[2018] FWC 3113
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Jacqueline Waite
v
Serco Australia Pty Ltd T/A Serco Australia Pty Ltd
(U2017/12312)

DEPUTY PRESIDENT ASBURY

BRISBANE, 1 JUNE 2018

Application for an unfair dismissal remedy.

BACKGROUND

[1] This Decision concerns an application by Ms Jacqueline Waite for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) regarding the termination of her employment from Serco Australia Pty Ltd T/A Serco Australia Pty Ltd (Serco). Ms Waite was employed by Serco as a Detainee Services Officer (DSO) from 11 May 2011 until her summary dismissal on the grounds of serious misconduct, on 7 November 2017.

[2] At the time of her dismissal, Ms Waite was based at Serco’s Brisbane Immigration Transit Accommodation (BITA). As a DSO her responsibilities included maintaining security protocols, processes and procedures at a detention centre or an Alternative Place of Detention (APOD). The serious misconduct said by Serco to have justified Ms Waite’s dismissal was a failure to apply herself to her duties and remain vigilant and attentive by sleeping during a shift and using an iPad, in breach of Serco’s Code of Conduct and Governing Principles.

[3] Ms Waite maintains that she did not engage in serious misconduct and that the particular conduct for which she was dismissed was commonly occurring. Ms Waite submits that her dismissal was harsh, unjust and unreasonable.

[4] Ms Waite’s application was made within the time required in s. 394(2) of the Act. It is not in dispute that Ms Waite is a person protected from unfair dismissal as defined in s.382 of the Act. OCCPL has not asserted that it is a small business or that the dismissal was a case of genuine redundancy. The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course.

[5] At the Hearing, Ms Waite was represented by an agent, Mr Gary Pinchen of A Whole New Approach Pty Ltd and Serco was represented by Mr Paul Brown, solicitor of Baker & McKenzie. Ms Waite gave evidence in support of the application. 1 Evidence was given for Serco by:

LEGISLATION

[6] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

[7] The employer bears the onus of establishing that there was a valid reason for a dismissal.4 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”5 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,6 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.7 The Commission is not limited to the reason given by the employer in considering whether there was a valid reason for the dismissal. 8 Misconduct justifying dismissal is conduct so serious that it goes to the heart of the employment relationship9 or evinces an intention that the employee no longer intends to be bound by the employment contract.10

[8] Where the reason for the dismissal is misconduct, the Commission must be objectively satisfied that the misconduct occurred. However, as Vice President Hatcher observed in Bista v Glad Group Pty Ltd 11, the case law does not establish that a minor failing on the part of an employee could constitute a valid reason for dismissal simply because it was proven to have occurred. Dismissal on such a basis could not be sound, defensible or well founded.12 His Honour also cited the majority judgement of Moore J in Edwards v Giudice13 where it was held that:

[9] That judgement was relied on by Vice President Hatcher as authority for the proposition that, under the present Act, the consideration of whether there is a valid reason for dismissal requires, where the relevant conduct upon which the dismissal is proceeded is found to have occurred, an assessment of whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct.

[10] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

SUBMISSIONS AND EVIDENCE

Incident on 22 August 2017

[11] Ms Waite’s evidence about the events that led to her dismissal is that on 22 August 2017, is that she was contacted at 11.00 am and was asked whether she would work a shift at the Royal Brisbane and Women’s Hospital (RBWH) that night. Ms Waite said that she was sleeping at the time of the call because she had worked the previous night, but agreed to work the shift. The shift was a static shift requiring that Ms Waite and another DSO sit outside the door of a secure area at the Mental Health Ward of the RBWH, which was an APOD. Ms Waite was rostered to work with Mr Hok. Mr Hok has been employed as a DSO for some six and a-half years.

[12] Ms Waite said that she had previously undertaken shifts at the Hospital including shifts where she worked alone. According to Ms Waite, because detainees are behind locked doors, it was deemed acceptable for one DSO to do the job. At times when Ms Waite was working alone at the RBWH she left her post to use the bathroom after alerting a nurse. Ms Waite also said that she did not like working at the Hospital due to lack of facilities, lack of light on night shift and the rudeness of nursing staff. Ms Waite agreed under cross-examination that she could have refused to work the shift on 22 August 2017 but agreed to work because she felt that she was able to do so.

[13] Ms Waite arrived at the RBWH to commence her shift at 6.45 pm. Mr Hok arrived after Ms Waite and Ms Waite said she attempted to make conversation. Ms Waite said that it was obvious that Mr Hok did not intend to make conversation with her and it is well known among female staff that Mr Hok has a hatred of older females. Ms Waite said that Mr Hok sat in his chair and began to play on his smart phone which she believed to be an iPhone 7. According to Ms Waite staff are not supposed to use phones on shift, particularly in hospitals. When Mr Hok ignored her attempts to make conversation, Ms Waite got out her iPad which she had brought with her to work. Ms Waite said it was her intention to access a Serco website called MY HR for training. Ms Waite said that she intended to use her iPad for this purpose because she was going to the UK to visit her sick mother and wanted to complete all her tasks before leaving, to comply with required time frames.

[14] Ms Waite was unable to access the Serco system and started reading a book on her iPad as there was insufficient light to read a paper book. Ms Waite said that she then did what Mr Hok was doing on his iPhone and began to google search other things on her iPad. Ms Waite also said that the corridor where they were sitting was cold, and there were no facilities to heat a meal or make a hot drink as the nursing staff room was being refurbished and was out of use. This meant that Ms Waite could not heat the meal she had brought with her or make a cup of coffee using coffee and powdered milk that she had brought with her.

[15] Ms Waite said that she must have “nodded off” and that she felt a “hard whack” on her left shoulder, delivered by Mr Hok, who Ms Waite said is stocky and does a lot of physical training. This shocked Ms Waite. Mr Hok informed Ms Waite that he was going to the petrol station to get food, which according to Ms Waite would take a total of 30 minutes, walking at a fast pace. Ms Waite also said that leaving duty to go down the street was not allowed. Ms Waite said that notwithstanding this she responded to Mr Hok by saying “Okay” as she did not want to disagree with Mr Hok who is “intimidating”.

[16] In her oral evidence Ms Waite said that there is a company provided mobile telephone at the RBWH which is used to report incidents and to undertake welfare checks during shifts. A welfare check involves the DSOs calling in to base to report on how the shift is proceeding. That telephone remains in a plastic box at the site with relevant paperwork. There are three welfare calls required to made in each shift, and Ms Waite’s recollection was that Mr Hok made those calls during the shift.

[17] Mr Hok’s evidence about the shift on 22 August 2017 was that he and Ms Waite had a polite conversation at the commencement of the shift and that there was no animosity. Mr Hok also said that Ms Waite had a conversation with a nurse about alternative kitchen facilities and was told that there was a kitchen downstairs that they could use and to buzz a nurse to gain access. Just prior to 9.00pm Mr Hok told Ms Waite that he was going to duck across the road and asked Ms Waite whether she would like a coffee. Ms Waite responded that she would like a coffee and handed him some money. Mr Hok said he returned approximately twenty minutes later and gave Ms Waite her coffee, which she drank. At approximately 9.30pm, Mr Hok said Ms Waite retrieved an iPad from her bag and proceeded to play some kind of game on the iPad. At around 10.00pm, Ms Waite appeared to fall asleep and was slumped in her chair with her eyes closed and her iPad resting on her lap. Mr Hok said he asked Ms Waite whether she was really going to sleep all night, as it was only 10 o’clock. Ms Waite nodded and replied: ‘yeah’. Mr Hok said that in his view Ms Waite said this with an attitude.

[18] Mr Hok said that he told Ms Waite to walk outside to wake herself up, and made other suggestions to Ms Waite to assist her to stay awake. Mr Hok said that Ms Waite ignored him and proceeded to fall back to sleep. According to Mr Hok, Ms Waite slept for most of the time between 10.00pm and midnight, and woke briefly for a few minutes at a time and played on her iPad before falling back to sleep. Ms Waite woke up at midnight and the shift continued without incident until 2.00pm. During this time Mr Hok observed Ms Waite playing on her iPad. At 2.00pm Ms Waite went to sleep again and slept until 5.00am waking briefly for a few minutes at a time during this period. Mr Hok attempted to wake Ms Waite several times throughout the shift as he was concerned that she would get into trouble if she was seen by hospital staff. Mr Hok said that he tapped Ms Waite on the arm at some time between 10.00pm and 11.00pm because hospital staff were approaching and he wanted to maintain a professional image. Mr Hok also said that Ms Waite did not provide any explanation to him about why she was so tired and that at one stage he stated to Ms Waite: “That’s really unfair Jacqui, I’m really unhappy about this.” Ms Waite woke up at 5.00am and remained awake for the last two hours of the shift, which went by without incident.

[19] Mr Hok took photographs of Ms Waite throughout the shift using his iPhone. Mr Hok said that he did this as “evidence of the incident”. The photographs were tendered by Mr Hok and show Ms Waite sleeping in a chair holding an iPad on which there appear to be images of movies or television shows. Mr Hok disputed Ms Waite’s evidence in a number of respects. Mr Hok said that he does not have a hatred of older females and did not arrive at work on 22 August 2017 with the intention of not speaking to Ms Waite. Mr Hok said that at no time did he observe Ms Waite attempting to access the MY HR Serco website. Mr Hok also disputed Ms Waite’s evidence that the room they were sitting in was dimly lit and said that there was sufficient light to complete paperwork on the shift and a sensor light in the vicinity of their post. Mr Hok said that despite the kitchen on the floor where they were working being refurbished, there were kitchen facilities to heat up meals and to make hot drinks located one level down and Ms Waite chose not to use these.

[20] Mr Hok also denied that he “whacked” Ms Waite on her left shoulder and said that he tapped her lightly on her left arm several times during the shift to wake her. Mr Hok agreed that he left the APOD for approximately 20 minutes to buy a takeaway dinner and coffee from a fast food outlet located at a nearby service station. The brief walk to do this did not take thirty minutes. Further, Mr Hok denied Ms Waite’s assertion that at APODs staff did not get a break and said that part of the reason for having two DSOs rostered at APODs was to allow one to continue monitoring while the other could use the bathroom or have a quick meal or beverage. In relation to Ms Waite’s assertion that he had refused to interact with her, Mr Hok said that he returned with a coffee that he had offered to get for Ms Waite which she consumed. To the extent that his interactions with Ms Waite were minimal towards the end of the shift, Mr Hok said that this was in circumstances where Ms Waite had been asleep considerable periods, made no effort to remain awake and had left him to perform the duties of two DSOs throughout the shift.

[21] Ms Waite agreed under cross-examination, that she was asleep during the shift for periods between 10.00pm and midnight and 2.00am and 5.00pm but maintained that she was not asleep constantly. Ms Waite agreed that Mr Hok was in a better position to know whether she was nodding off or sleeping on that night. Further, Ms Waite agreed that her main task in conducting her job on a static post involved maintaining security protocols, processes and procedures and ensuring the safety and security of detainees. Ms Waite also agreed that when she nodded off and slept she did not stay alert and her ability to respond throughout the period she was on duty was compromised, and not in accordance with the requirements under the relevant enterprise agreement. Ms Waite said that it is possible that she began to fall asleep at 10.00pm but could not recall Mr Hok saying: “Really? You’re going to sleep all night? It’s only 10 o’clock”. Ms Waite said it is possible that Mr Hok told her to go for a walk outside to wake herself up and agreed that she did go for a walk. Ms Waite agreed that detainees are under enormous stress and can take advantage of opportunities to escape or to self-harm when DSOs are not paying attention.

[22] Ms Waite maintained that she attempted to log into on-line training modules on her iPad and that she was unable to do so and had also had difficulty logging on from her home. In response to the proposition that if she had been having trouble logging on at home it was unlikely she would have been able to do so from RBWH, Ms Waite said that she was hoping that she would be rostered to work with a DSO who knew how to log on and could assist her. Ms Waite disagreed with the proposition that Serco modules do not have an audio track and would not require the use of an ear-piece and said that some of the modules do require this. Ms Waite agreed that she did start to watch movies on her iPad but said that this was only because she could not log onto the on-line site to do training modules.

[23] Under cross-examination Mr Hok agreed that Serco’s Policies were that he was not permitted to have a phone upon which he could access the internet at work and that he was in breach of this policy. Mr Hok also said that he was not permitted to leave the workplace and that he had breached this requirement by going to the service station to purchase a meal. Mr Hok confirmed that he had not been spoken to about these matters by Serco and that there was no pending disciplinary action against him in relation to them. Mr Hok also said that it was reasonable for him to have touched Ms Waite’s shoulder to wake her up and to have photographed her while she slept. In this regard, Mr Hok said that there is a sign in the area where he was sitting with Ms Waite prohibiting photography, but in his view this did not apply in the public area where they were sitting.

Investigation and dismissal process

[24] On 4 September 2017, Mr Hok reported Ms Waite’s conduct on the shift of 22 August to the BITA Centre Manager Ms Noordink by email stating that Ms Waite slept for the most part between 10.00 pm and midnight and also between 2.00 am and 5.00 am. Mr Hok also reported that Ms Waite had ignored his suggestion to go for a walk and that he had woken Ms Waite when medical staff approached. 16 Mr Hok attached the photographs he had taken of Ms Waite to his email.

[25] Mr Hok said that he did not report the incident of Ms Waite sleeping on shift immediately because it is not easy to make a complaint against a peer. After some deliberation, Mr Hok decided to report the incident because he felt that it was unjust for Ms Waite to put him in that position. Mr Hok said that he was not so much annoyed at Ms Waite falling asleep given that static shifts are long and can be difficult. Rather Mr Hok was annoyed by Ms Waite’s attitude about falling asleep and continuing to sleep, the fact she made no effort to stay awake and her failure to give consideration to his safety.

[26] A short time after reporting the matter, Mr Hok was informed that an internal fact finding investigation was being conducted and had a discussion with the Security Facility Operations Manager Mr Stafford. Mr Hok provided a statement to Mr Stafford and thereafter had no further discussions regarding the incident and was not involved in the termination of Ms Waite’s employment. Under cross-examination Mr Hok said that he did not report Ms Waite during the shift as it was not an easy thing to do and Ms Waite had had all night to explain herself.

[27] Ms Noordink forwarded Mr Hok’s email dated 4 September 2017 to the Regional People & Culture (P&C) Manager and copied that email to Ms Megan Jones, P&C Manager. Ms Jones provided a witness statement and gave evidence to the Commission. Ms Jones annexed a number of relevant emails and materials to her statement, including the email from Ms Noordlink, which was in the following terms:

“Good Morning,

I have been aware that this officer has a history of sleeping on shift. This is now photographic evidence.

I want to stop all shifts until we interview her.

Two things, sleeping and with an I PAD. Staff have been advised NOT to take any Ipads or laptops to APODS.

This is the first of two that will be investigated this week.” 17

[28] Ms Waite continued her usual shift work up until 3 September 2017. On 5 September, Ms Jones contacted Ms Waite to request that she attend an interview with Mr Stafford in relation to an investigation into an alleged incident. Ms Jones states that Ms Waite told her that she would be away until 23 September 2017 visiting her sick mother in the United Kingdom and asked for details of the issue that was being investigated. Ms Jones states that she told Ms Waite that a fact finding investigation was being conducted and that details would be provided to her at the meeting. Ms Jones further states that she asked Ms Waite to advise her when she returned from the United Kingdom so that a meeting could be organised.

[29] On 5 October 2017, Ms Jones, having received no contact from Ms Waite, contacted Ms Waite to inform her that she was required to attend a meeting with Mr Stafford. Ms Waite agreed to attend a meeting the following day. Ms Waite said that she requested that she be allowed a support person at the meeting, and that Ms Jones advised that Ms Waite would not need one. Ms Waite also said that had she known about the subject matter of the meeting she would have insisted on having a support person present, but as she had not experienced such a meeting before she took Ms Jones’ word that she would not need a support person. Ms Jones said that she did not recall Ms Waite requesting a support person, but that if she had, Ms Jones would have given her standard response to the effect that a support person was not needed at the investigation meeting but the employee would be permitted to bring one along. 18

[30] Ms Waite said that at the meeting on 6 October 2017, Mr Stafford informed Ms Waite that there had been a report by a nurse at the Royal Brisbane and Women’s Hospital that Ms Waite had been sleeping and using an iPad during her shift on 22 August 2017. Ms Waite said that she told Mr Stafford that this was the first time in six and a-half years that she had been pulled up for doing anything wrong and asked that her positive contributions and loyalty to the Company be taken into consideration. According to Ms Waite, Mr Stafford agreed with this statement and suggested that it would be best for Ms Waite if she went back to Christmas Island. Ms Waite said that she would love to do that but could not work for six months and could not do this as she needed to be home to assist her partner with medical appointments related to his cancer treatment.

[31] Ms Waite then asked Mr Stafford what the next steps would be and was told that an investigation report would be prepared either at the end of that day or the next day and given to Ms Noordink. In response to a question from Ms Waite, Mr Stafford told her that he would ask Ms Noordink whether Ms Waite could continue to work pending the outcome of the investigation. Mr Stafford subsequently told Ms Waite that Ms Noordink’s response was that there was not enough work, which she knew was not the case. Ms Waite also said that she was confused about why she had been allowed to continue to work up until she went to the United Kingdom if the incident on 22 August was so serious. In oral evidence Ms Waite said that in the meeting with Mr Stafford she expressed remorse about what occurred on 22 August and stressed to Mr Stafford that she had a long employment history and had never had any disciplinary issue raised with her. Serco did not call evidence about the meeting with Ms Waite on 6 October 2017. Under cross-examination, Ms Waite said that she told Mr Stafford that she was “nodding sleeping” on the night of 22 August 2017.

[32] Ms Waite said that she contacted Ms Jones on 11 October 2017 seeking a copy of the report and was told that it had not been provided to Ms Jones. Ms Waite asked Ms Jones if she could return to work and was told that Ms Jones would call her shortly. Ms Waite also sought a formal letter for Centrelink on the basis that she had received no income since 23 September 2017. In a further conversation with Ms Jones on 13 October 2017, Ms Waite was told that Ms Jones had just received the report. Ms Jones also stated that Ms Waite would not be provided with a letter for Centrelink as she had not been suspended but was not being provided with shifts. Ms Waite was also told by Ms Jones that the next meeting would be held on 18 October 2017. Ms Waite was unable to attend the meeting on that date due to the illness of her partner and told Ms Jones that she could also not attend a meeting on 24 October as her partner was having surgery.

[33] Ms Jones said that during the conversation on 11 October 2017 Ms Waite informed her that the purpose of the call was to ask for a suspension letter. Ms Jones told Ms Waite that she would not be provided with such a letter as she was a casual employee who was not being offered shifts while involved in a current investigation, and was not suspended. Ms Jones also said that she told Ms Waite that she would check on the progress of the investigation but it could take a week or two to be finalised. According to Ms Jones, the investigation concluded on 13 October 2017 and the allegations against Ms Waite were found to have been substantiated. Ms Waite contacted Ms Jones on that date seeking an update. Ms Jones informed Ms Waite that the investigation had been completed and she would be required to attend a formal disciplinary meeting. It was agreed that the meeting would take place on 19 October 2017. Ms Jones said that she also confirmed that Ms Waite could bring a support person to the meeting. On 17 October 2017 Ms Jones sent an email to Ms Waite attaching a letter informing Ms Waite that as a result of the findings of an investigation into her conduct, the following allegations would be put to Ms Waite:

[34] The letter went on to state that the allegations were a serious breach of Serco’s Code of Conduct and that Ms Waite would be given an opportunity to respond to them before a decision was made as to whether she would face disciplinary action up to and including dismissal. The letter confirmed that Ms Waite was welcome to bring a support person to the formal disciplinary meeting. 19 Ms Jones tendered a copy of a “read” receipt indicating that Ms Waite had received the email with the attached letter.20 Ms Jones also provided evidence that Serco requires its staff to participate in ‘Annual Officer Refresher’ training, which is conducted over several days and culminates in a proficiency assessment. Ms Waite successfully completed the training most recently in May 2017 which included the importance of maintaining a state of readiness while on duty.

[35] Ms Jones agreed that the meeting was rescheduled for 23 October 2017 at the request of Ms Waite but said that she did not recall Ms Waite telling her that her partner was having surgery. The meeting on 23 October 2017 was attended by Ms Waite, her support person, the operational manager Mr Andrew Tennant and Ms Jones. Ms Jones tendered her notes of the meeting 21 and also set out the discussion in her statement. According to Ms Jones, Mr Tennant put the allegations to Ms Waite and sought her response to them. Ms Waite responded by stating that she had already spoken to Mr Stafford and did not know anything else. When asked what she had told Mr Stafford, Ms Waite said that she nodded off during the shift and had her iPad there to complete Serco Essentials training because she was going to England to see her sick mother.

[36] Ms Jones said that Ms Waite was shown the photos and asked who had taken them. According to Ms Jones, upon being informed that Mr Hok had taken the photos Ms Waite became angry and stated that she “thought it was a nurse”. Ms Jones said that Ms Waite stated that Mr Hok had been watching a movie on his iPhone and was informed by Mr Tennant that they were not there to discuss Mr Hok’s behaviour. Mr Tennant also put to Ms Waite that she had been woken up on a number of occasions and each time, went back to sleep. Ms Jones said that Ms Waite conceded that she was sleeping but maintained that she had not slept all night and did not concede to viewing internet sites and movies on her private iPad. Ms Waite said she had not asked nursing staff whether all the kitchens in the Mental Health Unit were closed because: “The nurses hate us.” The meeting concluded with Ms Waite being informed that the responses she had provided would be reviewed and that when there was an outcome there would be a further meeting to discuss it. Ms Waite stated that she did not want to come to a further meeting and wanted to be told the outcome by telephone.

[37] Under cross-examination, Ms Waite said that she understood that the meeting of 23 October 2017 was to provide her with an opportunity to respond to the allegations about sleeping on shift on 22 August 2017 and to the possibility that her employment may be terminated. Ms Waite further agreed that when questioned at the meeting of 23 October 2017 as to why she had fallen asleep, Ms Waite gave reasons that the lighting was dim, there was no access to kitchen facilities and there was nowhere to boil water to make a hot drink. The proposition was also put to Ms Waite that at the meeting on 23 October 2017, when she was asked about watching movies on her iPad, she had responded by asking who had taken the photos of her sleeping. In response to the proposition that her answer to this question was non-responsive, Ms Waite said:

“Yes, I understand the question you’re putting to me, but once he showed me those photographs, I felt physically and bodily sick thinking that someone had invaded my space - my personal space - and taken photographs. What I did, yes, was wrong, but I was mentally unwell that day from going through this. I just wanted to get the whole thing over. Yes, I was remorseful. Yes, if I could have said more. Yes, if I could have turned the clocks back. I wish I had phoned up the centre myself and done exactly that, and told them I needed to go home.” 22

[38] Ms Waite’s evidence about the meeting of 23 October 2017 was that while she was on her way to the meeting she was approached by another employee who told her that: ‘I’m sorry to hear you have been sacked’. Another colleague took Ms Waite outside and informed her that everyone was aware of her impending dismissal. Ms Waite said that upon being informed that Mr Hok had taken the photos of her, using his own mobile telephone she asked what was happening with Mr Hok. Mr Tennant said that this was a separate issue. Ms Waite also said that her concentration levels were low while she was at the meeting and had Mr Stafford not lied to her by stating that a nurse had reported her, she would have been in a better position to defend the allegations. Ms Waite said that she would have pointed out that Mr Hok was using his telephone all night against the rules of the Centre. Ms Waite also alleged that there are many other employees who have been found to be sleeping on duty who have not been dismissed.

[39] In response to the proposition that she had expressed no remorse at the meeting on 23 October 2017 and that she had stated she had nothing to say, Ms Waite said that she had expressed remorse in the meeting with Mr Stafford on 6 October 2017 and that once she was shown the photos at the meeting of 23 October 2017, there was nothing that she could say. In this regard, Ms Waite had the following exchanges with Serco’s legal representative:

“I’m going to put the question different to you, madam. I am going to suggest to you that there is nothing in your answers here at all, nothing, that would give my client Serco the impression that you were remorseful for what you had done on 22 and 23 August when you were on shift? --- When I was in with Mr Stafford on that first meeting, I apologised. I apologised about it. On that second one, I had no idea what I was walking into; photographs, anything.” 23

[40] And;

“I want to take you back to this discussion again and I want you to either agree or disagree with me on this proposition, madam, and I’ll have to move on. When you are at this meeting on 23 October where you know that what you say is going to be relied upon by my client to determine your ongoing employment, you give only three reasons as to why you were going to sleep and we’ve been through that. You have said on a number of occasions that you were remorseful. I’m going to ask you to either agree or disagree with this proposition: there is nothing in what you say and do at this meeting that indicates any remorse whatsoever, is there? --- I didn’t know - I mean, I had apologised in that first meeting and I said to Mr Tennant, “Everything stands from that first meeting.” I said to Mr Tennant, “You’ve got evidence there.” 24

[41] In response to a question from the Commission about the meeting on 6 October 2017 with Mr Stafford, and what Mr Stafford said to her Ms Waite said:

[42] In response to a question from the Commission about what she told Mr Stafford about the iPad, Ms Waite said:

“I told him the truth; that I did have an iPad. I told him the truth from the beginning that, yes, I was nodding, sleeping. I didn’t deny any of it. At that time I didn’t even know that there was photos involved, because he didn’t mention that to me at all. Then when I went in to that second one and they’ve got all these photographs there, they couldn’t say I was lying because I had told - I hadn’t denied it.” 26

The decision to dismiss Waite

[43] Following the meeting on 23 October 2017, Ms Jones met with Mr Tennant to discuss the outcome. Mr Tennant and Ms Jones agreed that Ms Waite should be dismissed on the basis that she had not provided any mitigating factors or remorse for her conduct and that they did not believe that Serco could trust her as an employee not to offend again. Ms Jones provided her notes to Ms Noordink and had a discussion in which Ms Jones told Ms Noordink that Ms Waite had not shown remorse or raised any mitigating factors in relation to her conduct. Ms Jones also told Ms Noordink that “in the disciplinary meeting prior to being shown the photos Ms Waite said that she had just dozed off” and that after being shown the photos had stated that she had not slept all night because she saw Mr Hok leave to get coffee. In relation to the iPad Ms Jones told Ms Noordink that Ms Waite had tried to say that she was completing Serco training and that it was unlikely that she could connect to the Company network in the hospital and that Ms Waite had tried to deflect responsibility for her conduct by saying that Mr Hok had his phone at the APOD.

[44] Ms Jones recommended that Ms Waite’s employment be terminated on the ground that she could no longer be trusted to work unsupervised and that Ms Waite had been dishonest throughout the investigation process. Ms Noordink agreed with the recommendation. On 17 October 2017 Ms Jones telephoned Ms Waite to arrange a meeting to discuss the proposed termination of her employment. Ms Waite reiterated that she did not wish to attend a meeting but wanted to be told the outcome on the telephone. Ms Jones read a termination letter out to Ms Waite over the telephone and then mailed it to her. The termination letter states that in addition to the allegations of sleeping while on shift and having a private iPad in her possession, Ms Waite made false, misleading and contradictory statements during the investigation by denying sleeping and stating that she had nodded off and then accepting that she had slept after being shown the photos and advising that she had used the iPad to complete Serco training when the photographs show that Ms Waite was watching a private show or movie using an ear piece.

[45] These matters are said to amount to serious misconduct involving breach of Ms Waite’s employment contract, breach of the Serco Immigration Services Agreement 2015 and failure to perform her duties as follows:

[46] Under cross-examination Ms Jones said that she understood the delay in Mr Hok reporting the incident was because Mr Hok was giving a lot of consideration to whether he should do this, and while not ideal this was not surprising. Ms Jones conceded that Mr Hok should have reported the incident immediately. Ms Jones agreed that under Serco’s policies DSOs are not permitted to have electronic devices at APODs. Ms Jones is not aware of Hospital policy on this point. Ms Jones said that DSOs sometimes take mobile telephones to an APOD but that taking a device that you can watch movies or television on is more serious as it distracts DSOs from duty. Ms Jones said that although staff are provided with a mobile phone to report incidents on shift, they sometimes take their own phones but that this was a matter that someone should have “had a word” about with Mr Hok. Ms Jones also said that Company policy is that employees are not allowed to have phones, iPads or any recording device at an APOD and that usually there would be a counselling conversation with an employee who took a mobile telephone to an APOD. Ms Jones did not accept that it is against Company policy to put a hand on another employee and said that this was particularly so in circumstances where it was done to wake the employee up while on shift. Ms Jones also said that she had no problem with the fact that Mr Hok left his post for 20 minutes to purchase a takeaway meal and said that this is why there are two DSOs on duty.

[47] Ms Jones said that she was not aware of Ms Waite’s allegation that Mr Hok really tapped her with force, until she read Ms Waite’s witness statement in the present proceedings and that in the circumstances it was not unreasonable for Mr Hok to have done this. In relation to Mr Stafford’s report following his meeting with Ms Waite on 6 October 2017, Ms Jones said it was a five page report and was an internal fact finding process. In response to a question about whether Ms Waite would have kept her job if she had shown remorse, Ms Jones said that if Ms Waite was honest in the process, it would have added a different view. Ms Jones also said that Ms Waite was not shown Mr Stafford’s report. Ms Jones considered Ms Waite’s disciplinary record and said that there were no commendations or disciplinary action.

[48] In response to questions from the Commission, Ms Jones said that Mr Stafford’s report did not indicate that Ms Waite’s mother had been ill. Ms Jones also agreed with the proposition that the basis for the allegation that Ms Waite was dishonest was the report from Mr Stafford and discrepancies between what Ms Waite told Mr Stafford and what she said at the meeting on 23 October 2017. In re-examination, Ms Jones said that her view that there had been false, misleading and contradictory statements by Ms Waite was framed around the fact that Ms Waite did not want to participate in the meeting on 23 October on the basis that she had given a statement to Mr Stafford, and that Ms Waite had avoided answering questions about whether she had slept when shown the photographs. Ms Jones also formed a view that Ms Waite’s explanation for taking her iPad to the hospital – that she wanted to do her Serco compliance training – was not credible, particularly in light of Ms Waite’s stated issues with logging on from home. Ms Jones also considered that Ms Waite could have sought permission from a manager to take her iPad to the RBWH for this purpose. Ms Jones also said she was very observant of the fact that Ms Waites’ husband was having major surgery and did not want to push Ms Waite into coming to meetings until she was ready to do so.

SUBMISSIONS

[49] It was submitted for Ms Waite that she had not engaged in ‘serious misconduct’ within the meaning of Regulation 1.07 of the Fair Work Regulations 2009. It was further submitted for Ms Waite that the alleged conduct did not pose a health and safety risk to employees of Serco, and did not jeopardise Serco’s reputation, profitability or viability. Rather, the conduct was ‘commonly occurring’ and part of the nature of the work involved and a dismissal for conduct which had previously been unaddressed by Serco would be harsh, unjust or unreasonable. In making this submission, Ms Waite relied upon a decision of Vice President Lawler in B, C and D v Australia Postal Corporation T/A Australia Post, 27 in which it was found that the dismissal of employees for failing to follow policies was harsh in the context of Australia Post’s failure to monitor and enforce its policies. The decision noted that:

“The existence of a culture over an ‘extended period’ without any apparent attempts at monitoring or auditing compliance with the policy makes the need for some form of warning or ‘active steps’ before dismissal occurs even more obvious as a matter of ‘a fair go all round’.”

[50] Ms Waite submitted that if the Commission does find that the conduct was inappropriate, the proportionality of the response by Serco should be considered. Ms Waite’s submission was that Serco’s response was out of proportion to the alleged conduct, and that the effect of the dismissal for a relatively minor issue could have a serious impact on her future prospects of employment,  28 and indeed, already had.

[51] It was further submitted that the dismissal was disproportionate where the same or similar conduct by other staff had not been met with the same response, and those employees had not been terminated. Ms Waite considered that this lack of equality of treatment contributed to the unfairness of the dismissal.

[52] Serco referred to the Full Bench decision, Owen Sharp v BCS Infrastructure Support Pty Ltd 29 in its final submissions, as the authority for the assessment of a valid reason in circumstances where the dismissal was based on an allegation of misconduct. It was noted by Serco that the decision in Owen Sharp affirmed the decision in B, C and D v Australia Postal Corporation T/A Australia Post.

[53] Serco submitted that Ms Waite had been dishonest and non-cooperative in the disciplinary meeting and during the process of the investigation, by giving contradictory statements throughout. It was also submitted that the allegations in relation to Ms Waite falling asleep on shift and the associated breaches were put to Ms Waite at the disciplinary meeting. 30 Serco also submitted that Ms Waite did not show remorse when confronted with the allegations against her.

[54] Whether Ms Waite had an opportunity to respond to the reason for dismissal was in contention between the parties. Ms Waite submitted that she was denied an opportunity to fully and adequately respond to the allegations, as her response was required at the same meeting at which the allegation against her were raised on 23 October 2017. It was submitted that notification of the allegations must be made in a manner that affords the employee adequate time and genuine opportunity to respond to any allegations of conduct constituting the reason for dismissal. 31

[55] Serco submitted that ample procedural fairness had been afforded to Ms Waite, including the investigation process itself, conducting formal meetings with her to which she was invited to bring a support person, and at which she was presented with the evidence of the alleged conduct, as well as an opportunity to respond to the allegations.

[56] Serco submitted that Ms Waite was notified of the allegations in writing, by letter dated 17 October 2017. Further, it submitted, a formal disciplinary meeting was convened at which Ms Waite was given an opportunity to respond to the matters alleged and the possibility of the termination of her employment and Ms Waite was then permitted to provide a response for the company to consider prior to terminating her employment. Serco also noted that it gave Ms Waite the option to attend a further formal meeting and that Ms Waite elected not to attend.

[57] Ms Waite submitted that there had been no warnings from Serco about her conduct or that future conduct may result in termination. Instead, a decision was made on the basis of the single instance on 22 August 2017. It was further submitted that she had not been given an opportunity to rectify the performance issue, and had no history of either written or verbal warnings in the 6.5 years she had worked for Serco. Serco submitted that the termination did
not relate to unsatisfactory performance and instead was undertaken in response to the conduct of Ms Waite.

[58] It was submitted by Ms Waite that the employer is a large, national company with approximately 2,400 employees, and that it expected that a streamlined, well-organised and fair dismissal procedure will be followed. At the meeting on 23 October 2017, according to Ms Waite, Mr Tennant referred to a national human resources office to which the allegation made against Ms Waite was elevated. 32 For these reasons, Ms Waite submitted, it could be inferred that there is a dedicated human resources department and that Serco would have access to the required skills to fulfil its obligations under the Act. However, it was submitted, a number of procedural failings nevertheless occurred during the dismissal process, including:

“a. The failure to provide a valid, factually and legally substantiated reason for dismissal;

b. The failure to conduct a thorough investigation into the extremely serious allegations against the Applicant;

c. The failure to interview the Applicant about the allegations, or seek for the Applicant to provide a response to allegations;

d. The Respondent failing to give the Applicant adequate notice and clarity as to meetings pertaining to disciplinary matters;

e. The Respondent failing to consider the Applicant’s conduct in comparison to the conduct of other employees, which is of an equal or worse calibre;

f. The Respondent not giving the Applicant the genuine opportunity to respond to allegations of misconduct prior to termination taking place. The Applicant submits the decision to terminate her employment was predetermined; and

g. The Respondent failed to consider the Applicant’s conduct in the broader context of her years of dedicated service.”

[59] Serco made no submissions in relation to the impact of the size of the employer’s enterprise on the procedures followed in effecting the dismissal, nor in relation to the absence of a human resources department and its potential impact on those dismissal procedures.

[60] In relation to other relevant matters, Ms Waite’s representative again cited B, C and D v Australia Post, which set out three general categories of circumstances which may bear upon the determination of whether the dismissal was harsh, unjust or unreasonable: 33

“(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]”

[61] Reference was made to Ms Waite’s significant length of employment, her untarnished employment record, and her standing as a hardworking and diligent employee to submit that Ms Waite’s termination was harsh, unjust and unreasonable.

[62] Ms Waite also submitted that parity as between herself and other employees who had engaged in the same conduct was an important factor for the Commission to consider. Ms Waite noted in her statement that with respect to the allegation of using her iPad whilst on duty, she also observed Mr Hok using his large smartphone throughout the shift on 22 August 2017. 34 She submitted that other staff, named in her statement, had also been found to have fallen asleep on shift but had not been dismissed.35

[63] Ms Waite referred to the case of Candido v Hi Fi Supermarket 36 as a matter which has analogous facts in this respect to the present case, notwithstanding that a valid reason was in fact substantiated in Candido. In that decision, Lewin C considered that the issue of parity or equity of treatment between the terminated employee and other employees was highly relevant to his determination that the termination was unfair. Despite the employer having a valid reason for termination, as the employee had smoked marijuana on company premises, the employer did not subject other employees engaging in the same conduct to disciplinary action, which was found to be unfair. While distinguishing her circumstances from that case, maintaining that Serco did not have a valid reason, Ms Waite submitted that the principles from Candido are a relevant consideration.

[64] Regarding other matters relevant to the Commission’s determination, Serco submitted that in effecting the termination of Ms Waite, it fulfilled each criterion required by s.387 of the Act for the dismissal to not be considered harsh, unjust or unreasonable. Relying upon the decision in of the Full Bench in DP World Sydney Limited v Lambey, 37 Serco highlighted the following paragraph from that decision:

“[The factors in s 387] although not an exhaustive list, are a strong indicator of the elements of a fair dismissal. In circumstances where a valid reason is found to exist, and procedural fairness 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 the 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 a 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 if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.”

[65] Serco submitted that “there appears to be no significant mitigating circumstances in this Application”, and that the Commission can be satisfied of the valid reason held by Serco for Ms Waite’s termination and of the fairness of the procedures followed in effecting the dismissal. Therefore it submitted, as in Lambey, no examination of the reasonableness of the decision should be made.

CONSIDERATION

Whether there was a valid reason for dismissal – s. 387(a)

[66] It is not necessary for validity that a reason for dismissal based on misconduct meets the definition of serious misconduct in Regulation 1.07 of the Fair Work Regulations. What is required for a reason to be valid is that it is sound, defensible and well founded and where the reason for dismissal is misconduct it must be misconduct that the Commission is satisfied occurred and which is of sufficient gravity to justify dismissal as a sound, defensible or well- founded response to the conduct. The reasons for Ms Waite’s dismissal as set out in the letter advising that her employment was terminated were that during shift on 22 August 2017: Ms Waite was sleeping while on duty; had an iPad in her possession which she used to view movies and internet sites and that Ms Waite made false and misleading statements during investigations including denying that she was sleeping and stating that she had only used the iPad to attempt to complete Serco on-line training modules. It was also clear from Ms Jones’ evidence that at least in part, the decision to dismiss Ms Waite was based on a perceived lack of remorse in relation to these matters on her part.

[67] I accept that it is very important that DSOs are required to maintain a state of readiness while on duty and that this is a condition of their employment. I further accept that DSOs must conduct themselves in a manner which ensures their ability to respond throughout their period of duty. These matters are set out in the Serco Immigration Services Enterprise Agreement 2015. It is also the case that Serco has a policy which prohibits employees from taking electronic devices such as iPads, laptops and smart phones which can be used for viewing movies, television shows or content on the internet, to APODs. While no evidence that this policy is in writing was tendered, all witnesses including Ms Waite accepted that there is such a policy. Ms Waite accepted that she had breached that policy.

[68] For a DSO responsible for security at an APOD to be sleeping while on a shift is a serious matter and a valid reason for dismissal. The APOD in question is a mental health unit in which persons for whom Serco has responsibility for security, are detained. The potential repercussions of a DSO sleeping while on shift in such circumstances are extremely serious. Where a DSO is found to be sleeping on shift and denies that this occurred or presents no evidence of mitigating circumstances, such conduct will generally be a valid reason for dismissal.

[69] In the present case, I am satisfied on the evidence that Ms Waite was asleep for a significant part of her shift on 22 August 2017 and that this was more than Ms Waite merely “nodding off”. The photos taken by Mr Hok clearly depict Ms Waite sleeping. In a number of those photos Ms Waite is slumped in her chair with her arms folded and her eyes closed. I accept that Mr Hok made numerous attempts to wake Ms Waite and to suggest techniques that she could use to stay awake. Ms Waite must have known that she was falling asleep particularly given her evidence that Mr Hok “whacked” her on the arm, and should have self-reported to Serco management or at least discussed this with Mr Hok so that alternative arrangements could have been made to replace her on the shift. Ms Waite is an experienced DSO and should have known the ramifications of falling asleep on shift.

[70] Ms Waite’s evidence to the Commission was that there were mitigating circumstances which led to a situation where she was tired and slept while on her shift. Ms Waite also said that she provided an explanation to Mr Stafford about those mitigating circumstances. In summary Ms Waite had a sick partner and a sick mother. Her partner was undergoing cancer treatment. Ms Waite is the sole income earner and had also moved home in August 2017 causing her to refuse shifts. Ms Waite also stated that she was very stressed at the time. That explanation does mitigate the events of 22 August 2017. While I accept that there were mitigating circumstances, and that a failure on the part of Serco to consider them may render the dismissal unfair, those circumstances do not affect the validity of the reason for the dismissal.

[71] It is also the case that Ms Waite had an iPad with her at the APOD and was using the iPad to watch movies or television shows. The possession of an iPad at an APOD was of itself a breach of Serco policy albeit that a written policy to this effect was not in evidence. Ms Waite’s explanation in her evidence to the Commission that she intended to use the iPad to access training modules was not convincing. Even if Ms Waite did attempt to access Serco training modules on the iPad, she did not put the iPad away when she was unsuccessful in this endeavour. Ms Waite taking an iPad to the APOD and using it to view movies and internet sites while on shift is also a serious matter and a valid reason for dismissal.

[72] Serco rosters two DSOs on APOD shifts to ensure that there is support if a DSO needs to have a break for any reason and there is a reasonable expectation that both DSOs will comply with policy and remain in a state of readiness and responsiveness. Ms Waite did not comply with this requirement when she fell asleep and when she was viewing movies and internet sites on her iPad. It is understandable that electronic devices such as iPads are not permitted to be taken to an APOD, much less that DSOs are not permitted to watch movies and access the internet while on duty. The fact that Mr Hok had a smartphone in his possession and that this was also in breach of Serco policy does not detract from the validity of this matter as a reason for Ms Waite’s dismissal. I consider the apparent inconsistency in the treatment of Mr Hok and Ms Waite later in this Decision.

[73] While sleeping on shift and using an iPad to access the internet and watch movies on shift are valid reasons for dismissal, I do not accept that Serco had a valid reason for dismissing Ms Waite on the ground that she was dishonest during the investigation of her conduct on 22 August 2017. The allegations of dishonesty are based on the assertion that Ms Waite made statements at an initial meeting of 6 October 2017 as part of an investigation into her alleged misconduct, which were inconsistent with statements she made at a meeting on 23 October 2017 when the allegations were put to her. I do not accept that Serco has established a reasonable basis for asserting that Ms Waite was dishonest during the investigation, for the following reasons.

[74] Serco did not tender the report of the meeting of 6 October 2017 at the hearing of Ms Waite’s unfair dismissal application. Ms Waite’s uncontested evidence is that at that meeting she conceded that she was “nodding off” on shift and that she had an iPad in her possession. Ms Waite said she did not deny the allegations and apologised for her conduct. Absent any evidence from Mr Stafford or the report of the meeting to contradict Ms Waite’s evidence, I accept it.

[75] I am also of the view that the conclusion formed by management of Serco in relation to Ms Waite’s dishonesty was a significant factor in the decision to dismiss Ms Waite. This is clear from the evidence of Ms Jones who said that if Ms Waite was honest in the process of the investigation then the view about termination of her employment may have been different. While aspects of Ms Waite’s conduct were valid reasons for her dismissal, a significant matter – Ms Waites’ alleged dishonesty in the investigation – was not a valid reason for dismissal. Accordingly, while Ms Waite engaged in conduct which justified dismissal, some of the conduct relied on did not justify dismissal.

Whether Waite was notified of that reason – s. 387(b)

[76] Notification of “that reason” to an employee relates to the valid reason for dismissal for the purposes of s. 387(a) in circumstances where the reason for the dismissal is the capacity or conduct of the employee. The term “notified” requires more than the employee simply being informed of the reasons for dismissal after a decision to dismiss has already been made. In the context of s. 387 of the Act, notification ensures procedural fairness is afforded and that an employee who is at risk of dismissal can take advantage of any opportunity to respond to allegations. Such opportunity is a further consideration that the Commission must take into account in the overall assessment of whether a dismissal is unfair.

[77] In the present case, Ms Waite was dismissed for reasons related to her conduct. Ms Waite was notified by letter dated 17 October 2017 of the allegations in relation to sleeping while on duty and having a private iPad on the shift which was used to view movies and internet sites. The letter of 17 October 2017 informed Ms Waite that she would be given an opportunity to respond to these concerns and that her responses would be taken into account before a decision was made as to whether she would face further disciplinary action, up to and including dismissal.

[78] Notwithstanding my views about the validity of some of the reasons for dismissal, Ms Waite was not notified of the reason for dismissal relating to the view that she had been dishonest in the investigation, until after the decision to dismiss was made. The correspondence to Ms Waite prior to the meeting makes no mention of dishonesty at the meeting with Mr Stafford, which is not surprising given that the view of Serco’s management in relation to this matter had not been formed at that time. The notes of the meeting of 23 October 2017 which was held for the purpose of Ms Waite responding to the reasons that were later relied on as a basis for dismissal on the grounds of serious misconduct, do not evidence that any allegation of dishonesty was put to Ms Waite in relation to what she told Mr Stafford on 6 October 2017 and her responses to the allegations at the meeting on 23 October 2017. Accordingly Ms Waite was not notified of this reason for dismissal prior to the decision to dismiss her being made.

Whether Waite was given an opportunity to respond to reasons for her dismissal related to conduct – s. 387(c)

[79] Ms Waite was dismissed for reasons relating to her conduct. The failure by Serco to notify her of all of those reasons meant that she was not given an opportunity to respond to all of the allegations, particularly in relation to her honesty. Ms Waite was not given a copy of Mr Stafford’s report of the meeting of 6 October 2017. As a result, Ms Waite’s ability to respond to the allegations was hampered given the reliance placed on that report by those who determined to dismiss her.

[80] The meeting on 6 October 2017 was said to be a fact finding exercise at which findings of misconduct would not be made. There is no evidence that Ms Waite was informed that her comments at that meeting could be used as a basis for a later finding of dishonesty. Ms Jones’ evidence about her discussions with Mr Tennant and Ms Noordink after the meeting with Ms Waite on 23 October 2017 indicates that alleged discrepancies between what Ms Waite told Mr Stafford on 6 October 2017 and what she said at the meeting on 23 October 2017 played a large part in her dismissal. Further, Ms Jones made reference to the “disciplinary meeting prior to being shown the photos” 38 set out in the account of the discussion with Ms Noordink in her witness statement. It was during this discussion that Ms Jones and Ms Noordink decided to dismiss Ms Waite. Ms Jones’ evidence establishes that the meeting of 6 October 2017 was more than a simple fact finding exercise. In those circumstances any alleged discrepancies between what Ms Waite told Mr Stafford on 6 October 2017 and what she said at the meeting of 23 October 2017 should have been put to her so that she had an opportunity to respond.

[81] This did not occur and without any further notification to Ms Waite of the additional reason for dismissal, a decision was taken to terminate her employment and a letter setting out the reasons including the alleged dishonesty was read out loud to Ms Waite in a telephone conversation on 7 November 2017. Notwithstanding that Ms Waite did not wish to attend a further meeting, the additional allegation of dishonesty could and should have been put to her before a decision to dismiss Ms Waite for reasons including dishonesty in the investigation was taken. The letter informing Ms Waite of her dismissal and the reasons for it was read to her on the telephone and mailed to Ms Waite after the decision to dismiss had already been made. The letter included a reason for dismissal that was not put to Ms Waite before the decision to dismiss was made and that reason was a significant factor in the decision making process.

[82] I am also of the view that the meeting of 23 October did not provide a proper opportunity for Ms Waite to respond to the allegations in relation to sleeping on shift and using an iPad. Ms Waite was blindsided at that meeting by the manner in which Serco dealt with the allegations. Ms Waite’s uncontested evidence, which I accept, is that Mr Stafford told her that a nurse had reported that Ms Waite was sleeping on shift. This was not correct. Ms Waite had been reported by her colleague. Further, Serco had photographic evidence of Ms Waite sleeping during her shift at the time that Mr Stafford held the discussion with Ms Waite. Regardless of what Mr Stafford told Ms Waite at the meeting of 6 October 2017, it is clear that the photographs were not shown to Ms Waite at the meeting and she was not informed of their existence. It was not until the meeting of 23 October 2017 that Ms Waite was shown the photos. This was procedurally unfair.

[83] Ms Waite’s evidence, which I accept, is that she found the fact that she had been photographed by a work colleague deeply distressing. Further, Ms Waite states that the failure to give her notice of the photographs resulted in a situation where her defence against the allegations was hampered due to her distress and to the fact that had she been allowed some time to consider the implications of the photographs she would have raised the fact that Mr Hok had a smartphone at the APOD which was also in breach of Serco’s policy in relation to the taking of electronic devices to APODs.

[84] It is also the case that Ms Waite believed that she had made a response to the allegations at the meeting with Mr Stafford and that Serco would have regard to the mitigating factors she had raised at that meeting. It does not appear that Serco did this. If the Report prepared by Mr Stafford did not include those mitigating factors, the failure to provide it to Ms Waite meant that she was unaware that the factors were not being considered and was denied an opportunity to put them forward before the decision was taken to dismiss her.

[85] Accordingly I am satisfied and find that Ms Waite was not given an opportunity to respond to a reason for dismissal and that this reason was a significant factor in the decision to dismiss Ms Waite.

Whether Waite was unreasonably refused a support person – s. 387(d)

[86] There is no positive obligation on an employer to provide a support person. The consideration in s. 387(d) is relevant where an employee requests a support person and the request is refused.

[87] Ms Waite maintains that she asked whether she needed a support person for the meeting of 6 October 2017 and was told by Ms Jones that this was not necessary as it would be a one on one meeting. Ms Jones states that she does not recall Ms Waite asking whether a support person was required for the meeting but would have responded to such a question by advising Ms Waite that this was not necessary because the meeting of 6 October 2017 was a fact finding exercise.

[88] Ms Jones’ evidence about the nature of the meeting of 6 October 2017 makes it clear that it was far from a fact finding exercise. As previously noted, Ms Jones referred to it as a disciplinary meeting in her discussion with Ms Noordink after the meeting on 23 October 2017 and the earlier meeting and what was said by Ms Waite at the meeting on 6 October 2017 was used as a basis for her dismissal.

[89] I accept Ms Waite’s evidence that she asked whether a support person was required for the meeting of 6 October 2017. This question is effectively a request for a support person. While Ms Jones did not refuse a support person, her response that a support person was not required was inappropriate given the nature of the meeting of 6 October 2017. In short, that meeting was more than a fact finding exercise and was part of the process that led to the dismissal of Ms Waite.

[90] It is not in dispute that Ms Waite was provided with an opportunity to have a support person present at the meeting on 23 October 2017 and this is a factor I have balanced against my findings in relation to the meeting on 6 October 2017.

Whether there were any warnings about unsatisfactory performance – s. 387(e)

[91] Ms Waite was dismissed for misconduct and this consideration is not relevant.

Size of the employer’s enterprise and the access to dedicated HR specialists or expertise – ss. 387(f) and (g)

[92] Serco is a large employer with dedicated human resource management specialists. There is no basis for considering that these factors had any impact on the procedure followed in effecting Ms Waite’s dismissal.

Other relevant matters – s. 387(h)

[93] In my view there are other matters relevant to the question of whether Ms Waite’s dismissal was unfair. Ms Waite had a long and otherwise unblemished work history of over six years and this was confirmed by Ms Jones. During her employment with Serco Ms Waite had worked at a variety of locations over a range of facilities operated by Serco. At the point she was dismissed, Ms Waite had just returned from a trip to the United Kingdom where she had been visiting her sick mother. Ms Waite’s partner was also seriously ill with cancer and was required to undergo significant surgery. Ms Jones knew of these matters because Ms Waite had taken leave to visit her mother and had deferred the disciplinary meeting due to the need to provide care and support to her partner at the time of his surgery.

[94] It is also the case that there was a degree of differential treatment of Mr Hok compared to Ms Waite. The phone that Mr Hok had at the APOD was capable of being used to access the internet and to watch movies. Arguably, the possession by Mr Hok of this device at the APOD was also a breach of Serco policy. There may have been good reasons to distinguish between Mr Hok’s use of a smartphone and Ms Waite’s use of an iPad. However, that is not to the point. Those matters could and should have been dealt with in the investigation process. It is also surprising that Mr Hok suffered no consequences for having a smartphone at the APOD and for using it to photograph a sleeping colleague instead of taking action to address the issue of Ms Waite being too fatigued to properly carry out the important duties that she was required to perform on that shift.

[95] Mr Hok is also an experienced DSO. He could have informed Ms Waite that she should report her fatigue to management and ask to be replaced on the shift or that if Ms Waite did not do this that he would report the matter during one of the three welfare checks that Mr Hok carried out that night. While Mr Hok’s reluctance to report Ms Waite is understandable, it is at odds with the manner in which Serco dealt with Ms Waite’s conduct on that shift by deeming it be serious misconduct and dismissing her.

[96] Ms Jones conceded that Mr Hok should have been counselled in relation to this matter. It is also the case that while Ms Waite’s conduct in relation to use of the iPad on shift may have constituted a valid reason for dismissal, the failure of Serco to establish the precise nature of its policy in relation to such devices and the fact that Mr Hok also had a device at the APOD which was capable of being used to engage in precisely the conduct that Ms Waite was dismissed for, is a matter relevant to whether Ms Dismissal was unfair. This is so notwithstanding my view that Ms Waite’s explanation that she was using the iPad to attempt to access Serco training modules was far from convincing.

[97] It is also the case that Ms Noordink’s email to Ms Jones dated 4 September 2017, informing Ms Jones of the investigation into Ms Waite’s conduct on the night shift on 22 August 2017, states that Ms Noordink has been aware that Ms Waite has a history of sleeping on shift. Ms Jones’ evidence that Ms Noordink’s view had nothing to do with the reasons for Ms Waite’s dismissal was not convincing. In my view it is clear from the email that Ms Noordink believed that Ms Waite was a repeat offender in relation to sleeping on a shift. Ms Noordink played a part in the decision making process to dismiss Ms Waite and it is probable that her views in this regard played some part in her decision. There is no evidence that Ms Waite had previously engaged in such conduct much less that she had been warned about Ms Noordink’s suspicion in this regard.

Conclusion in relation to whether Waite’s dismissal was unfair

[98] On balance I am satisfied that Ms Waite’s dismissal was unfair. The dismissal was harsh because of the consequences for Ms Waite. Ms Waite had been on a period of unpaid leave prior to her dismissal and her partner was suffering a significant illness. Ms Waite was dismissed for serious misconduct in circumstances where one of the allegations – dishonesty – did not have a reasonable basis. Further, Ms Waite was not afforded procedural fairness. The manner in which Serco conducted the investigation and the dismissal denied Ms Waite an opportunity to properly respond to the allegations and to defend herself. The process followed by Serco also adversely impacted on Ms Waite’s ability to put any mitigating factors to the Company. Accordingly, Ms Waite’s dismissal was also unreasonable because it was decided on the basis of inferences that could not reasonably have been drawn from the material before the employer.

REMEDY

[99] Having determined that Ms Waite’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s. 390 of the Act, I am satisfied that Ms Waite was protected from unfair dismissal and that she was unfairly dismissed. I am also of the view that Ms Waite should have a remedy for her unfair dismissal.

Reinstatement

[100] Ms Waite submitted that Serco should have, but did not, consider any alternatives to termination. As to remedy, Ms Waite sought compensation for loss of income rather than reinstatement, submitting that Serco’s actions demonstrated a lack of fairness, trust and confidence in their treatment of Ms Waite and reinstatement would therefore be an inappropriate remedy.

[101] Both Mr Hok and Ms Jones in their statements were in agreement that Ms Waite’s reinstatement would not be appropriate. I accept that this is the case. I have made the necessary findings that are prerequisite to awarding compensation.

Compensation

[102] In relation to the assessment of compensation, s. 392 of the Act provides as follows:

[103] I turn now to the particular criteria I am required to consider in deciding the amount of compensation to be awarded to Ms Waite for her unfair dismissal.

The effect of the order on the viability of Serco – s. 392(2)(a)

[104] There is no evidence that the order I propose to make will have an effect on the viability of Serco.

Length of Waite’s service – s. 392(2)(b)

[105] Ms Waite has been employed by Serco for over six years.

Remuneration Waite would have or would likely have received – s. 392(2)(c)

[106] I do not accept that Ms Waite would have remained in employment for significant period after her dismissal. Serco was entitled to take a dim view of Ms Waite sleeping during a shift and using an electronic device to view movies and internet sites while she was supposed to be at her post in a state of attentiveness and readiness to respond to any situation which may have arisen. Serco would have been entitled to terminate Ms Waite’s employment for these matters subject to affording her procedural fairness and giving proper consideration to any explanation or mitigating facts she may have provided. Serco may also have been entitled to dismiss Ms Waite for being dishonest in the investigation if there was a reasonable basis for forming that view and subject to putting allegations of dishonesty to her so that she could have responded.

[107] I have previously noted that Ms Waite’s evidence that she was “nodding off” is at odds with the photographic evidence and the evidence of Mr Hok, which establishes that it is more probable than not that Ms Waite was sleeping for significant periods throughout the shift. I do not accept that the terms “nodding off” and “sleeping” are synonymous. I have also noted that Ms Waite’s evidence that she took her iPad to the APOD to undertake Serco training is somewhat improbable.

[108] Had Serco dealt appropriately and fairly with Ms Waite in relation to the investigation and disciplinary process, the outcome may have been the same and Serco may have been entitled to dismiss Ms Waite on the basis of her conduct and dishonesty in the investigation. On the other hand, Serco may have accepted the apology provided to Mr Stafford and other mitigating circumstances that Ms Waite states she would have raised had she been given a proper opportunity to do so. Serco may also have considered the differential treatment apparently afforded to Mr Hok who also had an electronic device at the APOD. Had Serco considered these matters it would at very least have been entitled to issue a formal warning to Ms Waite up to the level of a final warning.

[109] I estimate that Ms Waite would have remained in employment for no more than an additional six weeks. In reaching this conclusion I have had regard to Ms Waite’s evidence to the effect that she felt physically sick about the conduct of Mr Hok photographing her while she was asleep and that she felt that Mr Stafford had lied to her. This raises the prospect that Ms Waite may have decided that she did not wish to continue to work for Serco.

[110] Ms Waite was a casual employee and as such did not have guaranteed shifts or working hours. In the six months prior to her dismissal Ms Waite earned a total of $29,282.84, an average of $1,126.34 per week. Although that period included unpaid leave taken by Ms Waite for personal reasons, I am satisfied that it is an appropriate basis for calculating earnings Ms Waite would have received had she remained in employment, given that her personal circumstances may have necessitated Ms Waite taking further leave. Accordingly I calculate that but for her dismissal Ms Ward would have earned a further amount of $6,757.57 which for convenience I round to $6,758.00.

Waite’s efforts to mitigate loss – s. 392(2)(d)

[111] Ms Waite made efforts to mitigate her loss and has worked for two employers since her employment was terminated by Serco commencing with the first employer on 8 January 2018 and the second employer on 5 February 2018. I am satisfied that her attempts to mitigate her loss were reasonable given the other matters in her personal life that impacted on her ability to obtain alternative employment.

The amount of any remuneration earned since dismissal – s. 392(2)(e)

[112] Pursuant to the Order under s.590(2)(c) requiring the production of documents to the Commission, Ms Waite provided material relating to earnings from other employment since her dismissal. Ms Waite commenced with the first employer on 8 January 2018 and earned a total of $2,827.00 gross. The amounts paid to Ms Waite were as follows: 9 – 11 January $398.00; 15 – 20 January $962.00; 23 – 28 January $470.00; 2 – 4 February $553.00 and 9 – 11 February $444.00. 39 Ms Waite commenced employment with the second employer on 5 February 2018 on a six month contract working on a full time basis. Ms Waite is paid at the rate of $27.53 per hour for a 38 hour week – a total gross amount of $1,046.14 per week. Prior to commencing employment in these positions, Ms Waite received Centrelink payments totalling $687.00.

[113] I do not intend to make a deduction for Ms Waite’s New Start payment. The Full Bench in McCullough v Calvary Health Care Adelaide 40 considered social security payments, and supported previous authorities of this Commission that deductions for social security payments are not made on the basis that they do not constitute remuneration earned from employment or other work for the purposes of s.392(2)(e). I have proceeded on the assumption that the order I intend to make may mean that the New Start payment may have to be repaid. Any repayment of this benefit is a matter between Ms Waite and the appropriate authority.

[114] The amounts earned by Ms Waite from other employment were earned outside the six week period represented by the amount of compensation I have awarded and I do not intend to deduct them.

The amount of any income reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation – s. 392(2)(f)

[115] Given the period over which I have assessed compensation, based on my view about the likely period that Ms Waite would have remained in employment, this matter is not relevant to the calculation of compensation.

Any other matter that the FWC considers relevant – s. 392(2)(g)

[116] There are no other relevant matters.

Deduction for misconduct

[117] Serco submitted that if the Commission were to make a finding that the dismissal was unfair and that compensation was an appropriate remedy, that the Commission should make a deduction for the misconduct by Ms Waite in the vicinity of 80% of the full remedy sought.

[118] This is not a case where the award of compensation to an employee who has been found to have engaged in misconduct is towards the higher end of the scale. Ms Waite has lost long term employment in circumstances where notwithstanding that there was misconduct on her part, the dismissal was unfair. I am of the view that it is not appropriate to make a deduction for misconduct and I decline to do so, on the basis that the loss of her employment is a significant price to have paid for her conduct on one shift over an otherwise unblemished six year period of employment. It is also the case that Ms Waite was suspended without pay for a number of weeks while the matter was investigated and suffered a loss of income as a result. Further Ms Waite did not gain other employment for a period of eight weeks.

ORDERS

[119] I conclude as follows:

[1] In all of the circumstances of this case I consider that it is appropriate that I make an Order for compensation. The Order will issue with this Decision and will require Serco to pay compensation to Ms Waite in lieu of reinstatement of a gross amount of $6,758.00 to be taxed according to law. The order will require the payment to be made within 21 days of the date of this Decision.

DEPUTY PRESIDENT

Appearances:

Mr G. Pinchen, agent of A Whole New Approach for the Applicant

Mr P. Brown, solicitor of Baker & McKenzie for the Respondent

Hearing details:

Brisbane.

5 March,

2018.

Printed by authority of the Commonwealth Government Printer

<PR607620>

 1   Exhibit 1 – Witness Statement of Jacqueline Waite.

 2   Exhibit 2 – Statement of Jeremy Hok.

 3   Exhibit 3 – Statement of Megan Jones.

4 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

5 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

6 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

7 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 8   Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.

 9   Culpeper v Intercontinental Ship Management (2004) 134 IR 243; [2004] AIRC 261; Print RP 944547.

 10   North v Television Corporation Ltd (1976) 11 ALR 599.

 11   [2016] FWC 3009.

 12   Ibid at [37].

 13   (1999) 94 FCR 561.

 14   Ibid at 572.

15 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR  410 at 465-8 per McHugh and Gummow JJ.

 16   Exhibit 2 Statement of Jeremy Hok Annexure “JK-1”.

 17   Exhibit 3 Statement of Megan Jones Annexure “MJ-4”.

 18   Statement of Megan Jones dated 29 January 2018, paragraph 24.

 19   Exhibit 3 Annexure “MJ-5”.

 20   Exhibit 3 Annexure “MJ-6”.

 21   Exhibit 3 Annexure “MJ-7”.

 22   Transcript PN325

 23   Transcript PN329

 24   Transcript PN333

 25   Transcript PN406.

 26   Transcript PN408

 27   [2013] FWCFB 6191.

 28   Woodman v Hoyts Corporations (2001) 107 IR 172.

 29   [2015] FWCFB 1033.

 30   Transcript PN385 – PN389, PN391.

 31   GH Operations Pty Ltd (t/a The Grand Hyatt Melbourne) v Smith (14 May 2001, Full Bench of AIRC, PR904136 at [18]).

 32   Witness Statement of the Applicant, dated 8 January 2018, paragraph 54

 33   [2013] FWCFB 6191 at [42].

 34   Witness Statement of the Applicant, dated 8 January 2018, paragraphs 23, 25.

 35   Witness Statement of the Applicant, dated 8 January 2018, paragraph 56.

 36   PR935645, 4 August 2003 at 20-24.

 37   [2012] FWAFB 4810.

 38   Exhibit 3 Statement of Megan Jones paragraph 41.

 39   Transcript PN129.

 40   [2015] FWCFB 2267