DECISION

Fair Work Act 2009  
s.394—Unfair dismissal

Tojo Thomas
v
Serco Immigration Detention Centre
(U2020/453)

Application for an unfair dismissal remedy.

[1] On 14 January 2020, Mr Tojo Thomas made an application to the Fair Work Commission (the Commission) under s.394 of the Far Work Act 2009 (the Act) for an unfair dismissal remedy against Serco Immigration Detention Centre (the Respondent).

[2] The matter did not settle at conciliation and was allocated to me. I issued directions for filing of material and the matter was listed for Hearing by telephone on 26 May 2020. Mr Thomas was assisted by a support person Ms Sumi Johns. The Respondent was represented by Mr Paul Brown Solicitor, assisted by Ms Lisa Tran, in house Counsel of the Respondent.

BACKGROUND

[3] Mr Thomas commenced employment with the Respondent on 11 March 2013 at the Wickham Point Immigration Centre located in Darwin. In 2016, following the closure of the centre in Darwin, Mr Thomas was transferred to the Brisbane Immigrant Transit Accommodation (BITA). At the time of his dismissal, Mr Thomas was employed on a casual basis in the role of Detention Services Officer (DSO) at BITA.

[4] Mr Thomas’ employment was covered by the Serco Immigration Services Agreement 2018.

[5] On 11 November 2019, an incident occurred involving Mr Thomas while he was undertaking a shift at the Pine Rivers Hospital. At the time of the incident, the Pine Rivers Hospital was deemed to be an Alternate Place of Detention (APOD). There is some dispute between the parties as to the specific nature of the incident.

[6] It is agreed that on 11 November 2019, Mr Thomas was tasked to perform close supervision of a single Detainee and was assisted by another DSO. It is not disputed that the Detainee, who was under the supervision of Mr Thomas, exited Pine Rivers Hospital.

[7] Following the incident that occurred on 11 November 2019, Mr Thomas was stood down from his position as casual DSO from 11 November 2019 to 3 January 2020.

[8] On 15 November 2019, Mr Thomas attended an interview with Mr Scott Anderson, Transport and Escort Manager. At the interview, Mr Thomas and Mr Anderson discussed the incident and reviewed the CCTV of the incident.

[9] On 19 November 2019, a letter was issued to Mr Thomas outlining four allegations. The letter set out the allegations as follows:

“•  On 11 November 2019, whilst undertaking a shift at an APOD (hospital), you failed your duty as a Detention Services Officer to maintain security protocols and processes relevant to the transport and escort management of detainees in short terms APODs, resulting in the detainee walking out of the front of the building unescorted; this event is considered an attempted escape;

•  You failed to remain focused and alert during the escort task and did not ensure that the detainee remained within your control at all times;

•  You failed to ensure that the detainee remained with your “line of sight” at all times;

•  You were dishonest in your reporting of the Incident details in the T&E Log at the time of the incident and subsequently during the fact-finding investigation.”

[10] The letter also stated that due to the above allegations, it was further alleged that Mr Thomas was guilty of serious misconduct, in breach of the Respondent’s policies and procedures, in breach of his employment contract and position description, and in breach of the Serco Immigration Services Agreement 2018.

[11] The letter stated a disciplinary interview was scheduled on 21 November 2019. Mr Thomas was informed that the interview was Mr Thomas’ opportunity to respond to the above allegations and that he was entitled to bring a support person with him to the interview.

[12] Mr Thomas attended the interview on 23 November 2019 with Mr Alatimu, Ms Peter, and Mr Price. A record of the meeting was tendered by the Respondent.

[13] From 24 November 2019 to 1 January 2020, Mr Thomas was in India visiting family.

[14] On 30 December 2019, Ms Peter sent an email to Mr Thomas requesting him to meet with Mr Andrew Tennant and herself on 3 January 2020. In a response email on the same date, Mr Thomas confirmed his attendance.

[15] At 10:25am on 3 January 2020, Mr Thomas attended the interview. Mr Tennant, Ms Peter and Ms Lucy Maskell, Support Person, also attended the meeting. During this meeting, Mr Tennant informed Mr Thomas that the Respondent had made the decision to end his employment due to the seriousness of the matter and due to him being found guilty of serious misconduct. A termination letter was provided to Mr Thomas during the meeting. A record of the meeting was tendered by the Respondent.

[16] A termination letter dated 3 January 2020 was provided by both parties. The letter outlined the Respondent’s findings, stating that the four allegations were found to be substantiated, that Mr Thomas was guilty of serious misconduct and that Mr Thomas had breached the industrial instruments applicable to his employment. The letter also noted that consideration was had with regards to “any loss, damage and harm to Serco’s reputation” as a result of Mr Thomas’ action and “breach of the duty of mutual trust and confidence”.

[17] Mr Thomas seeks reinstatement and submitted that he had been able to work a couple of shifts at a local school, however has been unable to find permanent ongoing work.

LEGISLATION

[18] Section 387 of the Act provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

EVIDENCE AND SUBMISSIONS

[19] Mr Thomas filed evidence that consisted of a witness statement dated 5 May 2020, 1 and a witness statement dated 22 May 2020.2 The Respondent filed four signed statements of Mr Iese Alatimu,3 Ms Lynne Peter,4 Mr Andrew Tennant5 and Mr Scott Anderson.6

[20] Mr Thomas was the only witness to give evidence in his case. Mr Thomas advised he only wished to cross-examine one of the Respondent’s witnesses. Both the Respondent prior to the hearing, and the Commission provided Mr Thomas the opportunity to consider his position in this regard. The Commission advised Mr Thomas that the statements would be accepted if not challenged however Mr Thomas confirmed his position.

[21] The Respondent had sought leave to lead further evidence in chief from Mr Anderson with respect to various paragraphs of Mr Thomas’ witness statement dated 22 May 2020 and this application was granted. On that basis only two of the Respondent’s witnesses, Mr Anderson and Mr Alatimu were required to give evidence.

[22] At the conclusion of the hearing it was settled that the parties would have an opportunity to review the transcript and file closing written submissions.

Training for DSO role

[23] As previously noted, Mr Thomas commenced employment as a DSO at the Northern Territory Wickham Point Facility in 2013. The Respondent submitted that it has a consistent national set of training modules for Detention Service Officers.

[24] As detailed below, Mr Thomas was tasked to supervise and escort a Detainee at the APOD on 11 November 2019. To perform this task, DSOs are required to undertake a training module called Serco Annual Officer Training Refresher Module 1 course.

[25] The Respondent stated that Mr Thomas initially attended this course on 12 May 2013 and subsequently attended refresher training a further six times, with the most recent being on the 30 November 2018.

[26] On each occasion, Mr Thomas was provided with the “410 Transport and Escort (Local) Immigration Training Manual” (Training Manual) as a reference point for the training and refresher training. The Respondent submitted that this manual is continually updated and deals explicitly with work performed at an APOD at clause 9.3. Relevantly, clause 9.3 includes the following:

“•  Remain focussed and alert during the escort task, ensuring that the Detainee remains within their control at all times.

•  Prioritise the safety, security and welfare of the Detainee.

•  Undertake a continuous review and assessment of the risks that arise during the escort task, taking immediate action to mitigate any identified risk

•  Be mindful that immigration detention may cause distress and interact with the Detainee during their period of detention in a supportive manner, ensuring their needs are catered for.

•  Take appropriate steps immediately to protect the Detainee and any others from harm.

•  Ensure the Detainee remains in “line of sight” of the escort team at all times apart from circumstances in which this would undermine the Detainee’s primary ……..and dignity, unless the risk assessment indicates the need for a higher level of monitoring.

•  Ensure under those circumstances when the Detainee is not in direct ‘line of sight’ that no barriers to engagement are placed between the escort team and the Detainee, example ensuring that the Detainee is not able to close a door between themselves and the security escort.

•  Ensure that they are provided with all necessary resources to undertake the escort/

•  Confirms that they understand and will comply with the directions provided as part of the escort task briefing.

•  Complete all necessary escort documentation that arises during the task.

•  Maintain contact with the local Transport & Escort Management team to provide regular communications on the conduct of the escort and to advise of any concerns or questions that arise during the course of the escort

•  Maintain a safe working environment, ensuring that the short term APOD accommodation is kept clean and tidy and that all local rules are observed, e.g. non-smoking, noise, etc.

•  Inform local Transport & Escort Management of any incidents as appropriate.” 7

[27] The training manual states that while a Detainee is at an APOD location, “regardless of the risk level that the escort is determined at, the Detainee will not be permitted to fully close the door to a separate room, e.g. separate bathroom, bedroom or dressing room”. 8

[28] The training manual also requires that occurrence logs must be completed during escort 9.

[29] Mr Thomas agreed that he attended refresher training as stated by the Respondent. 10

Incident – 11 November 2019

[30] On 11 November 2019, Mr Thomas, and another DSO, were tasked to perform one on one supervision of the Detainee at Pine Rivers Hospital APOD (Pine Rivers Hospital). Pine Rivers Hospital is a medical facility used by the Respondent in Queensland to treat Detainees who need to be removed from the normal detention environment to receive medical treatment.

[31] The Respondent assigns two DSOs to perform supervision on one Detainee at Pine Rivers Hospital, or any APOD, for the purposes of allowing a DSO to be relieved when taking a break, for the DSOs to take turns when completing the logbook and to supervise the Detainee. It was established during the Hearing that it is the responsibility of the DSO supervising the Detainee to also fill out the log book. 11 DSOs are required to swap phone numbers at the commencement of each shift in case they need assistance while the other is on break.

[32] Mr Alatimu gave evidence that he has been employed by Serco since 11 March 2013, and at the time of the incident, Mr Alatimu was employed in the position of Transport & Escort Manager based at BITA. He said that Detainees who were temporarily housed at Pine Rivers Hospital presented a high risk due to the fact that they were often suffering from diagnosed mental health issues. It was his experience that detainees receiving treatment at Pine Rivers Hospital often had the potential to engage in impulsive behaviours, such as attempting to escape and self-harm.

[33] Mr Alatimu stated that in an APOD setting, where there is no form of external security with it being a public facility, there is a critical need for DSOs to be in close proximity to the Detainee whilst the Detainee is moving outside of the ward or room. Mr Alatimu said that the requirement for DSOs employed by Serco is to, at all times, be within arm’s length of the Detainee to ensure that if the Detainee was to act in an impulsive way or attempt to escape, the DSO would be in a position to prevent the action, and to secure the Detainee.

[34] During cross-examination, Mr Alatimu stated that when DSOs are assigned to Pine Rivers Hospital, a secure room is provided to the DSOs that allows them to complete the logbook and store equipment. Mr Alatimu stated that DSO’s are required to make entries into the logbook every 30 minutes. DSOs are also provided with a black folder that allows DSOs to make records in situations where they are not in the room. Mr Alatimu provided the example of when a DSO is sitting in a chair when observing the Detainee, should the Detainee leave, the DSO would be able to cover the log easily to maintain privacy and place the black folder underneath the chair. 12

[35] In his written submissions, Mr Thomas stated that a Detainee tried to escape from Pine Rivers Hospital, however he managed to capture him by himself. 13 Mr Thomas submitted that at the time the Detainee exited the hospital room, he was completing an entry into the log book. During cross-examination, Mr Thomas stated that his dominant hand was his right hand.

[36] The Respondent tendered CCTV footage of the incident during proceedings. The CCTV footage of the incident included three separate short videos from three different camera vantage points. The CCTV footage was viewed during the Hearing.

[37] The first video commenced at 13:24:22. During cross-examination, Mr Thomas agreed that this footage commenced showing Mr Thomas with his right arm on his hip. Following this, the footage shows the Detainee walking from his hospital room. Mr Thomas agreed that the footage shows that he remained stationary with his hands on his hips when the Detainee exited the room and that it was a couple of seconds before Mr Thomas commenced following the Detainee down the hall.

[38] Following a question put to him by Mr Brown, Mr Thomas said that he estimated that the hallway was approximately six to seven metres wide, and that was the distance between him and the Detainee. Mr Brown put to Mr Thomas that the distance between him and the Detainee was more like three metres, to which Mr Thomas said that he was not sure as he was unable to measure the distance.

[39] It was put to Mr Thomas that if he were to stretch his arm, the Detainee would not be an arm’s length away. It was also put to Mr Thomas that the Detainee did not force his way out of the room. Mr Thomas agreed to both propositions put to him. 14

[40] When asked by Mr Brown why he did not do anything when the Detainee walked out of the room, Mr Thomas stated it was because he was putting an entry into the logbook. Their exchange is as follows: 15

[41] It was put to Mr Thomas that after the Detainee left the room, he walked casually down the corridor following the Detainee. Mr Thomas said he was walking normally, and not running. Mr Thomas conceded that the Detainee was not within arm’s length, however said that he kept the Detainee in his line of sight.

[42] The second CCTV footage commenced at 13:24:55 and shows the Detainee walking down a hallway. At 13:24:59, Mr Thomas enters the frame and can be seen walking down the hallway following the Detainee. Mr Thomas said that he was about six to seven metres away from the Detainee. When it was put to Mr Thomas that the distance was more likely to be 15 metres, Mr Thomas again raised issue that he could not be sure as he was unable to measure the distance.

[43] Under cross-examination, Mr Thomas agreed that he was walking his normal pace, that the Detainee was not running and that there was no sense of urgency as the Detainee didn’t show any plan to escape. Mr Thomas said that he thought at the time, the Detainee was walking towards the medical suites.

[44] Mr Thomas said that it was the Detainee’s normal routine to walk around the hospital and that he was permitted to do so. Mr Thomas then said this was why he was walking normally. It was then put to Mr Thomas that a Detainee is not permitted to walk around the hospital unescorted, and that at all times, the Detainee must be escorted by a DSO who is required to be within arm’s length, to which Mr Thomas said that was correct.

[45] The third CCTV footage commenced at 13:25:00 and shows the foyer to the hospital. The Detainee can be seen walking towards sliding glass doors. At 13:25:07, the Detainee pauses briefly to allow the sliding doors to open and then walks out of the building. At 13:25:11, Mr Thomas comes into the frame and walks towards the sliding doors. Mr Thomas walks through the doors at approximately 13:25:14.

[46] As mentioned previously, it is not in dispute that the Detainee exited the hospital. Mr Thomas agrees that he was walking after the Detainee and that there was approximately 6 second between the time the Detainee walks through the doors and when Mr Thomas walked through the same doors. Mr Thomas agreed that he did not walk faster when the Detainee exited the building, however said that it was because the Detainee was walking slowly and that he was confident he could stop him.

[47] Mr Thomas stated that the Detainee then moved to a high-speed pace and he got him.

Reporting of incident

Occurrence Log

[48] The Respondent tendered a document titled “Brisbane ITA – APOD Static Daily Occurrence log”. The document is 48 pages in length and dated 5 November 2019 to 11 November 2019. The document is three columns, with the first column titled “time”, the second column titled “occurrence” and the third column titled “Officer’s signature” The log contains the handwritten notes of DSOs who had been assigned to supervise the Detainee at the Pine Rivers Hospital.

[49] The Respondent said that it has an obligation to report back to the government and relies on these reports to do so. As such, the logs have to be done accurately, effectively and in a timely manner. Mr Thomas agreed that the logs are very important and that they must be done accurately. 16

[50] The log contains an occurrence entry at the time of 13:25 and is signed by Mr Thomas, which states as follows:

“Detainee came out of the room, walked through the corridor towards the reception with very high speed, the automatic sliding door of the main entrance was open, he moved outside the carpark on the right hand side of the building. DSO T.Thomas holded him on the way. But as soon as the entrance door was open DSO T.Thomas grabbed the detainee and tooking him back to the room. Reported to the TSE DSM J.Richardson”

[original text kept]

[51] During cross-examination, My Brown put to Mr Thomas that the entry into the occurrence log was inaccurate. Mr Thomas agreed that he put in the log the words “very high speed”, however said he was confused at the time. Mr Thomas also agreed that although he had logged the “automatic sliding door in the main entrance was open”, the doors were not open, and it opened when the Detainee approached them. In relation to the sentence “T.Thomas holded him on the way”, Mr Brown and Mr Thomas’ exchange is as follows:

[original text kept]

[52] During the hearing, I asked Mr Thomas to clarify what he meant when he stated he was in a critical condition. Mr Thomas submitted that when the incident happened, he had a telephone conversation with Mr Richardson who had advised him not to write the incident in the logbook as it would be too much paperwork. This caused confusion for Mr Thomas, however he made a note in the logbook to cover himself if something happened, that was why it was so short in the logbook. Mr Thomas stated that it wasn’t until approximately three hours later that Mr Richardson contacted him by telephone and directed him to complete an officer’s report.

[53] Mr Thomas said that Mr Richardson was his manager at the time, and that he was to report all incidents to him. As Mr Thomas said he was required to listen Mr Richardson, so when he told Mr Thomas not to write it down and not to tell anyone, he had to follow him. Mr Thomas then stated that the conflicting advice made him upset and stressed as he was also thinking about what this meant for his family.

[54] Mr Brown then put to Mr Thomas that Mr Richardson did not tell Mr Thomas to write the words in the log book and Mr Thomas agreed that he chose to write those words in his own handwriting.

[55] Mr Andrew Tennant gave evidence that at the time of the incident, he was employed in the position of Security Manager based at BITA. In his capacity as Security Manager, Mr Tennant is responsible for the overall management of security, operational and residential operations associated with BITA. Mr Tennant stated that upon receiving a verbal report of the incident from Mr John Richardson and Ms Erica Bowell that a Detainee had turned toward the direction of an open door while being escorted, he contacted the Australian Border Force to alert them of this.  17

Officer Report

[56] Mr Thomas completed a handwritten officer report approximately two to three hours after the incident after Mr Richardson had directed him to do so. The officer report includes the following:

“At about 1325 hours, the detainee came out of the room and started a walk in quite normal way towards the reception. DSO T.Thomas followed him by about 3 feets behind. Near to the reception, he made a quick movement towards automatic main entrance and the door became wide open automatically. Detainee walked outside with high speed for about 10 feets and then DSO T.Thomas moved to his front and blocked him.”

[original text kept]

[57] After his shift at Pine Rivers Hospital, Mr Thomas drove to BITA and provided his report to the night shift manager.

[58] During cross-examination, it was put to Mr Thomas that his officer report differed from the CCTV footage. Mr Thomas conceded that the report was different in that his report included “high speed” and “quick movement”, however stated it was not “purposeful” and that he had made a mistake due to his mental state at the time. Mr Thomas also stated that he needed more time to write the report.

[59] Mr Thomas agreed that it was important to ensure that the officer’s report and occurrence logs are completed accurately, effectively and in a timely manner. In the Hearing, Mr Thomas confirmed that he chose what to include in his officer’s report, however denied that he knew the description of the incident was false.

Telephone discussion – 11 November 2019

[60] Mr Andrew Tennant gave evidence that at the time of the incident, he was employed in the position of Security Manager based at BITA. In his capacity as Security Manager, Mr Tennant is responsible for the overall management of security, operational and residential operations associated with BITA.

[61] At approximately 6:30pm on 11 November 2019, Mr Tennant had a telephone discussion with Mr Thomas. During this discussion, Mr Tennant advised Mr Thomas that his shift had been withdrawn. This was confirmed in a letter issued to Mr Thomas shortly after.

Meeting – 15 November 2019

[62] Mr Thomas attended a face to face meeting with Mr Anderson on 15 November 2019 at BITA. He accepted that he was asked questions about the incident and showed the CCTV footage. According to Mr Anderson, Mr Thomas stated:

“I was walking at speed close behind him at 4-5 feet and followed him out the door very quickly. I did not attempt to grab the detainee’s arm. The detainee sat down on a garden bed and I conversed with him in regards to him having to come back inside.” 18

[63] Mr Thomas raised an issue with Mr Anderson’s account of the discussion that was tendered during the proceeding. Mr Thomas said that during this discussion with Mr Anderson, Mr Anderson was laughing at him. During the Hearing, Mr Thomas clarified that Mr Anderson was smiling at him during the interview. Mr Thomas also said that he had requested to return back to Pine Rivers Hospital, so he could measure the distances in the hallways, however this request was refused.

[64] Mr Anderson denied smiling at Mr Thomas in the meeting, stating that it was a serious matter he was dealing with and that he had no reason to laugh or smile. Mr Anderson said that at no time during the meeting did Mr Thomas request to go to the location to show any distance.

Meeting – 21 November 2019

[65] Mr Thomas attended a meeting on 21 November 2019 to meet with Mr Alatimu and Ms Peter). Mr Andrew Price attended as Mr Thomas’ support person. Mr Thomas accepted that he had an opportunity to view the allegations put to him in the letter dated 19 November 2019 and that he understood what he was being accused of.

[66] The Respondent tendered minutes from the meeting. 19 The minutes show that Mr Thomas has said that when the Detainee walked out of the room, he had put away the log book and followed the Detainee at a distance of 5 metres. When the Detainee had walked out the entrance doors, Mr Thomas said that the Detainee had walked to a garden bed and sat down to which Mr Thomas followed. Mr Thomas then said that it took some time for the Detainee to return to his room.

[67] Mr Thomas also raised in the meeting that at the time of the incident, he was the only DSO watching the Detainee. When asked where the other DSO was at the time, Mr Thomas responded that he was on lunch.

[68] According to the minutes, when Mr Thomas was asked if he had any questions, he replied that he knew that the distance was an issue.

[69] Mr Thomas did not take issue with the minutes of the meeting tendered by the Respondent in these proceedings.

Meeting – Termination of employment

[70] Mr Thomas agreed that following a period of leave, he received an email from Ms Peter on 31 December 2019 asking him to attend a meeting on the 3 January 2020. Mr Thomas was invited to bring a support person. Mr Tennant, Ms Peter and Ms Lucy Maskell, Mr Thomas’ support person, attended the meeting.

[71] Minutes from this meeting were tendered during proceedings. 20 Mr Thomas did not take issue with the minutes of the meeting.

[72] During the meeting, Mr Thomas was advised that the Respondent had made a decision to end his casual employment due to the seriousness of the matter and due to Mr Thomas being found guilty of serious misconduct. Mr Thomas was provided with a termination letter during the meeting.

[73] The minutes show that Mr Thomas stated in the meeting that he did not agree with the finding that he was dishonest in his reporting of the event as he only wrote down what Mr Richardson told him to write down, but he wrote extra to cover himself. In response, Mr Tennant had said that part of the issue is that the information provided to T&E Management was incorrect, resulting in the incident being incorrectly reported to the Australian Border Force. Mr Thomas’ record of the events in the log which he wrote himself was also not accurate, and this was considered in making the determination.

HARSH, UNJUST OR UNREASONABLE

Valid Reason

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

[75] As stated above, there is no dispute that the Detainee under the supervision of Mr Thomas exited the hospital on the 11 November 2019. While there is dispute between the parties as to what exactly happened, it is accepted that the Detainee was under the supervision of Mr Thomas whilst the other DSO was on a break, the Detainee exited the hospital while under Mr Thomas’ supervision and Mr Thomas’ reports differed from what was viewed in the CCTV footage.

[76] As detailed above, CCTV footage of the incident was played at the Hearing. Mr Thomas raised that the Respondent did not provide footage prior to the incident and footage of what occurred when Mr Thomas had seized the Detainee after he had exited the hospital. It is clear from the footage that the Detainee had exited his room and that Mr Thomas did not keep the Detainee in arms’ length, as required by the Respondent’s policies.

[77] I do not accept Mr Thomas’ submissions that he was confused by the distance between him and the Detainee. As I have already stated, the evidence is clear that Mr Thomas was not within arms’ length of the Detainee. On the basis of the CCTV footage the distance appears to be much closer to that as assessed by the witness evidence for the Respondent, than by Mr Thomas.

[78] I am satisfied on the basis of the evidence that Mr Thomas had received appropriate training in the DSO role and that he was aware of his reporting obligations. Although I appreciate Mr Thomas’ submission that he was stressed at the time of the incident due to his concerns about what this meant for his career and family, this indicates that Mr Thomas was somewhat aware that his actions were in breach of his employer’s expectations.

[79] While there was some focus on Mr Richardson telling Mr Thomas not to report the incident I am not inclined to accept this occurred given other claims Mr Thomas has made have not been supported by the evidence, however even if it did, it is ultimately the fact that Mr Thomas was aware of his reporting requirements and he chose what to include in his reports. He accepted under cross-examination that the words he included in his reports were his own.

[80] Accordingly, I am satisfied that Mr Thomas did not accurately report the incident in the log or the officer’s report. I am also satisfied that when given the opportunity to correct the record he did not do so.

[81] I have also not been persuaded by another argument put for Mr Thomas that his obligation to escort the Detainee at arm’s length was impacted by his obligation to protect private documents in a folder. The evidence, particularly the CCTV footage does not support that he had been completing paperwork or securing the log book at the relevant time.

[82] During his evidence Mr Alatimu stated that a secure room is provided to DSOs to complete the logbook and DSOs are also provided with a black folder that allows DSOs to make records in situations where they are not in the room. He said a DSO would be able to place the black folder underneath the chair. There is no evidence of any folder or paperwork on the CCTV footage, but even if it was in the vicinity at the time it was not a basis to excuse what occurred.

[83] Given all of the above, I am satisfied that the Respondent had a valid reason for dismissal.

Notified of the reason

[84] In Crozier v Palazzo Corporation Pty Ltd, 23 the Full Bench established the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[85] Mr Thomas was notified of the reason for dismissal in the meeting on 3 January 2020 and in the termination letter.

Opportunity to respond

[86] It is not in dispute that Mr Thomas was provided with an opportunity to respond.

[87] In cross examination, Mr Thomas accepted that he had a meeting with Mr Scott Anderson on the 15 November 2019. Following this, Mr Thomas agreed he was provided with a letter that set out the allegations that had been made against him and was advised about the disciplinary meeting that was to occur on 21 November 2019, which he attended. Mr Thomas stated that he understood the matters that had been alleged against him and that he understood the concerns of the Respondent.

[88] Mr Thomas also agreed that he had a number of opportunities to raise any matter that he believed relevant to the allegations and the possibility of termination of his employment.

Unreasonable refusal of support person

[89] There was no unreasonable refusal to this criterion.

Unsatisfactory performance

[90] The reason for dismissal was not related to unsatisfactory performance. The decision to terminate as described in the letter of termination was based on a finding of misconduct. On that basis this is a neutral consideration.

Size of employer/absence of HR specialists

[91] The Respondent is a large employer with internal human resources expertise. On that basis neither of the considerations in s.387(f) of (g) have a significant bearing on the result in this matter.

Other matters

[92] Mr Thomas relied on his previous record of reasonably lengthy service and that the dismissal was harsh given his responsibilities as a father of young children. During the hearing, it was stated that Mr Thomas had always been a good DSO. I have taken these matters into account as weighing in his favour.

CONCLUSION

[93] I have made findings concerning each of the elements of s.387 of the Act and having weighed each of those findings conclude as follows. Despite Mr Thomas having a reasonably long period of good service with the Respondent, and the impact of termination having significant consequences for him given his personal responsibilities, given the finding that the Respondent had a valid reason for termination because of the failure to follow correct procedure, and Mr Thomas compounding that failure by then not accurately reporting the incident and then despite having been given several opportunities to correct his inaccurate version of the incident did not do so, and given the procedure followed in effecting the dismissal being otherwise fair, the dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed.

COMMISSIONER

Appearances:

Mr Tojo Thomas appearing on his own behalf assisted by Ms Sumi Johns
Mr Paul Brown of Baker & McKenzie appearing for the Respondent.

Hearing details:

2020,
Brisbane:
May 26

Printed by authority of the Commonwealth Government Printer

<PR721039>

 1   Exhibit 4.

 2   Exhibit 5.

 3   Exhibit 7.

 4   Exhibit 8.

 5   Exhibit 9.

 6   Exhibit 6.

 7   Exhibit 8.

 8   Exhibit 7.

 9   Exhibit 7.

 10   Exhibit 5, paragraph 18.

 11   Transcript PN172.

 12   Ibid, PN1076.

 13   Exhibit 4 – paragraph 2.

 14   Transcript PN211-214.

 15   Transcript PN230-235

 16   Transcript PN533.

 17   Exhibit 9.

 18   Exhibit 6, paragraph 5.

 19   Exhibit 8.

 20   Exhibit 8.

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

 22   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 23   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at para. 73, [(2000) 98 IR 137].