Ms Brittany Petersen v Serco Australia Pty Ltd T/A Serco
[2021] FWC 4569
•28 JULY 2021
| [2021] FWC 4569 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Brittany Petersen
v
Serco Australia Pty Ltd T/A Serco
(U2021/2808)
DEPUTY PRESIDENT LAKE | BRISBANE, 28 JULY 2021 |
Application for unfair dismissal remedy – application dismissed.
[1] On 2 April 2021, Ms Brittany Petersen (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Serco Australia Pty Ltd T/A Serco (the Respondent).
[2] The Applicant seeks reinstatement to her position, including an order for continuity of service.
[3] A hearing in this matter was held at Brisbane on 11 June 2021. At the hearing, the Applicant was represented by Mr Ong, assisted by Mr Avery, both of the United Workers’ Union (UWU). Mr Paul Brown from Baker and Mackenzie Solicitors appeared for the Respondent. I was satisfied that leave should be granted having regard to the elements of s.596 of the Act.
Events leading to the Applicant’s termination
[4] The Respondent received an anonymous email making allegations against the Applicant regarding training that was conducted in November 2020. These allegations were summarised in, and formed the basis of, a notice of formal disciplinary meeting letter sent to the Applicant on 14 January 2021, which read (relevantly):
“On 17 November 2020, you were delivering a training session (including application of mechanical restraints with a detainee on the ground, and Transport and Escort (T&E) of detainees in the Aviation environment) to a group of approximately 12 students as part of the ITC training at the Hamilton Hotel in Brisbane. During the training session you made several statements that were in direct contradiction to Serco policies and procedures.
1. On 17 November 2020, during the training session you stated “the rules say you are not allowed to take your personal phones on tasks, but if you call it a GPS device; nudge, nudge, wink, wink, you will get away with it”.
2. On 17 November 2020, during the training session you stated “you all know you’re not allowed to take your phone into the centre (BITA), but, if you get your phone from your locker (at reception) or your car and put it in the (T&E) vehicle. Just drive into the sally-port. The reception staff don’t check T&E vehicles for phones”.
3. On 17 November 2020, during the training session you stated “When you take your phone into the centre or on a task, be smart about it. Don’t sit in front of the detainee swiping tinder. And don’t get caught by management or ABF because you’ll get sacked immediately”. Another student then asked, “Will we known when management are onsite?” you responded, “Yes, a call will go over the radio to let everyone know”.
4. On 17 November 2020, during the training session you stated “If you end up running late on a task because you stopped for lunch or a coffee, don’t put that in the log. Just say you were held up due to bad traffic or something”.
5. On 17 November 2020, during the training session you stated “I got an email from SPER (State Penalties Enforcement Registry), my license has been suspended”. You also indicated that you had driven Serco vehicles, unlicensed, on several occasions.
6. By your own admission, you confirmed that your driver’s licence was suspended between 16 November 2020 and 20 November 2020. You failed to report the suspension of your driver’s licence to your Manager as per Serco requirements.
7. You failed to report offences in your annual AFP renewal forms in 2019 and 2020 as per Serco requirements.
8. You failed to provide Serco with the relevant documentation in respect to your driver license suspension despite being directed to do so.
9. By your own admission, you drove your own vehicle to work and home during the period your driver’s licence was suspended.
10. You failed to comply with the requirements of your suspension of employment to maintain confidentiality and no discuss the matter with any Serco staff.”
[5] The Applicant was invited to attend a disciplinary interview with Tony Tusa (the Residential Operations Manager) and Lorena Naranjo (the People and Capability Manager) in relation to these allegations on 18 January 2021, to allow her to provide her responses. The letter provided that the Applicant was entitled to bring a support person to the meeting. At the Applicant’s request, the meeting was rescheduled for 20 January 2021, which the Applicant attended with a representative from the UWU.
[6] The Applicant’s employment was terminated for serious misconduct in March 2021. The termination letter, dated 16 March 2021, stated that following the formal disciplinary meeting held on 18 January 2021, the Applicant’s employment was terminated, effective immediately. The letter stated that the termination was due to the allegations made about the Applicant (as put in the January letter) having been substantiated and amounting to serious misconduct. It stated the Applicant failed to comply with the Serco Immigration Services Agreement 2018 and her offer of employment, as well as the Respondent’s Code of Conduct,Core Values of Trust and Care, Professional Conduct policy and Detention Service Officer Success Profile. Finally, that letter concluded that:
“We have considered the responses you provided and consider that your unprofessional and inappropriate conduct in breach of Serco’s requirements, constitute serious misconduct which is inconsistent with the continuation of your employment contract. Your employment will therefore cease effective today.”
[7] At the end of that letter, the Respondent took the opportunity to remind the Applicant of her post-employment constraints and offer her access to the Respondent’s Employee Assistance Program for a period of six weeks after her termination.
Preliminary matters
[8] It is not in dispute that the application was made within time, the Applicant is protected from unfair dismissal, the Small Business Fair Dismissal Code does not apply and the dismissal did not involve a genuine redundancy. 1 The matter for determination is whether the Applicant’s dismissal was harsh, unjust or unreasonable.
Applicant’s Evidence
[9] The Applicant provided a two witness statements and also gave evidence at the hearing.
[10] She commenced employment with the Respondent as a casual Detainee Services Officer (DSO) (Level 1) on 10 September 2018. 2 She states that on commencement, she undertook an 8-week training course, and on completion, obtained a Certificate II in Security Operations, qualifying her as a DSO. After 12 months of service, she became a DSO Level 2.
[11] The Applicant states that she was made a permanent employee in December 2019. She had no history of disciplinary or performance concerns during her employment. Her standard roster scheduled her as working 84 hours per fortnight, but she says she routinely worked more than 100 hours per fortnight.
Applicant’s duties with the Respondent
[12] The Applicant states she was initially engaged to work at the Brisbane Immigration Transit Accommodation Centre (BITA), and more recently had worked occasionally in Alternative Places of Detention (APOD) but was more often in Transport and Escorts (T&E). The Applicant states the Respondent’s operations are such that employees are required to be flexible and work across multiple locations.
[13] The Applicant states that the Respondent’s management structure at BITA is General Manager (Mitchel Turvey), Security Operations Manager (then Andrew Tennant), T&E Operations Managers (TOMs) or Facility Operations Manager (FOMs), Detention Service Managers and DSOs.
[14] The Applicant states her duties varied week to week. T&E became her main area of specialisation and the tasks involved maintaining detainee security when they were leaving BITA or APOD. The Applicant’s evidence is there was a lack of resources for T&E staff. She states this was well known by the Respondent. For example, she says officers on a T&E assignment were required to take an allocated kit bag, which contained communication and GPS devices. She notes that smart phones serve these purposes and because there were regularly not enough phones available for each officer on a T&E assignment, a DSO could be authorised from a DSM to take their personal phone. She says this was relatively common and DSMs knew DSOs would take their personal phones without asking first.
[15] The Applicant states that a year into her employment, she commenced acting in a DSM role in T&E. She sought out this opportunity and was aware the role was usually difficult to fill because it was viewed as a challenging and thankless role. The Applicant states she sought to continue her professional development and had been identified as a future leader at the site. In support of this statement, she states her “Employee of the Year” award certificate identified her as a future leader at BITA and was presented to her by Mr Turvey. She said also that Scott Anderson, a TOM, had said to her in conversations that she was a “future leader” at BITA.
[16] The Applicant says in May 2020, she expressed interested in joining the employer’s training team and was subsequently appointed. Her role was a Training Support Officer (TSO). This was not a full-time role, but an “occasional role”. Her substantive role remained a DSO, with no additional pay for the TSO duties. No formal training was required to fulfil the TSO role, which involved assisting full time Training Officers (TOs) to deliver training to new DSOs and refresher courses. The Applicant’s evidence is that there are two permanent TOs in Brisbane. As the senior of the two, Peter Rabula became the main reporting line when performing TSO duties.
[17] The Applicant said that once she commenced as a TSO, it became a major part of her employment. She travelled to Grafton (where the Respondent was setting up a new correctional centre) to support the completion of training courses for employees. When she returned to Brisbane in August 2020, she supported the completion of a training course which had already commenced and then did so again in November and December 2020.
November 2020 training
[18] The Applicant’s evidence is that the November 2020 training was uneventful. She states that on 17 November 2020, the focus was on T&E escort proceedings, including aircraft seated restraint techniques and procedures.
[19] The Applicant recalls a large cohort of over 30 trainees, so the group was split into groups of about 12 trainees to enable more effective training. The Applicant’s evidence is that nothing was brought to her attention by the TOs or anyone else present that she had provided incorrect information or had acted inappropriately. She recalls the training as being “entirely routine” and when completed, she moved on without any significant reflection.
Driver’s licence
[20] The Applicant states that sometime in 2018, she was driving her sister’s car when she was issued with a speeding fine. The ticket was issued by post to her sister. The Applicant paid the ticket and completed a statutory declaration to transfer the penalty points to herself. The ticket was reissued to her. She took no action on the reissued ticket, believing that it had been already been paid and thus finalised.
[21] The Applicant says she received no further correspondence until 16 November 2020, when she received a letter from the Queensland State Penalties Enforcement Registry advising that her driver’s licence had been suspended because of an unpaid fine. The Applicant states she then contacted Queensland Transport and Main Roads (TMR), and on 19 November 2020, was told by TMR that the matter was resolved. The Applicant says she requested written confirmation of resolution, which she received by email at 1am on 20 November 2020.
[22] The Applicant states she is unsure of the legal status of her driver’s licence between 16 and 19 November 2020. By 19 November 2020, TMR had confirmed that her licence was current and valid. She drove during that period and now accepts that she should have not driven during the period 16 to 19 November 2020 if there were any ambiguity about the status of her licence.
[23] The Applicant initially stated that she never received any infringements, tickets or fines when driving the Respondent’s vehicles. However, made a correction to this evidence at the hearing, stating that she was issued with a speeding infringement of 19 June 2019 while driving a T&E vehicle. She had admitted and disclosed this infringement to the Respondent.
Stand down and disciplinary process
[24] The Applicant was asked to act in the DSM role in January 2021, which she did. Just after 3pm on 5 January 2021, while she was performing her DSM role in T&E, the Applicant was approached by Mr Alatimu and asked to come with him for a meeting.
[25] The Applicant followed Mr Alatimu to the meeting room, where she was asked to wait. Mr Alatimu returned with Lorena Naranjo, who at the time was the People and Capability Manager. Mr Alatimu handed the Applicant an envelope, which contained a letter headed, “Re: Suspension of Duties”, which relevantly stated that:
“the reason for the suspension from duty was as a result of information relating to allegations of misconduct whilst in attendance in the Induction Training Course (ITC) on or around 17 November 2020 which it is alleged you made comments to ITC participants relating to:
• Bringing a personal mobile phone into the Centre.
• Taking a personal mobile phone on T&E activities.
• Not recording in logs if running late on T&E tasks.
• Your driver’s license being suspended, driving to and from work, including driving of T&E vehicles.
Serco will be investigating alleged breaches ... The investigation process is confidential. You should not discuss this matter with anyone, other than a support person or your professional adviser… You are directed not to discuss this matter with any of your fellow employees in any Serco business and you are also instructed to not approach any witnesses regarding the matter…”
[26] The Applicant said she read the letter and began to cry. Mr Alatimu then read the letter out loud and asked if she had any questions. When she said no, he said he would collect her things. She was very emotional so went to the bathroom while he did so, but upon finding both cubicles occupied, returned to the meeting room. Ms Naranjo was still there, but neither of them spoke. Mr Alatimu returned with her bag and escorted her off site, past various colleagues. The Applicant says that while he escorted her, Mr Alatimu said, “I’m sorry. I’m so, so sorry”.
[27] The Applicant states that as they approached the “sally-port” on site, she saw the four escorts she had just sent out all lined up in vehicles ready to exit the site. The Applicant says that Mr Alatimu said to her, “Don’t worry about signing out or getting the temperature check”, which was then a mandatory COVID precaution.
[28] The Applicant says she received her phone from the locker while in reception. By the time she returned to her vehicle, she had received several text messages from colleagues who had witnessed the events, asking if she was okay. She did not respond to these messages.
[29] The Applicant states later that day, she spoke with the APOD Operations Manager, Sarah Edwards, by phone. She advised Ms Edwards that she had been stood down and asked that she be her support person in the investigation process. Ms Edwards agreed. The Applicant asked if Ms Edwards was aware of the DSO Success Profile referred to in the suspension letter, as she had not heard of it. Ms Edwards said she did not. Ms Edwards told her to speak with FOM, Mr Chris Gurnett, who might know.
[30] The Applicant says that also on 5 January 2021, she spoke to Mr Rabula by phone, and asked if he could provide a copy of the occurrence log from Initial Training Course 3 for the dates around 17 November 2020. Her evidence is she did not remember what had happened on that day and it was relevant to the allegations against her.
[31] The Applicant’s evidence is that she also said to Mr Rabula that she would be unable to attend the upcoming National Trainers’ Meeting due to being stood down. She recalls saying to him that she was unable to discuss the details of her stand down.
[32] As to the events of 17 November 2020, the Applicant says that Mr Rabula provided photos of the occurrence logs for 16 and 17 November 2020 a short time later by text message.
[33] The Applicant contacted Mr Gurnett by phone on 6 January 2021, cried at times during the conversation, and asked if he knew about the Success Profile. She says that Mr Gurnett indicated he was unaware of the Success Profile and asked why the Applicant had been walked off site. The Applicant said she provided only vague responses about it being related to something that had occurred during training and involved her mobile phone. She recalls telling Mr Gurnett she could not discuss it further. He told her he had heard people talking about her but had told them to not discuss it and report any rumours. Mr Gurnett said if she needed any support to contact him or the Employee Assistance Program.
[34] The Applicant says on 6 January 2021, she spoke with Mr Cook by phone to confirm she would not attend the upcoming National Trainers’ Meeting and to ensure he did not book for her to travel to Melbourne. Mr Cook asked why she could not attend and she told him she had been stood down pending an investigation. She states that Mr Cook said words to the effect of, “I knew there was something in the pipeline, so it would be best if we don’t discuss things further.” She agreed. Mr Cook suggesting she keep busy and the call ended.
[35] Mr Cook called her later that day to check she was okay and said words to the effect of “I’ve been in your situation before, and I know this is tough, but you can get through it”.
Events of 7 to 11 January 2021
[36] On 7 or 8 January 2021, the Applicant received a meeting invitation from Mr Tennant, for a meeting on 11 January 2021 to discuss the investigation. No further details were provided.
[37] Ms Edwards was unavailable to attend as support person, so she contacted Mohammed Ali Saqib, another DSO, who agreed to attend with her.
[38] The Applicant states on 11 January 2021, she attended in uniform and entered the site in her usual way, accompanied by Mr Saqib. Mr Tennant questioned Mr Saqib’s presence and told her that as it was “simply a fact-finding meeting, and a support person is not required”.When the Applicant stated she thought she was entitled to a support person, she was told that only applied to disciplinary hearings. Mr Saqib waited outside while the meeting proceeded with only the Applicant and Mr Tennant. The Applicant says she was “completely honest”. Mr Tennant took notes on his computer and she was later provided a record of the interview that he prepared. She says this record is “largely accurate” but does not reflect her “shock and surprise” at the allegations, of which she was learning of the allegations.
[39] The Applicant states the meeting went for about 90 minutes without a break. She was emotional after the meeting and Mohammed comforted her before she left the site.
[40] Mr Tennant called her afterwards alleging that she had breached her confidentiality obligations. The Applicant admits she was still very upset which may have “affected [her] demeanour in speaking with Mr Tennant”. The Applicant annexed a record of this telephone conversation, which she said was accurate to the best of her recollection. 3
[41] The Applicant states that Mr Tennant had referred her to the EAP. She was upset that she could not speak to her friends with the Respondent and equally felt she could not talk to her friends outside the Respondent in case she said the wrong thing. She felt “completely on [her] own” and had little confidence in the EAP providing meaningful support.
Events of 14 to 20 January 2021
[42] The Applicant states that on 14 January 2021, Ms Naranjo called to advise a letter would be sent inviting her to a disciplinary meeting on 18 January 2021. Receiving that letter was the first time she had written notice of specific allegations. The Applicant engaged the assistance of the UWU and, due to scheduling conflicts with the UWU representative, the disciplinary meeting was rescheduled for 20 January 2021.
[43] In preparation for the meeting, the Applicant carefully reviewed the allegations and prepared a written response based on her recollection.
[44] The meeting proceeded on 20 January 2021, with Ms Naranjo, Mr Tusa, the Applicant and Ms Karthika Raghwan from the UWU, who attended by phone. The Applicant does not recall Ms Naranjo or Mr Tusa taking notes in the meeting. She states that Ms Naranjo had a laptop but does not recall her referring to it.
[45] The Applicant states that at the beginning of the meeting, Mr Tusa told Ms Raghwan that as a support person she was not allowed to talk. Ms Raghwan stated she would “say something where I believe there is something unfair happening.”
[46] The Applicant says Mr Tusa asked a lot of questions about mobile phone policies and procedures. She said he would repeat and ask questions in a re-worded way, which she felt was him trying to “catch her out” and twist her answers to mean that she admitted she had done the wrong thing.
[47] The Applicant tried to answer the questions in a consistent way but became upset from Mr Tusa’s repetitive questions. The Applicant says Ms Raghwan must have noticed her becoming upset and asked for a break. They had a five-minute break before continuing. The Applicant’s evidence is that in the second part of the meeting, Mr Tusa’s questions became less focussed and included questions that did not relate to the allegations she had been presented. When the Applicant and Ms Raghwan challenged the relevance of those particular questions, Ms Raghwan was told not to speak and the Applicant was told that the Respondent wanted her to answer the question. Mr Tusa then read each of the numbered allegations, to which the Applicant read her pre-prepared response. She provided a written copy of those responses to Mr Tusa and Ms Naranjo.
[48] Those responses were as follows:
Allegation 1
On 17 November 2020, during the training session you stated, “the rules say you are not allowed to take your personal phones on tasks, but if you call it a GPS device; nudge, nudge, wink, wink, you will get away with it.
I deny stating the words in the manner expressed in the allegation. The quote extracted in the allegation is incomplete and misrepresents what I said and the context in which I said it. To the best of my recollection, the instruction to the trainees, was to the following effect:
“It is Serco’s polices and procedures that you are not allowed to take your personal mobile phone on T&E escorts or any APOD. If there are no Serco phones available, the DSM may approve you to take your personal mobile phone – you need to have a GPS and means of communication to the Centre, your DSM or your escort team in the event you are separated.”
To the best of my recollection, I also highlighted a specific example to the effect of:
“You might be on an escort and there is nowhere to park. When this happens you will leave the vehicle with the detainee while the driver goes to find somewhere to park. In this case, each of you [meaning each DSO on the escort] will need a phone.”
This example was specifically drawn from regular experience of performing escorts to the Royal Brisbane & Women’s Hospital (“RBWH”), where there is no parking close to the entrance to the building.
Whilst this was not communicated in the training session, the approval of personal mobile phones by DSM’s is regular (particularly for RBWH escorts) because of the known issues with parking at this location, and the general lack of available employer resources.
Allegation 2
On 17 November 2020, during the training session you stated “you all know you’re not allowed to take your phone into the centre (BITA), but, if you get your phone from your locker (at reception) or your car and put it in the (T&E) vehicle. Just drive into the sally-port. The reception staffs don’t check T&E vehicles for phones.
To the best of my recollection, each instance in which I reference “your phone” was preceded by “if you are approved” – i.e. “if you are approved to take your personal phone”.
I certainly made very clear to trainees that use of personal phones was always subject to approval from the DSM.
To the best of my recollection, I described to the trainees the realities of conducting an escort task:
a. once a detainee was in the vehicle, there is no opportunity to retrieve your personal phone from your locker/personal car;
b. therefore, the DSO would need to retrieve their phone (if approved) and put it into the T&E vehicle prior to the T&E vehicle being driven into the sally-port.
I have subsequently been informed that this process may be inconsistent with the employer’s policies and procedures, however the correct policy and procedure is not known to employees and was not explained to me in training during my period of employment.
I recall one of the first times I performed an escort task, the Escort Team Leader simply said to me, “Grab your phone and let’s go.” I had the impression that there was not a well-defined procedure for obtaining personal phones (once approved) when proceeding on an escort.
I may have said, “the reception staff don’t check T&E vehicles for phones”.
In my experience, this is a matter of fact and I have never experienced a T&E vehicle being checked for phones (or the inside of the vehicle being checked for anything) when entering or exiting the Centre.
I know there is a firm requirement that phones are not allowed into the Centre, and I was not endeavouring to encourage this in any way.
Allegation 3
On 17 November 2020, during the training session you stated “When you take your phone into the centre or on task, be smart about it. Don’t sit in front of the detainee swiping tinder. And don’t get caught by management or ABF because you’ll get sacked immediately.”
Another student then asked, “Will we know when management are onsite?” you responded, “Yes a call will go over the radio to let everyone know.”
There are different parts to this allegation which require response. I reiterate that I am aware that phones are not allowed into the Centre, and that I would have not said anything to trainees to encourage this happening. With respect to taking phones “on a task”, this would have referred to on a T&E tasks, or possibly an APOD (although I can’t recall specifically). Any comments with respect to use of personal phones were made in the context that approval from the DSM was required in each instance.
I recall saying words to the effect of, “…be smart about it. Don’t sit in front of the detainee swiping tinder”.
These comments were intended to be light-hearted and intended to convey that whilst a DSO may have their personal phone with them, they are not to use the phone for personal use – the phone is intended as a device for GPS and communications with DSMs, the Centre or similar.
I recall saying words to the effect of, “Don’t get caught by management or ABF because you’ll get sacked immediately.”
These comments were intended to convey to trainees, “Don’t use your phones, because if you get caught you will be sacked”, rather than, “You can use your phones so long as you don’t get caught.”
With respect to the alleged comment, “Yes a call will go over the radio to let everyone know”, I deny making this comment.
DSOs on T&E do not utilise radios – that’s why phones are necessary.
Radios are utilised at APODs, however at the time of the alleged incident, I had not worked an APOD for over a year and was not aware of any specific communication practices related to the arrival of management on site.
I have subsequently learned that APODs do have a unique “call-sign” which is transmitted over the radios to indicate that management representatives are on-site.
I recall that on 27 November 2020, I had a meeting with Mr Tusa in relation to mobile phone usage whilst on T&E. I recall that I said to Mr Tusa that DSOs were increasingly required to take their personal phones because of the lack of employer resources for T&E tasks.
In this discussion on 27 November 2020, Mr Tusa did not raise any concerns with me about what I had conveyed to trainees on 17 November 2020 or at any other time, nor any other specific performance concerns.
Allegation 4
On 17 November 2020, during the training session you stated “If you end up running late on a task because you stopped for lunch or a coffee, don’t put that in the log. Just say you were held up due to bad traffic or something.”
To the best of my recollection, the alleged comments combines several separate comments I made during the training session. I recall indicating to trainees that on longer escorts, teams should stop for “a coffee” or “lunch” (intended as meaning a fatigue break or meal break respectively).
239. To the best of my recollection, I indicated to trainees that where such a break is taken, this should be reported to the DSM and logged accordingly.
240. I also recall separately saying to trainees that there may be occasions where an escort team may be delayed because of roadworks, traffic or weather. These are reasonable delays but should be reported to the DSM and logged accordingly.
I recall advising trainees that there are contractual requirements with Australian border Force (“ABF”) which are to be upheld and any delays should be reported and logged to ensure those contractual requirements are met.
I deny telling trainees that any delays or breaks are to either be not logged, or incorrectly logged.
Allegation 5
On 17 November 2020, during the training session you stated “I got an email from SPER (State Penalties Enforcement Registry), my licence has been suspended.” You also indicated that you had driven Serco vehicles unlicensed, on several occasions.
There are several different aspects to this allegation which require response. I do not recall saying, “I got an email from SPER, my licence has been suspended” during the training session.
To the best of my recollection, I said words to the effect of, “I need to step out to call SPER and sort out an error with licence suspension.”
Such words would have occurred during a break and may have occurred in front of a small group of trainees.
To the extent that these words were said in front of trainees, this was ill-advised and I regret doing so.
I had earlier reported to the Training Officers, Mr Rabula and Mr Seuseu that I had an issue with my licence, which I believed was an error with SPER.
I deny saying or giving any indication that I had “driven Serco vehicles unlicenced, on several occasions.”
The period 16 to 19 November 2020 is the only time in which I had faced any issues with my driver’s licence.
During the period 16 to 19 November 2020, I had not driven any Serco vehicles.
To the best of my recollection, the most recent time that I had driven a Serco vehicle was in early October 2020.
Allegation 6
By your own admission, you confirmed that your driver’s licence was suspended between 16 November 2020 and 20 November 2020. You failed to report the suspension of your driver’s licence to your Manager as per Serco requirements.
I deny failing to report the suspension of my driver’s licence.
I learned of the suspension of my driver’s licence in the afternoon after work on 16 November 2020.
On 17 November 2020, I was engaged in my TSO role.
I was of the understanding that the TOs (Mr Rabula and Mr Seuseu) were my direct managers during that period.
In the morning of 17 November 2020, I told Mr Rabula and Mr Seuseu that my licence had been suspended. I further indicated that I thought there was an error and that I was in the process of trying to sort it out.
Neither Mr Rabula nor Mr Seuseu gave any indication that I was required to escalate the matter any further.
The matter was resolved on 19 November 2020, and I received notification by email early on 20 November 2020 that it had been resolved and my licence was not suspended.
Allegation 7
You failed to report offences in your annual AFP renewal forms in 2019 and 2020 as per Serco requirements.
The 2019 AFP renewal form was submitted on 7 July 2019.
On 29 September 2019, I received notification of an infringement which occurred on 19 June 2019. This infringement is attached at BJP-04.
At the time of submitting the 2019 AFP renewal form, I was not aware of the infringement – the infringement was issued after I had submitted my 2019 AFP renewal form.
My AFP renewal forms were sent using my Serco email address and I no longer have access to all of the information which was submitted.
I have retained a copy of the 2019 and 2020 AFP requests. These requests are attached at BJP-10.
The 2020 AFP request requires less information.
To the best of my recollection, the 2020 AFP renewal form did not contain an area where I was required to disclose any offences or infringements and therefore no reference was made.
If there was a failure to include the 2019 infringement notice in the 2020 AFP request, this was inadvertent. I was not deliberately trying to withhold information.
Allegation 8
You failed to provide Serco with the relevant documentation in respect to your driver licence suspension despite being directed to do so.
The first direction I received from Serco to provide relevant documentation in respect to my driver’s licence suspension occurred on or about 30 December 2020.
I received a phone call from Mr Tennant and he requested that I provide information regarding my licence suspension such as:
a. An explanation of what had happened;
b. A photo of my licence (he indicated the photo on file was of my expired licence); and
c. A screenshot of my licence status from the TMR website.
I sent the requested information by email on the same day to Mr Tennant.
Mr Tennant later the same day requested by email that I provide a screenshot of my “Offence Information” from the TMR website.
I provided this screenshot a short time later by email.
In the 11 January 2020 meeting with Mr Tennant, he had requested copies of relevant correspondence from TMR and/or SPER in relation to my licence suspension.
Following the conclusion of the meeting, I checked my personal email from a computer (rather than on my phone which is how I normally access my emails) and discovered pieces of relevant correspondence in my “junk mail” folder.
This was the first time I had seen these pieces of correspondence and I immediately forwarded these to Mr Tennant.
There was no failure to comply with directions to provide documentation to Serco as alleged – I complied with each direction to provide documentation to Serco.
Other than the emails attached to this statement and referred to previously (BJP-02 and BJP-03), the email communications with Mr Tennant described above were with my Serco email address, and I no longer have access to these emails.
Allegation 9
By your own admission, you drove your own vehicle to work and home during the period your driver’s licence was suspended.
I accept that I drove my personal vehicle to and from work during the period 16 to 19 November 2020.
When I informed Mr Rabula and Mr Seuseu of the situation with my licence, they did not suggest that I should not be driving, or question the fact that I had driven to the training in my own vehicle.
I accept that driving during this period was ill-advised and naïve. With the benefit of hindsight, it would have better to get a lift to work whilst this issue was outstanding.
Allegation 10
You failed to comply with the requirements of your suspension to maintain confidentiality and not discuss the matter with any Serco staff.
The only staff that I notified of my suspension were individuals who I asked to assist me and provide advice as a support person in the disciplinary process.
I had some discussions with Ms Edwards in relation to the allegations as I wanted her to be my support person. However, at the time I was speaking with her (5 January 2021), I did not know a lot about the allegations, so any discussions were limited.
Similarly, I had discussions with Mohammed on the basis that I wanted him to be my support person.
Further details of discussions I had with other employees are outlined above.
The way I was escorted off site on 5 January 2021 lead to rumours circulating amongst other employees who had seen what had happened.
The minute I returned to my car on 5 January 2021, I noticed unsolicited messages from colleagues.
I deny failing to comply with the requirements of suspension, and any discussions with Serco staff were solely for the purpose of ascertaining who would be my support person in the disciplinary process.
Confidentiality in the matter was undermined by Serco from the very start when I was escorted off site in a very public fashion.”
[49] The Applicant states that after going through the allegations Mr Tusa asked if she wanted to add anything. The Applicant said, “these allegations are against my character and are not how I go about my work.” She began to cry and Mr Tusa reminded her EAP was available to her.
[50] Ms Naranjo said she had a few more questions. The Applicant says these questions were poorly worded, and she had to ask Ms Naranjo to repeat several times in a clearer way. The Applicant says Ms Naranjo’s ‘ultimate’ question was to the effect of:
“If you are in training and someone asks you about a policy which you don’t know the answer to, wouldn’t you go away and print off the policy to check? Wouldn’t that have prevented you from getting in this mess in the first place?”
[51] The Applicant’s evidence is she was surprised by the question and thinks she nodded and responded, “I guess”. She says the meeting concluded after about 90 minutes.
[52] The Applicant spoke with Ms Raghwan alone after the meeting, before Mr Tusa escorted her off site. She says Mr Tusa said to her “good responses”. She did not respond.
[53] The meeting was conducted in one of the Detainee Interview Rooms at BITA so there would be CCTV that could be monitored by DSOs at BITA. She believes the CCTV is video only without audio.
Subsequent events
[54] The Applicant states that on 1 February 2021, she was contacted by Ricci Nguyen, People and Capability Manager from Villawood Immigration Detention Centre (VIDC). He told the Applicant that Ms Naranjo had left the Respondent and he would be taking over her disciplinary matter. Her evidence is that Mr Nguyen said that he was “sorting out a lot of things”, but he “would get to it”.
[55] The Applicant states she was not paid in the next pay run, so contacted Mr Nguyen who asked her to contact payroll. She was paid shortly after doing so.
[56] The Applicant states that on about 18 February 2021, she contacted Mr Nguyen by phone to ask for an update on her matter. Mr Nguyen advised no longer working for BITA and had returned to VIDC. The Applicant says Mr Nguyen advised that Mr Sumeet Bhindi had commenced in the People and Capability role at BITA, and would handle her matter. Mr Nguyen said he would ask Mr Bhindi to update her but she heard nothing until 16 March 2021.
[57] The Applicant says that on 16 March 2021, she was telephoned by Mr Tusa and an asked if she could talk. She was about to go into an appointment so suggested they talk at about 3:30pm. Mr Tusa said that was fine and that she did not need to prepare anything.
[58] She was contacted again at 3.30pm and Mr Tusa told her Mr Bhindi was also on the call and that they wanted to discuss her disciplinary matter. The Applicant asked if she required her union representative. Mr Tusa said she did not because they were just telling her the outcome, which was that she was terminated due to serious misconduct. A letter to that effect would follow. She was told that she could not dispute the outcome internally but could do so externally. The phone call lasted about two minutes. She was emailed her termination letter shortly afterwards.
Post-termination
[59] The Applicant states that since her dismissal, she has continued to receive unsolicited contact from her former colleagues. Though she has had social conversations with some of them, she has not discussed the reasons for her dismissal. In these conversations, employees told her that rumours were circulating including that she had brought drugs on to the BITA site. She has not been able to respond to these rumours and has to “sit back and let them continue to circulate”. This has caused her considerable pain, particularly given her reputation was one of being a “stickler for rules, policies and procedures”.
[60] The Applicant’s says her dismissal had a dramatic and profound impact on her and continues to cause her great stress. Since her suspension took effect, her physical health has suffered, and she has gained weight. She has been unable to reach out to her friends at Serco for emotional support, and while she has spoken to family, they have not fully understood the situation. The Applicant accessed the EAP but it provided little assistance. She remains upset by the lack of clarity provided by the Respondent regarding the allegations and her dismissal. She states it was never fully explained to her what she did wrong, and she could not understand why she was not counselled or issued with lesser disciplinary penalty apart from termination.
[61] The Applicant is also now struggling financially. During her suspension, she began to experience financial instability as she was only paid at her base rate of pay and was not receiving her regular overtime and penalties. She was forced to rely on her savings and renege on a contract to purchase land (with in the intention of building a home) because of her financial instability. While she was trying to avoid relying on Centrelink, she would shortly need to apply for financial assistance if she cannot secure employment.
[62] She has regularly applied for work, but at the time of the hearing had not been successful in obtaining any. She does not have high level formal qualifications, and the feedback from potential employers is that other job applicants have degrees or other qualifications.
[63] The Applicant states she is confused and upset at her dismissal but holds no grudges towards the Respondent or its management representatives. She took pride in her work and was hoping to continue a career within the Respondent’s operations. If given the opportunity, she would continue to perform her professional role to the “diligent and high standard” she had previously.
Applicant’s response to statement of Mr Jenkins
[64] The Applicant notes that Mr Jenkins alleges that she made the comment “I am having lunch with you guys…because I don’t like them” at the November 2020 training. The Applicant denies making this comment and states there were no other training courses being held and no other groups she could have had lunch with or spoken about on 17 November 2020. She states that to the best of her recollection, she had lunch with TO’s Mr Rabula and Mr Seuseu, TSO’s Amos-McLean and McNaughton, and DSO McGrail.
Applicant’s response to statement of Mr Tusa
[65] In response to the evidence of Mr Tusa, the Applicant maintains her account of the conversation held at 3.30pm on 16 March 2021.
[66] As to the issue of phones, the Applicant maintains her evidence that to the best of her recollection, throughout her employment there were shortages of smart phones with GPS capability or sometimes those available were not charged and therefore could not be used. The Applicant states to her knowledge there were 18 phones, six of which were smart phones with GPS capability. On an ‘average day’, there would be at least 15 T&E tasks, each requiring three DSO’s and a minimum of two phones per task (the tasks may overlap). The Applicant maintains her evidence that while inconsistent with policy, it was a regular practice for DSO’s to take their personal phones on a T&E, “irrespective of whether there was approval”.
[67] As to training of phone use, the Applicant’s evidence is that on each occasion she performed training, she “clearly explained that approval is a requirement for taking personal phones” and that the general policy position is that personal phones are prohibited. The Applicant states that this position was “seemingly accepted by management” as T&E managers would contact T&E escort teams on their personal phones.
[68] With respect to the Applicant’s phone conversation with Mr Tusa at around 2pm on 16 March 2021, the Applicant maintains her earlier evidence and states that Mr Tusa did not indicate the purpose of the call in their first conversation.
[69] The Applicant states that, on 27 November 2020, while she was working as a TSO (supervising the “shadowing” students from the 17 November training course), she was called to Mr Tusa’s office. Ms Alyssa Bedford, Acting Intel Manager, was already there. Mr Tusa called the reception officer who explained that a student from the 17 November course was caught with his personal mobile phone whilst on a T&E task which required transport of a detainee from APOD to the Centre.
[70] The Applicant’s evidence is that on receiving an explanation from reception, Mr Tusa had ended the call with reception and continued his conversation with her. He asked her why this man had his mobile phone in the Centre. The Applicant said, “Well he’s been on escort and entered the visits centre. When he’s come in, he’s left his phone in his pocket rather than left it in the vehicle.” Mr Tusa asked if she was aware that was against the Respondent’s policies. She said words to the effect of, “Yes, however this has been happening for ages, longer than I’ve been here – 2 years. I’m really putting my foot in it for everyone but it’s what has always happened.” Mr Tusa reiterated the seriousness of this conduct and urged her to report the incident. The Applicant restated that she understood that the T&E Managers were aware and even contacted escorts on their personal phones sometimes. She said it had been happening for years. Mr Tusa said he would advise Mr Tennant because it should not be happening.
[71] The Applicant states that after that conversation, she approached the students and other DSO’s who performed the escort, and reminded them jointly of the phones policies, and that in that situation (i.e. if mobile phones were approved to be taken on escort), phones were to remain in the escort vehicle while onsite.
[72] The Applicant says she is not aware of any disciplinary action taken against that student.
Evidence at hearing
[73] The Applicant was cross-examined about the use of mobile phones at the hearing, and gave the following evidence:
“One of the reasons why that small locker is there on your right is so that the individual, before going into BITA, can turn the key, put their mobile phone into the locker - - -? Yes.
- - - and shut it? Yes.
Because mobile phones are in fact currency in a detention centre, aren't they? They are something that's - they are quite valuable to the detainees? Not so much recently, as they are allowed the mobile phones themselves. They can have 10 phones themselves.
But, madam, you know that each one of those phones - and if it be 10 - they are linked to a particular detainee, aren't they? Yes.
But a phone that had been, to use the vernacular, swiped, nicked or stolen - - -? Yes.
- - - would be a very valuable commodity in a detention centre? Yes, most definitely.
That is one of the reasons why employees are not permitted to bring their mobile phones into the detention setting, correct? Yes.
My client has very strict protocols in place in relation to how and when personal mobile phones can be brought into the detention setting, don't they? Correct.
One of those methods is that you are expected to leave your phone in the locker as you walk in before screening each day, aren't you? Yes.”
…
“Okay. Now, in relation to a different area of my client's business, a large part of my client's business is ferrying people around in buses and all sorts of vehicles to attend court appearances, to attend medical appointments or to take them between APODs. Correct?---That is correct.
That's called transport and escort or T&E?---Yes.
In the same way that my client strictly regulates the use of mobile phones at the physical centre, my client also regulates the use of such mobile phones in a T&E setting, doesn't it?---I was only made aware of that after my suspension.
Madam, I want you to attend to my question. You know that my client has very strict procedures with respect to the use of private mobile phones in a transport and escort setting?---Yes, I am aware of that. However, that's not how I've been trained and since I first started that was never a practice that I was privy to.
Madam, you have put on two statements in this proceedings, haven't you?---Yes.
And in both of those statements you actually speak of the procedures for the use of personal mobile phones in a T&E setting, don't you?---In the sense that you're not allowed them, yes, not the procedure that's - there is no actual written procedure of how to use them on a T&E setting if they are required.”
[74] The Applicant’s evidence at hearing was that, while she worked as a trainer, she was unaware of the full extent of the policies and procedures, ahead of Mr Tennant raising the various matters at the fact-finding meeting. The Applicant also maintained that personal mobile phones could be used on T&E assignments where permission was granted, including when Serco’s phone resources were unavailable. She said she described these procedures, for use of mobile phones in a T&E environment, at the training on 17 November. She conceded in cross-examination that the Respondent had a ‘controlled process’ around phones, including scanning at the reception area. She said however, while the processes would require logging a personal phone for a job, “Not everyone does log it”.
[75] As to driving through the sally-port with a personal mobile phone, the Applicant gave the following evidence:
“…That of course would be circumventing the known procedures of my client, wouldn't it?---I guess so, yes.
It would be a very naughty thing to do, wouldn't it?---That's all I've known since I've worked there.
That's not the question. That would be a very naughty thing to do?---Different circumstances, yes.
Could you think of any circumstances, madam, where it would not be naughty?---Well, not naughty, but I think if it's - that's just the general practice that has happened for my employment there.
Well, I have to put it to you, madam, that that is not the case and that certainly wasn't the case when you were training these people on 17 November?---Yes, as I've learnt since I've been stood down.
Okay. I have to put it to you again, madam, so that the transcript reads it. I'm putting to you that your evidence now to the Commission in relation to what you know or do not know of the procedures of my client is false?---Sorry, could you re-word that?
I'll put it diplomatically. Madam, when you tell the Commission now that you were either not aware of the processes or, alternatively, that people could simply do what I've just said, put the phone in the car, they were not the approved processes of my client, were they?---No, not that I know of now.
It would be a breach of my client's policies and procedures to do so?---I'm aware of that now, yes.”
[76] As to her role as a trainer, the Applicant stated:
“It would make it very difficult for my client to run its business if a trainer was out there undermining the policies?---Yes.
Because these employees, they don't know anything different, do they?---No, they don't.
You're the first person that they're probably being educated about the policies of Serco?---Yes.
This is an "if", madam. If you were to do anything that undermined or circumvented those policies, it would be a most serious thing, wouldn't it?---Yes, absolutely.
It would make it almost impossible for my client to run its business, wouldn't it?---Yes.”
[77] As to the allegations being put to the Applicant, at the hearing it was put to her that she was aware information had been raised to the Respondent via an anonymous source. The Applicant’s evidence is as follows:
“…First and foremost is that you were made aware that some information had come to the attention of Serco from an anonymous source from that meeting, weren't you?---I wasn't made aware that it was anonymous.
But you were definitely aware of the content of the allegations, weren't you?---No. I believe the suspension letter was very vague and I wasn't sure about it at all.”
[78] Regarding the allegation that the Applicant had said at the training of 17 November, that if an employee called their personal phone a GPS device, “nudge nudge wink wink, you will get away with it” the Applicant stated under oath that she did not say those words. She did however say that she had made comments about personal mobile phones, including use as a GPS device. As to her further comments about ‘being smart’ when using mobile phones, the Applicant conceded she had said the following words:
“On 17 - I'm now reading from court book 231, paragraph - there's a numeral three. "On 17 November 2020 during the training session, you stated, when you take your phone into the centre, or on task, be smart about it. Don't sit in front of the detainee, swiping Tinder and don't get caught by management or ABF, because you'll get sacked immediately." Now, you said those words, didn't you?---Yes.”
…
“I want to take you to the words, "and don't caught by management". Don't get caught by management. That's a very strange - you said those words, yes?---Yes.
Don't you think Madam, that's a very strange thing for a trainer of new employees to say?---I don't think so, cause it's quite easy. It's quite a general thing. You know, everyone has their phone and plays on it whenever they need to.”
…
“Not very professional, is it?---Well, I guess the content of this paragraph was that if you are out on a task and you have been approved to have your mobile phone with you, it was a light-hearted comment regarding Tinder. However, that if you were approved to have your phone, you wouldn't be sitting on there playing Tinder or on your own social media account or watching the race at Doomben. It is only to be used as a GPS or by means to contact the centre.
Madam, I've read this paragraph to you three times and on each occasion, you accepted that you said it. On no occasion did I say the words "and it's been approved"?---Yes, but that's not the only paragraph that I said at that time either. There was a lot of conversation before and after that is not alleged.”
Applicant’s Submissions
[79] The Applicant submits she had an impeccable employment record and had never been subject to any disciplinary or performance related actions. As to the allegations against her that the Respondent has claimed were ‘substantiated’, the Applicant submits that the allegations have been poorly particularised by the Respondent.
[80] The Applicant submits that in accordance with s.385(b) of the Act and the principles outlined in Byrne v Australian Airlines Ltd, 4 her dismissal was:
a. unjust because the conclusion that the Applicant has engaged in misconduct has not been established in fact or in law;
b. unjust because the Respondent has failed to properly identify substantiated allegations of misconduct;
c. unjust because the evidence or material before the Respondent did not support a decision to dismiss;
d. unjust because the Respondent has denied the Applicant the assistance of a support person in discussions related to the dismissal;
e. unjust and unreasonable because it appears that the Respondent had established the guilt of the Applicant prior to presenting her with the allegations;
f. unreasonable because the certain aspects of the alleged conduct relate principally to performance, and the Respondent failed to provide the Applicant with a reasonable opportunity to address the performance concerns;
g. unreasonable because it appears that the Respondent has failed to afford the Applicant with natural justice by giving genuine consideration to her responses to the allegations;
h. harsh because even on the Respondent’s preferred view of the alleged misconduct, dismissal was a disproportionate response; and
i. harsh because of the economic and personal consequences faced by the Applicant resulting from being dismissed.
Valid reason
[81] The Applicant submits the reasons relied on by the Respondent for her dismissal are not defensible or justifiable on an objective analysis of the relevant facts. 5 The Applicant submits the reasons relied on are “imprecise, highly generic in nature, and do not specifically identify substantiated conduct on the part of the Applicant”.
[82] As to the serious misconduct alleged, the Applicant submits that the Respondent has not shown how it reached the conclusion that the Applicant engaged in serious misconduct. The Applicant submits that having regard to the Briginshaw principle 6, as to substantiation of the allegations “the strictness of the proof of an issue should be governed by the nature of the issue and its consequences”.7
[83] The Applicant submits that, in the present case, where a finding that the Applicant was guilty of misconduct carries significant consequences, a higher degree of satisfaction should be established by the Respondent with respect to the allegations.
[84] The Applicant submits that the termination letter does not reference any of the individual allegations against her, how the Respondent substantiated them, or whether any were unsubstantiated.
[85] As to the Respondent’s reliance on serious misconduct, the Applicant cites the Fair Work Regulations 2009 (Cth) (the Regulations) which defines serious misconduct as including:
i) conduct that is wilful or deliberate that is inconsistent with the continuation of the contract of employment;
ii) conduct that causes serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of the employer’s business; and
iii) theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract.
[86] The Applicant submits that while the reliance on serious misconduct does not alter the test for ‘valid reason’, the Briginshaw principle is appropriate. The Applicant submits that the Respondent satisfied itself that the Applicant had engaged in misconduct through the application of “inexact proofs, indefinite testimony … indirect inferences [or] … slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion”. 8
[87] The Applicant submits that the evidence supporting the conclusion that she has engaged in the misconduct alleged has never been presented. Further, some degree of speculation is required by her, as to the bases upon which the Respondent achieved satisfaction that serious misconduct occurred as alleged. She submitted the termination letter is absent of any clear indicators of theft, fraud, assault, intoxication, refusal to carry out the lawful and reasonable directions of the Respondent, serious and imminent risk to health or safety of a person or the viability or profitability to the Respondent’s business or wilful or deliberate conduct which is inconsistent with the continuation of the contract of employment.
[88] The Applicant submits that examination of the reasons for termination reveal alleged breaches of employer and client policies, and terms of the employment contract. However, no basis has been established to reach the conclusion that the Applicant’s alleged breaches of policy and procedures were substantial and wilful. The Applicant relies on her evidence, as supporting any breaches were inadvertent, consistent with the procedures in which she had been trained, and/or those which were commonplace in the workplace. 9
[89] The Applicant submits that her conduct was not sufficiently serious as to constitute a valid reason for termination, particularly in the context and prevailing circumstances, and therefore there was no valid reason for her dismissal. 10 The Applicant submits it is not enough for an employer to say they acted in the belief that the termination was for a valid reason.11 She considers the absence of a valid reason therefore renders the termination unfair.
[90] Alternatively, the Applicant submits that if the Commission finds she has breached the Respondent’s policies or procedures, there is no evidence that these actions are demonstrative of future behaviour on the part of the Applicant. She could have been warned against the conduct and continued to work.
Notification of the valid reason for dismissal
[91] The Applicant submits that as there was no valid reason for the dismissal, it cannot be said that she was notified prior to the decision to terminate being made. 12 Further, the Applicant submits that the Respondent’s Notification of Formal Disciplinary Meeting, which is alleged to represent a show cause notice, did not explain to her in “explicit and clear terms” that dismissal was a likely immediate consequence.13 The Applicant submits rather, the notification was “equivocal in nature and indicated various possible outcomes”, namely that “… further investigation on outstanding matters raised by you or reach a decision as to whether your conduct is misconduct or otherwise”.
[92] The Applicant submits that following her detailed responses to each of the allegations in the meeting of 20 January 2021, she anticipated the Respondent would consider her responses and their conclude as to whether each allegation was either substantiated, unsubstantiated, or requiring further investigation. Should further investigation be required, she expected that any further evidence adduced would be presented to her so that she could respond. After further consideration of the Applicant’s responses, findings would be made (supported by evidence) and presented to the applicant, along with a proposed disciplinary penalty. The Applicant would then have then expected an opportunity to respond to the proposed penalty and then, following further consideration, the Respondent would impose an appropriate penalty. This process did not transpire.
[93] The Applicant’s submission is that the Respondent embarked upon a process which lacked formality and with a substantial delay between the interview and outcome, and therefore failed to afford the Applicant with procedural fairness. The Applicant relies on her evidence that the Respondent’s representatives did not take notes during the disciplinary meeting of 20 January 2021 and in the months following the meeting, there was a turnover within the Respondent’s People and Capability personnel.
[94] The Applicant submits that a possible conclusion is that the Respondent, in reaching its decision as to her employment, has relied on incomplete or second-hand recollections of the Applicant’s response to the allegations and other relevant events, particularly where the Respondent’s representatives did not appear to take contemporaneous notes at the January interview.
[95] The Applicant further submits that as the Respondent failed to clearly articulate how her misconduct represents serious misconduct under the Regulations, she is left to speculate as to which limb or aspect of the definition she is alleged to have contravened.
Opportunity to respond
[96] The Applicant submits that the evidence demonstrates a paucity of reasons were relied on by the Respondent for her dismissal and suggests a degree of pre-determination on the part of the Respondent’s decision makers.
[97] The Applicant submits she was invited to two meetings with the Respondent, with the first purported to be a fact-finding meeting, and the second a formal disciplinary meeting.
[98] The Applicant submits the notification of formal disciplinary meeting suggests the Respondent had formed a ‘concluded view’ as to the Applicant’s misconduct prior to the meeting taking place.
[99] The Applicant submits that the Act requires she must be provided with an opportunity to respond, and impliedly, an “opportunity that might result in employer deciding not to terminate the employment if the defence is of substance.” 14 However the Applicant submits that her response provided in the two meetings was a mere formality, and no specific reference to her response is provided in the employer’s reasons for dismissal, other than in the most general form. She submits therefore she was not given an opportunity to respond as required.
Any refusal of a support person
[100] The Applicant submits the Respondent unreasonably refused her the ability to have a support person present at discussions relating to dismissal on two occasions. The Applicant submits that:
• On 11 January 2021, she attended a meeting on with a representative of the Respondent, wherein she requested the assistance of a support person but that request was refused; and
• On 16 March 2021, the Respondent contacted the Applicant by telephone seeking to discuss the dismissal, wherein she requested the assistance of a support person (in this instance, a Union representative). The Respondent refused to allow the support person to attend the discussions.
[101] The Applicant submits that while there is no positive obligation on an employer to offer an employee the opportunity to have a support person present, she had on two separate instances asked to have a support person present and been refused.
Warning about unsatisfactory performance prior to dismissal
[102] The Applicant submits she was not warned about unsatisfactory performance by the Respondent prior to her dismissal. The Applicant submits that while the Respondent has cited serious misconduct as the reason for her dismissal, various allegations against her are more accurately described as performance related concerns. The Applicant submits that these allegations are best described as complaints by the Respondent around factors such as “diligence, quality, care taken and so on” by the Applicant in the performance of the work. 15
[103] The Applicant submits, however, that she was never warned about any absence of diligence in the quality of training she was performing, nor was she warned about failure to comply with policies or procedures whilst engaged otherwise than in training. The Applicant submits she was never made aware that her employment was in jeopardy nor provided with any opportunity to rectify perceived failure to comply with policies or procedures prior to dismissal. 16
Size of the employer’s enterprise and human resources expertise
[104] The Applicant submits the Commission has commented that “common sense courtesies of conduct ought to exist in any workplace, whatever the size”. 17 The Applicant submits her evidence suggests a degree of pre-determination on the part of the Respondent’s decision makers regarding her dismissal. Further, the delay between the disciplinary meeting and the delivery of the ultimate decision to dismiss is not indicative of a thorough investigative process.
[105] The Applicant also submits that her evidence indicates that various “People and Capability” officers of the Respondent cycled through carriage of her matter, which indicates that the Respondent’s decision-making process was deficient, and inconsistent reasoning may have been applied by the Respondent’s representatives.
Other relevant matters
[106] The Applicant identifies the following as other relevant matters, namely:
a. the financial impact the dismissal has had on her, including the ongoing difficulties she faces meeting her financial responsibilities;
b. the struggle she faces finding suitable alternative employment;
c. the personal, physical and psychological impact the dismissal has had on the Applicant;
d. the experience, dedication, reliability and versatility of the Applicant, which has been lost to the Respondent because of termination;
e. the Respondent’s failure, refusal or neglect to properly particularise, investigate and communicate the allegations;
f. the Respondent’s failure to properly consider the Applicant’s responses to the allegations and her personal circumstances which impacted upon her conduct (particularly with respect to the driver’s licence allegations);
g. the Applicant’s unimpeached employment history prior to the allegations;
h. the availability of, and the Respondent’s failure to properly consider, alternative disciplinary sanctions that did not involve dismissal;
i. if the Commission finds the existence of a valid reason for dismissal, the decision to terminate would still be viewed as harsh because it was a disproportionate response to the Applicant’s misconduct. It also harsh having regard to the Applicant’s personal and economic circumstances.
[107] The Applicant submits that having regard to the various matters, she has demonstrated that the Respondent did not have a valid reason to terminate her employment and the decision to terminate her employment was harsh, unjust and unreasonable in all of the circumstances
Remedy
[108] The Applicant submits the Commission should exercise its discretion to make an order for a remedy in these proceedings. She seeks the primary remedy for unfair dismissal under the Act, being reinstatement to the position in which she was employed immediately before the dismissal.
[109] The Applicant submits there are no barriers to reinstatement, and on her evidence, reinstatement is viable in the circumstances. The Applicant submits her views are relevant to the Commission in determining whether the relationship of trust and confidence has been damaged beyond repair, and the likelihood of restoring the relationship. 18
[110] The Applicant submits that while it may be necessary for the parties to “demonstrate some magnanimity towards each other”, 19 no sustainable evidence exists to demonstrate a breakdown in the relationship of trust and confidence.20
[111] The Applicant’s position is that it is appropriate in all the circumstances for the Commission to make an order for the Applicant to maintain continuity and period of continuous service with the Respondent. The Applicant seeks an order for remuneration lost for the period she has been dismissed, less any amounts earned by the Applicant in mitigation.
[112] In the event the Commission determines reinstatement is not appropriate, the Applicant submits that regard should be had to the following when considering compensation:
a. her length of service and previously positive reputation, unblemished performance and disciplinary history;
b. the Applicant’s financial circumstances and efforts to mitigate loss suffered;
c. the Respondent’s treatment of the dismissal as “serious misconduct”, thereby denying the Applicant of payment in lieu of notice;
d. the Respondent’s failure to consider reasonable alternatives to dismissal; and
e. the Respondent’s status as a large, multi-national employer means such an order will not impact viability of the Respondent’s enterprise.
Respondent’s Evidence
[113] The Respondent relies on the evidence provided by Tony Tusa, Mitchel Turvey and Toby Jenkins, as outlined below.
Evidence of Mr Tusa
[114] Mr Tusa, current Residential Manager for the Respondent, filed a witness statement in these proceedings stating that he has been employed by the Respondent for approximately 10 years, and is familiar with the training provided to new employees as part of their induction and ongoing professional development. He is also aware of the circumstances surrounding the termination the Applicant’s employment on 16 March 2021.
[115] Mr Tusa stated that in early 2021, he became aware that Mr Tennant, Security Manager, was making enquiries into a series of anonymous email communications received by the Respondent from a person who described themself as ‘Johnathan Smith’. Mr Tusa’s evidence is there was no Johnathan Smith employed by the Respondent at the time; and he had been advised that the email address used (“@protonmail.com”) was a web based email account that was unable to be traced back to any person, including any employee of the Respondent. Mr Tusa states that Mr Tennant ceased to be employed by the Respondent on 5 March 2021.
[116] Mr Tusa says that prior to his involvement in the disciplinary meeting with the Applicant on 20 January 2021, he had the opportunity to discuss with Mr Tennant the anonymous emails and learn of the various emails and his unsuccessful attempts to find the person who had sent the anonymous emails which related to the conduct of Ms Petersen. Mr Tusa annexed a copy of correspondence from ‘Jonathan Smith’ dated 27 December 2020, sent to the BITA Intelligence Mailbox address. He also annexed correspondence from Mr Tennant to ‘Johnathan Smith’ on 6 January 2021, and a reply received on 10 January 2021. These correspondences relevantly provided:
27 December 2020 correspondence from ‘John Smith’ to BITA Intel:
“I am a DSO with Serco and attached the last ITC.
On Tuesday 17 November 2020 I was attending training as part of the SERCO ITC being conducted at the Hamilton Hotel, Brisbane. The lessons were regarding the application of handcuffs with a detainee on the ground, and Transport and Escort (T&E) of detainees in the Aviation environment. There were approximately 12 students in these lessons. The lessons were being delivered by DSO Brittany PETERSON.
During the lessons DSO PETERSON made several statements that were in direct contradiction to what we had been previously taught and in direct contradiction to the Serco policies within our training manuals.
During the T&E lessons DSO PETERSON made the following statements;
1. “the rules say you are not allowed to take your personal phones on tasks, but if you call it a GPS device; nudge, nudge, wink, wink, you will get away with it”
2. “you all know you’re not allowed to take your phone into the centre (BITA), but, if you get your phone from your locket (at reception) or your car and put it in the (T&E) vehicle. Just drive into the sally-port. The reception staffs don’t check T&E vehicles for phones”
3. “When you take your phone into the centre or on a task, be smart about it. Don’t sit in front of the detainee swiping tinder. And don’t get caught by management or ABF because you’ll get sacked immediately”. Another student then asked, “Will we known when management are onsite?” DSO PETERSON responded, “Yes, a call will go over the radio to let everyone know”.
4. “If you end up running late on a task because you stopped for lunch or a coffee, don’t put that in the log. Just say you were held up due to bad traffic or something”.
I also witnessed the following conversation between DSO PETERSON and the class.
DSO PETERSON – “I got an email from SPER (State Penalties Enforcement Registry), my licence has been suspended”
Student – “How long”
DSO PETERSON – “Ha. A while”
Student – “How did you get to work?”
DSO PETERSON – “I drove. I’m driving home too”
Student – “don’t you work at T&E?”
DSO PETERSON – “Ha. Yes.”
DSO PETESON then indicated that she had driven Serco vehicles, unlicensed, on several occasions.
I have forwarded this report in this manner in an attempt to remain anonymous.
If you need more information, please feel free to contact me.
Sent with ProtonMail Secure Email.”
6 January 2021 correspondence from Mr Tennant to ‘Mr Smith’:
“Hi,
Thank you for your email and the information provided. I wanted to let you know that we take this information very seriously and that we share the concerns you obviously have that prompted you to bring this forward. We appreciate that it is difficult providing information about colleagues, however it is always the right thing to do if you have genuine concerns that impact on the safety and security of everybody in our workplace.
There is some further information I would like to obtain and would appreciate having a conversation with you if you are willing. I understand your desire to remain anonymous and I will take steps to maintain your anonymity. If possible, we could meet off site to discuss some further information. Let me know if you are able to do this and I will arrange a suitable time and place with you.
If you are not comfortable speaking with me, then perhaps you could provide some further information via email. Some of the information I would be keen to understand would be following:
• The lesson that you participated in, during which these statements were made, what time/are did the class take place on the 17th December?
• Was this lesson delivered to a smaller group within the larger ITC class training on that date?
• Would you be willing to provide the names of other people present during the lesson, who may be potential witnesses to the statements made?
• When you witnessed the conversation regarding the driver licence suspension, was this with the whole class, or an individual?
• Would you be willing to identify the individual/s who responded during that conversation, as again, they may be potential witnesses to these allegations?
• Did you raise any of these concerns with the other training staff?
- If so, who?
- If not, why not?
• This is not an issue for you, I am just keen to understand if there were any issues or concerns you had in raising these kind of matters with the training team.
We are keen to address these concerns thoroughly and carefully in the best interests of all involved. In order to ensure a thorough investigation, it is important that we can elaborate on and corroborate information received, so I would encourage you to consider speaking with me if possible.
Thanks again and kind regards,
Andrew Tennant
Security Manager
Brisbane Immigration Transit Accommodation”
10 January 2021 correspondence from ‘Mr Smith’ to Mr Tennant:
“Good morning Andrew,
Thank you for responding to my email.
I appreciate you understanding the predicament I find myself in. I also appreciate your support in remaining anonymous and will assist and answer your questions as best I can.
• The lesson that you participated in, during which these statements were made, what time/are did the class take place on the 17th December? The training area at the Hamilton Hotel is predominantly made up of two rooms. The main training room: a large room (with a large bar area) where the theory presentations occurred that had a clear area to the rear. And a smaller training room adjacent to the main room. These lessons occurred and the comments were made in the smaller training room.
• Was this lesson delivered to a smaller group within the larger ITC class training on that date? At this point, the ITC had been separated into smaller classes allowing for concurrent activities to be conducted. We were in the smaller room and another class was in the main training room and I think there may have been a third group doing paperwork. There was approximately 12 students in our class at this time and we were broken down into groups of 3-4.
• Would you be willing to provide the names of other people present during the less, who may be potential witnesses to the statements made? I haven’t spoken with other personnel regarding this, so I am not sure if anyone else is willing to provide a statement however, there was another trainer in the room who appeared to disagree with these comments (he made several discrete comments including recommending that we do not take our phones into BITA as this is a serious breach of both Serco and ABF policy and would probably result serious consequences). I can’t remember the trainers name as he was only with us for a few days.
• When you witnessed the conversation regarding the driver licence suspension, was this with the whole class, or an individual? This conversation occurred in front of the entire smaller class of 12 students. Everyone in the room witnessed the conversation.
• Would you be willing to identify the individual/s who responded during that conversation, as again, they may be potential witnesses to these allegations? I don’t actually remember the individuals who responded / commented. It was a group setting.
• Did you raise any of these concerns with the other training staff?
If so, who? I didn’t raise the issue but as I mentioned the other trainer discretely informed us in conversation that these comments were inappropriate and recommended we just follow the policies as previously taught.
If not, why not?
This is not an issue for you, I am just keen to understand if there were any issues or concerns you had in raising these kind of matters with the training team. I witnessed DSO PETERSON openly make negative comments about both students and staff alike. And deliberately target and bully students who she didn’t like, on several occasions. This behaviour was witnessed by other students and staff and it went unchecked. As such, I didn’t feel comfortable raising my concerns at the time.
I apologise for the cloak and dagger. However, at this time, I’m just not comfortable with identifying myself.
I know these comments were also witnessed by other students but as already mentioned, I haven’t discussed this with anyone and do not know if anyone would be willing to provide a statement. They are unaware that I have reported this.
If you require calcification or further information please feel free to contact me.
I hope this assists.
Sent with ProtonMail Secure Email.”
[117] Mr Tusa’s evidence confirms that on 5 January 2021, the Applicant was issued a suspension from duties letter. He states he is aware that Mr Tennant then conducted an interview with the Applicant on 11 January 2021, in which Mr Tennant took notes of the interview. He confirms a copy was sent to the Applicant for her records, and he annexed a copy of the interview notes to his statement.
[118] Mr Tusa states that in his role as Residential Manager, he is required from time to time to become involved in meetings which are described as formal disciplinary meetings. He states that prior to any formal disciplinary meeting occurring, a letter is prepared and sent to the individual who is the subject of the meeting. Mr Tusa annexed to his statement a copy of the letter sent to the Applicant on 14 January 2021, which he states included the allegations regarding the 17 November training. He says, this letter included various extracts from the anonymous emails that had been received by Serco and reviewed by Mr Tennant.
[119] Mr Tusa states that the formal disciplinary meeting letter dated 14 January 2021 also referred to a number of documents which he attached to his statement, including:
(a) the Serco Code of Conduct;
(b) a document described as the DIBP FDSP Code of Conduct, and associated declarations;
(c) a document described as "Professional Conduct (SIS)-OPS-PPM-0042;
(d) a document described as the "Detention Service Officer Success Profile" which is often referred to as the job description; and
(e) Ms Petersen's letter of employment.
[120] Mr Tusa states that the disciplinary meeting was delayed at the request of the Applicant, and took place on 20 January 2021, with attendees including himself, Ms Naranjo (Human Resources), Ms Raghwan (from the UWU) and the Applicant.
[121] Mr Tusa’s evidence is that the disciplinary meeting involved him asking the Applicant questions in the presence of her support person by phone. The meeting occurred in two parts because a short break was requested by the support person. Mr Tusa says the focus of the meeting was on the comments attributed to the Applicant in the anonymous emails. He took care to ensure he read the precise content of each comment attributed to the Applicant. Mr Tusa recalls that in answering the questions, the Applicant appeared to be reading from a typed document. After the meeting, the Applicant handed a typed document to Ms Naranjo, a copy of which he annexed to his statement.
[122] Mr Tusa gives evidence that he reviewed the questions and answers contained in that typed document. The answers that are contained in the typed document are consistent with how he recalls the Applicant responding in the meeting by him.
[123] Mr Tusa remembers the Applicant attending the meeting with her support person and being provided with the opportunity to raise any issues with respect to both the allegations and the possibility of the termination of her employment.
16 March 2021 Telephone Call
[124] Mr Tusa states that on 20 January 2021 he discussed the Disciplinary Meeting with Mr Turvey. He states a letter of termination was prepared, and Mr Turvey tasked him with contacting the Applicant to advise of her dismissal. Mr Tusa confirms the call was arranged with the Applicant for 3.30pm that day, and he was accompanied on the call by Mr Bhindi. His evidence is that the following conversation was had:
Mr Bhindi: "As per your earlier conversation, the reason for this call is to let you know the outcome of the disciplinary investigation."
The Applicant: "Am I required to have a support person?"
Mr Bhindi: "That is not necessary - it is optional. "
The Applicant: "Why?"
Mr Bhindi: "Because we are letting you know the outcome of the investigation, so a support person is optional not a requirement."
Mr Tusa: "The outcome of the investigation is that you are terminated due to serious misconduct. We will confirm this in a letter to you."
The Applicant: "Do I have an opportunity to dispute this?"
Mr Bhindi: "Not internally, but you can dispute externally."
[125] Mr Tusa annexed to his statement a copy of the Applicant’s letter of termination, dated 16 March 2021, signed by Mr Turvey in his capacity of General Manager BITA.
[126] Mr Tusa confirmed that he had read the Applicant’s witness statement dated 19 May 2021. In response, he relevantly stated:
• the employee of the month/year is based upon the views of individual employees and a management committee;
• that he denied there was a lack of resources available to T&E staff and had never heard any complaints about perceived lack of resources;
• he was aware of a small number of occasions where immediate access to the Respondent’s mobile phones could not occur and, in those circumstances, following a specific request by a DSO and express approval from a manager, could a DSO use their personal phone. The phone would be accounted for by reception on exit and entry back into the Centre. Failure to conduct each step in the policy regarding personal phone use was a sackable offence.
• that “Success Profile” is the term used by the Respondent for the person's job description;
• he denies the words attributed to him in paragraph [188] of the Applicant's Statement. In relation to paragraph 201 of the Applicant's Statement, he said, “The reason for the call is to let you know outcome of the disciplinary meeting” on the basis that this would alert the Applicant to the purpose of the call and ensure she would choose an appropriate time and, if desired, the presence of a support person; and
• that, on the evidence before me on 20 January 2021, he was not willing to accept the Applicant’s responses to Allegations 1-5. In respect of Allegations 6-9, he stated that he remained troubled by the Applicant's responses to these allegations and remained of the view that her comments in the presence of the new employees were inappropriate and unprofessional.
[127] Under cross-examination, Mr Tusa stated Mr Tennant had conducted the investigation of the allegations against the Applicant, and at 14 January 2021, Mr Tusa had been provided the evidence of the emails and notes of Mr Tennant’s interview with the Applicant. He confirmed that Mr Tennant did not provide him any further evidence. His evidence is that he was aware Mr Tennant had interviewed other staff, however he was not aware of any records of those interviews.
[128] Mr Tusa gave evidence that by 14 January 2021, the allegations had not yet been substantiated and the Respondent had not yet reached a view as to the Applicant’s guilt.
[129] Mr Tusa conceded that letter sent to the Applicant on 14 January 2021 did not include the anonymous email in its entirety, nor did it state that the source of the allegations was an anonymous email.
[130] As to the Applicant’s dismissal, Mr Tusa agreed that the period between the 20 January 2021 meeting and the 16 March dismissal letter was a period of close to two months. He stated he did not know whose decision it was to ultimately terminate the Applicant’s employment, but it was not him.
[131] As to Mr Tusa’s telephone call to the Applicant to advise of her dismissal, confirmed the conversation was one related to termination and that there was no support person present. However, he stated that she had not requested a support person. Rather, he says, she had asked if she required one, to which he answered no. He denied that her question suggested that she wanted a support person present.
[132] Mr Tusa confirmed in cross-examination the dismissal conversation lasted less than two minutes, during which he inform the Applicant the dismissal was effective immediately. He confirmed that he has remained continuously employed between 20 January and 16 March 2021 and had not had any further meetings with the Applicant following 20 January, nor any correspondence prior to the 16 March letter. He confirmed Mr Turvey had remained continuously employed for that period and that they had no further discussions regarding the Applicant following 20 January 2021.
[133] Mr Tusa agreed in cross-examination the dismissal letter of 16 March 2021 did not contain any material to support the substantiation of the allegations against the Applicant. While various questions were put to Mr Tusa regarding the allegations against the Applicant, and any evidence which may have been available to substantiate them, it is noted that Mr Tusa was not the decision maker regarding the Applicant’s dismissal. Mr Turvey was the decision maker.
[134] As to the Applicant seeking reinstatement to her position, Mr Tusa states he no longer has sufficient trust and confidence in the Applicant and that loss would have serious implications on the operations of the workplace.
[135] Mr Tusa’s evidence is that for the Respondent’s business to operate in an environment where each employee is tasked to comply with strict policies, there needs to be both respect for the policies themselves and a clear understanding as to the requirements. He states that even if the Applicant’s comments were flippant or unguarded, they were made in front of recruits at an induction. The comments seriously undermined the content and intent of the Respondent’s policies, and the messaging to the employees was one of wilful disregard, with the Applicant appearing to actively encourage new recruits to circumvent policies.
[136] Mr Tusa states that new and impressionable recruits faced with this ‘disrespect’ may take the view that the policies were not important, and that compliance was optional or not subject to sanction. Further, Mr Tusa states these induction training meetings occur in an unsupervised environment, therefore the Respondent needs to rely on its trainers to set the highest of examples, and in his view, the Applicant cannot be relied upon, and showed little or no remorse for her actions. Mr Tusa therefore states that the resumption of the employment relationship would not be ‘noble or productive’.
[137] As to remuneration received by the Applicant in the 26 weeks prior to her dismissal, Mr Tusa states he had reviewed the Respondent’s pay records and confirms that in the 26 weeks prior to the termination of her employment, Ms Petersen was paid the sum of $51,956.97 gross, not including service related entitlements paid on termination. He attached a copy of the employee earnings report for the 26 weeks period.
Evidence of Mr Turvey
[138] Mitchel Turvey, previously the General Manager at BITA, gave evidence in these proceedings. Mr Turvey states he is aware that in late December 2020, a number of allegations were put to the Applicant and she was suspended on full pay on 5 January 2021 to allow the Respondent to investigate the allegations.
[139] Mr Turvey states that Mr Tennant, who was the Security Manager, was tasked by him to investigate the allegations and interview staff who had knowledge of the alleged matters. He confirms Mr Tennant interviewed the Applicant on 11 January 2021.
[140] Mr Turvey states that after the investigation by Mr Tennant and after consultation with him and Ms Naranjo, on 14 January 2021, the Applicant was issued with the notification of formal disciplinary meeting. He confirms that Mr Tusa and Ms Naranjo conducted the disciplinary meeting on 18 January 2021, following which they discussed the Applicant’s responses with him.
[141] Mr Turvey states a termination letter was issued to the Applicant on 16 March 2021, which he understands was discussed with the Applicant in a telephone meeting. Mr Turvey noted that the conclusion of the letter outlined that the Applicant’s responses had been considered, however her misconduct was inconsistent with the continuation of her employment contract and her employment was terminated with immediate effect.
[142] Mr Turvey’s evidence is that the Applicant was not paid in lieu of notice, but was paid up until 16 March 2021, as well as her accrued annual leave.
[143] As to reinstatement, Mr Turvey states reinstatement is impracticable as the Applicant held a position and performed duties that required her to educate new employees and to set an appropriate standard of behaviour, and her actions were deliberate and had the potential to undermine the Respondent’s policies.
[144] Under cross-examination at the hearing, Mr Turvey confirmed that he was the decision-maker regarding termination of the Applicant’s employment. He stated that when the Applicant was suspended, he believed that credible allegations existed against her. He confirmed that he had directed Mr Tennant to investigate the allegations, though he could not recall when he made that direction, or when Mr Tennant commenced the investigations. He stated that he did not have any oversight of the investigation, but they did verbally discuss the progress of it occasionally. He was not provided with written records of the investigation.
[145] Mr Turvey believed Mr Tennant had interviewed other staff members regarding the allegations. However, he personally did not participate in any such interviews and he did not know which staff members were interviewed.
[146] Mr Turvey reiterated that on 14 January 2021, the allegations were not treated as ‘substantiated’. Mr Turvey’s evidence at the hearing was that he did not recall being provided with the Applicant’s written responses, nor did he recall ever seeing a copy.
[147] Mr Turvey stated he was not aware of any further investigations taking place between 20 January and 16 March 2021, nor did he recall receiving any further evidence in that period.
[148] Mr Turvey confirmed the decision to terminate the Applicant was made by him, and he signed the termination letter. However he said that Mr Tusa and Mr Bhindi were responsible for issuing the letter and he was not involved in the dismissal telephone meeting. He agreed that the termination letter was quite ‘general’, but did not agree that the letter failed to clearly articulate what the Applicant had done. He agreed that while the misconduct was not specifically described, the letter referenced the relevant policies and codes of conduct that had been breached by the Applicant.
Evidence of Mr Jenkins
[149] Toby Jenkins, a DSO for the Respondent, gave evidence in these proceedings. He states that he attended the induction conducted by the Applicant on 17 November 2020. His classmates were other new employees being trained in preparation for their roles as DSOs.
[150] Mr Jenkins gives evidence that in early January 2021, Mr Tennant contacted him and referred to an anonymous email from a person he said attended the 17 November 2020 training. Mr Tennant then showed him that email. Mr Tennant asked if he had sent it or was the author. Mr Jenkins said ‘no’.
[151] Mr Jenkins states Mr Tennant took him through the comments in the email and sought his recollection of the meeting. Mr Jenkins states that to the best of his recollection, the Applicant did say words to the effect of “the rules say you are not allowed to take your personal phones on tasks, but if you call it a GPS advice…you will get away with it” in his presence. He recalls her saying words to the effect of “if you get your phone from your locker…just drive into the sally-port, the reception staff don’t check T&E vehicles for phones” in his presence. He also recalls her making comments regarding “being smart” about phone use, and what to do if “running late”, in his presence.
[152] Mr Jenkins says he recalls being surprised by the Applicant’s comments and immediately after the session, had conversations with other attendees and recalled comments to the effect of, “Can you believe what was just said to us?” He also remembers the Applicant saying words to the effect of, “I am having lunch with you guys (referring to his group) because I don’t like them” about other groups being trained that day.
[153] Under cross-examination, Mr Jenkins gave evidence that when questioned by Mr Tennant about the 17 November training, nothing had “stuck in his mind” about the relevant events. However, after Mr Tennant showed him the email, he had confirmed the events as outlined therein. Mr Jenkins confirmed he was not the author of the email and did not know the writer’s identity.
Respondent’s submissions
[154] The Respondent submits the decision to dismiss the Applicant arose out of her conduct on 17 November 2020. It submits that, on the evidence, particulars of the allegations made against the Applicant are contained in the suspension letter dated 5 January 2021, the disciplinary letter dated 11 January 2021 and the letter of termination dated 16 March 2021.
[155] The Respondent submits that between 5 January 2021 and 16 March 2021, the Applicant was stood down from her position and was afforded several opportunities to respond to both the allegations and the possibility of the termination of her employment, including at the meeting with Mr Tennant on 11 January 2021, the disciplinary meeting with Mr Tusa and the UWU representative on 20 January 2021 and in her written responses to the allegations. Following these opportunities, the Respondent advised the Applicant her employment would be terminated with the reasons outlined in the termination letter dated 16 March 2021.
[156] The Respondent submits the Applicant does not appear to suggest that she was not provided with procedural fairness before her termination.
[157] The Respondent submits that the dismissal, viewed from the perspective of the employer, was sound, defensible or well-founded with reference to the acts or omissions of the Applicant at the training session on 17 November 2020. The Respondent submits that it is open for the Commission to find that there was a valid reason for the dismissal of the Applicant, related to the Applicant's conduct in breach of the policies of the Respondent. The Respondent relies upon the findings of serious misconduct particularised in the 16 March 2021 termination letter.
[158] The Respondent submits the Applicant was notified of ‘that reason’ in the letter of termination on 16 March 2021 and given an opportunity to respond to the any ‘reason’ that was relied upon to terminate her employment before that decision was made.
[159] The Respondent submits there was no refusal by the employer to allow the Applicant to have a support person present to assist in any discussions relating to the dismissal on 20 January 2021.
[160] The Respondent submits that subsections 387(e), 387(f) and 387(g) are irrelevant considerations in the current matter.
[161] The Respondent further submits that, to the extent that the Commission may, with reference to s 387(h), form a view as to the seriousness of the conduct of the Applicant, the Respondent submits that the Applicant’s conduct on 17 November 2020 constituted a material breach of the Applicant's terms and conditions of employment, Respondent's policies and procedures and the duties of the Applicant and was particularly egregious because at the time she was acting in a role that required the highest level of professionalism. Her conduct undermined the powers of the Respondent and, in all the circumstances, there is a lack of mitigating factors that would convince the Commission to make a finding to the contrary.
[162] The Respondent relies on the decision of the Full Bench of the Commission in DP World Sydney Limited v Lambey 21and in particular paragraph 26, which is extracted as follows:
“[26] [The factors in section 387] although not an exhaustive list, are a strong indicator of evidence of a fair dismissal. In circumstances where a valid reason is found to exist, and procedural fairness has been afforded. significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of a dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer's disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.” (Respondent’s emphasis)
[163] The Respondent opposes reinstatement and submits that the evidence of the Respondent’s witnesses supports this position.
[164] The Respondent cites the Full Bench decision in Nguyen & Lee v Vietnamese Community in Australia trading as Vietnamese Community Ethnic School South Australia Chapter 22 in which it was observed, that the most common argument advanced in support of the proposition that reinstatement is inappropriate is the claim that there has been a “loss of trust and confidence”, such that it would not be feasible to re-establish the employment relationship.
[165] The Full Bench noted the observations of the Full Court of the Industrial Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd 23 and confirmed its relevance to the question of whether reinstatement is appropriate. In Perkins, it was stated that:
“Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
…
Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. ff the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”
[166] As to ‘trust and confidence’, the Full Bench in Nguyen & Lee v Vietnamese Community also affirmed the remarks of DP Gostencnik in Colson v Barwon Health, 24 where DP Gostencnik expressed the ‘critical question’ being, “what effect, if any, a loss of trust by the manager in an employee is likely to have on the operation of the workplace concerned.”
[167] The Respondent submits that in Colson, DP Gostencnik observed that it is not enough to simply assert that trust and confidence in an employee has been lost, but rather there must be evidence from the relevant managers holding that view and an assessment must be made as to the effect of the loss of trust and confidence on the operations of the workplace.
[168] The Full Bench in Nguyen & Lee v Vietnamese Community, having extracted the relevant principles relating to the impact of a loss of trust and confidence, formulated the question as follows:
“The question is whether there can be a sufficient level of trust and confidence resorted to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”
[169] Having regard to these authorities and the evidence before the Commission, the Respondent submits there is no suggestion of irrationality on the Respondent’s parts with respect to their individual and collective basis for opposing the reinstatement of the Applicant. The Respondent submits that the views expressed by the witnesses on behalf of the Respondent are shaped by the particular requirements of the Respondent’s business and the particular requirements and needs of the persons who were the subject of the Applicant’s role as a DSO. It submits that the Applicant worked in an environment where there is and remains a need for the highest level of trust.
[170] The Respondent submits there is no evidence to suggest that the views of the Respondent’s witnesses with respect to reinstatement of the Applicant are, in the circumstances, unsound or irrational.
[171] As to any compensation, the Respondent contends that the Commission would be required to make a deduction with reference to the misconduct of the Applicant, in accordance with s.392(3) of the Act. The Respondent submits that, in the circumstances, an appropriate amount to deduct on account of the misconduct would be in the vicinity of 60%.
[172] The Respondent submits that the compensation cap with regard to the amounts received by the Applicant in the 26 weeks prior to the dismissal is $51,956.97.
CONSIDERATION
Was the dismissal harsh, unjust or unreasonable?
[173] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[174] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 25
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[175] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 26 and should not be “capricious, fanciful, spiteful or prejudiced.”27
[176] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination:
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 28
[177] The reason for terminating the Applicant’s employment was because of the things she is alleged to have said at the induction on 17 November 2020, in her capacity as a TSO. It troubles me slightly that the allegations were made anonymously and only substantiated by the statement of one other person. The Respondent’s investigation process clearly had significant flaws particularly, in respect of recording the process taken and evidence adduced, as well as the considerable delay between the final meeting and notification of the Applicant’s termination and the failure to particularise in detail how the anonymous allegations were substantiated. However, I am satisfied based on the evidence and submissions before me that the Respondent had a valid reason for terminating the Applicant’s employment.
[178] Of particular significance, was the nature of the Respondent’s business. While in another context, use of a personal mobile phone whilst at work may not constitute conduct warranting termination, the significance of such conduct in this case cannot be divorced from the particularities of a detention centre. As emphasised by the Respondent’s representative, the Respondent’s workplace is an environment in which there are desperate, detained people to whom an unaccounted-for mobile phone has significant value. That is why the policies regarding the use of mobile phones exists. To indicate to a group of new recruits that they need not comply with the relevant policies is therefore a very serious matter that undermines the significance of the Code of the Conduct, policies and procedures in relation to personal devices.
Was the Applicant notified of the valid reason?
[179] The Respondent submits the allegations against the Applicant were outlined in the suspension letter of 5 January 2021, the disciplinary letter of 11 January 2021, and the termination letter of 16 March 2021. While it may have been preferable for the Applicant to have been shown the entirety of the allegations in the anonymous email, I am satisfied that the Applicant was notified of the substance of the allegations against her, which were relied on by the Respondent in terminating her employment.
Was the Applicant given an opportunity to respond to any valid reason?
[180] The Respondent submits that the Applicant was afforded multiple opportunities to respond to the allegations against her, including at the meeting of 11 January 2021, the disciplinary meeting of 20 January 2021, and in her written response. The Applicant does not agree. Again, it would have been preferable for the Applicant to have been shown the anonymous emails and the statement (or statements, if other employees were interviewed as the Respondent says they were) of employees questioned about the veracity of the anonymous email and had an opportunity to respond to each.
[181] However, while the process was flawed, it was not completely faulty. The Applicant was sufficiently aware of the allegations to prepare a typed response to each which she read out at the meeting with her support person present. It was the substantiation of those allegations that the Respondent relied upon to terminate her employment. Consequently, while I accept the Respondent’s process leaves much to be desired, I am satisfied the Applicant was told of the allegations and had an opportunity to respond.
[182] Though there may be some argument that those responses were not deeply considered, I acknowledge that an opportunity for response was provided.
Support person
[183] The Applicant had a representative of the UWU appear as her support person at the meeting on 20 January 2021. The Respondent submits there was no refusal by the Respondent to allow her a support person on that occasion.
[184] The Applicant did not have a support person during the telephone conversation on 16 March 2021. The Applicant submits her request for one was denied. The Respondent says the Applicant made an enquiry about whether she needed a support person and was advised it was not required. Having heard the evidence of both parties to that conversation, I accept that the Applicant did ask if a support person was required. While the strict answer to that was no, I would have thought that a manager would take that as an opportunity to ask if she would like to have a support person present.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[185] The Applicant was not warned about unsatisfactory performance before her dismissal. As the Applicant was dismissed for serious misconduct in relation to a single incident, this factor is not relevant.
Size of the Respondent’s Enterprise (s.387(f)) and Presence of a Human Resource Specialist (s.387(g))
[186] It is not in dispute that the Respondent has dedicated human resource personnel. The Applicant submits that despite this, the Respondent failed to follow due processes including, by failing to conduct a thorough investigation and deal with the matter expeditiously. The two-month delay between the disciplinary meeting and delivery of the decision to terminate her employment weighs particularly against the Respondent.
What other matters are relevant?
[187] I have read and considered each of the factors identified by the Applicant in her submissions. I have considerable sympathy for the Applicant given the impact that the disciplinary process and termination of her employment has had on her. I am also conscious of the fact that, in the Applicant’s eyes, her words simply conveyed what she perceived to be the on-the-ground reality of a DSO’s job. I note that no one asked – or at least there is no evidence of anyone asking – the TOs who were also conducting the training, if they heard the Applicant’s impugned advice to the new recruits and what, if any, action they (as the more senior people in the room) took in response.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[188] I have made findings in relation to each of the criteria in s.387 of the Act, as relevant.
Having considered each of the matters specified in s.387 of the FW Act, while I am not satisfied that the Respondent’s disciplinary process was a good one, I am satisfied the Applicant’s comments were a significant breach of her employment obligations. This is particularly so given the seriousness of unregistered phones within a correctional facility and the fact that her comments were made to a group of impressionable recruits in a training session. On that basis, the Applicant’s dismissal was not harsh, unjust or unreasonable.
[189] Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR732242>
1 Fair Work Act 2009 (Cth) s.396.
2 In the Respondent’s Form F3, they note her commencement date being 9 December 2019. No issue was made of this at the hearing.
3 Statement of Ms Petersen, annexure ‘BJP-06’.
4 (1995) 185 CLR 410.
5 Rode v Burwood Mitsubishi (unreported, AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).
6 Briginshaw v Briginshaw (1938) 60 CLR 336.
7 Ibid at 372.
8 Ibid at 362-3.
9 Statement of Brittany Petersen at paragraphs 217-222, 227-230, 247 and 267; B, C and D v Australian Postal Corporation t/a Australia Post[2013] FWCFB 6191 (Lawler VP, Hamberger SDP, Cribb C, 28 August 2013) at [48].
10 Peter Watts v Oaky Creek Coal Pty Ltd[2016] FWC 9090 at [69]; Tenix Defence Systems Pty Ltd v Fearnley (AIRCFB, Ross VP, Polites DSP, Cmith C, 22 May 2000) Print S6238 at [25].
11 Rode v Burwood Mitsubishi (unreported, AIRCFB, Ross VP,Polites SDP, Foggo C, 11 May 1999).
12 Ibid.
13 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
14 Wadey v YMCA Canberra [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd[2010] FWA 8544 at para [85].
15 Annetta v Ansett Australia Ltd, Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at [16].
16 Johnstone v Woodpile Investments t/a Hog’s Breath Café – Mindarie[2012] FWA 2 at [58].
17 Sykes v Heatley Pty Ltd t/a Heatley Sports (unreported AIRC, Grainger C, February 2002).
18 Regional Express Holdings Limited t/a REX Airlines v Richards[2010] FWAFB 8753 at [26].
19 Harrington v Coates Hire Operations Pty Ltd[2015] FWC 2598.
20 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Chapter[2014] FWCFB 7198.
21 (VP Watson, DP Hamilton and Simpson C2012/3296).
22 [2014] FWCFB 7198.
23 (1997) 72 IR.
24 [2013] FWC 8734.
25 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [69].
26 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371, 373.
27 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371.
28 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
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