Roderick Ramos v Serco Australia Pty Ltd - [2017] FWC 5470

[2017] FWC 5470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Roderick Ramos

Serco Australia Pty Ltd

(U2017/5183)

COMMISSIONER JOHNS

SYDNEY, 23 OCTOBER 2017

Application for Relief of Unfair Dismissal – valid reason – whether termination harsh, unjust or unreasonable.

Introduction

On 15 May 2017 Roderick Ramos (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by Serco Australia Pty Ltd (Serco/Respondent).

Serco currently holds the contract with the Australian Government to administer services at various Immigration Detention Centres, including the Villawood Immigration Detention Centre (Villawood). The Applicant was employed there as a Detention Services Officer (DSO).

On 2 June 2017 Serco filed a response to the unfair dismissal application denying that it had unfairly dismissed the Applicant.

Attempts at conciliation were attempted, but the matter remained unresolved. Consequently the matter was listed for hearing on 24 August 2017. At the hearing:
a)   the Applicant was represented by Mr H Pararajasingham from United Voice.
b)     Mr Pararajasingham called the Applicant to give evidence on his own behalf. The Applicant was made available for cross examination.
c)   the Respondent was represented by Mr P Brown, solicitor.
Mr Brown was given permission to represent the Respondent because I was satisfied that the matter was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I allowed the Respondent to be represented under s.596(2)(a) of the FW Act. Further, noting that the Applicant was represented by an experienced industrial advocate permission under s.596(2)(c) was also relevant: Warrell v FWC [2013] FCA 291.
d)Mr Brown called:
i.Mr Joseph Birch, Centre Manager, Villawood. Mr Birch was made available for cross-examination.
ii.Ms Soraya Boulous, People & Culture Manager, Villawood. Ms Boulous was made available for cross-examination.
During the hearing the following Exhibits were received. The Commission, as presently constituted, has had regard to the Exhibits as well as the evidence received during the hearing in coming to this decision.

EXHIBIT NO.	DESCRIPTION
1	Agreed Statement of Facts
2	Serco Immigration Services Agreement 2015
3	Form F2 Unfair Dismissal Application
4	Applicant’s Outline of Submissions
5	Witness Statement of Roderick Ramos
6	Reply Statement by Roderick Ramos
7	Form F3 Employer Response
8	Respondent’s Outline of Submissions
9	Updated Port Order called for by the Applicant
10	Witness Statement of Joseph Birch
11	Witness Statement of Soraya Boulous

On 4 September 2017 both parties filed final written submissions. The Commission, as presently constituted, has had regard to the final submissions in coming to this decision.

Background

The following matters were either agreed between the parties or not otherwise substantially contested:

a)On 30 September 2009, the Applicant commenced full time employment with the Respondent. At the time of his dismissal he was attending to the duties of a DSO.[1] He is 44 years of age.[2]

b)From the commencement of his employment with the Respondent in or about September 2009 to his dismissal on 26 April 2017, the Applicant predominantly conducted his duties at the Villawood.[3]

c)During the course of his employment with the Respondent, he did, however, also attend to duties at the Christmas Island Detention Centre. On the first occasion in around 2009, he was posted there as part of the Respondent's Transition Team, to assist with setting up relevant operations. He was also posted there in about 2011 or 2012 as part of the Emergency Response Team. On various other occasions, the Applicant was called upon to assist with the Respondent's operations at Immigration Detention Centres in Darwin and Curtin.[4]

d)In about November 2009, the Applicant returned to Villawood as a DSO at the Programs and Activities Department and continued in that area until approximately May 2010. During this time, he was asked to perform higher duties as a Manager for a one month period. He then moved to the Visit Area, where he continued until approximately 2012, when a new building was constructed at Villawood to house more detainees.[5]

e)In about 2013, upon completion of the new building, the Applicant was transferred to the "Logan Visits Area" where he generally remained until the termination of his employment. Logan Visits is the visiting space demarcated for detainees classified as presenting a low to medium risk.

f)On an ad hoc basis, the Applicant was also called upon to work in the "Hotham Visits Area", subject to the needs of each roster. Hotham Visits is the area demarcated for the detainees housed in the McKenzie Compound and is for the detainees classified as presenting a high to extreme risk. Additionally, Hotham Visits also holds detainees who are under an individualised Behavioural Management Plan.[6]

g)From about October 2016 to January 2017, the Applicant applied for, and was successfully appointed to, the position of "Coach" at Villawood and was accordingly responsible for training all staff in the use of the Respondent's new computer database and records management system, "Serco Care Manager".

h)In about February 2017, the Applicant resumed his position as a DSO at Logan Visits and was again sporadically called upon to perform duties in the Hotham Visits Area as needed.[7]

i)It is common ground that the Applicant loved his work for the Respondent. He was considered a hard-working and committed employee. He was recognised for his commitment and talents by his recent promotion to the Coach position and in his duties as an Acting Manager. Throughout his employment with the Respondent, he maintained an excellent performance record and reputation.[8]

j)On 26 April 2017, the Applicant was dismissed on the basis of serious misconduct.[9]

k)In the 26 weeks prior to the Applicant’s dismissal, he received (exclusive of accrued but untaken annual leave) the sum of $51,783.01 (less applicable tax).[10]

Incident leading to dismissal

l)The Applicant was dismissed for his failure to follow Serco policies and procedures, specifically on Monday 13 February 2017, when a detainee escaped.[11]

m)Below is a description of the escape of the detainee:

“At approximately 18:30 hours on Monday 13 February 2017 [REDACTED] escaped from the outdoor area of Hotham Visits (High Risk Visits Facility) at VIDC, with external assistance. The external assistance comprised two males accomplices in a motor vehicle who threw a rope over the external-facing visit’s wall enabling Detainee [REDACTED] to climb/be pulled up the wall and to drop into the car park immediately outside.

From video recorded of the incident from various CCTV camera views the escape appeared well researched, planned, and highly coordinated with the use of mobile phones between the escapee and his accomplices. The escape methodology exploited security vulnerabilities in the external facing wall of the Hotham Visits Centre.

At the time of the escape Detainee [REDACTED] was receiving a full visit from a female person. Immediately prior to the escape Detainee [REDACTED] commenced mobile phone conversations during which time his female visitor left him and moved inside the Visits Centre. Detainee [REDACTED] made his way towards the point of the escape while maintaining the telephone conversation. At approximately 18:29 hours a rope was thrown over the wall by accomplices from the car park outside the wall. Detainee [REDACTED] immediately climbed over the inner pedestrian fence and attempted to scale the internal fence of the wall using the rope. His first two attempts were unsuccessful as he appeared unable to gain sufficient traction on the slippery concrete wall surface. On his third attempt he was assisted in making the climb by the rope being attached to the accomplice’s vehicle. Once at the top Detainee [REDACTED] was quickly able to climb over the steel fence mounted on top of the wall, and drop onto the pavement below. He then climbed into the vehicle with the two other individuals and departed from the scene.
From the time the rope was thrown over the wall to the time Detainee [REDACTED] was at top of the wall was 30 seconds. In its entirety the total time to conclude the whole exercise was around seventy (70 seconds).”[12]

Respondent’s investigation

n)On 23 February 2017, the Respondent notified the Applicant that his employment was suspended.[13]

o)On 28 February 2017, the Applicant was notified that he was to attend a Formal Disciplinary Meeting. This Formal Disciplinary Meeting was scheduled for 6 March 2017.[14]

p)On 6 March 2017, the Applicant attended the Formal Disciplinary Meeting. The Applicant’s United Voice representative, Mr. John McShane, and representatives of the Respondent, Mr. Joe Birch and Ms. Soraya Boulous, were also in attendance.[15]

q)On 30 March 2017, the Respondent sent to the Applicant a document entitled “Show Cause – Outcome of Investigation & Disciplinary Findings”. In this correspondence, the Respondent directed the Applicant to attend a Further Meeting on 3 April 2017.[16]

r)On 3 April 2017, the Applicant attended the Further Meeting. The Applicant’s United Voice representative, Mr. John McShane, and representatives of the Respondent, Mr. Joe Birch and Ms. Soraya Boulous, were also in attendance.[17]

s)On 26 April 2017, the Applicant attended a Final Meeting. The Applicant’s United Voice representative, Mr. John McShane, and representatives of the Respondent, Mr. Joe Birch and Ms. Soraya Boulous were also in attendance. At this Final Meeting the Applicant was notified of his dismissal.[18]

The Applicant submits he was unfairly dismissed and seeks an Order that he be reinstated or compensated.

Protection from Unfair Dismissal

An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“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.”

There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and is covered by an enterprise agreement, namely the Serco Immigration Services Agreement 2015. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.

I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“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.”

Was the Applicant dismissed?

A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. In the present matter the Respondent concedes that it dismissed the Applicant from his employment.

The Commission, as presently constituted, finds that the Applicant was dismissed from his employment with the Respondent within the meaning of s.386 of the FW Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code). This is not a relevant consideration in the present matter.

Was the dismissal a genuine redundancy?

The Respondent does not submit I should dismiss the application because the dismissal was a case of genuine redundancy. This is not a relevant consideration in the present matter.

Harsh, unjust or unreasonable

Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable.

The Applicant submits the dismissal was harsh, unjust or unreasonable because there was no valid reason for termination and because various factors (to be considered under s.387(h) of the FW Act) render the dismissal unfair.

The Respondent submits the dismissal was not harsh, unjust or unreasonable. It says “the dismissal, viewed from the perspective of the employer, was ‘sound, defensible or well founded’ with reference to the acts or omissions of the Applicant”.

The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:

“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.”

The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

I am under a duty to consider each of these criteria in reaching my conclusion.[19]

I will now consider each of the criteria at s.387 of the FW Act separately.

Valid reason - s.387(a)

The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal.[20] The reasons should be “sound, defensible and well founded”[21] and should not be “capricious, fanciful, spiteful or prejudiced.”[22]

On 26 April 2017, the Respondent summarily dismissed the Applicant for allegedly engaging in serious misconduct. Specifically the Respondent contends that the Applicant’s failure to follow its policies and procedures resulted in the escape of detainee from Villawood on 13 February 2017 (Incident).

Essentially the Respondent based its decision to summarily dismiss the Applicant on the following two allegations, that the Applicant failed:

a)in his duties as a DSO to monitor and maintain the dynamic security requirements of Villawood whilst working in the Hotham Visits Area (HVA); and

b)to follow instructions regarding Personal Protective Equipment (PPE) as he was not wearing his radio earpiece.

The Applicant submitted that,
Allegation #1: He failed in his duties as a DSO to monitor and maintain the dynamic security requirements of Villawood whilst working in the HVA

6.The Applicant refutes this allegation and contends that on 13 February 2017 he complied with the Respondent’s policy relating to dynamic security.

7.During the course of cross-examination, the Respondent accepted that the only documents which specify the duties of a DSO are the “Position Description” and the “Post Orders”.

8.Mr. Birch and Ms. Boulous acknowledged that both of these documents indicated that a DSO attends to a wide variety of duties. They acknowledged that some of these duties require a physical engagement whilst other duties required a DSO to be positioned at an Officer’s Station.

9.In assessing both these documents, it was acknowledged by Mr. Birch and Ms. Boulous that:

a) Neither document outlines the specific amount of time that a DSO is to spend on each duty;

b) Neither document outlines which specific duty is to take precedence over another duty; and

c) Neither document outlines how, if at all, duties are to be split when multiple DSOs are allocated to an area, such as Hotham Visits.

10.Given the lack of particulars, it was put to both Mr. Birch and Ms. Boulous that the Respondent has not provided “clear expectations” to DSOs in these documents. It was also put that this failure to provide clear expectations is problematic given the nature of the work undertaken at the HVA.

11.In relation to its primary contention that the Applicant failed to maintain “dynamic security”, both Mr. Birch and Ms. Boulous outlined that the concept of dynamic security underpins the Respondent’s operations at the Centre. Despite the purported prominence of this concept, both conceded that the term “dynamic security” is only referenced in two policy documents – the “Post Orders” and the “Security, Key Control and Situational Awareness” manual.

12.In relation to the “Post Order”, the only reference to dynamic security is to “Ensure a physical and active presence is maintained at all times (Dynamic Security).” No further particulars in the “Post Order” are provided. Significantly this single phrase does not provide any guidance or comment in relation to undertaking physical patrols of the external area of Hotham Visits.

13.In relation to the “Security, Key Control and Situational Awareness” manual, under the heading “Dynamic” a variety of indicative actions are listed including “observation, effective communication, classification, information gathering, cleanliness, problem solving, decision making, management, non-complacency and consistency.” Significantly this list does not provide any guidance or comment in relation to undertaking physical patrols of the external area of Hotham Visits. Instead it was put to both of the Respondent’s witnesses that during the relevant 72 minute period prior to the detainee’s escape, the Applicant was in fact engaging in tasks at the Officer’s Station such as “observation” (as he was monitoring CCTV footage) and “management” (as he was receiving visitors and officers, and responding to door requests). To this end, it was put to both witnesses that the Applicant was thereby attending to “dynamic” security tasks as outlined in the manual.

14.Despite the brief manner in which dynamic security is reflected in the Respondent’s policies, Mr. Birch maintained that a DSO was required to stay in the external area of Hotham Visits when a detainee or visitor was situated out there. Mr. Birch held this assertion even though:

a) No such requirement is specified in any policy document; and

b) He acknowledged that this requirement was never articulated to the Applicant, either in writing or verbally.

15.Mr. Birch then conceded that the Respondent should have better articulated its expectations to DSOs. He noted that subsequent to the termination of the Applicant, the “Post Orders” were altered and now require a DSO to remain outside when detainees are located in the external area.

16.As at 13 February 2017, however, no such direction was provided to the Applicant. Both Mr. Birch and Ms. Boulous also acknowledged that during the Applicant’s employment there was no explicit direction as to how many physical patrols a DSO should undertake of the external HVA nor any direction as to how often DSOs should undertake physical patrols. Ms. Boulous went further to state that such matters were ultimately left to the “discretion” of the relevant DSOs and conceded that there were no indicators used to help guide such discretion.

17.For completeness, we note that in his Statement of 27 July 2017, the Applicant outlined that on 8 February 2017 an operational audit was conducted by the Respondent. Here an Auditor observed the Applicant in the performance of his role. The Applicant contends that during this audit, he attended to his duties in exactly the same manner as he did on 13 February 2017 and was informed that it was appropriate and adequate. We note that this assertion was not challenged in cross examination and that no contrary evidence was advanced by the Respondent.

18.On review of the evidence extracted above, it is submitted that the Applicant did not breach the Respondent’s policy relating to dynamic security. As highlighted, at no time during the Applicant’s employment did the Respondent clearly advance its expectations of this concept. Instead the only references in the “Post Order” and “Security, Key Control and Situational Awareness” manual are vague, incomplete and do not impute any substantive requirements on DSOs. Significantly neither of these policy documents provide any guidance or comment in relation to undertaking physical patrols of the external area of Hotham Visits. On such grounds we submit that there is no basis for this allegation and that the Applicant did not breach this policy.

Allegation #2: He failed to follow instructions regarding PPE as he was not wearing his radio earpiece

19.Relevantly the Respondent’s “Portable Radio” policy notes the following obligations on employees:

(a) “Do not take a radio that is not working or fails the radio check. Report to the DSM that this radio is not working and take it out of service”; and

(b) “Carry your radio on you at all times”.

20.With regard to the distribution and use of radios at the Centre, the Applicant’s evidence is as follows:

(a) On 13 February 2017, he went to the Briefing Room and could not locate a radio.

(b) He then proceeded to the HVA and obtained a radio from the drawer at the Officer’s Station that his colleagues had earlier stored.

(c) The radio he obtained did not have an accessible “jack port” and accordingly he could not connect his earpiece to the radio. We note that the Respondent accepts this point.

(d) The Applicant’s colleague, DSO Owen, commenced his shift at 12:30 and also could not locate a radio. Therefore the Applicant kept his radio on the table of the Officer’s Station so both he and DSO Owen could hear transmissions.

(e) Repeatedly, during the course of his employment, the Applicant had informed the Respondent of both the shortage of radios in the Briefing Room and the defective traits of those radios that could be obtained. When he had raised these concerns, the Applicant was notified that because the HVA shift is “not a 24-hour shift” no other radios could be provided to DSOs.

21.It is acknowledged that the Applicant’s evidence as to whether he informed the Respondent on 13 February 2017 that his radio was defective is uncertain. Whilst he seemed to suggest that he may have informed “one of my supervisors at that time” he also conceded that he was not sure and could not provide any particulars about this conversation. It does not appear that any such reference to this conversation is reflected in the interview notes or the Applicant’s Statements either.

22.If the Fair Work Commission (“FWC”) is to proceed on the basis that the Applicant did not inform the Respondent that his radio was defective on 13 February 2017 then it is accepted that the Applicant technically breached both policy provisions noted at [19](a) and [19](b) above. Nevertheless we submit that these particular breaches of the Respondent’s “Portable Radio” policy do not constitute a valid reason for dismissal.

23.In advancing this contention we note that not every breach of a policy by an employee automatically provides for a valid reason for dismissal. In the often cited B, C and D v Australian Postal Corporation T/A Australia Post, the Full bench considered breaches of Australia Post’s IT policies in respect to the sharing of pornographic material. At [36] the majority noted that:

“A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal” (our emphasis).

24.In discussing the nature of policies and procedures at an employer’s enterprise, the Full Bench went on to state:

“[61] The formulation, implementation, dissemination and enforcement of polices are a matter within the prerogative of management. The almost infinite variety of businesses and their circumstances necessarily leads to great variability in employer approaches to those matters. In particular, there is great variability in the approach of employers to:

· The form and content of policies. (Employer policies come in all shapes and sizes. Some employers have voluminous policies filled with detailed prescription. Others have polices expressed in broad terms.)

· They way in which employees are educated as to the content of polices.

· The way in which polices are enforced (some employers enforce their policies rigorously, other employers allow a situation to develop where particular breaches of policy go unanswered) and in disciplinary procedures and the approach to disciplinary decision making.

[62] Breaches of policy can often cover a spectrum from the trivial, minor or technical to the very serious” (our emphasis).39

25.When assessing a purported breach of policy in the context of s.387(a), the relevant consideration is still whether there was a valid reason for the dismissal related to the employee’s “conduct”. The Full Federal Court in Qantas Airways Limited v Cornwall considered the issue of “conduct” as follows:

“We have already stated that the respondent, in the present case, struck his supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted on this conduct as a reason when it terminated the respondent's employment. The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterise the nature of the conduct involved”.

26.Taking into account these guiding principles, it is submitted that neither of the Applicant’s breaches of the Respondent’s “Portable Radio” policy amount to a valid reason for dismissal. These two breaches are considered independently below:

“Do not take a radio that is not working or fails the radio check. Report to the DSM that this radio is not working and take it out of service.”

27. With regard to this policy provision, we note the following:

(a) The Applicant was required to use a defective radio that did not have a jack port because there were no other radios available. The Applicant had, historically, informed the Respondent of both the shortages of radios in the Briefing Room and the inadequacies of those radios that could be obtained.

(b) When the Applicant had, historically, strictly complied with this provision and informed the Respondent about defective radios, he was notified that because the HVA shift is “not a 24-hour shift” no other radios could be provided to DSOs. Therefore each time he had strictly complied with this provision, the Respondent failed to address or rectify any of his concerns. It is submitted that the Respondent’s replies to the Applicant reflect its general indifference to this policy.

(c) The Respondent’s general indifference to this policy is further captured by its conduct during the investigation into the incident of 13 February 2017. Although the Applicant specifically raised the fact that there was a shortage of radios in the Briefing Room and that as a result he had to use a defective radio that did not have a jack port, the Respondent did not seek to verify such claims by reviewing its inventory of radios or undertaking qualitative checks. During cross examination, Mr. Birch also conceded that he did not make any independent inquiries about the number radios that were available on 13 February 2017. Instead he dismissed the Applicant’s contention on the basis that new radios had been purchased four months earlier in November 2016.

28. In stark juxtaposition to the construction now advanced by the Respondent in these proceedings, these above factors reveal how this policy provision actually operated at the Respondent’s enterprise on 13 February 2017. The Respondent clearly had no regard for its implicit obligations under this policy to provide functioning equipment to its employees. This was reaffirmed when Mr. Birch acknowledged that the Respondent had not provided the Applicant with the equipment to enable him to comply with this policy. Whenever the Applicant strictly complied with this provision, no assistance was rendered by the Respondent. Instead he was merely instructed to simply make do with the equipment he could obtain. This sentiment was reaffirmed by Mr. Birch who acknowledged that there are no substantive systems or processes implemented at the Centre to check the functionality of radios. Accordingly we submit that the Applicant breached a provision of a policy that was, in any event, wholly disregarded by the Respondent. Given these circumstances, the fact that the Applicant did not report that his radio was not working on 13 February 2017 should not be characterised as a “substantial and wilful” breach of policy that constitutes a valid reason for dismissal.

“Carry your radio on you at all times”

29. With regard to this policy provision, we note the following:

(a)Significantly this particular provision is premised on the understanding that each DSO will be issued individual radios at the start of their shift.

(b)Like the Applicant, when DSO Owen commenced his shift at the HVA at 12:30 he was not issued with a radio. Accordingly the Applicant and DSO Owen were required to share the radio that the Applicant had obtained from the drawer of the Officer’s Station.

(c)The Applicant acknowledges that during the relevant 72 minute period, the radio he obtained was not clipped to his belt but was instead on the table in front of him at the Officer’s Station. He contends that he kept the radio on the table because “there are two officers in HVA and… I believe that you know, it is better for me to put it on the table so we can hear the transmission together”. Given the shortage of radios, if the Applicant did not proceed in this manner, then his colleague would not have had any access to the radio network.

(d)As for the precise location of the radio, the Applicant noted that it was on the table in front of him and therefore “within my proximity. I didn’t walk out of the area without my radio.”

30.From the evidence, whilst it is acknowledged that the Applicant technically breached this particular provision as he was not carrying the radio “on him”, it is contended that his conduct was the result of the Respondent’s failure to appropriately equip DSOs. As noted at [20](e) above, the Respondent was aware of the shortage of radios as the Applicant had repeatedly raised this concern, to no avail. As all DSOs are required to maintain access to the radio network, the Applicant’s conduct was reasonable in this trying situation. To that end, it is submitted that on review of the “course of the interaction of persons and circumstances” the Applicant’s conduct should not be characterised as a “substantial and wilful” breach of policy that constitutes a valid reason for dismissal. At the material time, the Applicant was attempting to attend to his duties as best as he could in the conditions.

31.Accordingly given the above review of the circumstances at the Centre on 13 February 2017, it is submitted that the breaches of the “Portable Radio” policy by the Applicant do not amount to a valid reason for dismissal.

The Respondent submitted that,

10.The Respondent relies upon the decision of the Full Bench of the Fair Work Commission in DP World Sydney Limited v Lambey (VP Watson, DP Hamilton and Simpson C2012/3296) and in particular paragraph 26 which is extracted as follows:

“[26] [The factors in section 387] although not an exhaustive list, are a strong indicator of evidence of a fair dismissal. In circumstances where a valid reason is found to exist, and procedural has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of a dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only i[the employer's disciplinary actions are judged to lie outside the description o[a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made."

11.In the Full Bench decision of Metro Quarry Group it was held:

"The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is "a fair go all round".

This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees and commitment and adherence to safety standards is an essential obligation of employees- especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer's obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace."

12.In view of a number of concessions made by the Applicant in cross examination, as set out below, it is submitted that the Commission would have no difficulty in concluding that the acts and omissions of the Applicant in the context of the supervision of high risk detainees at the Hotham Visits Area (HVA) of the Villawood Detention Facility on 13 February 2017:

(a) were in breach of the policies of the Respondent;

(b) had the potential to materially impact on the safety and welfare of other employees; and

(c) was conduct justifying summary dismissal.

….

Evidence regarding physical and active presence

28.It was the evidence of both Mr Joseph Birch and Ms Soraya Boulous on behalf of the Respondent that the concept of physical and active presence (also referred to as dynamic security) was part of the training and development of all employees, and included the following:

(a) remaining mobile and active within the physical environment;

(b) venturing into all areas of the physical environment;

(c) conducting physical checks of the environment;

(d) initiating meaningful engagement with detainees and other persons who may be in the facility, including visitors and/or health professionals;

(e) challenging any identified inappropriate behaviours; and

(f) reporting to the relevant manager any issues or concerns.

29.In cross-examination, the Applicant demonstrated a sufficient knowledge of the expectations of the Employer with respect to physical and active presence (dynamic security) in the course of his duties, and the fundamental importance of maintaining dynamic security in that the Applicant:

(a) accepted the proposition that he had been instructed by the Respondent as to the Respondent's expectations in dealing with detainees;

(b) accepted that the concept of dynamic security formed part of his training;

(c) accepted that as part of his duties he was responsible for reviewing the physical environment in which the detainees were supervised;

(d) accepted that as part of his duties on shift, he was expected to perform periodic testing of the physical area;

(e) accepted that it was important that detainees needed to see that there was the physical presence of a Detention Service Officer;

(f) conceded that random patrols were both very good and that random patrols did not allow the detainee to see something predictable;

(g) accepted that the HVA was specifically designed for high risk detainees;

(h) accepted the proposition that in supervising a high risk detainee the highest level of security and surveillance was required;

(i) agreed with the proposition that one of the things that he was required to do at the HVA was to ensure a physical and active presence was maintained at all times;

(j) accepted that the Respondent referred to dynamic security in its training; and

(k) took no issue with the fact that he was required, at the HVA, to ensure a physical and active presence was maintained at all times and that he knew that this was a requirement of his employment.

30.With respect to the facts and circumstances of the Incident on 13 February 2017, the Commission would be well satisfied that the Applicant's conduct fell well short of the Employer's requirements in that the Applicant:

(a) accepted that in sitting at the reception desk of the HVA there was only a limited view through the glass to the external area of the HVA;

(b) did not dispute the fact that, in the 77 minutes prior to the escape of the detainee, neither himself or DSO Owen ''put afoot in the external area of the HVA";

(c) conceded that the leaving of two or three high risk detainees in the external area of HVA, out of "proximity", for 77 minutes was not an appropriate level of supervision;

(d) accepted that he was expected to ensure that there was a physical and active presence maintained at all times in both the external and internal areas of the HVA;

(e) In response to a question from the Commission concerning dynamic security, the Applicant responded that he knew about the concept of dynamic security and that the training manuals made reference to what the Applicant described as "the dynamic"; and

(f) agreed with the proposition that he was required to ensure a physical and active presence, and that part of that requirement was to get out and about, go around the perimeter and be seen to be in and around the actual detainees.

31.It is submitted that the Commission should not accept the evidence of the Applicant that he had not seen the Post Order, particularly in circumstances where the Applicant conceded in cross examination that he was required to ensure that physical and active presence was maintained at all times.

32.The proposition advanced by the Applicant that he was maintaining a physical presence from the desk at HVA lacks credibility and should be rejected. The Applicant accepted the proposition that tor a period of over an hour before the escape he was sitting behind a desk. When pressed by a question from the Commissioner to the effect that for the 77 minutes he was not maintaining an active presence (sitting at the desk), the Applicant gave evidence to the effect that he was not inactive and that he was opening and closing gates, attending to telephone calls and watching CCTV cameras.

33.The Applicant was cross examined at length with respect to the number of entrances and exits of doors and the time that could have occupied the Applicant in opening and closing the doors in the 27 minute period prior to the incident, whilst seated at the desk and clicking on a computer screen using a mouse (to activate the doors). This issue was discussed at the interview of the Applicant on 3 April 2017.

34.It is the submission of the Respondent that the evidence of Mr Birch should be accepted in relation to the information provided to the Applicant that there were only six occasions in the 27 minute period prior to the Incident where the Applicant was required to grant access or exit from his position sitting at the desk.

35.The Applicant was evasive on the issue of his activities prior to the Incident. In particular:

(a) when pressed in cross examination on the claim that there were more than six entrances and exits, the Applicant's evidence was vague and unconvincing;

(b) when asked to provide the number of alleged entrances and exits that exceeded the six asserted by Mr Birch, the Applicant's evidence was "more than a dozen times"; and

(c) when questioned as to the total time that this task could have occupied in the 27 minutes, the Applicant's answers were initially evasive and ultimately conceded, in cross examination, that even if there were 12 entrances and exits in the 27 minute period (as opposed to six), it would have only taken the Applicant a couple of minutes to have completed those tasks.

36.It is submitted that the Applicant, when questioned on issues as to the requirements of the Employer of him, both generally and in the context of the supervision of high risk detainees at the HVA, had a tendency to avoid answering the questions put to him and sought on a number of occasions to minimise or deflect any inferences of fault on his part.

Failure to comply with policies re radio contact and communications

37.Much of the Applicant's cross examination focussed on the Applicant's knowledge of the policies of the Employer with respect to the use of radios, and the acts and omissions of the Applicant on 13 February 2017 with reference to the failure of the Applicant to take steps to ensure that he had, at all times, a radio that was checked and operative.

38.With respect to the evidence of the Applicant in cross examination on the issue of the content of the relevant policies relating to radios, the Applicant's knowledge of the Employer's expectations and the conduct of the Applicant on 13 February 2017, the Applicant:

(a) did not disagree with the fact that on the commencement of any shift he was required to check that the equipment was correct, and ensure that he was familiar with any equipment, and that he had checked it to ensure that it was in good working order when it was received;

(b) conceded (in response to a question from the Commissioner) that he "believed" that one of his colleagues made mention of the fact that a radio was kept "hidden in one of the drawers" (in the HVA);

(c) accepted that it was his responsibility to collect a radio on the commencement of the shift;

(d) suggested that DSO Owen would hide a radio (in the HVA drawer) because most of the time when he and Mr Owen would come on shift they did not have radios available;

(e) stated that he did a radio check every time that he came to work;

(f) obtained access to a radio in the HVA that was located by him inside a drawer and stated that he performed a radio check on the same radio on 13 February 2017;

(g) accepted that he was required to have the radio clipped to his belt and conceded that he did not do so (PN244) on the basis that he intended to share a radio between, presumably, himself and DSO Owen;

(h) agreed with the proposition that it was his responsibility to collect a radio, and that it was his responsibility under the policy to check that the radio was operational and that if there was a problem with the radio it was his responsibility to raise the problem with the manager;

(i) conceded that it was a requirement that he have a radio with him at all times;

(j) conceded that leaving the radio on the reception desk was not carrying his radio at all times;

(k) agreed in cross examination that leaving the radio on the desk was a breach of policy; and

(l) conceded that one or both of the DSOs walking around the HVA (inside or out) without a radio on the person would compromise safety.

39. The Respondent submits that there were serious failings on the part of the Applicant in relation to the use of radios, which would detract from any conclusion that the termination was harsh. In particular:

(a) the Applicant acknowledged that it was his responsibility to obtain and check that he had a fully functioning radio;

(b) the Applicant and his co-worker apparently chose to make use of and operate the radio in a manner that was contrary to the Employer's policy; and

(c) in the course of the shift on 13 February 2017, the unauthorised and improper use of the radio, by leaving it on the desk and not retained on the person, would have exposed both the Applicant and his co-worker to risk in that, at various times during the shift, either the Applicant or the co-worker would have been conducting patrols without a radio on their person.

Consideration – employer policies

As was made clear in Potter v Workcover Corp,[23]

“… breaching an employer’s policy will not of itself automatically give rise to a valid reason for termination of employment. It depends on the character of the policy and the nature of the breach.”[24]

At this point it is useful to be reminded of the orthodox approach to a consideration of whether a breach of an employer’s policy should be a basis for termination of employment. In Woolworths Ltd v Brown[25], a Full Bench of the Australian Industrial Relations Commission (as the national workplace relations tribunal was then called) summarised the position as follows,

“[23] It is convenient to first deal with the legal principles related to breach of an employer’s policy as a basis for termination of employment.

[24] In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.

[25] Any obligation on an employee to observe a policy established by the employer must be founded in the terms of the contract of employment. A requirement to observe a policy may be an express term of the contract. Indeed, a contract of employment may even incorporate a policy by reference. In the absence of an express term, the matter turns on the implied term to obey lawful directions. Such a term is implied into contracts of employment. In Adami v Maison de Luxe Ltd Isaacs ACJ observed:

“It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain.”

[26] In R v Darling Island Stevedoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan Dixon J, addressing “the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant”, summarized the common law as follows:

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. ... But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument… governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service (Bouzourou v. Ottoman Bank [(1930) A.C. 271, at pp. 275-277]; Ottoman Bank v. Chakarian [(1930) A.C. 277, at pp. 282, 283]).”

[27] Dixon J ought not be taken as using the expression “within the scope of a contract of service” to refer merely to the terms of the contract. Rather, the expression encompasses all matters connected with the job performed by an employee pursuant to his or her contact of employment, and any of its incidents. If a policy is rationally related to the business of the employer a direction to observe the policy will typically be within the scope of the contract of employment.

[28] Consistent with these principles, the Full Bench in Potter v Workcover Corporation observed:

“[67] Of course breaching an employer’s policy will not of itself automatically give rise to a valid reason for termination of employment. It depends on the character of the policy and the nature of the breach. The policy in question must be lawful and reasonable.”

[29] At common law, not every failure to obey a lawful direction justifies dismissal. In Adami Isaacs ACJ noted:

“But whether disobedience in a given case is of such a character as to justify a complete dissolution of the contract by one of the parties and, as here, a forfeiture by the other of valuable accruing rights, together with some degradation—altogether a severe penalty—is, in my opinion, quite a different matter. Such a justification requires the disobedience to be as phrased "wilful disobedience of a lawful order." That is, it must be not merely a breach but a radical breach of the relation, and inconsistent with its continuance... "Wilfully" does not necessarily connote in that connection anything criminal or immoral, but it does connote some deliberate design or purpose to derogate from duty. ... Any conduct on the part of either [employer or employee] inconsistent with the maintenance of the relation created amounts to a renunciation, and the other has a right to terminate it. An order that is not so clearly implied or expressed as to be free from doubt has been left so by the act of both parties. A refusal to comply with it, if the employee, regarded as a reasonable man with knowledge of all the circumstances, may reasonably and does honestly contest it, is not, if respectfully communicated, a wilful disobedience of a lawful order, which by reason only of "wilfulness" entitles the employer to penalize the employee. The employee is there, to the knowledge of his employer, only acting in defence of his supposed rights—that is his only intention and purpose. He is not wilfully insubordinate. Other grounds may justify a rescission, as, for instance, the importance of the refusal apart from wilfulness or its effect on the general condition of the employer's business. ... It is incontestable that any conduct of an employee which is not merely inconsistent with some particular obligation involved, and possibly not striking at the root of the matter, but which is inconsistent with the relation established, is a just cause for the employer's termination of that relation. Habitual neglect or a definite refusal of a general kind to pursue the employer's lawful policy of business would afford such justification.”

[30] The facts in Adami are instructive. In that case the proprietor of a hall determined that the hall would commence opening for dancing on Saturday afternoons. The manager (who worked as a bookmaker on Saturdays) refused to comply with the employer’s requirement that he work on Saturdays and was dismissed. The High Court held that the dismissal was lawful. Following on immediately from the passage in the preceding paragraph, Isaacs ACJ stated:

“That is what happened here. The direction as to Saturday afternoons was not an isolated order but was part of a business policy. The nature of the business was such that it was clearly within the contemplated scope of the employer's rights to select Saturday afternoons as a means for popularizing or extending the business. The refusal of the appellant to give his personal services and his determination to substitute another to take his place was an important and a definite and constant refusal to carry out the duties which, on a considered construction of the contract and circumstances, were, in my opinion, personally undertaken by the appellant in clause 4 of the agreement. He there undertook not only the "full control of the staff" but "the general supervision of the business" subject to the board of directors. That "control" and that "general supervision" might reasonably be directed by the company to include his presence at the hall and, inter alia, the checking of receipts. A general and total refusal of these duties after their specification was, whether the appellant was insubordinate or not, and whether "wilful" or not, a refusal which, by reason of the importance of the duties involved and the extent of the refusal, amounted in law to a renunciation entitling the employer to terminate the contract. For this purpose the letter of 6th July 1923 affords no answer. Under the second branch it is no longer, as it was under the first, a matter assumedly unimportant to the employer, or merely a question of the design and purpose of the employee. The effect of the refusal on the employer's business, and, therefore, its relative importance in the whole contract, are relevant considerations. Therefore, even putting aside "wilfulness" altogether, the legal effect of the refusal is to control the business, and that, in the absence of some provision in the law or the contract, is inconsistent with the general relation of employer and employed.”

[31] In Laws v London Chronicle Ltd Lord Evershed observed:

“It follows that the question must be — if summary dismissal is claimed to be justifiable — whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard — a complete disregard — of a condition essential to the contract of service namely the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally.”

[32] It is possible to discern in decisions of the Commission involving a breach of an employer’s policy a conceptual tension as to whether mitigating factors ought be treated as going to the existence of a valid reason for termination within the meaning of s.170CG(3)(a) or only as relevant to the overall determination of whether the termination was harsh, unjust or unreasonable in accordance with s.170CG(3). In our opinion, the better view is that where a breach of policy involves a breach of the implied term requiring an employee to obey lawful directions sufficient to justify dismissal at common law then the breach will be a valid reason for termination of employment in the sense of a reason that is “sound, defensible or well-founded.” Mitigating circumstances are then relevant (pursuant to s.170CG(3)(b) to (e)) to a determination of whether the termination of employment is harsh, unjust or unreasonable notwithstanding the existence of that valid reason.

[33] This was the approach adopted by the Full Bench in Atfield v Jupiters Ltd. In that case the Full Bench accepted that the breach of policy (a strict prohibition on employees of a casino gambling on the casino premises on pain of instant dismissal) involved a breach of an important term of the contract of employment and constituted a valid reason for termination “in the sense that the reason was ‘sound, defensible or well-founded,’” but held that the mitigating circumstances (the employee was unaware that the prohibition on gambling extended to a hotel adjoining the main casino premises and sought to withdraw the bet as soon as it was suggested that the bet was placed in breach of policy, an unblemished record and prejudice in gaining further employment in the industry in circumstances where the employee had made a significant investment in self-funded training) meant that it was open to the Commissioner at first instance to conclude that the termination was harsh.

[34] In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:

(a)The policy, or a direction to comply with the policy, is illegal;
(b)The policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(c)The policy, or a direction to comply with the policy, is unreasonable.

[35] What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT Case, albeit in a somewhat different context, it is not the role of the Commission "...to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”

[36] Even where a breach of policy (or failure to comply with a direction to observe a policy) provides a valid reason for termination of employment, it is well established that the termination may nevertheless be harsh, unjust or unreasonable. For example:

· the employee may establish ignorance of the policy;

· termination of employment may be a disproportionate response to the breach having regard to its nature and the employee’s length of service and prior history;

· the employee may demonstrate prior non-enforcement or inconsistent application of the policy which, in the particular circumstances, render termination for breach of the policy harsh, unjust or unreasonable (although it should be noted that “…merely because in the past, another employee in breach of the policy may have been dealt with in a particular way other than dismissal is not, of itself, a reason why subsequent dismissals in similar circumstances might be said to be harsh.”[32]);

· the evidence may disclose that the policy is being applied in a discriminatory fashion or is used as a pretence to disguise a real reason that is impermissible (e.g. union membership or non-union membership).

This list is not intended to be exhaustive and each case will turn on its own facts.”

(footnotes omitted)

Consideration – dynamic security

The Book of Leviticus tells the story of Aaron presenting a goat (on which the lot fell for the Lord) as a sin offering.[26] It was the original “scapegoat”. To the extent that there is any suggestion that Mr Ramos was responsible for the escape of the Detainee on 13 February 2017, he is a modern day scapegoat. He has been blamed for the wrongdoings, mistakes, or faults of others, especially for reasons of expediency. As the Respondent’s own report found the escape was “well researched, planned and highly coordinated”. Further, “the escape methodology exploited security vulnerabilities in the external facing wall of the Hotham Visits Centre.”

Had Mr Ramos been more active in the outside area it is conceivable that his physical presence may have deterred the Detainee from escaping. However, noting that the Respondent’s report found that “from the time the rope was thrown over the wall to the time [the] Detainee was at [the] top of the wall was 30 seconds”, it is equally arguable that a physical presence in the yard may not have stopped the escape.

However, the fact that Mr Ramos cannot be blamed for the escape is not the end of the consideration of whether there was a valid reason for the termination of his employment.

Where an employer goes to great lengths to alert employees to a policy and to warn them that breaches of it will result in disciplinary action (including possible dismissal) in general it is in the public interest that, subject to considerations of fairness, the Commission’s decisions should support employers who are striving to implement such policies. In Queensland Rail v Wake[27] a Full Bench of the Australian Industrial Relations Commission (as the national workplace relations tribunal was then called) held the same in relation to policies against inappropriate email traffic. However, that principle should not stop there. Other significant policies (e.g. about anti-discrimination, anti-bullying, workplace health and safety) should also be supported.

Policies that are aimed at ensuring that detainees (especially dangerous detainees) do not escape into the community are also important and significant policies.

Unfortunately for the Respondent in the present matter, I cannot conclude that it had alerted employees to the “dynamic security” policy, trained or inculcated them into it to a sufficient degree such that a breach of it constitutes a valid reason for termination.

The duties of DSOs are contained in two documents. They include a wide variety of duties. No indication is given as to the priority/weight to be given to any of the duties. There are not clear expectations.

The “dynamic security” policy is also contained in two documents, but neither of them gives any particulars about what it means to “ensure a physical and active presence is maintained at all times.” At all relevant times in the present matter no instruction had been given to Mr Ramos to have a physical presence in the outside yard with detainees. The policy is vague. Its application was left much to the discretion of the DSOs. And while it is difficult to understand a decision (by Mr Ramos and his co-worker) which resulted in no testing of the outside physical area for in excess of an hour, it would be unfair to conclude that it was a breach of the Respondent’s policies. It was an error of serious judgment, but not a breach of policy.

For these reasons I am not satisfied that there was a failure to follow the “dynamic security” policy. The Respondent’s reason for dismissal on this ground was not sound, defensible, or well founded. It was not a valid reason for termination.

Consideration – portable radio policy

The undefined policy position in relation to “dynamic security” is to be contrasted with the policy in relation to the use of radios. The policy positions in relation to the use of radios are clear. They are articulated in both the:

a) “Security, Key Control and Situational Awareness” policy, and

b) “Portable Radio” policy.

It is clear that the important of the radio, and the proper use of it, is essential to the well-being of DSOs, there co-workers and to other people in the visiting areas. As the “Portable Radio” policy makes clear “Your Radio is your “Life Line”.[28] The “Portable Radio” policy also states,

a) “Before entering an [Immigration Detention Facility], employees will … securely fastened the radio to the belt by the clip/holster provided.”

b) “Do not take a radio that is not working or fails the radio check. Report to the DSM that this radio is not working and take it out of service. Do not let you colleagues take a broken radio.”

c) “Make a visual check for damage…”

In addition to the portable radio policy the Applicant had a statutory duty to take reasonable care of his own health and safety, and that of others.

In the present matter there is little real dispute (and so I make the following findings of fact) that the Applicant:

a) decided to use a radio that did not have an accessible “jack port”,

b) could not connect his earpiece to the radio,

c) did not securely fasten the radio to his belt,

d) left the radio on the desk, and

e) did not report the faulty radio to the DSM and have the radio taken out of service.

And while accepting that not every breach of a policy by an employee automatically provides a valid reason for dismissal, in the present matter the character of the portable radio policy was important and the nature of the breaches were serious. To this end it troubles me greatly that the Applicant continues to submit that any breach by him was a “technical breach”. It was not. The radio is the life line of the DSO. The breaches by the Applicant therefore put at risk his life, the life of his co-workers and the lives of those visiting the detention centre.

The Applicant seeks to explain away his breaches of policy by trying to shift the blame to the Respondent. He submitted that on previous occasions he had raised issues about the availability of radios and the state of them, but that his complaints fell on deaf ears; that the Respondent was indifferent about the application of the portable radio policy.

While that context might explain why the Applicant behaved as he did on 13 February 2017, it does not excuse it. Mr Ramos should have reported the faulty radio. He should have had it taken out of service. If his employer ignored him or directed him to use the faulty radio, then he would have been entitled to raise the matter with a health and safety representative and have the matter dealt with under the Work Health and Safety Act 2011. For example, under section 84 of that Act,

“A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.”

Had the Applicant done so it would also have changed completely the circumstances he now finds himself in. However, as matters have transpired the Applicant breached an important policy in a serious way. Consequently, his conduct provided a valid reason for dismissal that was sound, defensible and well founded.

Conclusion – valid reason

Consequently, the Commission, as presently constituted, finds that:

a)there was not a valid reason for the dismissal associated with the “dynamic security” obligation, but

b)there was a valid reason for the dismissal because of the Applicant’s failure to comply with the portable radio policy.

Notification of the valid reason - s.387(b)

Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[29] in explicit terms[30] and in plain and clear terms.[31] In the present matter the Applicant concedes that he was notified of the reason for his dismissal (although he disputes that it was a valid reason).[32]

Opportunity to respond - s.387(c)

An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[33] In the present matter the Applicant concedes that he was provided with an opportunity to respond.[34]

Unreasonable refusal by the employer to allow a support person - s.387(d)

Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. This issue does not arise in the present matter.[35]

Warnings regarding unsatisfactory performance - s.387(e)

Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.[36] In the present matter the termination was not for performance related reasons. Accordingly, s.387(e) is not relevant.[37]

Impact of the size of the Respondent on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

Both these parts of s.387 were agreed to be neutral considerations.[38]

Other relevant matters - s.387(h)

Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

The Applicant submitted that:

“Dismissal was disproportionate to the nature of the Applicant’s actual conduct

38. …, the Applicant was effectively terminated for two alleged breaches of policy. With regard to the charge that he failed to maintain dynamic security, we … reaffirm that no such breach occurred.

39. In relation to the charge that he breached the Respondent’s “Portable Radio” policy…. it is acknowledged that the Applicant may have technically breached two specified provisions. However we urge the FWC to view such conduct in the relevant circumstances and notably take into account how these policy provisions actually operated at the Respondent’s enterprise on 13 February 2017. Essentially we contend that the Respondent had no regard for its implicit obligations under this policy to provide functioning radios to each DSO. To that end, it is evident that the Applicant breached provisions of a policy that the Respondent itself disregarded. On such grounds, we submit that the decision to dismiss the Applicant is wholly disproportionate.

The incident was facilitated by a series of systemic failures in the Respondent’s security apparatus for which the Applicant cannot be held responsible

40. As noted earlier, the core finding by the Respondent was that the Applicant’s purported failures “resulted” in the escape of the detainee. We contend that this finding is erroneous as fundamentally the incident was facilitated by a variety of systemic failures in the Respondent’s security apparatus which were outside of the Applicant’s command.

41. Whilst the parties differ as to the weight that such failures should be given in relation to s.387(a), there is no dispute that the FWC can have regard to such matters in consideration of s.387(h). To that end, … we submit that ultimately this incident was caused by matters distinct from the Applicant’s purview. There is no reasonable basis on which it can be found that his purported conduct “resulted” in the detainee’s escape. As such, the decision to terminate him for this reason is particularly harsh.

The Respondent’s characterisation of the Applicant’s conduct as “serious misconduct” is inaccurate and meant that he was denied his Notice of Termination payment and Long Service Leave accrual

42. In considering the charge of “serious misconduct” Justice Derrington in Boral Resources (Queensland) Pty Ltd v Pyke) noted:

“[the misconduct in question must be] significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results.”

43. Serious misconduct generally refers to conduct which so flouts the essential conditions of the contract of employment that the employee does not intend to be bound by the contract. Usually the act in question deeply impairs or destroys the basic principles of confidence or trust that is essential to the employment relationship.

44. … it is submitted that the Applicant’s conduct cannot reasonably be described as “serious misconduct” and thereby does not engage this heightened threshold. At all times he was attending to his duties as best as he could, given the trying circumstances.

45. Accordingly it is submitted that the decision to terminate on the grounds of serious misconduct is particularly harsh. This characterisation meant that the Applicant was denied his Notice of Termination entitlement and his accrued Long Service Leave entitlement, which totalled 13 weeks’ pay.

The Applicant was candid and co-operative throughout the Respondent’s investigation into this incident

46. Given that the Applicant’s conduct is the central focus in these proceedings, it is noted, for completeness, that the Applicant cooperated fully with the Respondent throughout the investigation into this incident.

The Applicant maintained an exceptional performance record with the Respondent throughout his employment

47. The Applicant had maintained an exceptional performance record with the Respondent and, as such, the decision to dismiss him on the basis of this single incident is harsh. Throughout his employment, the Applicant was highly regarded by the Respondent and was called on to act up in leadership roles and assist with key assignments in various Centres. Here we point to the Applicant’s final Performance Development Review (“PDR”) undertaken in 2016. This review, which was conducted by the Respondent’s Facilities Operations Manager, provides a laudatory assessment of the Applicant describing him as an “experienced Detention Service Officer who fulfils his role and carries out his duties in a very professional manner.” The PDR notes that he is “always willing to share his expertise and knowledge to other [sic] especially new officers.” The Applicant is said to be a “reliable officer and a good team player” who “demonstrates honesty” and is a “very trusted employee” who “meets all expectations of a Detention Service Officer.”

48. We submit that the dismissal of such an employee, in the circumstances described throughout these submissions, renders his termination harsh, unjust and unreasonable.

The Applicant was employed by the Respondent for over seven years

49. … we note that the Applicant was employed for over seven years which amounts to a significant length of service. Given his contentions about his passion for this work, as well as the Respondent’s high regard of his performance, it is submitted that he would have continued a long affiliation with the Respondent. The dismissal of a long serving employee, in the circumstances described throughout these submissions, is therefore particularly harsh.

The Applicant’s limited skill set has made it difficult for him to find alternative employment. His summary dismissal has also had a serve impact on his personal and economic circumstances

50. In its consideration of harshness at s.387(h), the Full Bench in B, C and D v Australian Postal Corporation noted the following:

“The adverse personal consequences of a dismissal tend to increase with age and duration of employment. For some employees, the loss of employment is not particularly damaging. A young, single employee with an in-demand trade or skill will likely find new employment very quickly. However, for an older employee without qualifications or a trade, dismissal can amount to a personal catastrophe and lead to long term unemployment, serious depression, loss of the family home, failed relationships and all of the myriad tribulations that flow from that for children.”

51. In his Statement of 27 July 2017, the Applicant has provided an overview of his limited skill-set and the obstacles he has encountered in finding suitable employment. Despite his substantive and genuine efforts …, he has not been able to obtain any employment nor obtain any remuneration since his dismissal. Further, the Applicant has also provided evidence in this Statement about the significant impact of his dismissal on his personal and economic circumstances. As the primary provider for his young family, his dismissal has caused severe hardship and has been particularly distressing.”

I consider each of the matters raised by the Applicant to be relevant to the determination of whether the dismissal of the Applicant was harsh, unjust or unreasonable. In respect of each matter I have decided that:

Whether the dismissal was a disproportionate response.

a) I have already found that the portable radio policy was an important policy and that the Applicant’s breaches of it were serious. His conduct put his life and the lives of others at risk in the context of him being responsible for dangerous detainees. His breach was not “technical” as submitted by the Applicant.

b) For this reason I am not satisfied that the dismissal was a disproportionate response to the valid reason for termination.

Whether the Applicant can be held responsible for the incident.

c) I have already found that the Applicant cannot be held responsible for the Incident. To the extent he was, he was a scapegoat. Further, to the extent he was it was unfair and this consideration supports a finding that the termination was unjust.

The characterisation of the Applicant’s conduct as “serious misconduct” (resulting in the loss of a Notice of Termination payment and Long Service Leave accrual).

d) To the extent that the breach of the “dynamic security” policy was characterised as “serious misconduct” that was unjust. It supports a finding that the dismissal was unfair.

e) To the extent that the breach of the “portable radio policy” was characterised as “serious misconduct” that was entirely appropriate. It supports a finding that the dismissal was not harsh, unjust or unreasonable.

The Applicant’s conduct during the investigation.

f) No fault can be found with the applicant’s conduct during the investigation.

The Applicant’s exceptional performance record.

g) The Applicant’s exceptional performance record supports a finding that the dismissal was harsh.

The Applicant’s tenue (over seven years).

h) The Applicant’s tenure supports a finding that the dismissal was harsh.

The Applicant’s limited skill which has made it difficult for him to find alternative employment. His summary dismissal has also had a serve impact on his personal and economic circumstances.

i) The evidence[39] of the Applicant about his skills and experience was that,

i.He was born and raised in the Philippines. He completed his secondary education there. He also undertook tertiary studies, being a Bachelor of Science in Business Management at the University of the East Philippines, but he did not complete the final subject required for my degree (due to personal reasons).
ii.He moved to Australia in 1995 to do a Certificate III in Business Studies, which he completed in about 1996.
iii.In October 1997, he enrolled in a Diploma of Accounting Course, but did not complete that course, because he had to return to the Philippines.
iv.He returned to Australia in about October 2001.
v.Prior to his employment with the Respondent, from approximately October 2002 to mid-2006, he worked as a multi-skilled warehouse storeman for Group Newsagency Supplies.
vi.After 3.5 years he decided to change his career and move into the immigration and detention services sector.
vii.From approximately June 2006 to September 2009, he was employed as a DSO with another service provider, G4S before commencing employment with the Respondent.

j) The evidence[40] of the Applicant about the impact of the dismissal on him was that,

i.He was devastated to have been terminated from his position with the Respondent, especially in circumstances where he felt I had been unfairly held responsible for the Incident.
ii.He very much enjoyed his position with the Respondent and derived great professional satisfaction from the performance of his role and also from his ability to provide for his family.
iii.To be terminated in such circumstances has been particularly distressing. Losing his position has been extremely difficult for him and his family, both personally and financially.
iv.He provides care and support for his brother in law, who receives kidney dialysis several times a week.
v.He has a wife and two young boys, aged 10 and 13, for whom he is the primary provider.
vi.The sudden dismissal by the Respondent has caused severe hardship in this regard.

k)The evidence[41] of the Applicant about his attempts to find alternative work since the dismissal was that,

i.Since the termination of his employment the Applicant has sort new employment. He is currently exploring the possibility of engaging in work as a sub-contractor to a cleaning company and he has been reviewing sites for which he hopes to submit proposals and obtain contract work. He has also registered with a labour hire company and undertaken assessments to enable him to work in a warehouse.

ii.Additionally the Applicant has applied for the following employment positions, however, he has not received an offer of employment from any of these applications at this stage:

A.Local Government customer service roles in Parramatta;

B.Customer Sales and Service Consultant for Telstra in Blacktown;

C.Team Lead with CDS Australia;

D.Customer Service Officer at Randstad;

E.Assistant Store Manager with Cotton On in Blacktown, and

F.Community Support Worker with Care I in Penrith,

iii.He has also applied for the following positions, some of which he has attended interviews for and been through various recruitment processes (without success):

A.Administration Officer APS4 (Client Experience and Improvement Officer) with the Australian Taxation Office;

B.Customer Service Officer with the Commonwealth Bank, and

C.Warehouse role with The Action Workforce.

vi.He has also commenced part-time study through the TAFE Western Sydney Institute Nirimba College Outreach Program, undertaking an intermediate computer course on the Windows 10 operating system to update his skills. This course continues until November 2017.

(l) All of the evidence of the Applicant about his skills, experience, the impact of the dismissal on himself and his family and his attempts to secure alternative employment supports or weighs in favour of a finding that the dismissal was harsh.

Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, the Commission, as presently constituted, finds the Applicant’s dismissal was not unfair.

This is because in weighing up all the matters referred to above the breaches of the portable radio policy outweigh those matters that support a finding in favour of the Applicant. It is to be remembered that the Applicant was a long serving and experienced employee, he had held leadership (and coaching) positions, he knew the detainees in the visiting area were dangerous and yet, in this context, he breached a serious policy about radios (when radios are a DSO’s life line).

Conclusion

The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, but not that the dismissal was unfair. The Applicant’s application for an unfair dismissal remedy is dismissed.

An order will be issued with this decision.

COMMISSIONER

Appearances:

Mr H Pararajasingham, from United Voice, for the Applicant.
Mr P Brown, solicitor, for the Respondent.

Hearing Details:

Sydney
24 August,
2017

Final Submissions:

Applicant’s Final Submissions, 4 September 2017.
Respondent’s Final Submissions, 4 September 2017.

[1] Statement of Roderick Ramos (27 July 2017) at [2]; Annexure “SB2” to the Statement of Soraya Boulous (11 August 2017).

[2] Ibid at [1].

[3] Statement of Roderick Ramos (27 July 2017) at [13].

[4] Statement of Roderick Ramos (27 July 2017) at [14].

[5] Statement of Roderick Ramos (27 July 2017) at [15].

[6] Statement of Roderick Ramos (27 July 2017) at [16].

[7] Statement of Roderick Ramos (27 July 2017) at [17].

[8] Statement of Roderick Ramos (27 July 2017) at [18].

[9] Statement of Roderick Ramos (27 July 2017) at [7]; Annexure “SB1” to the Statement of Soraya Boulous (11 August 2017).

[10] Statement of Soraya Boulous (11 August 2017) at [59].

[11] Annexure “SB1” to the Statement of Soraya Boulous (11 August 2017).

[12] Post Incident Review VIDC – Hotham Visits Escape 13 February 2017 – attached as Annexure “RR#4” to the Statement of Roderick Ramos (27 July 2017).

[13] Statement of Roderick Ramos (27 July 2017) at [65]; Statement of Soraya Boulous (11 August 2017) at [37].

[14] Statement of Roderick Ramos (27 July 2017) at [65]; Statement of Soraya Boulous (11 August 2017) at [41].

[15] Statement of Soraya Boulous (11 August 2017) at [42].

[16] Statement of Roderick Ramos (27 July 2017) at [65]; Statement of Soraya Boulous (11 August 2017) at [45].

[17] Statement of Roderick Ramos (27 July 2017) at [65]; Statement of Soraya Boulous (11 August 2017) at [46].

[18] Statement of Roderick Ramos (27 July 2017) at [68]; Statement of Soraya Boulous (11 August 2017) at [53].

[19] Sayer v Melsteel[2011] FWAFB 7498.

[20] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

[21] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

[22] Ibid.

[23] (2004) 133 IR 458.

[24] Ibid, [67].

[25] PR963023 [2005] AIRC 830; (26 September 2005).

[26] Leviticus 16:9.

[27] (2006) 156 IR 393, 400.

[28] “Portable Radio” policy, Annexure JB-9 to Exhibit 10.

[29] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

[30] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[31] Previsic v Australian Quarantine Inspection Services Print Q3730.

[32] Transcript PN14.

[33] RMIT v Asher (2010) 194 IR 1, 14-15.

[34] Transcript PN16.

[35] Transcript PN18.

[36] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

[37] Transcript PN20.

[38] Transcript PN22.

[39] Statement of Roderick Ramos (27 July 2017) at [9] – [12].

[40] Statement of Roderick Ramos (27 July 2017) at [70] – [71].

[41] Statement of Roderick Ramos (27 July 2017) at [72] – [74].

Printed by authority of the Commonwealth Government Printer