Ms Kim Fallens v Serco Australia Pty Ltd T/A Serco Acacia Prison

[2015] FWC 8394

[2015] FWC 8394

FAIR WORK COMMISSION

DECISION

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

Ms Kim Fallens
v
Serco Australia Pty Ltd T/A Serco Acacia Prison
(U2014/16521)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 3 DECEMBER 2015

Application for relief from unfair dismissal.

[1] This is an application by Ms Fallens, lodged pursuant to s.394(1) of the Fair Work Act 2009 (the Act), seeking relief from unfair dismissal.

[2] Having considered the requirements of s.596 of the Act and the complexity of the application, I decided to grant permission for both parties to be legally represented. Mr S. Millman of Slater and Gordon Lawyers represented Ms Fallens. The respondent, Serco Australia Pty Ltd T/A Serco Acacia Prison (Serco), was represented by Mr S. Kemp of Jackson McDonald Lawyers. I heard the application in Perth on 11 and 30 June 2015, and again on 2 July 2015. Final submissions were received on 4 September 2015.

[3] I am satisfied that the application was lodged within the statutory 21 day time period as prescribed under s.394(2) of the Act, that Ms Fallens is a person protected from unfair dismissal in accordance with s.382 of the Act and that there is no issue arising as to genuine redundancy.

[4] In considering the substantive merits of the application I have taken into account the criteria set out in s.387 of the Act in determining whether the termination of Ms Fallens’ employment was harsh, unjust or unreasonable. Section 387 of the Act is set out below;

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[5] Ms Fallens’ employment commenced with Serco in May 2006. At the time of her termination on 28 November 2014, Ms Fallens was employed as a prison officer at Acacia Prison. Ms Fallens was a delegate of the West Australian Prison Officers Union (WAPOU) 1 and had participated in the negotiation of enterprise agreements for staff at Acacia Prison.2 It was agreed between the parties that Serco was aware of Ms Fallens’ position as a union delegate throughout her employment.3

[6] Ms Fallens was dismissed from her employment with Serco following an investigation into four allegations of misconduct. An initial investigation into those allegations was conducted by Serco. However, following the lodgement of a dispute notification with the Fair Work Commission (the Commission), Resilience Solutions Pty Ltd (Resilience) was appointed by Serco to investigate the allegations. The allegations of misconduct, as outlined in a letter from Resilience to the applicant dated 22 August 2014, are extracted below:

“ALLEGATION 1
In breach of your Offer of Employment (Administration Officer) signed by you on 11 May, 2006 and your Offer of Employment (Prison Officer) signed by you on 1 January, 2007, you attended a meeting in November, 2013 whereby you and another Acacia employee handed to a third party a document written by Tillie Prowse, Acacia Contract Manager, Department of the Attorney General to David Brampton Acting Director, Acacia Prison without permission from either your employer nor the author to possess, copy, remove nor disseminate the aforementioned document.

Further that you were aware that this document would be provided to a representative of the West Australian media and would be detrimental to the reputation and credibility of Serco and Acacia Prison.

ALLEGATION 2
In February 2013 you were selected for a secondment as an Intelligence Officer within Acacia Prison. During this secondment you were trained in the use and had access to the prison Security Information Reports (SIR) under an individual user account. In December 2014 your secondment to this role had ceased and your individual user account had been removed. On 2 December 2014 you accessed the SIR using a group access account knowing that:

1. You were not authorised to access the SIR after leaving the intelligence
unit; and

2. You were not instructed by any person to access the SIR following your secondment in order to maintain currency in its use or familiarise yourself with current security issues.

ALLEGATION 3
In March 2014 senior management at Acacia Prison were provided with numerous copies of electronic documents purporting to be 'face book' communications from your private face book account. These communications suggest that you were obtaining and providing confidential information from Acacia Prison to a third party including:

1. Details of prisoners
2. Operational Plans

The communications also suggest that you were obtaining the information by covert means in order not to be implicated and that you were attemptingto and had already cultivated other employees within the prison to supplyyou with confidential information.

ALLEGATION 4
In March 2014, Shane Merington (Merington), Manager Investigations for Acacia Prison located numerous documents at 4 Jecks Street, Maida Vale. The documents were contained in the top draw (sic) of a filing cabinet and included:

1. Maps of the Acacia Prison expansion
2. SIR reports
3. Total Offender Management reports
4. Workplace bullying report
5. An email communication between the Prison Security Manager and another Acacia employee.

Prior to their discovery by Merington you had unlawfully obtained and removed these documents from Acacia Prison knowing that you had no authorisation to do so and conveyed them to your home address where you placed them into the cabinet.” 4

Valid reason – s 387 (a)

[7] Serco terminated Ms Fallens’ employment for what it said was a number of wilful and deliberate breaches of workplace policies. 5 Those breaches consisted of four allegations of serious misconduct, all found by Serco to be substantiated after an investigative process. In its Employer Response (F3) Serco argued that these four breaches caused serious safety risks to other Acacia employees, prisoners and the general public.6 Serco also contended that Ms Fallens’ actions caused ‘serious reputational damage and risk to the profitability of Serco’s business’.7

[8] Ms Fallens denied any misconduct and argued that the investigative process used by Serco to substantiate the allegations was flawed. 8 In particular, it was submitted by Mr Millman that the investigative process was based on illogical inferences and reliance on witnesses who lacked credibility.9 It was further submitted by Mr Millman that even in the event that Ms Fallens was guilty of some misconduct, the termination of her employment was disproportionate to the nature of the misconduct.10

Allegation 1:

[9] The first of the allegations against Ms Fallens concerned a letter that was leaked to the media. That letter was written by Ms Tilly Prowse, Department of Corrective Services, to the Deputy Director of Acacia Prison and a Serco employee, Mr David Brampton. The allegation was unreservedly denied by Ms Fallens. 11 In relation to this allegation the investigative report composed by Resilience concluded:

“Based on the timeline of events, documents, evidence of Mr Fallens and the respondent’s interview Resilience conclude, on a balance of probability, that this allegation is supported. Although there is insufficient evidence to indicate who directly provided the WAPOU and media with the letter it appears clear that the respondent, Ben Mclean and Rebeka Marton were complicit in the event.

It is also concluded, on a balance of probability that Ben Mclean is responsible for the initial theft of the letter and that after becoming aware of its existence the respondent has orchestrated its delivery to the WAPOIU (Sic) to the detriment of Serco and Acacia Prison.

These actions are in breach of the respondent’s employment agreement, Serco's code of conduct and any other internal document relating to security procedures and policies that have been disseminated from time to time.

Of some concern is that the respondent, during her interview, failed to understand the wider effect and risk to colleagues and the community as a result of security related issues being leaked.” 12

(my emphasis)

[10] The witness statement filed by Ms Fallens 13 did not specifically address this allegation. In cross examination Ms Fallens admitted to meeting with Ms Marton, a WAPOU Official, and Mr McLean, a Security One Supervisor, at a coffee shop in early November 2013.14 Ms Fallens stated that she was aware that Mr McLean had a number of letters and documents in his possession15 and she confirmed that she later formed an intimate relationship with Mr McLean in January 2014.16

[11] Mr Brampton, the Deputy Director of Acacia Prison and a Serco employee, gave evidence in relation to this allegation as follows;

“In late 2013, the Applicant approached me at the gatehouse of Acacia Prison and told me that she had been asked by WAPOU official Andy Smith to give me a "heads up" in relation to a letter WAPOU had received. I was told that WAPOU had been asked by the media to comment on the letter and intended to do so but would keep my name out of it.

I asked the Applicant what the letter was about but she did not tell me anything further. I did not really know what she was talking about, or what letter she was referring to, so said thank you and left it at that. The conversation only went for a minute or two.” 17

[12] In cross examination, Mr Brampton gave evidence that Ms Fallens had not described the letter she referred to in conversation with him in any detail. 18 He confirmed that, due to its sensitive nature, the letter from Ms Prowse was not widely circulated nor was it printed or given to Ms Fallens.19

Allegation 2:

[13] The second allegation involved Ms Fallens’ alleged unauthorised access to the Security Intelligence Report System (SIRS). The Resilience report concluded the following:

“Based on the evidence provided by the witnesses it is clear that security and confidentiality are important issues within the prison and in particular within the intelligence unit. Based on my experience and knowledge it would not be unfair to surmise that intelligence units are sensitive areas and access to the confidential information contained on their data bases would be limited to only those working within the area.

Prior to the respondent’s secondment to the intelligence unit Ms Woodwiss (Sic) had concerns regarding her ability to maintain confidentiality however did not want to interfere with the decision made by Ben McLean because it was his business area. With these pre-existing concerns and the additional concerns of Kevin Holten it would be difficult to believe that authorisation was provided to the respondent by Ms Woodwiss (Sic) to continue accessing the data base following her departure.

It is also difficult to believe that the respondent received no training in relation to the importance of security and confidentiality. Although the indemnity form does not mention data base access, it clearly outlines the requirements regarding information confidentiality the respondent signed this document on 19 February, 2013 as an acknowledgement of her understanding of its contents.

The face book communication between the respondent and Bevan Hanlon appears, on face value to infer that she (the respondent) was accessing information on behalf of others however there is no evidence in this matter as to what was being accessed at the time or if that information was disseminated to a third party.

I conclude, on a balance of probability, that the respondent did access the intelligence unit I Drive and further that she did so being aware that she was not authorised to do so, therefore this allegation is supported.” 20

(my emphasis)

[14] Ms Fallens had been granted access to SIRS during a period of secondment to the Acacia Prison Security and Intelligence Team (Intelligence Team). 21 It was not in dispute between the parties that Ms Fallens had accessed SIRS on 2 December 2013, after her secondment with the Intelligence Team had concluded.22 Ms Fallens alleged that Ms Woodiwiss, Assistant Director of Secure Operations, authorised her continued use of SIRS so as to allow her to remain ‘updated’ on the operations of the Intelligence Team.23 Ms Woodiwiss was not called to give evidence. In his witness statement, Mr Brampton gave the following evidence;

“I spoke with Ms Woodiwiss on 27 December 2013 regarding the Applicant’s responses. Ms Woodiwiss informed me that she recalled mentioning something to the Applicant about returning to the Intelligence Team if an opportunity arose but never told her to continue to access the SIR database once she left the Intelligence Team.

I did not take further action at that time as I understood DCS were considering the matter further and I did not have enough evidence at the time to establish that the Applicant was accessing the system for any ulterior purpose.” 24

[15] Mr Brampton did not dispute that the icon granting Ms Fallens access to the SIRS database remained on her computer after her secondment with the Intelligence Team had ended. 25 Except for the information conveyed from Ms Woodiwiss by Mr Brampton there was no explanation provided as to why, given the gravity of this allegation and its alleged potential ramifications for the internal security of the prison, Serco did not take some immediate disciplinary action against Ms Fallens.

Allegation 3:

[16] The third allegation of misconduct involved Ms Fallens’ alleged Facebook conversation whereby she was alleged to be making arrangements to disseminate confidential information. These Facebook communications were said to disclose confidential information relating to prisoner details and operational plans. The information was said to have been disclosed to a Ms Marton , a WAPOU official.

[17] At the commencement of proceedings on 11 June, Mr Millman made an application to exclude evidence adduced by Serco and annexed to the statement of Mr Shane Merington. The evidence concerned a number of private Facebook conversations between Ms Fallens and other persons. Serco sought to rely upon these Facebook conversations to establish Allegation 3. Mr Millman contended that these Facebook conversations were improperly and/or illegally obtained without the consent of Ms Fallens. 26 Mr Millman relied upon s.440A of the Criminal Code Act Compilation Act 1913 (WA)27 (CCA Act) which prescribes it as unlawful to gain access to a computer without appropriate authorisation. Access to Ms Fallens’ computer and her Facebook page had been obtained by her estranged and clearly aggrieved husband. That material was provided to Serco by Mr Fallens.

[18] Mr Merington, Manager Investigations-Justice West, Mr Dixon, a Manager at Serco Immigration, and Ms Fallens were called to give evidence as to how the Facebook conversations were obtained. Ms Fallens gave evidence that her Facebook account was password protected. 28 In his witness statement Mr Merington stated:

“In our meeting Mr Fallens told me (sic) had accessed the Applicant's Facebook account on their shared personal computer in the course of looking for evidence of an affair. We also discussed conversation Mr Fallens had with the Applicant regarding a letter that had been leaked to the media in November 2013.” 29

[19] Evidence given by Mr Dixon further supported Mr Merington’s version of events. Mr Dixon stated that he had been supplied with the Facebook conversations by Ms Fallens’ ex-husband and that he had made no inquiry as to how they were obtained. 30

[20] I was satisfied that access to Ms Fallens’ computer was undertaken for the purpose of gaining a benefit and causing a detriment. I was satisfied on the balance of probabilities that the private Facebook conversations were obtained in breach of the CCA Act by Mr Fallens and subsequently handed to Serco. If I am in error in this respect regarding Mr Fallens’ access I am also satisfied that the access was inappropriate, given the state of matrimonial affairs between Mr and Ms Fallens, and that acceptance of the material by Serco was also inappropriate. Impropriety between spouses involving unauthorised access to and distribution of private documents should be discouraged. The social consequences of such conduct cannot be positive. I did not allow those Facebook conversations to be admitted into evidence. I allowed Mr Kemp to cross-examine Ms Fallens regarding admissions said to be made by her regarding those pages in her interview with Resilience.

[21] The investigative report compiled by Resilience concluded the following:

“The face book (sic) communication referred to in this allegation was initiated by Fallens and agreed to by Marton therefore it does not appear pheasable (Sic) that it was Fallens who changed her mind regarding the dissemination of the document. The respondent came up with this version for the first time during the interview and only following probing questioning.

As previously discussed in other allegation material the respondent maintains that she had limited training in security and confidentiality of prison documents however on this occasion was aware that the dissemination of this particular item would be in breach of policy. Of concern is that Marton in her interview stated that prisoner information is an example of information that should not be provided to WAPOU however in the face (sic) book exchange she never indicated to the respondent that this was the case and further only advised the respondent to be careful and not get caught.
The communication mentions that 'Paul' was interested in a specific criminal, although Paul has not been identified I believe, without prejudice, as a result of allegation 1 and the use of the information by the shadow government that this person referred to is the shadow corrective services minister Mr Paul Papalia.

Resilience found the respondent to be unreliable and lacking credibility in her answers regarding this event and conclude that allegation 3 is supported.” 31

(my emphasis)

[22] In cross-examination by Mr Kemp, Ms Fallens gave evidence that she recalled Facebook conversations with Ms Marton and Mr Hanlon but could recall nothing whatever about the content of those conversations . 32

Allegation 4:

[23] The fourth allegation of misconduct concerned the alleged unauthorised removal by Ms Fallens of several allegedly confidential documents from Acacia Prison. In relation to this allegation, Resilience concluded;

“Based on the evidence provided and the credibility of the witnesses involved Resilience conclude, on a balance of probability, that the documents in question were removed by or delivered to the respondent and placed into the filing cabinet by her knowing that the removal from the workplace and possession of these documents was in breach of her employers policies and procedures. This allegation is supported.” 33

(my emphasis)

[24] Mr Merington gave evidence in relation to Allegation 4 as follows:

“Mr Fallens told me that the Applicant was no longer living with him but had left items, including a filing cabinet that contained “Acacia stuff”. When I requested further information on what type of Acacia stuff he showed me to the filing cabinet and opened it.

I saw in the filing cabinet a number of documents which the Applicant should not have had in her possession without permission, including details of the Acacia Prison extension and a Security Information Report. Copies of the (Sic) these documents appears at tab 27 of the respondent’s documents, in annexure D of the final Report.” 34

[25] Ms Fallens claimed that two of the documents found by Mr Merington in the filing cabinet were unknown to her. 35 Ms Fallens denied knowledge of the security information reports36 and a diagram of proposed additions to Acacia prison.37 Ms Fallens acknowledged possessing the remainder of the documents within the filing cabinet, claiming that she was authorised to possess these documents in her capacity as a union delegate.38 Furthermore, in a statement submitted by Ms Fallens at the disciplinary hearing, she claimed that the filing cabinet was not locked and that she had not had access to it since before Christmas in 2013.39 Under cross-examination, Ms Fallens could not suggest any other person who may have had access to the filing cabinet in her absence.40 It was clear that Mr Fallens had access.

[26] In relation to the allegations against Ms Fallens, Serco relied on the conclusions in the report produced by Resilience to terminate the employment of Ms Fallens. I have therefore set out my findings in response to the findings of Resilience on which Serco relied.

Regarding Allegation 1

[27] Resilience concluded that Ben Maclean had stolen the relevant document and that Ms Fallens was complicit, with Miss Marton, in handing the document to the media. It is not necessary for me to deal with Resilience’s conclusion regarding Mr Maclean. Even if I accept Serco’s conclusion regarding Mr Maclean, the only relevant evidence is that three people met and had coffee in a shopping centre. I am not satisfied that this amounts to any evidence on which Resilience’s conclusion regarding Ms Fallens’ complicity in handing over the relevant document could be safely based. Witnesses who might have provided supportive evidence were not called. Although Mr Maclean is a current employee of Serco he did not give evidence. I am not satisfied that the alleged conversation between Mr Brampton and Ms Fallens added anything to the evidence against Ms Fallens. If anything, that conversation is at odds with the allegation. I am not satisfied that Ms Fallens had the relevant document. I am not satisfied that Ms Fallens gave the relevant document to anybody or was complicit in a conspiracy to do so. The fact that Ms Fallens may have commenced an intimate relationship with Mr Maclean at some time is in my opinion relevant. In relation to this allegation I am satisfied and find that there was not a valid reason for the termination of Ms Fallens’ employment.

[28] Resilience also concluded that, based on her interview, Ms Fallens failed to understand and appreciate the wider implications of security related breaches. I will deal with this conclusion later in this decision.

Regarding Allegation 2

[29] I am not satisfied that Ms Fallens was made aware that she should no longer access SIRS. Her evidence was that she was authorised to access the system to keep up-to-date, was not contradicted by any evidence from Miss Woodiwiss who was not called to give evidence. I have a secondhand conversation reported on by Mr Brampton. Resilience based its finding on conclusions not established by the facts and then concluded “It is difficult to believe” et cetera. I cannot be satisfied that Ms Fallens knew that she should not access SIRS. Given this finding I cannot be satisfied that Ms Fallens’ access to SIRS, following her period of service in the intelligence area, was a valid reason for termination of her employment. Had this been a serious issue, amounting to a valid reason for the termination of Ms Fallens’ employment, I am persuaded that Serco would have dealt with any alleged inappropriate access promptly. Even had it been established that Ms Fallens’ access to SIRS was restricted and she knew it to be so, Serco’s delay does not support the proposition that this conduct would have been considered by Serco to be a valid reason for termination of employment by itself or in conjunction with any other issue of conduct.

Regarding Allegation 3

[30] Ms Fallens was questioned by Mr Kemp concerning Facebook messages. I did not accept the applicant’s evidence regarding these conversations. I did not believe that Ms Fallens could recall nothing concerning the content of the Facebook conversations she had with Ms Marton and Mr Hanlon. Those conversations had been the subject of controversy between Serco and Ms Fallens for some time. Her representative had obtained instructions and had sought to have them excluded. Her absence of any recollection was unconvincing. I formed an adverse view of her credibility in this regard. I am satisfied that Ms Fallens recalled those conversations, gave false evidence that she did not do so and gave that evidence because truthful answers would not have assisted her. I note that Ms Marton was not called to give evidence.

Regarding Allegation 4

[31] On the evidence before me I was satisfied that that there was no reason to criticise Ms Fallens’ possession of the bullying report, the aerial photograph or the map of the prison. As a general rule, documents involving a security issue should be maintained safely, and preferably within the prison. However, access to these documents was brought about by the deliberate actions of Ms Fallens’ disgruntled ex-husband. He was not called to give evidence. The provenance of these documents cannot be confirmed. Interference by Mr Fallens is possible. It was apparent that Ms Fallens had not had access to the filing cabinet for some time and that by reporting the presence of the documents to Serco Mr Fallens was intending to cause harm to her and bring to an end her employment.

[32] In these circumstances I am not persuaded that any reliance can be placed on documents in a filing cabinet to which Ms Fallens had not had recent access and which were in the possession of her disgruntled ex-husband. In relation to the filing cabinet remaining in an insecure location Serco could justly criticise the applicant. However, I am not satisfied that this circumstance amounted to a valid reason for the termination of Ms Fallens’ employment either considered on its own or in conjunction with Allegation 3.

Notification of reason – s 387(b)

[33] I am satisfied that Ms Fallens was aware of the investigation into the allegations of misconduct made against her. The allegations were put to Ms Fallens in writing on 14 April 2014 and again on 22 August 2014. 41 In a letter dated 28 May 2014,42 Serco suspended Ms Fallens from duty and notified her of the reasons for that suspension. On 4 June 2014 a dispute notification was lodged on behalf of Ms Fallens, pursuant to s.739 of the Act, arising from Serco’s conduct of its investigation into the allegations.43 That dispute was ultimately resolved by Serco appointing Resilience as the independent investigator.44 I am satisfied that Serco engaged in a comprehensive investigative process. Ms Fallens was interviewed extensively throughout that process and was aware of the allegations made against her.

Opportunity to Respond – s.387(c)

[34] Ms Fallens was invited to respond to the allegations by letter from Serco dated 1 May 2014.⁴⁵ Ms Fallens responded to Serco on 7 May 2014.⁴⁶ Ms Fallens was also given an opportunity to respond to the allegations at the disciplinary hearing on 28 November 2014. I am satisfied that Ms Fallens was given ample opportunity to respond to the allegations of her misconduct.

Support Person – s.387(d)

[35] Ms Fallens engaged a legal representative from very early on in the investigative process. Ms Fallens had the benefit of support from her industrial organisation. It is an agreed fact that Ms Sophie Van Der Merwe attended the disciplinary meeting on 28 November 2014 as a support person for Ms Fallens. 47

Unsatisfactory Performance – s.387(e)

[36] Unsatisfactory performance was not alleged. Ms Fallens’ employment was terminated for alleged serious misconduct. Ms Fallens submitted that she had previously had a ‘good history of faithful service’ 48 to Serco and there was nothing that arose from Serco’s evidence to indicate the contrary.

Procedures for implementing Dismissal – s.387(f) and (g)

[37] It was alleged by Ms Fallens that Serco had denied her procedural fairness. Mr Millman framed this submission as follows;

“The main source of allegations against the Applicant and material in support of those
allegations was the Applicant's estranged former husband. On numerous occasions the
Applicant, and through her solicitors warned the respondent of the danger implicit in relying on the evidence of such an unsatisfactory witness. Despite these repeated warnings, the respondent relied on that evidence, and declined the opportunity to obtain alternative probative evidence from a relevant witness (on the basis of spurious health and safety concerns). There is no direct, probative or corroborated evidence that the Applicant engaged in the conduct alleged.

Additionally, the Respondent denied the applicant procedural fairness, in particular by having the matter investigated by a party that had a commercial relationship with the Respondent, by having that investigation influenced by the earlier flawed investigation, by failing to provide the investigation report to the Applicant, and by failing to provide the Applicant with a proper opportunity to be heard. Had the respondent afforded the Applicant procedural fairness, it is likely that the respondent (with an unbiased mind) would have formed an alternative conclusion, namely that the Applicant was not guilty of the conduct alleged.” 49

[38] Mr Merington gave evidence that he had conducted the initial investigation into the allegations against Ms Fallens in accordance with the Misconduct Investigation Procedures Policy, a policy issued by the Department of Corrective Services. 50 Mr Lawrence, Director of Resilience, gave evidence as to how Resilience assumed control of the second investigation in the following manner:

“Mr Farrell was initially my primary contact at Serco for this matter. He left during the
investigation and was replaced by Mr Robbie Potter.

After meeting with Mr Farrell, he emailed me a variety of documents relevant to our investigation into the Applicant, including a Facebook transcript and confidential documents that had been found at the Applicant’s home.

Mr Farrell also sent me some of the documents from the first investigation that had been produced by Serco’s investigator, Mr Shane Merington. These included recordings of interviews and the final report. While Resilience used Mr Merington’s materials (sic) get some understanding of what was to be investigated, we did not use them to frame our allegations or rely on them when coming to our final conclusions.” 51

[39] Mr Lawrence explained how the investigation was conducted by Resilience;

“After reviewing the materials Serco had provided to us Mr Bone and I took a number of witness statements from people.

I confirm that the facts recorded in the written statements we took are an accurate reflection of what was said and were included in our final Report.

Mr Bone was responsible for taking the statement of Mr James Fallens and met or corresponded with him on more than one occasion.

There were some potential witnesses we were unable to interview. Resilience attempted to contact Mr Ben McLean to take a statement on several occasions but he never got back to us.

I also spoke with Mr Stephen Farrell about interviewing a Serco employee by the name of Mr Joseph Herron who was raised as a potential witness for one of the allegations. Mr Farrell informed me that Mr Herron was absent from work due to a work related mental illness and as such I chose not to contact Mr Herron.” 52

[40] Mr Lawrence explained that he did not find Ms Fallens to be a truthful or reliable witness and he did not find her explanations plausible. 53

[41] I am satisfied that Serco attempted to engage in a competent, fair and transparent investigative process. There is no reason to find that the report compiled by Resilience was flawed or biased because of any commercial connection. Serco went to some expense to engage a third party. However, an employer cannot outsource its responsibility to determine issues related to the termination of employment of its employees.

Any other Relevant matters – s.387(h)

[42] I note Ms Fallens’ period of employment as a prison officer in excess of seven years. I have considered the financial and social consequences to Ms Fallens of the termination of her employment. I have considered the manner in which the materials on which Serco relied were brought to its attention.

Conclusion

[43] Serco argued that the four breaches caused serious safety risks to other Acacia employees, prisoners and the general public. 54 I am not satisfied that Ms Fallens’ conduct was of the kind likely to cause such risks. I am not satisfied that the actions of Ms Fallens caused ‘serious reputational damage and risk to the profitability of Serco’s business’.55

[44] Resilience concluded that, based on her interview, Ms Fallens failed to understand and appreciate the wider implications of security related breaches. Having considered Ms Fallens’ evidence I think there is merit in this conclusion.

[45] After considering all of the material before me I am not satisfied that there was a valid reason for the summary dismissal of Ms Fallens for serious misconduct. Summary dismissal was a disproportionate response to the misconduct which I am satisfied occurred and I am therefore satisfied and find that the summary dismissal of Ms Fallens for misconduct was harsh, unjust or unreasonable.

[46] However, I am satisfied that there was sufficient material on which Serco could determine that there was a valid reason for the termination of Ms Fallens’ employment with notice. Whilst the conduct, which I am satisfied occurred, was not of the kind sufficient to justify summary dismissal, I am satisfied that Resilience’s conclusion that Ms Fallens failed to understand security related matters and was not a person of honesty and integrity was justified. Given the circumstances, and the industry in which Serco operates, I am satisfied that the termination of Ms Fallens’ employment with notice would not have been harsh, unjust or unreasonable. I am therefore satisfied that the remedy of reinstatement would be inappropriate.

[47] By way of compensation, having considered s.392(2) of the Act, I order that Serco pay to Ms Fallens, within seven days, by way of compensation, an amount equal to the quantum of notice that would have been properly paid to her had her employment been terminated with notice. On the basis of my finding that there was no justification for a finding of serious misconduct as the reason for Ms Fallens’ termination of employment, her accrued long service leave should also be paid within seven days. Both amounts should be paid with interest.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S. Millman of Slater and Gordon Lawyers, for the Applicant.

Mr S. Kemp of Jackson McDonald Lawyers, for Serco.

Hearing details:

2015.

Perth

11, 30 June and 2 July.

 1 Exhibit Applicant 1 at [4].

 2   Exhibit Applicant 1 [37] – [40].

 3 Exhibit Applicant 1 at [44].

 4   Exhibit Applicant 5

 5   Respondent Outline of Submissions (not marked) at [2]

 6   Employer Response Form at 3.1

 7   Employer Response Form at 3.1

 8   Applicant’s Outline of Submissions at [3] –[4].

 9 Applicant’s Outline of Submissions at [4].

 10 Applicant’s Outlines of Submissions at [5].

 11   Transcript PN456.

 12   Exhibit Respondent 8 at [page 19]

 13   Exhibit Applicant 4

 14   PN694

 15   PN755

 16   PN661

 17   Exhibit Respondent 15 at [6] – [7]

 18   PN2813

 19   PN2806 – 2809.

 20   Exhibit Respondent 8 at [page 26]

 21   PN457

 22   Exhibit Applicant 1 at [6] – [8]

 23   PN794 – PN804

 24   Exhibit Respondent 15 at [17] – [18].

 25   PN2775- 2776.

 26   Transcript PN193 – PN196 and PN201 – PN212

 27   Exhibit Applicant 2

 28   Transcript PN232

 29   Exhibit Respondent 1 at [10]

 30   Transcript PN413 -417

 31   Exhibit Respondent 8 at [page 29]

 32   PN845, PN884 – PN909

 33   Exhibit Respondent 8 at [page 37].

 34 Exhibit Respondent 1 at [ 11] – [12].

 35   PN461

 36   PN996 -998

 37   PN1003 – 1006.

 38   PN461

 39   Exhibit Applicant 6 at [5]

 40   PN1025 – 1027.

 41   Exhibit Applicant 5

 42   Exhibit Applicant 9

 43   Exhibit Applicant 1 at [22] – [25]

 44   Ibid.

45 Exhibit Applicant 5

46 Exhibit Applicant 6

 47 Exhibit Applicant 1 at [33].

 48 Applicant’s Submissions at [19].

 49   Applicant’s Submissions at [16] and [17].

 50 Exhibit Respondent 1 at [15].

 51   Exhibit Respondent 14 at [5] – [7].

 52   Exhibit Respondent 14 at [10] – [14].

 53 Exhibit Respondent 14 at [23].

 54   Employer Response Form at 3.1

 55   Employer Response Form at 3.1

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