Tamuka Matongorere v Serco Australia Pty Ltd
[2022] FWC 1504
•30 JUNE 2022
| [2022] FWC 1504 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tamuka Matongorere
v
Serco Australia Pty Ltd
(U2021/9407)
| DEPUTY PRESIDENT CROSS | SYDNEY, 30 JUNE 2022 |
Application for an unfair dismissal remedy
Introduction
Mr Tamuka Matongorere (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 20 October 2021 (the Application), in respect of his dismissal from employment with Serco Australia Pty Ltd (the Respondent).
A Conciliation conducted by a staff member of the Fair Work Commission (the Commission) on 17 November 2021, and a Member Assisted Conciliation conducted on 1 December 2021 failed to resolve the matter. Directions for the filing of materials were issued during the Member Assisted Conciliation. Those Directions were as follows:
1. Tamuka Matongorere (the Applicant) is directed to file with the Fair Work Commission, and serve on Serco Australia Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 15 December 2021.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 10 January 2022.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 17 January 2021.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 10 January 2022.
The parties complied with the Directions. In particular:
· On 15 December 2021, the Applicant filed an Outline of Submissions, and a witness statement of the Applicant;
· On 10 January 2022, the Respondent filed an Outline of Submissions, a witness statement of Mr Wayne Nugent, Centre Services Manager of the Respondent, and a witness statement of Mr Don Taylor, General Manager of the Villawood Detention Centre (the Centre); and
· On 17 January 2022, the Applicant filed an Outline of Submissions in Reply, and a Reply Witness Statement of the Applicant.
The matter was listed for Hearing on 3 February 2022 (the Hearing). At the Hearing, all witnesses were cross-examined. At the conclusion of the Hearing the parties sought to file written submissions after having access to the transcript of the Hearing. The following further submissions were filed:
(a) Applicant’s Closing Submissions dated 30 March 2022;
(b) Respondent’s Written Submissions dated 6 April 2022; and
(c) Applicant’s Closing Submissions in Reply dated 13 April 2022.
Disposition of the Witnesses’ Evidence
This matter has involved competing evidence between the Applicant on one hand, and Mr Nugent and Mr Taylor on the other, regarding the policies and practices at the Centre. There has also been contested evidence regarding the particular actions of the Applicant on 5 August 2021, and thereafter. Where there has been such competing evidence, I have preferred the evidence of the Respondent’s witnesses, and where there was contested evidence regarding the events of 5 August 2021 and thereafter, I have been reluctant to accept the evidence of the Applicant where not independently corroborated.
The Applicant was clearly aware of the issues and problems in his Application, and I find he sought to impermissibly tailor his evidence, both written and oral, to suit the case that he thought would most likely result in his dismissal being found to be unfair, rather than to provide evidence of what in fact occurred.
Relevant Facts
(a) Background Facts
The Applicant held the position of Detention Service Officer (DSO). He commenced employment with the Respondent at the Centre in a casual position in November 2016 and was subsequently appointed to the position of Full Time DSO on 3 September 2018.
When the Applicant commenced employment as a Casual DSO, he executed:
(a) A DIBP FDSP Code of Conduct (the Code of Conduct); and
(b) A Code of Conduct -Employee Declaration.
Each year the Applicant was required to participate in refresher training. As part of the refresher training, the Applicant was sent an online learning tool which included a document referred to as “Our Code of Conduct”. All DSOs at the Centre are required to complete scheduled training modules.
On 5 August 2021, the Applicant was assigned to a proposed escort involving the transportation of a high-risk detainee (the Detainee) from the Centre to Auburn Hospital (the Escort). The escort of any detainee involves a number of considerations which are carefully considered ahead of such escort, and are included in an Escort Operational Order (the EOO) which provides the employees who are responsible for an escort with information relevant to the detainee or detainees that are the subject of the proposed escort. The EOO also contains information including:
(a)the SIS Site Risk Assessment Pro Forma; and
(b) Security Risk Assessment of the Detainee.
The Detainee that was to be transported on 5 August 2021 was well known within the Centre as a detainee who had both an extensive criminal record and had previously been involved in a serious assault against the Respondent’s employees. He had repeatedly threatened self-harm and required frequent medical assistance, including transportation to hospital. The Detainee had been assessed as high-risk and required careful supervision and handling during the Escort.
Whilst the Detainee was the only detainee to be escorted, a total of four of the Respondent’s employees (including the Applicant) were initially allocated to the task. One employee was nominated as the driver of the van (the Driver). The other three employees, including the Applicant, were tasked with the physical on-boarding of the Detainee to the van and ensuring the safety of the Detainee during the transportation, including his proposed reception and treatment at Auburn Hospital.
One officer who was to join the Escort as the fourth DSO was delayed in joining the other three employees. It was during this period of time, while the Applicant, the Driver, a second DSO (the Second DSO), and the Detainee were waiting in the van for the fourth DSO, that an incident occurred (the Incident). The Escort was subsequently abandoned as a result of the Incident with the Detainee.
(b) The Incident
The details of the Incident are as follows:
(a) The Applicant, the Driver, and the Second DSO, were first briefed by the duty Detention Services Manager (the DSM). As noted above, they were required to escort the Detainee, who was in the COVID isolation unit at the Centre, to Auburn Hospital. During the briefing, the DSM gave instructions that the Detainee was undertaking medical quarantine in the isolation unit due to potential exposure to COVID. The Detainee had requested to go to hospital. For the past three days, the Detainee had been requesting to go to hospital but paramedics who assessed him said he did not require hospital care. The DSOs were required to wear full PPE, including mask, gown, gloves and goggles during the Escort, and the Second DSO was the team leader for the Escort.
(b) As part of the briefing, the DSOs were given the Security Risk Assessment Tool for the Detainee. That is a report that is provided for each detainee at the beginning of every escort, and it outlines the number of incidents the detainee has been involved in and the nature of those incidents, for example assaults.
(c) When the DSOs arrived at the isolation unit, the Second Officer and the Applicant donned full PPE, including gown, gloves, mask and goggles, and walked inside the Unit, while the Driver waited inside the van.
(d) The Detainee was released from his room, and the Applicant advised him of what would happen during the Escort. The Applicant said to the Detainee “you’ve been on escort numerous times so you know we have to handcuff you.” The Detainee acknowledged that instruction. The Applicant then searched the Detainee with a metal detector, and the Second DSO performed a pat search of the Detainee and then, consistent with his training, put the mechanical handcuffs on the Detainee with his hands in front of him.
(e) DSOs are taught in training that when a detainee is in mechanical handcuffs, they must use an enhanced escort procedure (EEP), which involves holding on to a detainee by their arm, around the elbow area, to make sure they do not lose their balance while walking. When leaving the isolation unit and as the Detainee began walking, the Applicant noticed the Second DSO did not apply EEP, so the Applicant stepped forward and applied EEP to the Detainee. When they left the isolation unit, the Detainee was not wearing a mask, contrary to the NSW public health orders.
(f) When the parties got to the van, the Detainee climbed into the van and sat down. The Second DSO buckled his seatbelt and sat down. The Applicant stood outside the van by the sliding side door. What can only be described as an altercation then occurred, where the following words were said, and actions taken (italicised), as seen in the CCTV footage from the van:
| Second DSO | Shut the fuck up. |
| Detainee | Don't fucking talk to me like that. |
| Second DSO | Shut the fuck up I said to you. Removes detainees beanie and shoves into detainees face and slaps him with it before throwing it on detainees lap. |
| Detainee | Don't touch me cunt. |
| Second DSO | Don't touch me either cunt. |
| Detainee | Who do you think you fucking are? |
| Second DSO | Who do you think you fucking are? |
| Detainee | You fat cunt. |
| Second DSO | Get fucked |
| Detainee | Kiss my arse. Fucking faggot. Fucking dog. Don’t fucking touch me you fucking dog. I'll fucking kick your head in cunt. Detainee puts beanie back on. |
| Second DSO | Try |
| Detainee | You’re not worth it you fucking piece of shit |
| Second DSO | There you go, so shut up. |
| Detainee | You fucking piece of shit you're not worth it. |
| Second DSO | Do you want to go to hospital you idiot? |
| Detainee | Go fuck yourself. Detainee throws mask at the Applicant. |
| The Applicant | Put on a fucking mask, otherwise you are not going in. The Applicant throws mask at detainee. Lets go back in then. You wanna go. Lets go back in. The Applicant motions for detainee to exit van. |
| Detainee | I don’t fucking want to go now. Gets up and exits van |
| The Applicant | You want to go? |
(g) The Applicant accepted that he threw the face mask towards the Detainee and said “put your fucking mask on”. He said he was standing about 2-2.5 metres away from the Detainee when he threw the mask but did not recall where the mask landed, and he didn’t throw the mask with force. The Applicant stated an exchange consistent with the above recorded conversation occurred.
(h) In relation to the previous actions of the Detainee and the Second DSO, the Applicant claimed that while they were waiting for the fourth DSO to arrive, he was mostly looking towards the gate where the fourth officer would arrive from. He said he heard a verbal argument between the Detainee and the Second DSO but didn’t remember what the Detainee was saying. His evidence as to what followed was:
“Whilst waiting for the fourth officer to arrive, a verbal argument started between [the] detainee and [the Second DSO].
I recall [the] Detainee was talking a lot, though I don’t remember what he was saying. [the Second DSO] told the detainee to shut up. At this point, I stopped looking towards the gate and looked into the van towards [the] Detainee and [the Second DSO].
At that time, I saw [the Second DSO] reach out towards [the] Detainee but the movement happened quickly and the yelling was escalating, so I didn’t register whether [the Second DSO] had touched [the] Detainee or not.
[The] Detainee was shouting profanities towards [the Second DSO]. [The] Detainee told [the Second DSO] that he would bash his head in.
As the situation escalated relatively quickly, I reacted to the yelling and said to [the] Detainee: “shut the fuck up”. [The] Detainee then took his face mask off and threw it towards me.”
(c) After the Incident
Thereafter, the Detainee undid his seatbelt himself and exited the van. The Applicant applied EEP to the Detainee, and the Second DSO and the Applicant walked the Detainee back to the isolation unit. As the Second DSO and the Applicant were walking away, the Detainee shouted “fucking dogs”.
The Second DSO and the Applicant then returned to the Transport and Escort office. They saw the DSM, who said “Tell me what happened because I’ve already received a phone call saying [the Detainee] refused to go”. The Second DSO and the Applicant discussed with the DSM what had occurred and advised him that the Detainee had declined the Escort.
The Applicant stated that he asked the DSM “Do you want me to do a log until the point when he declined?”, to which he says the DSM responded “Don’t worry about it, the log is going in the bin. Just do an Abusive and Aggressive report.”
The Applicant subsequently completed a report at 10.12pm on 5 August 2021 (the Applicant’s Report) in the following terms:
“On the 5th of August, 2021, I, DSO Tamuka Matongorere, DSO, was rostered in T&E from 1900-70. Approximately 2100, I, together with DSO’s [Second DSO] and [Third DSO] were on an escort job to escort [the Detainee] to Auburn Hospital. Mechanicals were applicated to the detainee by [the Second DSO] and the detainee was escorted to the vehicle using EEP. On arrival to the car, the detainee was seated inside with his seatbelt applied and [the Second DSO] was with in the car. I was standing by the doorway, waiting for the third officer who was going to join us on the escort. Approximately 2110, [the Second DSO] instructed the detainee to put on a face mask, as it was a requirement to enter into the hospital. At this point, the detainee threw the mask towards me, shouting abusive words towards [the Second DSO]. I gave the detainee the mask again, telling him that it was a condition to enter the hospitals. The detainee then proceeded to verbalise that he did not want to go to the hospital if he needed to wear a mask. He undid his seatbelt and walked out of the van. As I was the officer standing outside, I was quick to apply EEP on the detainee, and walked with him into the compound. Upon getting to the door which leads into the Hotham HCA, he started shouting at me and demanding that I let him go. I told him that as long as he was in mechanicals, EEP was necessary. When we got inside the unit, he started shouting at me again, demanding that I let him go. He attempted to shake my hands off him, but I maintained the EEP on him. When we got to his room, the mechanicals were removed by [the Second DSO] and the detainee went back into his room. As we were walking back towards the PPE doffing zone, I heard the detainee shout “fucking dogs”. This concludes my involvement in the matter.
I submit this report for your information.”
The Second DSO subsequently completed a report at 6.32pm on 6 August 2021 (the Second DSO’s Report) in the following terms:
“On Thursday 05th August 2021, I [Second DSO] was rostered to work in Transport and Escorts from 1900-700 with, [the Applicant] and [the Third DSO].
At 2100 hrs the officers and I entered the Hotham unit to escort [the Detainee] to Auburn Hospital.
As the Team Leader I was instructed by [the DSM] that all officers and [the Detainee] were required to wear a face-mask if they were entering any Hospital.
At 2100hrs, I applied mechanical restraints to the wrists of [the Detainee]. The mechanical restraints were checked by [the Applicant] as being applied correctly.
The detainee was escorted to the waiting escort vehicle by [the Applicant] using EEP.
The detainee was placed in the escort vehicle by myself and [the Applicant] using EEP.
I placed the seatbelt on [the Detainee] as I was doing this the detainee appeared calm and compliant.
I have then satdown [sic] on the seat to the left of the detainee and behind the detainee. And asked [sic] the detainee that it was a requirement to wear a face-mask if he wanted to enter Auburn Hospital I have then handed the detainee a face-mask.
Without warning the detainee starting [sic] shouting at me. I told the detainee to be quiet and again informed the detainee that it was a requirement that he had to wear a face-mask.
The detainee became abuse [sic] he said words to the effect of “you fat cunt, get fucked, you treat me like a prisoner”.
I have raised my voice and said to the detainee again you need to wear a face-mask if you want to enter Auburn Hospital.
The detainee has thrown the face mask towards [the Applicant] and [the Applicant] has caught the face-mask and then thrown the face-mask back towards the detainee.
The face-mask has landed on the seat next to the detainee I have then with my left open hand placed the mask back on the lap of the detainee.
As I was doing this the detainee has lent forward and in doing so my left open hand has brushed the detainee.
As a result of this action the detainee has become more abuse [sic] towards myself. Calling me “a fat beer drinking cunt”.
I have then sat backdown in my seat and again told the detainee that it was a requirement to wear a face-mask.
Without warning the detainee has removed his seatbelt and said “get fucked then” I do not want to go to Hospital.
As the detainee has exited the escort vehicle [the Applicant] has used EEP to escort the detainee back inside Hotham compound.
I have placed myself directly behind the detainee. As [the Applicant] was escorting the detainee the detainee was resisting the efforts of [the Applicant] by throwing his body from side to side.
As the detainee [the Applicant] and myself were waiting at the entry door to Hotham compound the detainee has threatened myself and [the Applicant] by saying words to the effect of “I will bash you, you fat beer drinking cunt” these words were directed towards myself.
As the detainee was said this I felt fearful that the detainee was going to assault myself. As this was happening the detainee was thrashing his body around as [the Applicant] was trying to maintain his hold on the detainee.
The detainee was escorted through the entry doors to Hotham compound still thrashing his body around. [The Applicant] was trying to calm the detainee and I was assisting.
Once in the secure area near the detainee’s room I have removed the mechanical restraints from the detainee. [The Applicant] has applied EEP to the detainee. The detainee has continued to abuse myself by saying words to the effect of “you fat cunt I will assault you you fat beer drinking cunt” as the detainee was saying this to myself.
He was looking directly at myself and I felt fearful that I may be assault at any time.
I removed the mechanical restraints and stepped back away from the detainee. At this time the detainee has entered his room.”
As the Respondent performs its functions pursuant to a contract with the Commonwealth Government, there is a high level of record keeping that must be maintained by all DSOs. At the conclusion of any escort involving the use of mechanical restraints and any escort where an incident occurs, each officer who is involved in, or witnesses, a particular incident is required to immediately, or at least by the end of their shift, prepare (hand-written or typed), their individual written Officer’s Report.
On or about 10 August 2021, the Detainee made a Police Referral, which involves a detainee seeking access to Australian Federal Police regarding an incident that occurred in the course of their detention.
On Wednesday, 11 August 2021, Mr Nugent was approached by the Transport Operations Manager of the Respondent (the TOM). The TOM said to Mr Nugent “Wayne, you may want to have a look at this footage”. The CCTV Footage that he was referring to was footage of the Incident from the on-board camera of the van.
Thereafter, Mr Nugent considered the EOO prepared for the Escort. The EOO had no information about the Escort other than the fact that it was “declined”. There was no evidence of the events of the Escort up to the point of abandoning the Escort being recorded in writing.
Mr Nugent then considered the Officer's Reports of each of the DSOs allocated to the Escort, including the Applicant’s Report and the Second DSO’s Report.
A meeting was arranged for 2.00pm on 11 August 2021 to speak with the Applicant about the Incident. The Applicant was offered the attendance of a support person but declined. In the meeting the CCTV footage was played to the Applicant on a laptop computer. After the footage had been played to the Applicant, Mr Nugent said to him “ls there anything further that you now want to add after watching the footage?”. The Applicant responded “My involvement is: he was given the mask, he threw (the mask) at me. I threw it back at him. We are in a pandemic, they won't let you in without a mask”.
The Applicant was subsequently stood down and issued with a stand down letter. On 18 August 2021, the Applicant was issued with a document described as “Notification of Formal Disciplinary Meeting”. The formal disciplinary meeting occurred at the Centre at 11.30am on 20 August 2021. The Applicant nominated a support person by the name of John McShane. In that meeting there were numerous relevant exchanges recording in the minutes of the meeting, including:
| Wayne | 2. In the Officers Report submitted by you at approximately 2110 hours, you failed to report a. Details of your inappropriate behaviour and language towards the Detainee; b. Details of your witnessing your colleague’s inappropriate behaviour, language and physical assault towards the Detainee; c. An accurate account of the sequence of events as they occurred in the T&E vehicle, thus making the information provided in your report to be false and misleading. |
| DSO Tamuka | a. At that time, I didn’t think that it was inappropriate, in the light of things I didn’t think it was material detail to be mentioned in the report. b. Everything happened so fast that I didn’t realise what was happening. WN: I’ve got footage that shows you are seeing what is happening. I’m not going to buy that you didn’t see it. TM: I probably saw it but was so heightened that I didn’t notice it. c. It was not deliberate action. |
| … | |
| DSO Tamuka | TM: That’s why when I got to the van, I took out the mask as it was an issue for me from get go. Detainee went inside and we were waiting for the PPE officer. I don’t know to this day what went on between the Detainee and [the Second DSO]. The next thing I remember is that the words beings [sic] exchanged and both are shouting at each other. When I watched the footage, I remember [the Second DSO] pulling the beanie of [sic] the Detainee and throwing it on the Detainee’s face. I remember the Detainee making physical threats of harm to the officer. |
| … | |
| DSO Tamuka | Looking back in hindsight, probably not. But on that day, I responded in a way that any other person would do. The language could’ve been better. I can’t hide away from it and I’ve owned up to it. Because swearing has become common, it was in no malice. It was said in the loud voice was as a result of me giving an instruction. NC: Do you think it is appropriate to compare yourself to any other person? I think your behaviour cannot be compared with any other person as you are an officer who has undergone training to manage complex detainee behaviours and been taught to de-escalate situations when they arise when you engage with detainees. You also undergo refresher trainings for the same. Is that correct? TM: Yes. |
| … | |
| Wayne | Are you aware that you’re supposed to report an incident of this nature and not omit parts where your behaviour was inappropriate with the Detainee? |
| DSO Tamuka | Yes. At that time, I didn’t think it was inappropriate. |
The Applicant had been advised in the course of the disciplinary meeting that he could provide a written submission. On 23 August 2021, the Applicant provided to the Respondent a two-page document that stated:
“23 August 2021
To Senior Management Team
Villawood Immigration Detention Centre
I write in relation to our discussion of the events that occurred on August 5 2021. The detainee with whom we were dealing was an extremely volatile individual who had a substantiated history of aggression and violence against centre staff and staff he had dealings with outside the centre.
I normally cope exceptionally well with such detainees when I have dealings with them. I have been racially abused and taunted by detainees; including an incident just a few weeks ago when a female detainee we had picked up from prison called me a nigger, and I have not reacted.
On the day in question there was no issue with the interaction despite his attitude. The issue arose when he threw his protective mask at me.
I have a heightened awareness of the dangers of Covid-19, having lost close relatives in my home country, including a 35-year-old cousin a few weeks ago from the virus. I have a 4-month-old daughter at home, and a half-year-old son stranded in Zimbabwe due to the pandemic. These kids are a special blessing to me, having suffered 3 miscarriages prior. Having lost my father at age 15, I want to do everything in my power to be in my kids’ life for as long as possible. After my father’s passing, my mother sacrificed everything to allow me to come to Australia and pursue an education. Now that she is nearing retirement age, I will be her main source of income in retirement.
On the day in question, NSW Premier, Gladys Berejiklian had announced earlier during the day that the state had recorded 320 cases in the 24-hour period to 8pm the previous day, the majority of cases being in the Bankstown Canterbury LGA, where VIDC is situated. My understanding also was that masks were mandatory in vehicles under NSW Public Health Orders, unless driving alone or with members of the same household. The briefing we got was to collect the detainee from Hotham 5 HCA, where he was undertaking quarantine isolation. Full PPE was to be worn on the escort, which consisted of gown, gloves, mask and gloves [sic]. I interpreted the need for full PPE to mean that the detainee posed a heightened risk of passing on some infection to staff members. Therefore, the detainee’s blatant disregard for my safety must have triggered something in me resulting in me throwing the mask back at him in my attempt to get him to put the mask on, and swearing at him.
The swearing was a matter of hyperbole rather than malice and the throwing instead of handing it to him was an instinctive rather than measured response.
I draw your attention to the fact that after the mask incident, I escorted the detainee back to his accommodation by the book without incident despite his attempts to provoke me.
I apologise wholeheartedly for my actions and undertake to apply my usual self-control if any other such situation arises.
In relation to my failure to fill out all the details in the report I can only put down to the proverbial fog of war.
I had just experienced an event that had touched my very soul.
I wrote what my mind was accepting at the time as being reality.
At no time was I deliberately trying to mask or distort the truth and I apologise for any failings that I may have exhibited.
I have worked at the centre for more than 4 years without incident. I love my job and it is a vehicle of support for my family and as I wish to state that I will do my best to make sure this does not happen again.
As for the failure to fill out the log under Part D, Resources, I will state again that which I brought to Senior Manager Wayne Nuggent’s attention, that the DSM on the night told me that there was no need to fill anything anymore, since the escort had not gone ahead and the log was just going to end in the bin.
May I quote the Lord Denning?
“Judge men on the standards of men,
Not the standards of Angels.””
On 30 September 2021, the Applicant met with the General Manager of the Centre, Mr Taylor, and other management representatives of the Respondent. The Applicant’s support person, Mr McShane, attended by telephone. In the course of the meeting. Mr Taylor said to the Applicant that various allegations that bad been made against him were regarded by the Respondent as “sustained”. The sustained allegations as read to the Applicant at the meeting included:
(a) During the Escort, whilst the Applicant and the Detainee were seated in the van at approximately 21:07 hours (on 5 August 2021), the Applicant behaved inappropriately when he threw the face mask back at the Detainee and, in a loud and aggressive tone, stated to him “put on your fucking mask” in addition to other words and phrases;
(b) In the Officer’s Report submitted by the Applicant at approximately 21:10 hours (on 5 August 2021), the Applicant failed to report:
(i) details of his inappropriate behaviour and language towards the Detainee; and
(ii) details of the Applicant witnessing his colleague's inappropriate behaviour, language and physical assault towards the Detainee; and
(iii) an accurate account of the sequence of events as they occurred in the van, thus making the information provided in the Applicant’s Officer’s Report false and misleading;
(c) The Applicant failed to sign the Part D “Resources” section of the Escort Operations Order.
In the meeting, Mr Taylor advised the Applicant that a decision had been made to terminate his employment and that he would now be advised formally in writing of the termination.
As a result of the Incident, the Second DSO was dismissed by the Respondent. The Driver was issued with a first and final written warning in relation to the Incident. The DSM was also subject to disciplinary action regarding the issue of EOO’s not being commenced following briefings.
Submissions
(a) Applicant’s Closing Submissions
The Applicant noted that the conduct allegedly engaged in by the Applicant and that gave rise to the dismissal constituted serious misconduct, and so the Respondent bears the onus of proving on the balance of probability that the allegations against the Applicant were true.
Regarding the first reason for dismissal, being that during the Incident the Applicant behaved inappropriately by throwing a mask at the Detainee and using aggressive language towards the Detainee, the Applicant submitted:
(a) The Applicant had given evidence that swearing is commonplace at the Centre, and while Mr Nugent provided evidence that the Respondent does not permit employees at the Centre to engage in the use of offensive or disrespectful language, that assertion did not dispel the notion that swearing can still be commonplace.
(b) While the Detainee can be heard in the CCTV footage using very aggressive language before the Applicant became involved in the Incident, the Applicant’s use of inappropriate language during the incident extended only to telling the Detainee to “shut the fuck up” and to “put on a fucking mask”. In the context of the Incident and the language being used by the Detainee, the Applicant’s language can barely be considered offensive let alone aggressive.
(c) Throughout the investigation process and in the course of the Hearing, the Applicant did not deny that he swore at the Detainee during the Incident. The Applicant provided evidence that his use of inappropriate language was a human reaction to an escalating and stressful situation. The Applicant did not usually swear at detainees.
(d) Regarding the mask, the CCTV footage shows the Detainee throwing the mask at the Applicant before the Applicant throws it back to him with the instruction “put on your fucking mask”. The Applicant’s evidence was that he did not throw the mask with force and that was corroborated in the CCTV footage.
Regarding the second reason for dismissal, being the failure by the Applicant to include in the Applicant’s Report details of his inappropriate behaviour and language towards the Detainee, details of the Applicant witnessing the Second DSO’s inappropriate behaviour, language and physical assault towards the Detainee, and an accurate account of the sequence of events as they occurred in the vehicle, the Applicant submitted:
(a) The CCTV footage was first shown to the Applicant by Mr Nugent during the meeting on 11 August 2021. The Applicant was only provided with the opportunity to view the footage after Mr Nugent had already asked him to recount his version of events during the incident. When viewing the footage, the Applicant realised for the first time the full extent of the physical interaction between the Second DSO and the Detainee.
(b) The Applicant’s evidence in relation to his involvement in the Incident has been consistent throughout the investigation process and the Hearing. The CCTV footage supports the Applicant’s evidence that he was not in the van at the time of the Incident and that he was not facing into the van during the entirety of the incident.
(c) The Respondent’s allegations regarding the Applicant’s Report cannot be substantiated. The Incident and the Second DSO touching the Detainee occurred in a matter of seconds and the Applicant was standing outside the van at the time, facing away for most of it. If the Applicant saw any of the physical interaction at the time, he was unsure of what he saw until he was shown the CCTV footage and then it became clear what had occurred.
Regarding the third reason for dismissal, being that the Applicant failed to sign the Part D “Resources” section of the EOO, the Applicant’s evidence in relation to this allegation was that during the briefing, he was told that the fourth DSO would be responsible for completing the EOO, it was common practice to not complete the logs if an escort was abandoned or cancelled, and, when he returned to the office after the Incident, he was directed by the DSM to not complete a log and to complete an abusive and aggressive report instead.
In relation to matters arising under s.387(h) of the Act, the Applicant submitted that though the allegations against the Applicant may constitute a breach of the Respondent’s Code of Conduct, it was open to the Respondent to take other disciplinary action against the Applicant, such as a warning. Further, the Applicant had a long work history that did not include any significant disciplinary action.
The Applicant submitted reinstatement was the appropriate remedy.
(b) Respondent’s Closing Submissions
The Respondent submitted that the Applicant conceded that he and the Second DSO were involved in the Incident, and it involved:
(a) physical violence aimed at the Detainee;
(b) the use of inappropriate language directed at the Detainee; and
(c) the failure of the Applicant to present to the employer an accurate account of the incident and/or creating a Report that was both false and misleading.
The Respondent submitted that the Applicant was both present at, saw, and heard the full extent of the Incident. The CCTV footage and certain “stills” of that footage established that the Applicant was, in fact, inside the van and had a direct line of sight to the Incident.
The Respondent noted that the Applicant accepted in cross-examination that:
(a) It was a very “serious incident”;[1]
(b) He was obliged, in circumstances of a serious incident on a Transport and Escort Assignment, to faithfully record or report any incident;[2] and
(c) In reporting incidents, an employee may be required to disclose their own bad behaviour.[3]
The Respondent submitted the Applicant conceded that there were glaring and deliberate differences between the Incident as it occurred, and what was reported by the Applicant and the Second DSO in their respective Officer’s Reports.
The submission of the Respondent was that the dismissal, viewed from the perspective of the employer, was “sound, defensible or well founded” with reference to the acts or omissions of the Applicant surrounding the Incident, and his failure to report the Incident accurately and honestly, and so there was a valid reason for the dismissal of the Applicant.
With reference to s.387(h) of the Act, having regard to the seriousness of the conduct of the Applicant in the context of proportionality, the Respondent submitted that:
(a) The conduct of the Applicant constituted a material breach of the Applicant’s terms and conditions of employment, the Respondent’s policies and procedures (including the Respondent’s Code of Conduct), and the duties of the Applicant;
(b) The Applicant was, at all relevant times in the Incident, acting in a role and with reference to the special needs of the Detainee that required the highest level of professionalism and attention to compliance with the Respondent’s policy;
(c) The Applicant, in breach of the Code of Conduct, acted in a manner that had the potential to expose the Applicant, his co-workers and the persons in detention to significant risk; and
(d) There was a lack of other mitigating factors.
The Respondent resisted any remedy of reinstatement on the basis that it was inappropriate, and noted the Applicant’s Submissions failed to take into account the unchallenged evidence of Mr Taylor and Mr Nugent as to why they believed that the Applicant, as a matter of discretion, should not be reinstated.
Regarding financial compensation in lieu of reinstatement, the Respondent noted that within five or six days following the Applicant’s last day of employment with the Respondent, the Applicant commenced employment with a new employer, and approximately five weeks after the termination of the Applicant’s employment with the Respondent, he secured a second job. The Respondent also submitted a deduction of 80% was appropriate due to the Applicant’s misconduct.
(c) Applicant’s Closing Submissions in Reply
The Applicant disputed the attacks on his credibility, and submitted that while he stated during cross examination, “I probably saw it, but was so heightened that I didn’t notice it. It was not a deliberate action”, that comment was consistent with his evidence that he acknowledged hearing an argument between the Second DSO and the Detainee, but as it was a heightened situation he did not recall exactly what he saw at what point. The stills of the CCTV footage only show the Applicant inside the van at specific points in time.
Regarding the Applicant’s Report, the Applicant submitted that none of the propositions outlined by the Respondent were inconsistent with the Applicant’s evidence that his failure to report certain details of the Incident was due to his memory failing him.
The Applicant submitted that he was honest about his behaviour, illustrated by his having been forthcoming throughout the investigation process and the Hearing about the fact he said “Shut the fuck up” to the Detainee during the Incident, and that this went towards his credibility as a witness.
The Applicant submitted that his admissions regarding the Code of Conduct and the requirements of his role were indicative of the remorse that he has consistently shown throughout the investigation process and the Hearing. The concessions also evidence the Applicant’s ability to understand his behaviour during the Incident and learn from the Incident.
Regarding the remedy of reinstatement, the Applicant submitted he had been cooperative and honest throughout the investigation process and the Hearing, and there is no evidence to suggest that the employment relationship has been so significantly impacted that reinstatement would be untenable.
Consideration
Preliminary findings
Section 385 of the Act defines an unfair dismissal by reference to four criteria there set out, each of which must be satisfied if the person seeking a remedy from unfair dismissal is to succeed. The section reads:
“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.”
There are no jurisdictional objections to the Applicant’s application being determined by the Commission. Specifically, I am satisfied that:
(a) The Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));
(b) The Application was lodged within the 21 day statutory time limitation found at s.394(2) of the Act;
(c) The Applicant is a person protected from unfair dismissal in that:
i.he had completed the minimum employment period set out in ss 382 and 383 of the Act; and
ii.While the Applicant’s income was above the high-income threshold, an enterprise agreement applied to his employment;
(d) The dismissal was not a case of genuine redundancy (s.385(d)); and
(e) The dismissal did not involve the Small Business Fair Dismissal Code (s.385(c)).
Arising from the above conclusions, the only remaining question is whether the Applicant’s dismissal was “harsh, unjust or unreasonable” and therefore an unfair dismissal. To this end, one must direct attention to s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair. It is trite to observe that each of the matters must be considered, and a finding made on each of them, including whether they are relevant or not. For example, whether a person was refused an opportunity to have a support person present may be irrelevant, if the request was not made, or the employee declined to take up the offer.
Section 387 of the Act sets out each of the matters the Commission is required to take into account when determining whether the dismissal was unfair. Section 387 provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
I address each of the above considerations below.
(a) Valid Reason
As noted above, the Applicant’s misconduct was described by the Respondent in the termination letter of 30 September 2021 as serious misconduct, involving:
“(a) During the Escort, whilst the Applicant and the Detainee were seated in the van at approximately 21:07 hours (on 5 August 2021), the Applicant behaved inappropriately when he threw the face mask back at the Detainee and, in a loud and aggressive tone, stated to him “put on your fucking mask” in addition to other words and phrases;
(b) In the Officer's Report submitted by the Applicant at approximately 21:10 hours (on 5 August 2021), the Applicant failed to report:
(i) details of his inappropriate behaviour and language towards the Detainee; and
(ii) details of the Applicant witnessing his colleague's inappropriate behaviour, language and physical assault towards the Detainee; and
(iii) an accurate account of the sequence of events as they occurred in the van, thus making the information provided in the Applicant's Officer's Report false and misleading;
(c) The Applicant failed to sign Part D "Resources" section of the Escort Operations Order.”
“Serious misconduct” is defined in the Fair Work Regulations 2009 (Cth) to the Act. Regulation 1.07 sets out the definition 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.”
The Respondent appears to rely on sub-ss.(2)(a), 2(b) and 3(a)(iii) of the above Regulation. However, that in itself is not necessarily determinative. In Sharp v BCS Infrastructure Support Pty Limited [4] a Full Bench of the Commission said at [33]-[34]:
“[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.
[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:
“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).””
(footnotes omitted)
The onus of proof in relation to misconduct rests with the Respondent. The standard of proof is the balance of probabilities, with the more serious the allegation, the higher the burden on the Respondent to prove the allegation.[5]
The Commission itself must be satisfied that the misconduct occurred. In King v Freshmore[6], a Full Bench of the AIRC said at [24], [26], [28] and [29]:
“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.
...
[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.
...
[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission's obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.
[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King's employment.” (emphasis added)
I find that the alleged misconduct regarding the Incident and the reporting of the Incident, as outlined in the letter of 30 September 2021, took place.
Regarding the Incident, the CCTV footage shows beyond any doubt that the physical and verbal events of the Incident occurred, and the stills of that CCTV footage show the Applicant observing those physical and verbal events involving the Second DSO.
It was not in dispute that when the Applicant commenced employment as a Casual DSO, he executed the Code of Conduct, or that the Applicant was required to participate in refresher training involving an online learning tool which included a document referred to as “Our Code of Conduct” in the year of the Incident. All DSOs at the Centre were required to complete scheduled training modules. That the Applicant was aware of the key accountabilities of his role, and that he failed to meet those accountabilities, was clear from answers he gave in the hearing. He agreed:[7]
(a) He did not interact with, listen to, and respond attentively to, the Detainee;
(b) His behaviour was not professional or ethical;
(c) His interactions (with the Detainee) were not suitable and inflamed the situation[8];
(d) His actions were not responsive to the Detainee’s known mental health issues[9]; and
(e) His actions did not promote the duty of care for the Detainee.[10]
Regarding the reasons relating to the Applicant’s Report, each of the allegations of misconduct have been established by the Respondent. The Applicant knew a key accountability of his role was accuracy and attention to detail in preparing communications, records and reports, including reporting abuse and impropriety, and unsurprisingly conceded he failed to do so.[11] The Applicant’s Report was so far from recording the events of the Incident to be false and misleading, and I find that, bearing in mind the Applicant’s clear knowledge of his reporting responsibilities, it was deliberately so.
The consequence was that the Applicant failed to report:
(a) Details of his inappropriate behaviour and language towards the Detainee;
(b) Details of the Applicant witnessing the Second DSO’s inappropriate behaviour, language and physical assault towards the Detainee; and
(c) An accurate account of the sequence of events as they occurred in the van, thus making the information provided in the Applicant's Officer's Report false and misleading.
The Applicant failed to sign the Part D “Resources” section of the EOO, however the alleged involvement of the DSM in the faulty preparation of the EOO, the disciplinary action taken by the Respondent against the DSM, and the Respondent’s failure to call the DSM to give evidence, does not allow a conclusion of fault attributable to the Applicant. This was, however, a relatively minor limb of the alleged misconduct of the Applicant.
I find that there were valid reasons for the dismissal. I find that the conduct alleged actually occurred, and that, but for the issue of signing Part D of the EOO, it constituted serious misconduct and justified the dismissal.
(b)/(c) Notification of Reason/Opportunity to Respond
The Applicant accepted the effect of sub-ss.387(b) and (c) of the Act is that an employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made. The Applicant submitted, and I accept, this was a neutral factor as he attended a meeting on 20 August 2021, where he responded verbally to the allegations, and then provided a written response to the allegations on 23 August 2021, prior to his termination on 30 September 2021.
(d) Any Unreasonable Refusal to Allow a Support Person
The Applicant attended the investigation meetings with his union representative, Mr McShane. The Applicant was therefore not denied an opportunity to have a support person present. This is a neutral factor in this matter.
(e) Whether the Person had been Warned About Unsatisfactory Performance
Sub-section 387(e) provides that if the dismissal related to unsatisfactory performance by the person, the Commission must consider whether the person had been warned about that unsatisfactory performance before the dismissal. During the course of his employment with the Respondent, the Applicant had not received any formal warnings in relation to his performance. As the reasons provided by the Respondent for the dismissal were related to conduct and not performance, this is not a relevant consideration.
(f)/(g) Size of the Employers Enterprise/Absence of Human Resource Management
The Respondent is a large and well-resourced employer. The Respondent’s size and human resource capability is reflected in the detailed processes undertaken in investigating and interviewing the Applicant. The resources of the Respondent did not have a negative impact on the procedures followed in effecting the dismissal. I therefore consider this a neutral factor.
(h) Any Other Matters Relevant
It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h).
The Applicant submitted that the other relevant matters in establishing that the Applicant’s dismissal was unfair were:
(a) The proportionality of a summary dismissal in the circumstances and that the dismissal was harsh because summary dismissal was a disproportionate response;[12]
(b) The long and satisfactory work performance or history of the Applicant. He had worked for the Respondent since 2015 and had not received any formal warnings during his employment; and
(c) The impact of the dismissal on the Applicant’s personal or economic situation.
I do not consider that in the circumstances of this matter the summary dismissal of the Applicant could be seen as a disproportionate response. The conduct of the Applicant in the Incident and his reporting of the Incident constituted a material breach of the terms and conditions of his employment, and the Respondent's policies and procedures.
The Applicant, in breach of the Code of Conduct, acted in a manner that had the potential to, and did, expose the Detainee, his co-workers and himself to significant risk and/or harm. The Respondent’s actions cannot be judged as other than a reasonable and just response to that conduct and were proportionate.[13]
While the Applicant had six years of blemish-free employment, I would not consider that period could be reasonably described as a long period of employment.
While I accept the Applicant is the sole income earner in his family, and he was in the process of seeking pre-approval for a home loan, I also note that the Applicant has been successful in securing two forms of employment within close proximity to his dismissal, albeit that they are casual engagements. While the only outstanding issue is security of employment, I do not consider I can apply any weight to that factor in light of the gravity of the Applicant’s conduct in the Incident and his reporting of the Incident.
Conclusion
Having considered each of the matters specified in s.387, I find that the Applicant’s dismissal was not harsh, unjust or unreasonable. The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
M Bolton of the United Workers’ Union.
P Brown for the Respondent.
Hearing details:
2022.
Sydney (via Videoconference):
February 3.
Final written submissions:
Applicant, 13 April 2022.
Respondent, 6 April 2022.
[1] Transcript PN235 and 237.
[2] Transcript PN236 and 252.
[3] Transcript PN253.
[4] [2015] FWCFB 1033.
[5] Briginshaw v Briginshaw (1938) 60 CLR 336; s.140 Evidence Act 1995.
[6] Print S4213.
[7] Transcript PN 403, 406, 407, 410, 418, 419 and 422.
[8] Transcript PN 410.
[9] Transcript PN 419.
[10] Transcript PN 422.
[11] Transcript PN 403.
[12] Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at [55].
[13] DP World Sydney Limited v Lambey (VP Watson, DP Hamilton and Simpson C2012/3296) at [26].
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