes (within 30 minutes) of the detainee’s escape. The Applicant did not contact his employer for some 3.5-hours after the escape. This conduct, in all, went to the fundamental duties of an Escort Team Leader, and was contrary to the Applicant’s (recent) training and the employer’s reasonable expectation of the Applicant’s role. I have discussed these matters above.
[120] With this, the Respondent’s trust and confidence in the Applicant’s capacity to fulfil his duties diligently fell into serious question.
[121] Dismissal was a disciplinary response commensurate with the conduct in the circumstances. And further, in my view, there were valid reasons for the dismissal of the Applicant.
[122] But having said as much, such a finding does not mean that a dismissal is not harsh, unjust or unreasonable. All the circumstances of the case must be evaluated ultimately.
(b) whether the person was notified of that reason
[123] The Applicant was provided reasons for the Respondent’s pending decision to terminate his employment. These have been set out above in summary. The Applicant at various times complained that the reasons were too generalised or lacked sufficient particularity. There is no doubt that the show cause process as it was sufficiently disclosed the Respondent’s reasons for action, though I do concede that it may have been helpful for the Applicant to have received copies of the relevant documents to which reference was made in the Respondent’s correspondence.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[124] The Applicant was provided with an opportunity to respond to the reasons given by the Respondent, and I have set this process out in summary above.
(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
[125] The Applicant was represented over the course of the investigation process and interviews.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[126] There is some scope for argument that the Applicant had failed to perform his duties in accordance with his training and employer’s direction. The point in the current circumstances, however, was that the Applicant’s conduct which bore upon his performance was so greatly at odds with his fundamental duties that his dismissal (on the basis of payment in lieu of notice) was warranted in the circumstances. I can only add that the Applicant had been on notice - by way of written warning - since an incident in 2012 in which a detainee had escaped whilst under his supervision (as part of a formation) that the Respondent expected him to keep close physical proximity (to a detainee) to minimise risk of further such incidents.
(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
[127] No issue rightly arises in this regard.
(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
[128] No issue rightly arises in this regard.
(h) any other matters that the FWC considers relevant.
[129] The Applicant provided a series of further arguments in mitigation largely relating to procedural deficiencies in respect of operational planning and communications about the escort circumstances. Other arguments he articulated were either expressly or impliedly elements of his other defences. I have dealt with a number of matters above (such as in relation to fatigue). But there are some further matters that are discrete, and I will deal with these immediately below.
Scapegoating
[130] The Applicant argued that if he had been substituted with another of the Respondent’s employees in the same circumstances the termination of his employment would not have resulted. Essentially, the Applicant is arguing here that he had “received advice from both DIAC and Serco that [he] was to be made the “scapegoat” from the highest level.”
[131] It appears that the implicit argument here is that the Respondent, seeking to protect itself from contractual difficulties with its Commonwealth client, singled the Applicant out for dismissal to demonstrate its ‘bona fides’ to DIAC.
[132] This claim was left unsubstantiated, if it at all had bearing on the particulars of this case. In any event, the purpose of this very application is to explore those particulars and to consider whether the dismissal was harsh unjust or unreasonable in all the circumstances.
Differential treatment
[133] The Applicant also contended that he “was aware of countless escapes” when no or limited disciplinary action had been undertaken by the Respondent. He provided a list of several such incidents.
[134] The Respondent gave evidence that there had been dismissals resulting from escapes in the past.
[135] But in the end there were no comparable, particularised examples brought into evidence that proved the Respondent had treated the Applicant differently than some other employee. The circumstances and security risks all appeared varied across the incidents that were raised. In all, the Respondent appeared to have taken a variety of responses to escape situations, and tailored its disciplinary responses accordingly.
[136] I also see no point in comparing Ms Janner’s treatment with that of the Applicant. Ms Janner was not dismissed ultimately because of her conduct over the escort. Ms Janner had no prior international escort experience (though she was experienced in domestic escorts). But more importantly, Ms Janner was not informed by the Applicant that he was going to leave Mr Kohl unsupervised in the ablutions area. She cannot be said to have been pivotal in contributing to the situation in which the detainee absconded.
Procedural defects
[137] The Applicant also contended that the escort had suffered from procedural defects. For example, the Request for Service (“RFS”) document (which is generated by DIAC/DIBP) had not been signed and the pre-briefings were not as comprehensive as might ordinarily be expected. But such issues as these did not bear materially upon the conduct that was central to the incident in question.
[138] The Applicant also complained that had a proper risk assessment been carried out of the detainee, the situation (that being the escape) would never have arisen. Again, the Applicant was classified as a medium level risk and had a known criminal history, which was set out in the TEOO. After all, the very fact the Applicant was escorting Mr Kohl from prison to Frankfurt suggests that the degree of close supervision was to be reasonably expected.
[139] In my view, these are not circumstances that in any way bear materially upon the conduct which caused the Applicant’s employment to be dismissed.
[140] The Applicant also argued that there was no contingency plan in place for a stopover of such duration, and that this led to the circumstances which culminated in the detainee escaping.
[141] To be sure, there was an unexpected delay, and the Applicant’s circumstances changed significantly. He had to adapt. But it is difficult to conclude that the Respondent’s failure to put in place an alternative set of arrangements (whatever that might have amounted to) when the connecting flight was delayed presents a compelling case in mitigation.
[142] As I have noted above, the incident occurred within the same timeframe as it would have taken the Applicant to return the detainee to Frankfurt (if the flights had proceeded as scheduled). In any event, the Applicant always had at his disposal emergency contact numbers on the TEOO should a matter of significance arise (as I earlier observed), but he did not consider his circumstances warranted that course. Nor would one reasonably expect, bar some exceptional circumstance, that a flight delay at stopover on a long haul journey would give rise to an emergency situation. In the end, the Applicant was placed not in an unreasonable or impossible set of circumstances. He was required, merely, to supervise the detainee effectively and he failed to do so at a critical juncture.
Naiveté
[143] The Applicant also provided a candid insight into his own understanding of the incident in the course of his interview of 24 May 2013.
[144] Whilst making the observation that Mr Kohl may at any point have run away, the Applicant stated as follows:
He had ample opportunity anytime through the night to run away, it is just bewildering to me that it happened how it did. He has done this sneakily [...].
[145] The fact of the matter is that Mr Kohl escaped as a result of the Applicant failing to keep him under observation. At all other times during the night the Applicant was under observation. The Applicant’s reflections in this regard were made on 24 May 2013, about a week after he had returned to Australia and was interviewed by his employer. Reasonably, it could not have been a cause for continuing bewilderment on the Applicant’s part as to how Mr Kohl came to escape.
[146] Further, as an escort team leader, who expressly understood his responsibilities (and so admitted in his interview of 24 May 2013), it should not come as a surprise to the Applicant that a detainee has acted “sneakily” in escaping. I am unsure as to what other way a detainee might seek to escape other than by acting “sneakily” in some respect or another. The point about being an escort is to minimise the scope for such conduct by retaining close supervision of the detainee.
[147] In this same regard (that being the escape) the Applicant further complained, as it were, that there had been:
No indication at all [...] from the outset he given us the impression that he, he told us that he would be met by his sister, stay with his mother, get work with his brother, all sorts of things like this. Recommended certain things that we should do when we had our down time there. Freighted his motorcycle back from Brisbane to Frankfurt at some cost so he was looking forward to absolutely no indication whatsoever. Obviously I would really like to know one day what it was that got into his head at that moment, that change things as dramatically as they did. (sic)
[148] Again, Mr Kohl was a detainee released into the Applicant’s custody for transfer back to Germany where there was a warrant for his arrest. Whilst he was only a medium level security risk for reasons that he was a voluntary transfer, it seems particularly naive that the Applicant can express such surprise at Mr Kohl’s conduct. The Applicant knew Mr Kohl’s criminal history. He did, after all, take him into custody from Wolston Prison.
[149] The Applicant seems to have felt betrayed, or hoodwinked by Mr Kohl, when his primary duty was to keep him (Mr Kohl) under surveillance, not to trust him on the basis of a subjective assessment of his intentions. If the Applicant’s approach to conducting transfers were to be accepted, there would be no discernible reason for retaining escort officers as there would be no inherent risk to manage.
[150] The two examples I have provided above in relation to the provision of cash to a detainee in transit and the Applicant’s continuing bewilderment at the situation that arose, reflect poorly on his apprehension of his obligations when providing escort duties.
[151] Perhaps at best I would characterise the Applicant’s perception of his duties (which have safety implications for himself, his fellow escort officer(s), the detainee him or herself, along with commercial risks for his employer) as being naive. And this is despite the Applicant’s significant experience with international and, particularly, domestic escorts.
Prior disciplinary warnings
[152] For purposes of further context, I add that the Applicant had been subject to disciplinary action in 2012 in relation to an escort task in which in person in custody had escaped. The matter had been subject to a dispute application and had resulted, ultimately, in a written warning being issued. One of the relevant issues to which the disciplinary action related was a concern that the Applicant had failed to keep close physical proximity to a high risk detainee during a particular formation.
[153] At the very least, the Applicant would have been aware, and put on notice, from this incident that close supervision of a person in custody is a matter of particularly high priority for his employer. In this case a claim had been made that CCTV footage had shown the Applicant had not maintained sufficiently close proximity to the detainee.
[154] Indeed, it is difficult to reconcile (in a manner that reflects well on the Applicant) the fact of his bewilderment at Mr Kohl’s escape with his prior warning concerning the imperative of maintaining close physical presence with a detainee.
Conclusion
[155] I do not conclude that the Applicant’s conduct was wilful or malicious. It was not. But the essential concern held by the Respondent was that it had lost its faith in the Applicant to fulfil faithfully and diligently his duties and responsibilities. And on the evidence, this is a broad finding with which I concur.
[156] The Applicant had escorted Mr Kohl to the shower and then lost direct line of site and contact with him as he (the Applicant) made use of the toilet facilities. Mr Kohl took advantage of the situation and absconded. Further, the Applicant had failed to direct Ms Janner to provide a secondary level of supervision over the exit from the ablutions block. Indeed, he did not inform Ms Janner that he intended to use the toilet facilities in any event such that the issue of continuous line of site observation was ever raised.
[157] The Applicant was an experienced escort officer, he had been trained and exposed to refresher training, and had only in recent times been subject to a disciplinary process arising from an allegation of lack of supervision of a detainee. He was - or reasonably must have been - aware of his employer’s expectations in this regard.
[158] The Respondent takes the issue of the escape seriously for reason not only because of its own contractual obligations but for reason of the safety issue that can arise to employees, the detainee and/or the public.
[159] The Applicant’s failure to alert his employer of the critical incident until some 3.5-hours after the critical incident breached its procedural requirements and again brought into question the Applicant’s capacity to fulfil his prescribed duties.
[160] The Applicant was not able to make out any sound case for mitigation in the circumstances, though this was not for want of effort to that end. I have not found the Applicant’s various arguments for mitigation persuasive.
[161] The Applicant’s wider perspective on his job also revealed an underlying naiveté about the behaviour of the detainee, and his own role in an escort, which may assist in explaining his conduct. It also buttresses the finding that he was not an employee, in the end, in whom a great deal of confidence could be vested.
[162] I have noted above that there were some procedural issues arising, but none of these have a material bearing on the ultimate finding.
[163] For all the reasons given in the discussions of the evidence above, I find that the Applicant was not harshly, unjustly or unreasonably dismissed. His application under s.394 of the Act is dismissed as a consequence.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr D. Peverill, United Voice, for the Applicant
Mr P. Brown, Baker & McKenzie, for the Respondent
Hearing details:
Brisbane
2014
22 and 23 January
1 Exhibit A2, Statement of Tom Martin, Annexure TMW7.
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