1. the Applicant excluded important information in his report of the Incident (i.e. that Mr Ioane provoked the detainee by repeatedly stepping upon his shoeless foot, and/or that the detainee complained about it), giving rise to a lack of proper transparency about the Incident (which the Respondent cannot condone in its workplace);

1. the Applicant should have formally followed up on the detainee's verbal complaints to him about provocation and unjust treatment; and

1. he was simply controlling risk arising from a threat (being the detainee's behaviour), in line with his training;

1. he was aware that this same detainee had on three previous occasions assaulted an ERT Officer;

1. the detainee stated in the holding room, and prior to being taken to ground, that he had recently ingested the drug ICE (or crystal methamphetamine);

1. he accepts that he did not attempt to de-escalate the situation before pushing the detainee to the ground;

1. he did not see or otherwise notice Mr Ioane stepping on the detainee's foot at any time;

1. he did not follow up, or pass on to anyone else (i.e. his supervisor or more senior management), the detainee's verbal complaints as they had not been made formally; and

1. his actions in dealing with the detainee, in all of the circumstances, were warranted or otherwise justified.

• [29] At the hearing, the Applicant gave evidence that (during the Incident) the detainee swore and made abusive slurs to the ERT Officers present, including about their mothers and/or sisters. The Applicant says that the detainee also stated that he had just ingested the drug ICE (crystal methamphetamine), and would assault ERT Officers (again) if given the opportunity or thought it appropriate to do so. The Respondent points out that none of these details were included in the Applicant's report of the Incident.[18]

• [30] In my view, an overall assessment of the Applicant's involvement in the Incident, including his conduct post the Incident, provides a sound, defensible and well founded (i.e. valid) reason for his dismissal (based upon conduct in fundamental breach of the Respondent's policies and procedures). Relevantly, the Applicant did not apply any de-escalation techniques prior to engaging physically with the detainee (noting that the detainee was seated and had his arms retrained behind his back).[19] The Applicant also failed to note in his individual report of the Incident that the detainee had made various complaints (or repeatedly raised concerns) about his foot being stood on by Mr Ioane, and equally made no attempt to raise the detainee's complaints or concerns in this regard with anyone.[20]

• [31] My finding that the Respondent had a valid reason for dismissing the Applicant weighs against any finding that the Applicant's dismissal was harsh, unjust, or unreasonable. I treat the criterion of 'valid reason for dismissal' in this case, based upon conduct, as one that weighs in favour of the Applicant's dismissal not being unfair.

s.387(b) - Whether the Applicant was notified of the valid reason for dismissal

• [32] Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant "was notified of that reason" and given an opportunity to respond to same.

• [33] Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a) of the Act.[21] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[22] and in explicit, plain and clear terms.[23]

• [34] The Applicant was notified of the reason for his dismissal. I treat this criterion as a neutral consideration in this case.

s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct

• [35] In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee's conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra:[24]

"the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That... does not constitute an opportunity to defend."[25]

• [36] I find that the Applicant had an opportunity to respond (or defend himself) against the allegations being made against him, prior to a decision being made by the Respondent to terminate his employment. I treat this criterion as a neutral consideration in this matter.

s.387(d) - Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal

• [37] The Applicant was offered and took up the opportunity to bring a support person to the Formal Disciplinary Meeting. I treat this criterion as a neutral consideration in this case.

s.387(e) - Whether the Applicant was warned about that unsatisfactory performance before his dismissal

• [38] This is not a case about unsatisfactory work performance. Given that the Applicant was dismissed for serious misconduct, no issue of unsatisfactory performance arises. I treat this criterion as a neutral consideration in this case.

The degree to which the size of the Respondent's enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and 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 (s.387(g))

• [39] The Respondent is not a small business. I understand that it employs dedicated human resources management specialists. There is no evidence to suggest that the size of the Respondent's enterprise impacted upon the procedures it followed in effecting the Applicant's dismissal. Neither party put forward any substantive or relevant submissions that go directly to either of the criteria under ss.387(f) and (g) of the Act. I therefore treat both of the criteria under ss.387(f) and (g) as neutral considerations in this case.

s.387(h) - Any other matters that the Commission considers relevant

• [40] The Applicant submits that he has always been a hardworking, dedicated, and passionate employee, with a long period of service with the Respondent, and that his dismissal has taken a toll upon him personally and financially. He also says that his dismissal was a disproportionate response to his conduct, i.e. his conduct in all of the circumstances did not justify dismissal.

• [41] The Respondent submits that none of the foregoing matters should be given any weight in my assessment of the Applicant's dismissal as being harsh, unjust or unreasonable.

• [42] I do not consider that any of the matters raised by the Applicant, in the overall facts and circumstances of this case, travel beyond the level of neutral considerations. I treat the matters raised by the Applicant under s.387(h) of the Act as weighing neither for nor against any ultimate finding as to unfairness in this case.

• [43] I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion therein as a fundamental element in determining whether the Applicant's dismissal was harsh, unjust or unreasonable.[26]

• [44] In relation to the criterion set out under s.387 of the Act, I have found that:

(a) the presence of a valid reason for the Applicant's dismissal weighs against a finding that the Applicant's dismissal was harsh, unjust and unreasonable; and

(b) other relevant criterion are neutral considerations.

• [45] In view of the findings and conclusions set out in this decision, I find that the Applicant's dismissal was not harsh, unjust and unreasonable (i.e. unfair). It is therefore necessary to dismiss the Applicant's unfair dismissal application, and an order to this effect will be issued contemporaneously with this decision [PR786093].

Printed by authority of the Commonwealth Government Printer

The Applicant, Mr Jake Ngaia, appeared for himself.

Mr Paul Brown, Partner, Baker McKenzie lawyers, appeared (with permission) for the Respondent.

[1] Respondent's Outline of Submissions dated 16 December 2024; Court Book (CB), p.137.

[2] Statement of Tutekohi Nikora dated 16 December 2024, Annexure TN3; CB, p.167.

[3] Letter of Suspension dated 25 June 2024; CB, pp.76-77.

[4] Notification of Formal Disciplinary Meeting dated 17 July 2024; CB, p.85.

[5] Notification of Formal Disciplinary Meeting dated 17 July 2024; CB, pp.84-89.

[8] Respondent's Form F3 Employer Response, Section 3.2; Dismissal Letter dated 23 August 2024; CB, pp.59-64.

[9] (1964) 38 ALJR 293.

[11] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.

[12] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at 361-362 (per Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).

[13] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).

[14]Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.

[15]Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, at 685.

[16] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen [2016] FWCFB 5520, 263 IR 1, at [28].

[17] King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019, Print S4213, at [23] to [24].

[19] CB, pp.137-138 (Respondent's allegations and asserted factual findings); CB, pp.145-150 (Statement of Mr Tutekohi Nikora, at [21]-[33]); CB, pp.224-233 (Complaints Handling Policy); CB, pp.235-251 (Incident Reporting Policy at Clause 4.10.1); CB, p.561 (The Report of the Incident completed by the Applicant specifically states (or requires): "please provide all details, including but not limited to: what was said/heard, and what others said/did"). See also Annexures "TN-18" (CB, pp.407-487) and "TN-21" (CB, pp.521-536).

[21] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.

[22] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.

[23] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc [2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49].

[24] [1996] IRCA 568.

[26] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; Edwards v Justice Giudice [1999] FCA 1836, at [6] to [7].

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