s.394 - Unfair dismissal

Application for order requiring persons to attend before the Commission - s 590 of the Fair Work Act 2009 (Cth).

[1] Mr Thomas alleges that he was unfairly dismissed by Serco Australia Pty Limited (Serco).

[2] Mr Thomas worked for Serco as a Correctional Case Officer - Dog Handler at the Clarence Correctional Centre, based in Grafton, New South Wales.

[3] Serco contends that it dismissed Mr Thomas because he engaged in serious misconduct. The termination letter describes the following allegations against Mr Thomas, which Serco found were 'substantiated' and 'pressed' as reasons for the termination of his employment:

1. On 23 and 24 February 2022, you made disparaging complaints against and/or false adverse accusations towards your Correctional Supervisor/Dog Squad/Security and Operations Supervisor Matt Hulett ("your Supervisor), with your purpose being to cause him and Serco reputational harm. In particular:

1. You failed to allow your Supervisor time to ascertain the true nature of the injury to General Purpose Dog ("GPD") Tauvey when you concluded that your Supervisor was unwilling to investigate. This accusation was made two days after GPD Tauvey sustained an injury (GPD Tauvey was injured on 21 February 2022). It is therefore alleged that:

1. In circumstances where a proper and timely investigation had in fact commenced:

1. Rather than allow sufficient time for a proper investigation to take place; and/or

1. Enquiring as to whether an investigation had commenced (which it had),

you accused your Supervisor of failing to take your concerns seriously and complained that your Supervisor would not commence an investigation into the tail injury to GPD Tauvey.

The accusations you made demonstrated that you were not interested in the facts relating to the injury, or the ill or proper treatment of GPD Tauvey, and that you would not stand aside to allow a proper investigation to take place. It is alleged that this was because your purpose was to damage your Supervisor's reputation and, by inference, Serco's reputation.

Contrary to your accusations, the investigation properly ascertained the injury to GPD Tauvey was accidental. The investigation findings were supported by the report of the veterinarian that assessed and treated GPD Tauvey dated 3 March 2022 (enclosed with this letter) and CCTV footage reviewed as part of the investigation.

1. For reasons relating to your intention to damage the reputation of your Supervisor (and by inference, Serco), you subsequently intentionally exaggerated the nature and severity of the injury to GPD Tauvey when you said that your Supervisor was unwilling to investigate the injury to GPD Tauvey.

1. You demonstrated poor attitude and behaviour towards your Supervisor. In particular, you disparaged your Supervisor when you 'predicted' that your Supervisor would bully and victimise you for raising complaints about the treatment of the dog.

1. When you invited GM Tony Voss to view 12 minutes of CCTV footage on 7 March 2022, you knew that the contents of the CCTV footage captured disclosed no ill treatment of GPD Tauvey.

When you viewed the CCTV footage, on 11 March 2022, you admitted that there was nothing sinister or inappropriate in the CCTV footage concerning the dog's treatment.

1. Your intention to falsely damage Serco's reputation continued when, on 9 March 2022, you sent an image of the dog's amputated tail to CLA NCSW Peter Burgess.

1. In correspondence with Serco DGM Katiell dated 23 February 2022, by your own admission you committed serious misconduct out of hours when you witnessed the commission of a crime by your former fellow colleagues, which you failed to immediately report to Serco or the police. The substance of these accusations was repeated to CCO Tiana Johnston and Shaun Wilson on 8 March 2022, and was also communicated in writing to Peter Burgess of CNSW on 15 March 2022. In particular:

1. You together with former Serco employees [named omitted] participated in the purchase, trafficking and use of illicit substances at your place of residence.

1. By your own admission, you observed, but failed to immediately report to police or Serco, the purchase and use of illicit substances at your place of residence by [names omitted].

1. Rather than immediately report the commission of a crime to police or Serco, you informed:
   1. DGM Rod Katiell on 23 February 2022;
   2. CCO Tiana Johnston on 8 March 2022;
   3. CCO Shaun Wilson on 8 March 2022;
   4. Peter Burgess of CNSW on 15 March 2022,

but did not provide further evidence as to when the commission of the crime occurred.

1. On 8 March 2022, whilst on an escort assignment of an inmate to the Grafton Base Hospital, you conducted yourself in an inappropriate manner, putting the security of the operation at risk and causing Serco reputational harm to Serco. Your actions also constitute a breach of standing instructions and operational directives. In particular:

1. Your handover of the firearm was poorly controlled, in an inappropriate location and unduly lengthy, resulting in unsafe acts and endangering Shaun Wilson and the prisoner on the escort.

1. By taking an unusually long time to conduct the firearm handover, you left a fellow officer alone with an inmate in a public area for approximately 15 minutes.

1. During the escort you attended on 8 March 2022, you jeopardised the safety and welfare of a prisoner in your custody, your colleagues and the broader public; and created risks to the safety and security of the escort, when you departed the escort without Serco's authority and without reasonable excuse. In particular:

1. By absenting yourself from a "high risk/A2 Maximum Security" prisoner escort without Serco's authorisation and without reasonable excuse, you reduced the effectiveness of an escort formation designed to keep safe both you, your colleagues, and a prisoner in your custody.

1. Your absence placed your colleagues on the escort, CCO Johnston and CCO Wilson, as well as members of the community, in danger.

1. Caused the escort to be without a dog handler, which was an integral requirement of the escort, determined after a risk assessment; and

1. Caused Serco to replace you to meet the escort requirements.

1. As a result of the above, you breached the Custodial Operations Policy and Procedure 19.6 Medical Escorts which you were familiar with, including by:

1. A failure to follow the initial "Escort Assessment" and the "Protocol for Guarding Inmate Patients"; and

1. A failure to provide an appropriate level of supervision based on the level of the identified risk regarding the inmate.

1. Your actions had an adverse effect on assisting Serco to maintain its statutory and common law obligations to keep a workplace safe and the safety and wellbeing of yourself and these two fellow employees named in 5(b) above.

1. As a result of 5(a) to (f) above, you breached the safety and welfare provisions set out in the Fair Work Act 2009 and the regulations to the Act, and are therefore guilty of serious misconduct pursuant to Regulation 1.07 of the Fair Work Regulations 2009.

1. Your actions in leaving the escort without permission constitute neglect of duty, and therefore serious misconduct.

1. During the escort you attended on 8 March 2022, you engaged your fellow officers in inappropriate conversations in front of the inmate and other hospital staff. The conversations included your negative views of your Supervisor, the injuries to GPD Tauvey, and your wish to cause Serco harm.

In particular, you made the following statements and/or statements to the following effect:

1. "I have enough evidence and videos and photos to ruin Serco and the dog squad and crumble the empire";

1. "I want to see Clarence to be taken over by a different company/CNSW";

1. "I am done with dog squad. It's me vs. them now. I am ready to see the dog squad burn"; and

1. In your meeting with Tony Voss, you stated you would be demanding that the video footage showing when GPD Tauvey was injured be reviewed and threatened to involve Correctional Services NSW and Fair Work to "take Matt (i.e. your supervisor Matt Hulett) down".

1. By your conduct with respect to the statements made at allegation 6(a) to (d) above, you caused serious and imminent risk to the reputation, viability and profitability of Serco's business, and you are therefore guilty of serious misconduct pursuant to Regulation 1.07 of the Fair Work Regulations 2009.

1. On 8 March 2022, you threatened to damage Serco's reputation and then set out to do so. In particular:

1. You made a statement to CCO Johnston to the effect that you would discredit Serco so that it loses its contract with CNSW and someone else takes over.

1. Subsequently, on 9 March 2022 and 15 March 2022, you distributed emails containing sensitive and restricted content through non-approved channels outside of the Serco network.

1. Further, on 9 March 2022 and 15 March 2022, you acted on threats you made on 8 March 2022 to wrongly damage Serco's reputation with its client by distributing emails containing sensitive and restricted content to a representative of Correctional Services New South Wales.

1. On 11 May 2022, you refused to comply with a reasonable and lawful direction from Serco to cooperate in an investigation. In particular:

1. You refused to cooperate in an investigation when you refused to answer questions or provide information in relation to complaints that you made on 23 and 24 February 2022, and

1. You refused to provide any facts relevant to your participation in an escort task you undertook to Grafton Base Hospital on 8 March 2022.

• [4] Mr Thomas contends that he was unfairly terminated for the sole reason that he requested to see the footage of the injury to GPD Tauvey.[1] Mr Thomas contends that there has been a "systemic cover up by all levels of Serco management" starting with Mr Hulett and Mr George Sparrey, who Mr Thomas contends was the person to have caused the injury to GPD Tauvey.[2]

[5] Mr Thomas's unfair dismissal application has been listed for final hearing, by video conference, before the me on 21, 23 and 24 February 2023. Mr Thomas will be a witness in his case. He will also call evidence from his partner, Ms Kahla Craig . Serco has filed and served witness statements made by Mr Tony Voss, Serco's General Manager of the Clarence Correctional Centre, and Mr Ignatius du Preez, Serco's People and Capability Manager at the Clarence Correctional Centre. Mr Voss made the decision to terminate Mr Thomas's employment. Mr du Preez undertook an investigation into the matters which led to the termination of Mr Thomas's employment.

[6] Mr Thomas has made an application for the Fair Work Commission to make orders requiring the following persons to attend the hearing, by video conference, to give evidence:

[7] On 15 February 2023, I conducted a hearing, by telephone, in relation to Mr Thomas's application for orders requiring the Proposed Witnesses to attend the hearing to give evidence. Serco relied on a witness statement made by Ms Bianca Dearing, solicitor, in which she set out relevant facts and circumstances in relation to each of the Proposed Witnesses. Submissions were also made by Mr Brown, solicitor, on behalf of Serco. Mr Thomas made submissions in support of his application.

[8] Section 590(2)(a) of the Fair Work Act 2009 (Cth) gives the Commission the discretionary power to make orders requiring a person to attend a conference or hearing. This is generally for the purposes of participating in a proceeding or giving sworn witness evidence.

• [9] In determining an application for an order to attend, the Commission will consider whether attendance at the conference or hearing by the person to whom the order will apply will assist in the resolution of the matter before it.[3] This will turn on the circumstances of each case. An order to attend may not be required or appropriate in circumstances where, for example:

• (a) a party is yet to file its submissions and witness statements;[4]

• (b) the person required to attend has filed a witness statement and will therefore voluntarily attend;[5]

• (c) the person required to attend is a representative;[6]

• (d) the person required to attend is not likely to be able to give evidence of apparent relevance to the issues in dispute;[7]

• (e) where the person's evidence is likely to be the same or corroborative of other persons who give evidence about the same matters and will add nothing to that evidence;[8]

• (f) where the person's evidence relates to agreed or uncontested facts;[9]

• (g) where the person's evidence is otherwise obtainable from relevant documents, CCTV footage or business records;[10] or

• (h) where there is an unwarranted or disproportionate inconvenience or cost associated with ordering the person to attend the Commission, whether in person or otherwise, to give evidence.[11]

[10] Mr Voss and Mr du Preez have made witness statements and will be called by Serco to give evidence at the hearing. It is therefore not necessary to make orders requiring their attendance at the hearing.

[11] I decline to exercise my discretion to make an order requiring Mr Peter Welling to attend the hearing to give evidence. Mr Welling holds the position of Chief Executive Officer of Serco Asia Pacific. Mr Welling did not make, and was not involved in the making of, the decision to terminate Mr Thomas's employment with Serco. Mr Voss made the termination decision. Mr Thomas will be given every opportunity to cross examine Mr Voss about relevant matters at the hearing.

[12] Prior to his dismissal, Mr Thomas sent an email to Mr Welling raising various issues. Mr Welling responded to Mr Thomas by email, effectively stating that he would get his people to contact Mr Thomas. It is contended by Mr Thomas that Mr Welling had the power to de-escalate the situation and stop his dismissal. The fact that Mr Welling had such power does not make him a witness whose evidence could assist in the resolution or determination of Mr Thomas's unfair dismissal application. I do not consider that Mr Welling is likely to be able to give evidence of apparent relevance to any issues in dispute in these proceedings.

[13] I decline to exercise my discretion to make an order requiring Ms Jessica Cook to attend the hearing to give evidence. Ms Cook is employed by Serco as a People & Capability Specialist. Ms Cook was the human resources team member who sent correspondence to, and received correspondence from, Mr Thomas and his lawyers during the investigation which led to the termination of Mr Thomas's employment. That correspondence may be tendered into evidence at the hearing. It will speak for itself. Ms Cook was not involved in the decision to terminate Mr Thomas's employment. To the extent that Mr Thomas says he made certain oral disclosures to Ms Cook about relevant matters, he can give evidence about those matters.

[14] I will exercise my discretion to make an order requiring Ms Tiana Johnston to attend the hearing, by video conference, to give evidence. Serco has included in Mr du Preez's witness statement various discussions he had with Ms Johnston during the investigation into the allegations which led to Mr Thomas's dismissal. Ms Johnston was one of the primary witnesses to the events of 8 March 2022, which are the subject of allegations 4, 5, 6, 7 and 8. Mr Thomas denies many of those allegations. Absent an order requiring Ms Johnston to attend the hearing, by video conference, to give evidence, Mr Thomas will be denied the opportunity to test the hearsay account given by Mr du Preez in his witness statement of his discussions with Ms Johnston. The evidence of Ms Johnston plainly has apparent relevance to a number of the issues in dispute between the parties.

[15] I will exercise my discretion to make an order requiring Mr Matthew Hulett to attend the hearing, by video conference, to give evidence. As Mr Voss explains in his witness statement (at [36]), allegation 1 concerns Mr Thomas "making disparaging complaints and/or false/adverse accusations against" Mr Hulett. Allegation 1 includes contentions that Mr Hulett did certain things and failed to do other things in connection with Serco's investigation into what caused the injury to GPD Tauvey. In addition, Mr Hulett's evidence will be relevant to Mr Thomas's contention that Mr Hulett was closely involved in the alleged 'cover up' of the cruelty and neglect of GPD Tauvey, including the deletion of relevant video footage which Mr Thomas repeatedly requested. In the event that the evidence at the final hearing were to establish or reveal a 'cover up' of the cruelty and neglect which Mr Thomas alleges was imposed by Serco employees on GPD Tauvey, it would add significant weight to Mr Thomas's contention that the sole reason for his dismissal was his request to see the footage of the injury to GPD Tauvey. I am satisfied that Mr Hulett will be able to give evidence which is of apparent relevance to issues in dispute in these proceedings.

[16] I will exercise my discretion to make an order requiring Mr George Sparrey to attend the hearing, by video conference, to give evidence. Mr Sparrey holds the position of Correctional Case Officer - Dog Handler at the Clarence Correctional Centre, based in Grafton, New South Wales. He was a colleague of Mr Thomas during his employment with Serco. Mr Thomas contends that Mr Sparrey caused the injury to GPD Tauvey and was principally involved in the 'cover up' of the cruelty and neglect of GPD Tauvey, including the deletion of relevant video footage which Mr Thomas repeatedly requested. I am satisfied that Mr Sparrey will be able to give evidence which is of apparent relevance to issues in dispute in these proceedings.

• [17] I will exercise my discretion to make an order requiring Mr David White to attend the hearing, by video conference, to give evidence. Mr Thomas contends that Mr White denied his application to review the video footage relevant to the injury caused to GPD Tauvey, was involved in the alleged 'cutting' of the video footage, and collaborated with Mr Hulett to get rid of him. It is not disputed by Serco that Mr White reviewed CCTV footage of the Serco Dog Unit Kennels at the Clarence Correctional Centre on about 23 February 2022.[12] It is contended by Serco that this footage did not show how GPD Tauvey's tail was injured.[13] Some of the footage from the period leading up to the discovery of the injury to GPD Tauvey is no longer available. For these reasons, I am satisfied that Mr White will be able to give evidence which is of apparent relevance to issues in dispute in these proceedings.

[18] For the reasons given, I will make orders for Ms Johnston, Mr Hulett, Mr Sparrey and Mr White to attend the hearing, by video conference, to give evidence. Serco has helpfully undertaken to provide a copy of the orders to Ms Johnston, Mr Hulett, Mr Sparrey and Mr White.

[1] Mr Thomas's affidavit made 12 December 2022 at [4]

[2] Mr Thomas's affidavit made 12 December 2022 at [5]-[6]

[3] Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847 at [46]

[4] Mocanu v Kone Elevators Pty Ltd [2018] FWC 1335

[5] Day v Drake Trailers Pty Ltd [2015] FWC 2644; Wissell v Twentieth Super Pace Nominees Pty Ltd [2019] FWC 7539; Mocanu v Kone Elevators Pty Ltd [2018] FWC 1335

[6] Day v Drake Trailers Pty Ltd [2015] FWC 2644

[7] Uijland v Airservices Australia [2020] FWC 3613; Hu v Shanghai Garden Chinese Restaurant [2020] FWC 1308

[8] Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847; Day v Drake Trailers Pty Ltd [2015] FWC 2644

[9] Uijland v Airservices Australia [2020] FWC 3613

[10] Uijland v Airservices Australia [2020] FWC 3613

[11] Uijland v Airservices Australia [2020] FWC 3613

[12] Statement of Bianca Dearing made on 6 February 2023 at [33(a)]

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