Natasha Markovska v Serco Australia Pty Ltd

[2016] FWC 2879

[2016] FWC 2879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natasha Markovska
v
Serco Australia Pty Ltd
(U2016/3574)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 3 JUNE 2016

Application for relief from unfair dismissal – no valid reason – dismissal harsh and unreasonable in the circumstances – dismissal unfair – reinstatement not appropriate – compensation ordered.

[1] Ms Natasha Markovska has applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against her former employer, Serco Australia Pty Ltd (Serco).

The hearing

[2] This matter was heard on 5 and 6 May 2016. At the hearing, Ms Markovska was represented by Mr Pararajasingham of United Voice. Australia. Serco was represented by Mr Fernon SC and Ms Hurley-Smith, solicitor.

[3] Ms Markovska tendered:

• her own witness statement; 1

copies of various job applications she has made since her dismissal; 2 and

• a witness statement of her former colleague, Mr Edward Hyde. 3

[4] Serco tendered:

• a witness statement of Mr Andrew Ford, employed by Serco as General Manager of the Christmas Island Immigration Detention Centre (CIIDC) it operates; 4



• photographs and written material relating to a warning it gave Ms Markovska in 2011; 5

a witness statement of Mr Anthony Voss, employed by Serco as Regional Manager East, Villawood Immigration Detention Facility; 6 and

a witness statement of Ms Denise Alexander, employed by Serco as Centre Manager of CIIDC at the time Ms Markovska was dismissed. 7

[5] All witnesses were cross-examined.

Background

[6] Ms Markovska worked for Serco for just over six years as a detention services officer (DSO). She was based at the immigration detention centre that Serco operates in Villawood, New South Wales. However, immediately before her dismissal took effect, Ms Markovska was on a secondment to CIIDC.

[7] On 21 December 2015, Serco gave Ms Markovska a letter terminating her employment. 8 The letter relevantly provided:

‘… the decision has been made to terminate your employment with Serco Group Pty Ltd effective 22 December 2015 as a result of you having been found to be grossly negligent in the conduct of your duties whilst on secondment on Christmas Island on 27 and 29 November 2015.

This decision has been made after consideration was given to the written response provided by you to the interim findings of the investigation. A further opportunity on 14 December 2015 for Show Cause regarding the findings against you; and your written response and feedback to these findings provided on 16 December 2015.

Taking into consideration all of your feedback and representations, the finding that you were grossly negligent in your duties relies upon the following:

• you left your post without authority and went into the medical treatment room on 27 November 2015 for a period of 53min from 4:27am to 5:20am. This is a failure in your duty of care to detainees; and



• you left your post without authority and went into the medical treatment room on 29 November 2015 for a period of 79min from 3:23am to 4:42am.’

[8] The closed-circuit television (CCTV) footage in evidence shows Ms Markovska entering the medical treatment room at 7:21 pm on 26 November 2015 as well. She looked around the room, including up at the corners of the ceiling. She then moved a stretcher into a corner of the room and pulled a curtain, which appears to be suspended from the ceiling, around it. She moved some other furniture around and then left the room, spending less than five minutes in there altogether. I do not accept Ms Markovska’s evidence that she was simply tidying the room. Rather, I think her actions are consistent with an intention to create a place to sit or lie down that was obscured from the view of the CCTV camera.

[9] The footage tendered further demonstrates that two male employees entered the medical treatment room at separate times on 29 November 2015, one while Ms Markovska was in the room. While this appears to have coloured the investigation at least initially, 9 it did not form part of the reasons for dismissal outlined in the letter of termination. I accept Ms Alexander’s evidence that ultimately, the issue precipitating Ms Markovska’s dismissal was the fact that she had gone ‘off-post’ for longer than permitted and without notifying the two other DSOs who were working the same shift, not directly where she was or what she was doing during that time.10 I therefore do not think it is necessary to make any findings about whether Ms Markovska had arranged to meet other employees in the room and whether they engaged in any inappropriate activity while in there.

[10] Ms Markovska did not at any point deny that she was in the medical treatment room and not performing duties during the two periods referred to in the letter of termination. Nor did she submit that her actions were entirely acceptable. She had apologised during the investigation process for being away longer than intended. 11 However, she submitted that on both occasions, she was taking a break while things were quiet at the centre and simply lost track of the time.12 I accept her evidence that both on 27 and 29 November 2015, she was coming close to the end of a 12-hour shift and had not had a proper break to that point.

[11] The Serco Immigration Services Enterprise Agreement 2015 13(the Agreement) applied to Ms Markovska’s employment. Clause 24 relevantly provides:

‘24. Breaks

(a) A detention service Employee and a detention support worker are entitled to a paid meal break of not less than half an hour. A cleaning or catering Employee who works an eight hour shift will receive a paid meal break of not less than 20 minutes. Such meal breaks must commence no more than 6 hours after the commencement of a shift. A meal break roster will be developed at each Centre. Such break would only be interrupted in an emergency or other pressing circumstance. The Company will provide a dedicated meal area with cooking and refrigeration appliances at each Centre for the sole use of staff who are on breaks.

(b) An Employee is entitled to a 10 minute rest break in the first half of each shift at a time to be nominated by the Company for a rest break. Such breaks will be without deduction of pay if taken at the workplace or other place nominated by the Company. However, if engaged to work for a period of 4 hours or less, the Employee shall not be entitled to the benefit of this clause. If an Employee is required to work more than two hours overtime after the completion of the Employee's rostered hours, the Employee must be given an additional 20 minute paid break.’

[12] Ms Markovska submitted that the Agreement entitles her to a total of 40 minutes of break time for each of her shifts on 27 and 29 November 2015. Serco conceded this was correct. 14 She argued, therefore, that during those shifts, she was (only) away for 13 and 39 minutes longer than she was entitled to be respectively.

[13] Both Ms Markovska and Mr Hyde gave evidence that, despite the provisions of clause 24 of the Agreement, there was no roster for breaks at CIIDC. Rather, DSOs at CIIDC took breaks whenever they could, and were often too busy to take a break at all. 15 This part of their evidence was not disputed by Serco.

[14] Clause 19(a) of the Agreement was also discussed during the hearing. This clause provides that employees who are required to take a meal break at their post will either be provided with a meal or paid a meal allowance. In my opinion, it does not follow that employees who take their breaks other than at their post are acting inconsistently with the Agreement or otherwise doing anything wrong. It simply countenances the possibility that there will be times where they will be directed to take their breaks at a particular location. In any case, there is no evidence to suggest that Ms Markovska (or indeed, other DSOs at CIIDC) was so directed at the relevant times.

[15] The relevant facts in this matter are largely uncontested. It is in relation to the severity of Ms Markovska’s misconduct and the appropriate recourse by Serco that the parties differ. The question at the heart of this application is whether Ms Markovska’s decision to autonomously schedule herself breaks that ended up lasting 53 minutes and 79 minutes warranted dismissal in the circumstances.

Consideration

[16] It is not in dispute that Ms Markovska is a person protected from unfair dismissal. 16 I am satisfied that she is so protected.

[17] Section 385 of the Act provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[18] Section 385(a) of the Act is satisfied. It is not in dispute that Ms Markovska has been dismissed.

[19] Section 385(c) of the Act does not apply in this case, as Serco is not a small business.

[20] Section 385(d) of the Act is satisfied. Neither party contended that Ms Markovska had been made redundant.

[21] I must therefore consider whether Ms Markovska’s dismissal was harsh, unjust or unreasonable. Section 387 of the Act provides:

‘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.’

Valid reason: s.387(a)

[22] While no one disputed that Ms Markovska’s actions constituted misconduct, they must be seen in light of the lack of structure and clarity around when DSOs could take breaks and the proper procedure to be followed when taking one (e.g. whom to notify, whether permission ought to be sought, etc.) The evidence is that while in theory, the Facilities Operation Manager at each centre was to determine when operational requirements permitted DSOs to take a break, in reality DSOs had considerable autonomy and used their discretion as to when they would take breaks. My impression is that Serco did not object to this practice, at least not at CIIDC. Nor did it really challenge Ms Markovska and Mr Hyde’s evidence about this at the hearing. Under those circumstances, I think her actions do not constitute a valid reason for dismissal. This weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[23] I am satisfied that Ms Markovska was notified of the actions with which Serco took issue. Serco’s procedures in investigating her misconduct were adequate. I do not accept the submission made on Ms Markovska’s behalf that Serco ‘chopped and changed’ the allegations to which it required her to respond so as to obscure or confuse the case she was required to meet:

‘… integers that appeared to be abandoned re-emerged down the line, or integers that didn't appear at the start would re-emerge down the line or be brought in a different light.’

[24] Neither the fact that the terms of reference Mr Ford received for the investigation were broad nor the fact that Serco ended up only substantiating and relying on some of the allegations initially put to her means that the notification was deficient.

[25] I am further satisfied that Ms Markovska was given an opportunity to respond to the reason Serco ultimately terminated her employment. Ms Markovska had five meetings with various levels of Serco management in the lead-up to her dismissal and the evidence indicates she was able to provide a response (whether verbal or written) at all five. Her written responses are in evidence. 17

Unreasonable refusal of support person: s.387(d)

[26] This was not put in issue. Ms Markovska was accompanied by a support person in the meetings on 4, 7, 14 and 23 December.

Warnings about unsatisfactory performance: s.387(e)

[27] This factor is not applicable to Ms Markovska’s application. Section 387(e) is directed to situations in which an employee is dismissed for lacking the capacity to do his or her job. Ms Markovska was dismissed for misconduct, not poor performance.

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[28] Serco is a large enterprise with dedicated human resource staff, some of whom were involved in the investigation that ultimately led to her dismissal.

Other relevant matters: s.387(h)

[29] While Ms Markovska worked for Serco for over six years, that service was not unblemished. She received warnings in 2014 and in 2011. Ms Markovska contended that the warnings she had previously received were unjustified, but I do not think this is entirely correct. In relation to the warnings received in 2014 for not attending for rostered shifts, I do not consider that I have sufficient information to make a finding. However, in relation to the warning she received in 2011 for not reporting that a detainee had a mobile telephone (which was prohibited at the time), I find her explanation that she did not think it was a real, working mobile telephone implausible. The photographs taken using that mobile telephone were in evidence. They clearly show that Ms Markovska posed for them, and it also appears very likely from the composition of the photographs that they were taken using a flash.

[30] I also consider it relevant that Serco was seemingly in breach of its own enterprise agreement by failing to provide a meal break roster. Nor did it clearly communicate to its employees the appropriate practice for taking breaks in the absence of such a roster.

Was the dismissal harsh, unjust or unreasonable?

[31] Balancing all of the considerations above, I consider that Ms Markovska’s dismissal was harsh and unreasonable. Serco’s response to her misconduct was disproportionate in the circumstances.

Remedy

[32] Having found that Ms Markovska was unfairly dismissed, I must consider what remedy to order, if any.

[33] Ms Markovska seeks reinstatement. This is despite her having obtained a new job that she expects will provide her with 38 hours of work a week from 23 May 2016. Ms Markovska did not indicate that she would resign from that new job if she were to be reinstated. Rather, her evidence was that several of Serco’s employees had more than one job and that she proposed to similarly manage both her roles.

[34] I do not consider reinstatement to be appropriate. Besides the practical difficulties of juggling two jobs which can reasonably be expected to offer significant workloads, I also consider that Serco has justifiably lost trust and confidence in Ms Markovska. Her behaviour during the investigation was sometimes evasive and her answers during cross-examination were occasionally inconsistent and not entirely candid. This includes her explanation of her actions when she entered the medical treatment room on 26 November 2015.

[35] I therefore turn to consider compensation. Section 392 of the Act provides:

‘392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.’

Effect on viability of employer’s enterprise: s.392(2)(a)

[36] Serco is a large enterprise. I do not think an order of compensation would adversely affect its viability. Serco did not make any submissions in this regard.

Length of service: s.392(2)(b)

[37] As indicated at paragraph [29] above, Ms Markovska’s service was reasonably long, but not unblemished.

Remuneration if not dismissed: s.392(2)(c)

[38] Had Ms Markovska not been dismissed, I think it is likely she would have remained working for Serco for at least a further 12 months.

Efforts to mitigate loss: s.392(2)(d)

[39] I am satisfied that Ms Markovska has made considerable efforts to find work since her employment with Serco ceased. Copies of several job applications she has made were in evidence. 18

Remuneration earned between dismissal and order: s.392(2)(e)

[40] As discussed at paragraph [33], Ms Markovska has now obtained another job. However, that did not commence until 23 May 2016. She was therefore without work or remuneration for some five months.

Amount likely to be earned between order and payment of compensation: s.392(2)(f)

[41] The evidence before me suggests that Ms Markovska would be working the equivalent of full-time hours at her new job during the period between the making of any order and payment.

Other matters: s.392(2)(g)

[42] I do not consider that there are any other matters relevant to the determination of an amount of compensation.

Misconduct reduces amount: s.392(3)

[43] Ms Markovska’s actions fall short of what would warrant dismissal, but should not be condoned. It is appropriate that I reduce the amount of compensation by two months’ pay to reflect this.

[44] Taking all of the above into consideration, compensation of three months’ pay is appropriate.

Conclusion

[45] Ms Markovska was unfairly dismissed. I order that Serco should pay Ms Markovska compensation of three months’ pay, plus superannuation, less applicable taxation. An order to this effect will issue concurrently with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

H Pararajasingham for Natasha Markovska.

J Fernon SCwith M Hurley-Smith, solicitor, for Serco Australia Pty Ltd.

Hearing details:

Sydney.

2016.

May 5, 6.

 1   Exhibit M1.

 2   Exhibit M2.

 3   Exhibit M3.

 4   Exhibit S1.

 5   Exhibit S2.

 6   Exhibit S3.

 7   Exhibit S4.

 8   Exhibit M1 annexure NM1.

 9   PN546-PN590; PN1393-PN1397.

 10   PN1512-PN1516; PN1623-PN1632.

 11   PN503-PN512; PN532.

 12   PN447-PN448; PN500-PN502;

 13   AE415701.

 14   PN1087.

 15   PN267; PN315-PN318; PN812-PN821; exhibit M3 [6]-[10].

 16   Fair Work Act 2009 (Cth) s.382.

 17   Exhibit M1 annexures NM4, NM7.

 18   Exhibit M1 annexure NM8; exhibit M2.

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