Application for unfair dismissal remedy
Ms White (Respondent) sought assistance from our team to represent her in an unfair dismissal remedy against employer Serco Australia Pty Ltd (Respondent) in the Fair Work Commission. This was heard by Deputy President Asbury of the Fair Work Commission on 01 June 2019. Given that the unfair dismissal application was made within the 21 day period from cease of employment, and no assertion of Serco Australia being a small business, the matter was dealt with in form of a hearing.
Background
The Respondent was dismissed for serious misconduct on 07 November 2017 having worked as a Detainee Services Officer with the Respondent since 11 May 2011. The grounds for serious misconduct set out by the Respondent was the Applicant’s failure to apply herself to her duties and remain vigilant and attentive by sleeping during shift, and using an iPad for personal use. This was in breach of Serco Australia’s Code of Conduct and Governing Principles.
The Respondent – Serco Australia
The Respondent asserted that her dismissal was harsh, unjust and unreasonable on grounds that she did not engage in serious misconduct, and she was not afforded a support person to be in discussion with Serco Australia request for meeting. The Respondent put forward that Serco advised this was a support person was not necessary, which Serco dispute. In addition the Respondent believed she was not provided an opportunity to respond to allegations and defernd herself.
The Respondent put forward that she was using an iPad whilst a fellow employee was using his iPhone, but in her case to access training through a MY HR application. It was claimed by the Respondent’s co-worker working alongside her that she was playing a game on the iPad, and that later on the co-worker saw the Respondent fall asleep, slumped in her chair with her eyes closed, in breach of Seco’s code of conduct. The Respondent co-worker took ‘evidence’ of the Respondent sleeping by taking photos on his iPhone. The Respondent agreed that she did nod off and sleep, and as such her ability to respond through the period she was on duty was compromised. Influencing factors put forward was that the nodding off and sleeping was likely due to poor lighting. The Respondent also maintained that she had attempted to log into on-line training , but had difficulty logging in.
The Respondent’s Co-Worker
The Respondent’s co-worker (who shared the same shift in this instance), under cross-examination, agreed that Serco’s Policies did not permit use of a phone to which he agreed he did have access too, and was also in breach of this policy. The co-worker also agreed to breaching the policy when he walked away to a service station to purchase a meal. The co-worker said he was not spoken to about his breaches by Serco Australia.
Escalation of Complaint to Serco Australia Management
Ultimateley, the use of the iPad and sleeping on shift was reported by the Respondents co-worker to Serco Australia, along with photographic evidence in an email complaint. This was subsequently followed through by Serco’s Facility Operations Manager, who requested a statement from the Respondent’s co-worker to commence and internal ‘fact-finding investigation’.
Remedy & Compensation
In this case before the Fair Work Commission, Deputy President Asbury was satisfied the dismissal was unfair. This was determined on the basis that the Respondent had not been on any unpaid leave prior to the dismissal, the dismissal of for serious misconduct on the grounds of ‘dishonesty’ did not have reasonable basis. Further, Deputy President Asbury did not believe the Respondent was afforded procedural fairness by way of which Serco conducted the dismissal and denied the respondent an opportunity to respond to the allegations and defend herself.
Both the Respondent and Serco did not feel reinstatement would be appropriate, which Deputy President Asbury supported. As such compensation was to be provided by Serco, assessed as per s. 392 of the Fair Work Act. Calculation was formed on the basis of the cost viability to Serco’s operation, the lengthy employment period of the Respondent, and the likely amount that would have been earnt. No deductions were made for failing to mitigate loss or in respect of misconduct – which was sought by representation for Serco Australia.
Deputy President Asbury issued an order of compensation along with his decision requiring Serco to pay compensation to the Respondent of a gross amount of $6,758 within 21 days of the date of Decision.
We Support Employees
No matter the industry you work within or the sate you reside, whether that be Victoria, Queensland, to Western Australia and everywhere in between, our team have you covered. We understand that being a victim of unfair dismissal is a challenge, but rest assured you are in good hands with Australian Workplace Discrimination Representatives (AWDR). Having supported thousand of client we are well averse to supporting employing through simple and complex workplace matters. Get in touch with our team for a confidential consultation to determine your options for the best outcome.
Source: Jacqueline Waite v Serco Australia Pty Ltd [2018] FWC 3113 (1 June 2018)
