14 June 2018
Detention officer unfairly dismissed despite seriously dropping her guard
The recent Fair Work Commission (FWC) decision in Jacqueline Waite v Serco Australia Pty Ltd T/A Serco Australia Pty Ltd1 is an important reminder that dismissals on what are perfectly valid substantive grounds can still be unfair if an employee is denied procedural fairness.
Serco Australia Pty Ltd dismissed an immigration detention officer for serious misconduct alleging the employee:
- slept on her shift
- viewed internet sites and movies on her private iPad during a shift and
- was dishonest in denying these allegations during what was described as a fact finding meeting (the first meeting).
The FWC acknowledged there were extremely serious potential repercussions from sleeping on shift however Serco failed to afford the employee an opportunity to properly respond to the allegations and defend herself. The FWC was critical of the process adopted by Serco, particularly in two respects.
First, Serco misled the detention officer during the first meeting by informing her that a nurse from the hospital at which the detention officer was working had reported the incident. However, this was not correct as a colleague reported her. Serco also had photographic evidence of the detention officer sleeping during her shift but this was not shown to her until the subsequent disciplinary meeting where she was blindsided and did not have time to consider the implications of the photographs.
Secondly, Serco claimed that there were discrepancies between the explanations provided by the detention officer in the first meeting and the subsequent disciplinary meeting. Her dishonesty was therefore part of the reason for her dismissal. The FWC was not, however, satisfied that she had been dishonest. It also found that Serco’s failure to put the discrepancies to the detention officer before reaching its decision had deprived her of the opportunity to respond.
The FWC said:
“Had Serco dealt appropriately and fairly with [the detention officer] in relation to the investigation and disciplinary process… Serco may have been entitled to dismiss [her] on the basis of her conduct and dishonesty in the investigation.”
This case is a salient reminder of some of the critical steps required to ensure procedural fairness in a disciplinary matter, including:
- provide detailed allegations to the employee in writing including the possible outcomes and penalties before they respond
- don’t ambush the employee and give the employee a reasonable opportunity to respond to the allegations in writing including an opportunity to seek advice and adequate time to prepare a response
- allow all participants to be accompanied by a support person throughout the process
- test the evidence given – give each party the opportunity to respond to contradictory evidence and undertake diligent enquiries and follow up based on information that arises and
- consider whether your findings can be substantiated on the balance of probabilities or whether there is insufficient evidence to reach a finding.
This article was written with the assistance of Louise Chen, Law Graduate.
1 FWC 3113.
Fay has acted for employers for over 17 years across a range of industries including professional services, recruitment, finance, entertainment, FMCG & general manufacturing, sport, health, aged care, community services and local councils focused always on the purpose and imperatives of the organisations she is servicing.More about Fay
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