Ranulfo Torrefranca v Port Phillip Prison T/A G4S Custodial Services
[2012] FWA 8899
•26 OCTOBER 2012
[2012] FWA 8899 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ranulfo Torrefranca
v
Port Phillip Prison T/A G4S Custodial Services
(U2012/7463)
COMMISSIONER LEE | MELBOURNE, 26 OCTOBER 2012 |
Application for unfair dismissal remedy - whether dismissal is harsh, unjust or unreasonable - Fair Work Act 2009 ss.387, 394.
[1] This decision relates to an application for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) by Mr. R. Torrefranca (the Applicant) in relation to his employment as a Correctional Officer with Port Phillip Prison T/A G4S Custodial Services (the Respondent).
[2] The matter was heard before me on 6 and 7 September 2012. At the hearing, Mr. Dircks was granted permission to appear for the Applicant and Mr. Dewsnap appeared for the Respondent.
Background:
[3] Port Phillip Prison is a maximum security mens facility. According to Mr. Roach, the Director of Custodial Services and Acting General Manager of Port Phillip Prison, the majority of the prisoners have been convicted of serious criminal offences including murder, other acts of violence including armed robbery and sexual assaults, drug offences and dishonesty offences. The Respondent operates the prison on behalf of the State of Victoria.
[4] The Applicant was employed as a Correctional Officer at the prison and had been employed in that role for approximately 15 years. The Applicant was dismissed from his employment without notice on 13 April 2012. The letter of dismissal states that his employment was terminated for serious misconduct. That serious misconduct was related to two incidents that occurred at the Prison. The first incident, which I will refer to as the Prisoner G incident, occurred on 28 February 2012 and the second, which I will refer to as the Prisoner T incident, occurred on 12 March 2012.
THE EVIDENCE:
[5] I will deal with the evidence in respect to the two incidents separately and in the order in which they occurred. A considerable amount of the evidence relates to the personal medical conditions of the two prisoners. It is not possible to provide adequate written reasons without recourse to that evidence. I have therefore determined it appropriate to only refer to the prisoners as prisoners G and T.
[6] The Applicant gave evidence before me on his own behalf. The Director of Custodial Services and Acting General Manager, Mr Roach; Registered Nurse, Ms Paul; Deputy Supervisor, Ms. Dunkley and Clinical and Integration Services Manager, Mr. Oliva, gave evidence for the Respondent.
Incident 1: The Prisoner G incident
[7] On 28 February 2012, Prisoner G was being held in an observation cell in the St. Johns Unit of the Prison. He was due for release the next day. Prisoner G had been classified as an “at risk” prisoner and assigned a rating as an “S1, immediate risk”. Exhibit D3 sets out the relevant Operational Instruction (“Operational Instruction 107”) relating to “at risk” prisoners.
[8] According to the operational instruction, there are four categories of “at risk” prisoner which a prisoner may be deemed ranging from S4 to S1. An S1 is the highest risk category and S4 the lowest. An S1 prisoner is one who has been assessed as being in immediate danger of self-harming or attempting suicide and needing intensive management and support. 1
[9] S1 prisoners are required to be monitored every 4 minutes. All high risk prisoners do not generally receive visitors and they are generally not allowed telephone access. An exception is specifically referred to for contacting a legal representative. If making a legal telephone call, they are required to be closely monitored for the duration of their call. Operational Instruction 107.9.5 requires that;
- whenever a prisoner identified “at risk” is secured in his cell, care should be taken to remove items, which the prisoner might use to harm himself and the prisoner placed in fire retardant clothing that is less likely to be used as a ligature (eg canvas attire) and;
- whenever a prisoner has been unsupervised for anytime when out of their cell, the cell is to be thoroughly searched and, where appropriate, the prisoner strip searched before being placed in the cell again.” 2
“ [W]henever a prisoner is to be placed in an observation cell, the cell is to be thoroughly searched and the prisoner strip searched;
[10] The Operational Instruction contains a further note marked in bold type at the end of that section as follows:
“Note All high risk (S1-Intensive Watch) prisoners who are placed in observation cells are not to be given any personal items-they are only to be provided with canvas attire.” 3
[11] On 28 February 2012, Prisoner G requested a phone call to organise for his family to collect him when he was released the next day. He was allowed to make such a phone call by the supervisor despite the fact this is inconsistent with the policy. According to the Applicant’s evidence, after the phone call, Prisoner G requested soap, towel, toothbrush and toothpaste for personal hygiene and “… I gave them to him”. 4 The Applicant also stated that;
“He then also requested a razor to shave and groom and he promised me that he would not do anything foolish, as he was feeling good and looking forward to his freedom.
In good faith, I gave him the company issued disposable razor, as I firmly believed his assurance that he was going to use it for the purpose he requested it for”. 5
[12] It is not disputed that, within minutes and despite the assurances, Prisoner G had applied the razor to self-harm by cutting his chest. Prisoner G then proceeded to smear his blood on the walls of the cell. Having observed this, the Applicant called on his radio for other staff to assist. The Supervisor and other officers attended, the Prisoner was asked to give back the razor and the Prisoner did so. After Prisoner G was relieved of the razor, his cuts, which were found to be “superficial”, were treated by medical staff. 6
[13] The Applicant conceded when giving evidence that it was a mistake to give the prisoner the razor 7, and that he should not have given the personal effects to Prisoner G.
[14] The Applicant also conceded that he knew that the prisoner was on S1 watch on the day the incident occurred 8; that he had worked at the St. Johns Unit for approximately two years9; that he had looked after a lot of S1 prisoners10; and that correctional officers cannot downgrade the risk assessment of a prisoner.11
[15] It was agreed by both representatives that the Applicant was aware of and knew the contents of the Operational Instruction procedure 107.9.4 “Observation of ‘At Risk’ Prisoners” and its contents. 12 It was also agreed that the Applicant had undertaken Suicide and Self Harm (SASH) prevention training and emergency ordinance as part of his initial training as a correctional officer in 1997. He then participated in refresher SASH training on 27 June 2007.13
Incident 2: The Prisoner T Incident
[16] The second incident occurred in the evening at the St. Johns Unit on 12 March 2012 and involved Prisoner T. The alleged serious misconduct relates to the failure of the Applicant to call a “Code Blue” alarm in response to the incident. The key evidence on this matter is that of Ms. Paul, Ms. Dunkley and the Applicant. In many respects, their evidence is consistent as to what happened on the night in question but there are differences on relevant matters.
[17] Prisoner T was in cell 10. The Applicant was the correctional officer on duty that night. Ms. Paul was working the night shift in the St. Johns Unit Ward.
[18] Ms. Paul is a registered nurse who has worked at Port Phillip Prison since 2006. Ms. Paul is in fact employed by St. Vincent’s Hospital who in turn provides medical services to the Prison. One of the roles of the nursing team is to periodically check on the patients throughout the night to assess their well being and to provide medical assistance if the need arises.
[19] Ms. Paul set out her recollection of the incident of 12 March 2012 at paragraphs 7 to 14 of her witness statement. The Applicant’s evidence on the incident is set out in his witness statement from paragraphs 60 to 90. Ms. Dunkley’s evidence of the incident is at paragraphs 3 to 14 of her witness statement.
[20] The Applicant stated that when he started his shift that night, Prisoner T was yelling abusive remarks and making loud noises. The Applicant asked Prisoner T what his problem was and he responded that he did not have his prescribed medication. The Applicant claims that Prisoner T said he could not control his behaviour and that he would be awake all night. On two further occasions, the Applicant spoke to Prisoner T about the amount of noise he was making. He found the prisoner at 22:00 Hours “talking and abusing at the wall”. 14
[21] Ms. Pauls evidence is that at around 22:40 hours on the night, she was undertaking a routine check of prisoners and checked the cell of Prisoner T. Initially she looked through the spy glass and then through the “trap door” into the cell whereupon she observed the Prisoner “…with wires in his hand and what appeared to be a metal plate, which had been removed from the wall.” 15 It was not clear to Ms. Paul what the wires were but her immediate thought was that the patient was attempting to electrocute himself.16
[22] Ms. Paul stated that after she observed the patient, she called to the Applicant who was sitting at the station desk some distance from the cell. She stated, “I turned and called out to [the Applicant] with an alarmed tone that the patient had electrical wires in his hands that he had taken out of the wall. I cannot recall the exact words I used”. 17
[23] On the day of the hearing Ms. Paul claimed that she also asked the Applicant to call for other staff or words to that effect. However, this claim was not in her witness statement and she was not consistent in her evidence on this point.
[24] The Applicant, broadly consistent with this evidence, stated that “About 2245H during the normal night nurse inspection, the night duty nurse [Ms] Paul “screamed” saying that the prisoner was pulling out the electrical power cord.” 18
[25] The evidence of Ms. Paul was that after she called out to the Applicant he walked unhurriedly over to the cell and that he did not seem very alarmed. The Applicant stated that he went to look at cell 10 through the trap to assess the situation and found that all the electrical cords were intact.
[26] During this time, Ms. Paul had formed the view that the Applicant did not know how urgent the situation was and felt he was not doing anything about it to help her. She therefore determined she would take action herself. She “rushed” to the officer’s station and called the duty supervisor for that night, Ms. Dunkley directly. She informed Ms. Dunkley of the situation and that assistance was urgently required. Ms. Paul couldn’t give a reason for not calling a “Code Blue” herself but stated that she knew Ms Dunkley was the night supervisor in charge and she was confident she would deal with the incident swiftly. Ms. Dunkley having received the call from Ms. Paul activated a “Code Blue” response herself immediately.
[27] Ms. Dunkley attended the scene with other officers within a short time and removed the prisoner to another cell. There was contradictory evidence between Ms. Dunkley and the Applicant as to whether the Applicant opened the door of the cell for Ms. Dunkley and the other officers. Ms. Dunkley, having observed the situation when she arrived queried why a “Code Blue” had not been called. She maintains that a “Code Blue” should have been called in the circumstances.
[28] Mr. Roach gave evidence on the various codes that can be called in response to various situations at the Prison. Mr. Roach stated;
“…if any prison officer is dealing with an issue they have the ability in terms of their incident response to call first response. That means there are a dedicated group of officers that are rostered on that day or that night that are available and earmarked to respond to emergency situations. The process is for the officer to push a button on their radio, which is a duress button, and call first response with the location and what the code is.” 19
[29] The “Code Blue” instruction says, “An officer requiring assistance or observing an officer requiring assistance shall: Call a Code Blue, identify the location”. 20
[30] There are other colours of alarms that can be called such as red or aqua, that apply to other events. However, in this matter there was not a suggestion that some other colour code should have been called. The key issue is whether or not a “Code Blue” should have been called in the circumstances of in the incident involving Prisoner T.
[31] The Applicant’s evidence was that there was no need for a “Code Blue” to be called in the circumstances. 21 The Applicant’s position is based on the fact that the relevant wire was an intercom wire that was inactive, not a “live” wire; there was nothing to suggest the prisoner was harmed; the prisoner was locked in his cell with no contact with other staff and that Ms Paul could have called a “Code Blue” but did not and chose to call the supervisor.22
Consideration: Should a “Code Blue” have been called by the Applicant?
[32] It is common ground that the relevant wires were not “live”. That is, they did not contain any electrical current. However, it is clear on the evidence of Ms. Paul that at the relevant time she did not know that the wires were not live, she didn’t know what they were and assumed that they were live. She therefore quite rightly viewed the situation as urgent and dangerous.
[33] While it appears that the intercom was redundant, it seems that the intercom had been damaged by the prisoner and the damage was not pre-existing. Indeed, when asked why he had damaged the intercom, Prisoner T is said to have replied “the intercom is bugged, I’ve watched get smart, I know you all work for KAOS”. 23
[34] The Applicant’s own evidence is that he realised it was the redundant intercom wiring on the wall, only after Ms. Dunkley arrived when he claims to have let Ms. Dunkley into the cell. Prior to that, through the trap door he could see the electrical cords to the kettle were intact, and he could not see the intercom wires as the prisoner was standing in front of them. There was further evidence from the Applicant that he has spoken to Honeywell “alarm maintenance people” a year previously who had told him the wiring was not live and “that they did not know what this was for”. 24
[35] It appears that on the Applicant’s own version of the evidence, he was faced with a situation where Ms. Paul, an experienced nurse in the prison environment, had screamed that a prisoner was pulling out an electrical power cord. The prisoner had been in a highly agitated state for the duration of the Applicant’s shift prior to the event. After approaching the cell after Ms. Paul had screamed, the Applicant could not see the wires in question.
[36] While I am satisfied that the Applicant’s view of the wires was blocked, I see no reason as to why he should not have accepted the version of events described with some alarm by Ms. Paul at the time and treated the situation as one serious enough to call a “Code Blue” alarm. Not being able to see the entire cell is surely reason to err on the side of caution and accept the concern of Ms. Paul as real rather than form a view that there was not a problem.
[37] The Applicant gave evidence that he entered the cell with Ms. Dunkley when she arrived at the scene. The evidence of Ms. Dunkley was that the Applicant stayed at the officers station during the entire time that she and the other officers attended cell 10 to remove the prisoner. She was clear and credible in her evidence as to who in fact opened the door, as well as her evidence that the Applicant stayed near the nurses station for the duration. I prefer Ms. Dunkley’s evidence.
[38] It follows that even at that point the Applicant would not have been aware as to what the wires in question actually were as he did not enter the cell until sometime after the event was over and the prisoner had been removed to another cell altogether.
[39] Consideration also needs to be given as to the timing of events and whether there was sufficient time for the Applicant to call a “Code Blue”. It is clear on the evidence that there was only a short amount of time from when Ms. Paul screamed to when she herself made the call to the supervisor. I have considered whether the speed of events precluded the Applicant from calling a “Code Blue” however, I do not believe that is so. From the point at which Ms. Paul had screamed that the prisoner was holding electrical wires it is reasonable to conclude that a “Code Blue” should have been called at that moment.
[40] Moreover, Ms. Dunkley was faced with essentially the same information and relative time frame when called by Ms. Paul, yet Ms. Dunkley called a “Code Blue” straight away, prior to attending the scene. Her evidence under cross examination by Mr Dewsnap on this point is set out in full below:
“At this point the only information you have is through the telephone call with Nurse Paul and yet you decide to call a Code Blue straightaway. Why didn't you go down to the St John's unit and assess the situation for yourself and then decide whether a Code Blue was necessary?---The way in which Nurse Paul appeared on the phone and her alarmed state, the fact that she had described that the prisoner had damaged the cell, the fact that he had wires in his hand, the fact that he was abusing her, to me that's not a normal situation. I'm responsible for the security and the safety of the prison and, as I said before, I don't know whether those wires were live, I don't know whether the prisoner was in immediate harm or could have run the possibility of electrocuting himself, starting a fire. He'd obviously already created damage to the cell by pulling apart the wall and exposing these wires anyway. I don't know whether he has made a weapon as a result of it. There's all these factors that need to be taken into account.” 25
[41] In any case, at no point in his evidence did the Applicant suggest there was not time to call a “Code Blue”, rather that there was just no need to call one.
[42] There was no suggestion that Ms. Paul was prone to over reacting or raising false alarms or that the calling of a “Code Blue” is an exceptional event or something to be discouraged. The evidence of Mr. Roach was that the calling of a “Code Blue” happens quite often and is not something that happens only in very serious situations. 26
[43] The Applicant maintains the view that there was no need for him to call a “Code Blue”. I do not agree.
[44] Ms. Paul was the nurse on duty and is not regarded as an officer. 27 It was not her responsibility to call a “Code Blue”. She should not have had to make the call to the supervisor Ms. Dunkley. The Applicant was the officer in charge of the unit and the requirement to call a “Code Blue” applied to him. He should have, in all of the circumstances, called a “Code Blue”.
Evidence on process followed leading to termination:
[45] After the Prisoner G incident on 28 February 2012, Mr Roach became aware of the incident the next day. He was provided with the Supervisor Incident report which included the report on the incident from the Applicant. Mr. Roach formed a view based on the facts as outlined to him that, if the facts were correct, this was a clear breach of the Operational Instructions and could have resulted in serious harm or even death to the prisoner and possibly impact on the safety of other members of staff responding to the incident. 28
[46] Mr. Roach asked his Human Resources manager to prepare a letter to the Applicant. A letter was prepared under Mr. Roach’s signature and sent to the Applicant on the same day. 29 That letter stated that the matter was being treated as serious misconduct and that the company would proceed in accordance with the Port Phillip Prison disciplinary policy. The allegation of serious misconduct was clearly set out as;
- OI 107 - in particular 107.9.5 ‘At Risk’ Prisoners
- Code of Conduct - 3.1 Performance of Duties, in particular 3.1.2, 3.1.4 and 3.1.6.” 30
“...failure to comply with the requirements of the following Operating Procedures and Code of Conduct;
[47] The Applicant was asked to provide a written response to the allegations by 7 March 2012.
[48] A written response from the Applicant was received by Mr. Roach on 6 March 2012. 31 In the response, the Applicant claimed that giving the razor blade to the Prisoner was done in good faith and with honest intention. He further indicated that he thought his reactions were reasonable and that the allegations of serious misconduct were harsh and unjust.
[49] The next day, a letter was received by Mr. Roach from Rick Rendell, an Industrial Officer with the CPSU, the Community and Public Sector Union, representing the Applicant. 32 In that letter, Mr. Rendell referred to the 6 March 2012 letter of the Applicant and indicated that that the Applicant had written that letter without reflection on the matter and without union advice. He indicated that the Applicant now understood the seriousness of the matter, referred to the Applicant’s 15 years of service with the Prison, extended the Applicant’s apology and concluded by asking that termination of employment not be considered and offered to enter into discussions over the matter. The letter also sought from Mr. Roach that a decision not be made on the matter before 14 March 2012. There was no evidence as to why 14 March 2012 was sought by Mr. Rendell as the time period for making a decision.
[50] The evidence of Mr. Roach is that he elected to comply with the request of the CPSU and not make any decision on the matter until after that date.
[51] On the 12 March 2012, two days before the 14 March 2012 “deadline”, the second incident occurred. Mr. Roach was informed about this second incident on 13 March 2012 by the Operations Manager and provided with copies of the supervisors report and an officer’s report. 33
[52] There then followed a significant delay, given the gravity of the incidents, before Mr. Roach met with the Applicant. Mr. Roach claimed the delay was due to difficulties arranging a meeting as the Applicant was on rostered days off. The evidence of Mr. Roach on this point was not convincing. Indeed, Mr. Roach himself concedes the process took too long. 34
[53] Mr Roach met with the Applicant on 30 March 2012 where he outlined the allegation regarding the Prisoner T incident to the Applicant. Mr. Roach noted that the Applicant had a support person at that meeting. Mr. Roach stated that “at the outset of the meeting I made it clear to [the Applicant] that the meeting was to discuss the incident of 12 March and that further discussion on the previous incident subject to the disciplinary process would be considered at a later time.” 35
[54] Mr. Roach then explained the circumstances of the second incident as he understood them to the Applicant and sought his response. Mr. Roach was not satisfied with the response of the Applicant and was concerned he did not understand the seriousness of the matter.
[55] Mr. Roach determined that further investigation of the second incident was warranted and he suspended the Applicant while this occurred. A letter was sent to the Applicant on the same day as the meeting. This letter:
- advised that the second incident was to be treated as serious misconduct and would be dealt with consistent with the disciplinary policy;
- set out the nature of the allegation;
- sought a written response from the Applicant;
- acknowledged that the earlier disciplinary matter was still in process;
- acknowledged receipt of the Applicant’s written response on that matter; and
- sought to defer further discussion on the first incident until the second incident was dealt with. 36
[56] The written response that was sought on the second incident was supplied on 4 April 2012 by the Applicant. 37 His response is consistent with the evidence he gave during the hearing. Relevantly, his response makes clear he continued to hold the view that a “Code Blue” did not need to be called.
[57] Mr. Roach, after receiving the letter determined yet further investigation was necessary. Further information from Ms. Paul and Ms. Dunkley was sought.
[58] After taking into account all the information he had received regarding the two separate incidents Mr. Roach decided that it was highly likely that the Applicant had “demonstrated serious misconduct in relation to both of them.” 38
[59] Mr. Roach then provided the Applicant with a further opportunity to explain his version of events in relation to both incidents at a meeting on 13 April 2012. A support person was also present at that meeting. Mr. Roach stated that he did not gain any information from that meeting to change his view that serious misconduct had occurred on two separate occasions and that the appropriate disciplinary action was dismissal. A letter was sent to the Applicant the same day informing him that he was dismissed for “gross serious misconduct”. 39
EVIDENCE ON OTHER MATTERS:
The Applicant’s previous record of employment:
[60] The Applicant’s length of service and good conduct were raised by his representative as matters that should be taken into consideration. There was no serious contest to a finding that, with the notable exception of the relevant incidents, the Applicant had enjoyed a 15 year period of employment free of warnings.
[61] The attempts by the Respondent to introduce evidence to the contrary at the eleventh hour through its witnesses when no reference had been made to such behaviour in their witness statements was quite rightly objected to by the Applicant’s representative and were curtailed by me during the proceedings. To the extent that such evidence was lead I have ignored it and placed no reliance upon it.
Failure of the company to follow its own disciplinary procedure:
[62] It was clear on the evidence that the company failed to follow various components of its own disciplinary procedure. I will consider the details and consequences of that failure when considering the application of s.387(h) of the Act later in the decision.
LAW TO BE APPLIED
[63] Under the Act, a person is protected from unfair dismissal if:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[64] I find the Applicant is a person protected from unfair dismissal as he had completed the minimum employment period and an enterprise agreement applies to the Applicant in relation to employment. 40
[65] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal;
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.”
[66] With regard to s.385(a), section 386 of the Act sets out the meaning of ‘dismissed’. There was no dispute between the parties as to whether or not the Applicant was dismissed. It is taken that the Applicant was dismissed by the Respondent in line with the meaning of dismissal outlined in s.386(a).
[67] With regard to s.385(c), the Respondent has approximately 1500 employees 41 and as such is not a small business employer within the meaning of s.23 of the Act. The Small Business Fair Dismissal Code does not apply in this matter.
[68] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.
[69] The remaining matter for my consideration as to whether the Applicant was unfairly dismissed is whether the dismissal was harsh, unjust and unreasonable (s385(b) of the Act).
CONSIDERATION: WHETHER TERMINATION HARSH, UNJUST OR UNREASONABLE
[70] In considering whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the factors set out in s.387 of the Act. That section provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[71] Applying the criteria above in deciding the matter is intended to ensure that there is a fair go all round: see s381(2) of the Act. I will consider the factors in s.387 of the Act in the circumstances described above.
Section 387(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)
[72] In this matter, a consideration as to whether or not there was a valid reason for the termination relates to the two incidents and whether they constituted serious misconduct. Section 12 of the Act defines serious misconduct as having the meaning prescribed by the regulations. Regulation 1.07 of the Fair Work Regulations 2009 provides the meaning for serious misconduct and is reproduced as follows;
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[73] In respect to the first incident, the Prisoner G incident, it is clear that the Applicant provided the disposable razor and personal effects. He did so in the full knowledge the prisoner was rated as an S1.
[74] It is clear that the incident lead to Prisoner G sustaining injury. The fact that the cuts were “superficial” does not make the incident in my view less serious. The injuries sustained could have been far worse than they were. Indeed, when asked if he thought the first incident could have lead to death Mr Roach replied without hesitation that was possible. 42 Further, other prison staff who had to retrieve the razor blade were potentially put at risk.43
[75] It is clear the conduct of the Applicant in respect to the Prisoner G incident was conduct that caused serious and imminent risk to the health or safety of a person.
[76] Mr. Roach also gave evidence of the risk to reputational damage that could follow from such an incident. 44 I accept that the conduct related to the Prisoner G incident caused serious and imminent risk to the reputation of the employers business.
[77] The fact that the prisoner was being released the next day does not provide a basis for the Applicant to exercise discretion to ignore the procedure.
[78] I am concerned about the explanation from Mr. Roach as to why the prisoner was allowed to make a phone call in breach of the relevant procedure as it was a phone call to family, not a legal phone call. There should be consistency in the application of the procedures as it is clear they are critical to the safe operation of the prison.
[79] However, I do not accept that the breach of the policy related to the phone call can be used as a basis to find the actions of the Applicant in handing a disposable razor to Prisoner G to not be serious misconduct.
[80] There is no doubt that the conduct of the Applicant in relation to the Prisoner G incident was serious misconduct and even without a consideration of the second incident, provides a valid reason for the termination of employment.
[81] I have outlined above that in my view the Applicant should have called a “Code Blue” in the circumstances evidenced in the second incident, the Prisoner T incident. The failure to call a “Code Blue” is conduct that caused serious and imminent risk to the health and safety of the prisoner and/or staff. The conduct of the Applicant in respect to the second incident also represents serious misconduct.
[82] I have determined that the misconduct occurred on the basis of the evidence in the proceedings before me. 45 The reason for the dismissal is sound and defensible.46
[83] There is no doubt that there is a valid reason for the termination of employment. I note the submission of the Applicant that the actions were not “wilful” or constituted a repudiation of the employment contract. However, the meaning of the term valid reason is not to be limited by importing a test amounting to repudiation of the employment contract. 47
[84] While the Respondent relied on the totality of the conduct in both incidents as the valid reason for dismissal, in my view either incident when considered in its own right would provide a valid reason for dismissal.
387(b) whether the person was notified of that reason
[85] The Applicant was notified that the first incident was being treated as serious misconduct by letter on 29 February 2012. He was informed verbally and in writing on 30 March 2012 that the second incident was being treated as serious misconduct. The Applicant was notified of the reason for the termination in writing on 13 April 2012, the day of the termination.
387 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[86] As set out in paragraphs [45] to [59] above, the Applicant was provided an opportunity to respond regarding the allegations related to both incidents. This opportunity was provided well in advance of the decision to terminate the Applicant’s employment. It is clear that the Applicant availed himself of the opportunity to respond and that the Respondent took those responses into account.
387 (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
[87] There was no refusal to allow a support person.
387(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[88] This factor is not relevant as the termination related to allegations of serious misconduct.
387 (f) and (g) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal; and 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
[89] The Respondent is a large organisation with dedicated human resource specialists engaged. There is no suggestion that the factors in (f) and (g) would have had an impact on the procedures followed in effecting the dismissal.
387(h) any other matters that FWA considers relevant
[90] There are two other matters that are relevant to my consideration.
[91] Firstly, Mr. Dircks for the Applicant asked that, if I should I find that there was a valid reason for the dismissal, that I should find that dismissal was disproportionate to the misconduct. In support of this, the Applicant points out that there had been no warnings in the Applicant’s long (15 year career) with the Respondent. While I have taken into account the Applicant’s long period of service and lack of warnings, the seriousness of the conduct that has occurred in this matter is at the higher end. The valid reason for the dismissal is strong. The dismissal is not disproportionate to the misconduct.
[92] Secondly, the Applicant has pointed out that the Respondent failed to follow various aspects of its own disciplinary procedure. The evidence shows this to be true on a number of counts. These failures are set out in the Applicant’s closing submissions.
[93] Part of the defence of Mr. Roach to the failures is that he as Acting General Manager can choose to ignore the policy. I have serious concerns with that approach to disciplinary procedures and it is not an acceptable position for the General Manager to hold. One wonders why an organisation would go to the effort of establishing such a policy if one is simply going to ignore it.
[94] However, the failures to implement the policy were not necessarily to the detriment of the Applicant, For example, the disciplinary policy required that the Applicant be stood down over the first incident but he wasn’t. The notable exception is that the Applicant was not expressly told that his employment was in jeopardy as required by the policy. This was expressly acknowledged as an error by Mr. Roach.
[95] However, I have also taken into consideration that the Applicant was informed in respect to both incidents that they were viewed as serious misconduct. The letter from the CPSU, representing the Applicant, clearly indicated an awareness that his employment was in jeopardy as it asked that termination of employment not be considered. 48
[96] While there was failure to properly apply the policy, there was substantial procedural fairness. The allegations were clearly put, verbally and in writing and there was an opportunity to respond. A support person was present at the three meetings held. Therefore I do not consider there to be a basis to find that the failure to apply the policy, in the circumstances of this matter, renders the dismissal unfair.
[97] A related matter is the submission of the Applicant that failure to act on the first incident for over 6 weeks robs it of any legal basis to rely on it. 49 I was referred by the Applicant to recent decisions of Commissioner Cambridge in Narwal v Aldi Foods Pty Ltd50and Commissioner Steel in Jones v the Commissioner for Public Employment.51
[98] The decision of Commissioner Cambridge deals with whether or not the action in that case was condoned. 52 There was no evidence that the Respondent in this matter condoned the actions of the Applicant in respect to either incident. I do not consider circumstances where the Respondent wrote to the Applicant alleging serious misconduct (the day after it occurred with the Prisoner G incident) provided an opportunity for the Applicant to respond and then acceded to a request from the union for more time could be fairly characterised as condoning the conduct.
[99] The decision of Commissioner Steel found in the circumstances of that case, a lack of procedural fairness, one element of which was the time frame for the disciplinary process. This lead the Commissioner to find that the Respondent applied a less than procedurally fair approach. However, in this matter, I have found that there was in fact substantial procedural fairness afforded to the applicant.
Conclusion
[100] In all of the circumstances I find that the termination of the Applicant’s employment was not harsh, unjust or unreasonable. The application is dismissed. An Order [PR530510] will issue accordingly.
COMMISSIONER
Appearances:
G Dircks of Just Relations Consultants for the Applicant
A Dewsnap from the Respondent
Hearing details:
2012.
Melbourne:
September 6, 7.
Final written submissions:
Applicant, 7 September 2012
Respondent, 7 September 2012
1 Witness Statement of Dennis Roach, filed 13 August 2012, [25]
2 Exhibit D3
3 Ibid
4 Witness Statement of Ranulfo Torrefranca, filed 16 July 2012, [16]
5 Ibid, [17] - [18]
6 Exhibit D4, Attachment RT#A
7 PN 224
8 PN304
9 PN306
10 PN307
11 PN328
12 PN1575
13 PN1592
14 Witness Statement of Ranulfo Torrefranca, [71]
15 Witness Statement of Dianne Maree Paul, filed 16 July 2012, [7]
16 Ibid, [9]
17 Ibid, [10]
18 Witness Statement of Ranulfo Torrefranca [72]
19 PN725
20 Exhibit T5
21 PN517
22 Witness Statement of Ranulfo Torrefranca [88-90]
23 Exhibit D4, Attachment RT#J
24 Witness Statement of Ranulfo Torrefranca, [80] - [81]
25 PN1365
26 PN733
27 PN1117
28 Witness Statement of Dennis Roach, [22]
29 Exhibit D4, Attachment RT#C
30 Ibid
31 Exhibit D4, Attachment RT#H
32 Exhibit D4, Attachment RT#I
33 Exhibit D4, Attachments RT#J and RT#K
34 PN1066
35 Witness Statement of Dennis Roach, [31]
36 Exhibit D4, Attachment RT#L
37 Exhibit D4, Attachment RT#M
38 Witness Statement of Dennis Roach, [38]
39 Exhibit D4, Attachment RT#N
40 G4S Custodial Services Pty Ltd. Correctional Services Enterprise Agreement 2011, AE886204
41 See Form F3 - Employers Response to Application for Unfair Dismissal Remedy
42 PN749
43 Witness Statement of Dennis Roach, [25]
44 PN658
45 King v Freshmore (Vic) Pty Ltd, Print S4213, 17 March 2000, Ross VP, Williams SDP, Hingley C
46 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371
47 Potter v WorkCover Corporation, PR948009, 15 June 2004, Ross VP, Williams SDP, Foggo C
48 Exhibit D4, Attachment RT#I
49 Applicants written closing submissions, [13]
50 [2012] FWA 2056
51 [2012] FWA 7069
52 Narwal v Aldi Foods Pty Ltd, [2012] FWA 2056, [45]
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