1
Fair Work Act 2009
s.394—Unfair dismissal
Medhat Morcos
v
Serco Australia Pty Ltd
(U2019/5112)
DEPUTY PRESIDENT BULL SYDNEY, 21 NOVEMBER 2019
Application for relief from unfair dismissal – random alcohol testing – positive result –
alleged serious misconduct – policy did not specify that conduct was serious misconduct –
policy provided for lesser disciplinary measures – dismissal was unreasonable and therefore
unfair – application granted – reinstatement ordered with continuity of service – no order to
restore lost pay.
[1] Mr Medhat Morcos has made an application to the Fair Work Commission
(Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he was unfairly
dismissed by Serco Australia Pty Ltd (Serco). Mr Morcos seeks an order from the
Commission to be reinstated with back pay or, in the alternative, compensation equivalent to
six months’ wages, less any Commission-determined deductions.
Permission to be legally represented
[2] Both the Applicant and the Respondent sought permission to be legally represented
before the Commission. Taking into account the complexity of the matter, the Commission
was satisfied that, pursuant to s.596(2)(a) of the Act, legal representation would enable the
matter to be dealt with more efficiently. Accordingly, permission was granted for both parties
to be legally represented.
[3] As was evident in the presentation of both parties’ cases before the Commission,
including the examination of witnesses, legal representation did in fact enable the matter to be
dealt with more efficiently than may otherwise have occurred.
Background
[4] Mr Morcos is 67 years of age. He was born in Egypt and settled in Australia in 1984.
In May 2011, he commenced working full-time for the respondent as a Client Service Officer
at the Christmas Island Detention Centre, where there was a demand for employees who
spoke Arabic, as Mr Morcos does. He would travel back to Sydney every six months to see
his family.
[2019] FWC 7675
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 7675
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[5] In April 2016, Mr Morcos transferred to the Villawood Immigration Detention Centre
in New South Wales (Villawood) as a Detainee Service Officer to be closer to his family,
where he remained until his summary dismissal on 18 April 2019.
[6] The reason for Mr Morcos’ summary dismissal is contained in correspondence from
the Villawood Immigration Detention Centre Facility General Manager Mr Don Taylor,
dated 18 April 2019. It refers to five specific allegations said to have been substantiated after
conducting an investigation and considering Mr Morcos’ response to the allegations. As a
consequence, Mr Morcos was said to have breached the following:
Contract of Employment
Serco Code of Conduct
Serco Immigration Services Agreement 2018
DSO Position Description
Serco Drug and Alcohol Policy
[7] Serco has a Drug and Alcohol Policy1 (the Policy) and a Drug and Alcohol Procedure
(the Procedure).2 In summary, the substantiated allegations as put by Serco in the dismissal
letter are that Mr Morcos:
1. On Saturday, 16 March 2019, on his day off, accepted an additional shift without
declaring that he had consumed alcohol prior to attending work, knowing that the
required breath alcohol limit is 0.00.
2. Prior to undertaking a random alcohol breath test, knowingly misinformed the
certified alcohol breath collector of the number of alcoholic drinks he had consumed.
He stated in the first instance that he had consumed one beer at lunch. However,
following the first positive test result reading of 0.037 taken at 5:44 pm, he then
disclosed his last beer was at 4:00 pm and that he had also consumed a beer at 3:30
pm.
3. Did not take reasonable care for his health and safety and that of others by registering
over the required limit of 0.00.
4. Knowingly accepted a shift after consuming alcohol and commenced a shift knowing
the limit is 0.00.
5. Knowingly breached a provision of the Policy and the Fair Work Regulations 2009 by
commencing work knowing that having consumed alcohol it placed him over the 0.00
limit.
[8] Prior to Mr Morcos’ summary dismissal, Mr Taylor advised Mr Morcos in writing on
20 March 2019 that he was suspended on ordinary time pay and was not required to attend
work while the matter was investigated.
[9] On 26 March 2019, Mr Morcos received further correspondence from Mr Taylor,
advising that Serco had completed its workplace investigation into the events on Saturday 16
1 Attachment LT5 to the witness statement of Ms Lorraine Travis, Exhibit R2.
2 Attachment LT7 to the witness statement of Ms Lorraine Travis, Exhibit R2.
[2019] FWC 7675
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March and required him to attend a formal disciplinary meeting on 28 March 2019, where a
number of allegations would be put to him. The allegations were stipulated in the
correspondence and were the same as listed and found to be sustained in the dismissal letter
summarised above. Mr Morcos attended the disciplinary meeting with a support person.
[10] On 1 April 2019, Mr Morcos provided Serco with a written response to the allegations.
[11] As seen from the above, the thrust of the employer’s reasons for dismissing Mr
Morcos are that he “knowingly” attended for a work shift over the specified alcohol limit of
0.00 and was not honest about the number of alcoholic drinks he had consumed prior to
presenting to work on his day off to work an additional shift.
Submissions and evidence of Mr Morcos
[12] Mr Morcos gave evidence on his own behalf, provided two witness statements in the
form of statutory declarations3 and was cross-examined on his evidence.
[13] Mr Morcos stated that he was enjoying seven days off from his rostered shifts
beginning on 14 March 2019, so he was not due back to work until 21 March 2019. At
approximately 4:45 pm on Saturday, 16 March 2019, a rostered day off, Serco’s Operation
Service Centre contacted him to offer a shift commencing that evening, which he accepted.
Mr Morcos stated that he was often contacted to work shifts on his days off, which he
normally accepted; he was one of several employees that could be contacted to work an extra
shift.
[14] Mr Morcos stated that on the day in question, he had consumed two beers during the
afternoon and was mistakenly of the belief that he would be at the required level of 0.00 by
the commencement of the shift, so he had accepted for that evening. Although he had
consumed two beers that afternoon, one around lunchtime (12:00 pm) and the other finishing
at around 4:00 pm, he felt fine to attend work, which was why he accepted the shift to start at
6:00 pm. In cross-examination, Mr Morcos conceded that he took a chance that he may have
been over the 0.00 limit.4
[15] It was not entirely clear from the evidence of Mr Morcos at what time in the afternoon
of 16 March 2019 he consumed the alcoholic drinks.5 He drove to work, which takes about 15
minutes, and clocked in around 5:40 pm. Mr Morcos accepted that he could have declined the
shift, or put himself forward for alcohol testing on arrival at site.6 Having made himself
available to commence work, Mr Morcos underwent a random alcohol breath test. His first
reading was 0.037 and the second, 10 minutes later, was 0.032. He was then told to go home.
He then left the work site and drove home. Mr Morcos stated that there was no discussion
about his ability to drive home. Mr Morcos stated that he was not offered a taxi to travel home
and that Serco’s alcohol tester, Mr Drury, stated to him that as he was under the legal limit, he
could drive home.
3 Exhibits A1 and A2.
4 PN205, 225-31, 526.
5 PN360-3, 392-424; paragraph [4] of Exhibit A2.
6 PN179-80.
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[16] Mr Morcos stated that the following day, Sunday, 17 March 2019, the call centre
contacted him again at home to ask if he could work a night shift, which he accepted. He
worked from 6:00 pm to 6:00 am the following morning. He was not asked about his fitness
to work, nor did he undertake any alcohol testing prior to commencing the shift on 17 March
2019.
[17] Mr Morcos readily conceded that he was aware of Serco’s 0.00 breath alcohol limit
when attending for work. He had been subject to random alcohol breath testing previously,
and always produced a negative result.7
[18] On Wednesday, 20 March 2019, he received a telephone call from Lorraine Travis, the
People & Capability Manager at Villawood, advising he was stood down from work pending
an investigation. He also received correspondence dated 20 March 2019 stating the same.
[19] On 26 March 2019, Mr Morcos received a letter notifying him of a disciplinary
meeting on 28 March 2019, which he attended. On 1 April 2019, he provided a written
response to the allegations regarding his conduct. On 17 April 2019, he received a letter
advising him of a meeting to be held on 18 April 2019. He attended this meeting, where he
was told he was summarily dismissed.
[20] Mr Morcos stated that during his employment with Serco, commencing in 2011, he
was not aware of any performance or conduct issues ever having arisen.
[21] As at the time of the hearing, Mr Morcos had been unsuccessful in finding alternate
work, despite actively searching and applying for positions. He attached to his witness
statement of 1 July 2019 evidence of the numerous jobs he had applied for. Mr Morcos has
also applied for the Age Pension with Centrelink and a determination is pending.
[22] A statutory declaration of Mr Terry Hugo dated 29 June 2019 was also tendered in
evidence.8 Mr Hugo is a Detainee Service Officer with Serco and the representative for the
union United Voice. He was not required for cross-examination. Mr Hugo’s declaration stated
that he was Mr Morcos’ support person at a meeting held on 28 March 2019.
Submissions
[23] Counsel for Mr Morcos accepted that Mr Morcos was not totally forthcoming when
advising Serco how many beers he had consumed, a fact that Mr Morcos himself accepted in
cross-examination.9 However, at the same time, Mr Morcos did not deny having consumed
alcohol or attempt to avoid the testing process. On this basis, it was submitted that the failure
to be candid regarding the number of drinks consumed was immaterial in relation to the
testing result. It was further put that the alcohol reading was low, and nothing was put to
demonstrate that he would not be able to perform his work functions. The lack of impairment
was validated by Mr Morcos being legally able to drive his motor vehicle home.
7 PN672.
8 Exhibit A3.
9 PN331.
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[24] It was submitted on behalf of Mr Morcos that he was not provided with a final
warning in accordance with the Policy where a worker returns a breath alcohol reading
between 0.01 and 0.05.
[25] It was contended that the Policy breach was not wilful or premeditated, considering
Mr Morcos was given only a short period of notice before the shift (which he was not obliged
to accept) commenced. It was submitted that the penalty of dismissal was disproportionate to
the misconduct. Mr Morcos had eight years of unblemished service, other employees who
have tested positive have not been dismissed, and Mr Morcos’ chances of obtaining
alternative employment were negligible.
Submissions and evidence of Serco
Evidence of Mr Logan Drury
[26] Mr Logan Drury was, at the time of Mr Morcos’ dismissal, employed by Serco in the
role of Health Safety Environment and Wellbeing Professional at Villawood. Mr Drury is a
certified drug and alcohol collector and in his role is routinely involved in the conducting of
random drug and alcohol testing.
[27] At approximately 5:17 pm on 16 March 2019, Mr Morcos’ name was one of eight
randomly selected to be subject to a drug and alcohol test. Mr Drury stated that immediately
before testing, he asked Mr Morcos whether he was taking any medication that may affect the
outcome of the test. Mr Morcos responded that he had a beer at lunch and asked whether that
would be OK.
[28] Mr Morcos’ first test result for alcohol was 0.037. Prior to conducting a second test,
Mr Drury asked Mr Morcos what time he had consumed the beer he had earlier mentioned.
Mr Morcos replied that it was at 4:00 pm and that he had had two beers. Mr Morcos stated
that he consumed the second beer around 3:30 pm and that he had been asked to work the
shift at 4:30 pm.
[29] A second test was conducted 15 minutes after the first test, which produced a reading
of 0.032. Mr Morcos then asked whether he needed to go home. Mr Drury responded that this
was the process and asked whether he could call him a taxi. Mr Morcos indicated as he lived
close, he would drive home, to which Mr Drury responded that he thought it better that he
went by taxi or at least wait a bit before driving home. Mr Morcos was then advised that the
results would be passed to the Site Manager.
[30] Mr Drury attached to his witness statement10 a copy of an email he sent to the General
Manager at 9:10 am the following morning, 17 March 2019, advising Mr Taylor of the breath
alcohol testing results. The email states that he explained to Mr Morcos that while he was not
able to work onsite, the reading was below the legal limit to drive. Mr Drury’s email does not
mention that he offered to call a taxi for Mr Morcos and that Mr Morcos declined the offer.
Evidence of Ms Lorraine Travis
10 Exhibit R1 of 23 July 2019.
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[31] Ms Lorraine Travis occupies the position of People & Capability Manager for Serco,
based at the Villawood Immigration Detention Centre. Ms Travis testified that Mr Morcos
had attended all relevant training relating to Serco’s Code of Conduct and policies, including
the Policy and the Procedure.11
[32] Ms Travis stated that in the evening of 16 March 2019, Mr Drury advised her of the
circumstances involving Mr Morcos. It is the practice to stand down on full pay an employee
who produces a positive alcohol reading. On Wednesday 20 March 2019, Ms Travis rang the
applicant, telling him that he would be receiving a letter stating he was stood down on full pay
and that details of a meeting would be advised. Mr Morcos asked whether his employment
would be terminated. Ms Travis responded that the process needed to be followed and a
finding would be made.
[33] Ms Travis then prepared a letter to be sent to Mr Morcos, which was signed by Mr
Don Taylor, the General Manager, and dated 20 March 2019.
[34] Mr Morcos received a further letter dated 26 March 2019, advising of a disciplinary
meeting to be held on 28 March 2019. The letter set out his alleged breaches of Serco’s
values, the Code of Conduct, the Policy, the Serco Immigration Services Agreement 2018 and
the Workplace Health and Safety Act 2011. Mr Paul Rushton, Residential Manager, Mr
Morcos, his support person Mr Hugo, and Ms Travis attended the meeting.
[35] Ms Travis made a written record of the meeting and forwarded a copy to Mr Morcos
on 29 March 2019. Mr Morcos responded that afternoon, stating that the record was incorrect
because it said he had consumed only one beer, when he had stated he had consumed two
beers, one at lunchtime and a second that he finished at 4:00 pm.
[36] Following this meeting, Mr Morcos submitted a written response to the allegations on
1 April 2019.
[37] Ms Travis’ evidence was that the General Manager made the decision to dismiss Mr
Morcos. She did not make any recommendations to Mr Taylor concerning the outcome of the
investigation. Mr Taylor notified Ms Travis on or around 17 April 2019 that he was going to
dismiss Mr Morcos. Mr Morcos was then asked to attend a meeting on 18 April 2019. This
meeting was attended by Mr Morcos, Mr Hugo as a support person, Mr Taylor and herself. At
the meeting, Mr Morcos was handed his dismissal letter.
[38] Ms Travis stated that she did not believe that it would be appropriate for Mr Morcos to
be reinstated for a number of reasons, including that she would have no trust and confidence
in Mr Morcos as an employee. Despite expressing this view, Ms Travis accepted during cross-
examination that she would have no role in any reinstatement of Mr Morcos and on that basis,
her views on the appropriateness of his reinstatement were irrelevant.12
[39] Mr Morcos remained stood down on full pay until his dismissal on 18 April 2019.
Evidence of Mr Don Taylor
11 Witness statement of 22 July 2019 at [18]-[19], Exhibit R2.
12 PN831-42, 859.
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[40] Mr Taylor is Serco’s General Manager, based at Villawood. He is responsible for the
overall day-to-day management and operations of the Centre, including safety and security
staff, detainees, visitors and contractors. Mr Taylor commenced with Serco in September
2017. At the time of Mr Taylor’s evidence, Villawood held 410 detainees. Mr Morcos was
one of approximately 40 Detainee Service Officers that formed part of the operational crew
for a given shift.
[41] Mr Taylor stated that he was the decision-maker in respect of Mr Morcos’ dismissal.
He was responsible for the correspondence sent to Mr Morcos on 20 and 26 March 2019 and
his dismissal letter of 18 April 2019,13 having decided on 17 April 2019 that Mr Morcos was
to be dismissed. Mr Taylor acted of his own volition and did not receive any
recommendations from others.14
[42] Mr Taylor did not attend the 28 March 2019 disciplinary meeting but considered the
notes of the meeting written by Ms Travis and Mr Morcos’ response to the notes. Mr Taylor
also had regard to Mr Morcos’ written response of 1 April 2019. Mr Taylor attended the
termination meeting on 18 April 2019.
[43] Mr Taylor stated that he would have little trust or confidence in Mr Morcos as an
employee were Mr Morcos to be reinstated. Mr Taylor was concerned that Mr Morcos, having
been prepared to attend work under the influence of alcohol, would undermine Serco’s
attempts to ensure the health and safety of its workforce and detainees. Mr Taylor’s witness
statement outlined the issues faced by Detainee Service Officers with detainees who can
engage in self-harm and engage in abusive and violent behaviour.
[44] Under cross-examination, it did not appear to the Commission that Mr Taylor was
fully conversant with the Policy, particularly the meaning of ‘Intoxication’ as a defined term
therein.
[45] Mr Taylor agreed that the allegation in the 26 March 2019 letter he signed that Mr
Morcos breached cl 3.2 of the Policy could not be substantiated, as clause 3.2 only prescribes
the alcohol testing procedure.15
[46] Mr Taylor’s evidence under cross-examination was that there was proven intoxication.
In his view, that equated to the presence of alcohol,16 which could be a reading of 0.01. Mr
Taylor agreed that there was no evidence that Mr Morcos was impaired when he attended for
work.17
[47] In explaining why alternatives to dismissal were not actioned as the Policy allows, in
particular under the heading “in respect of Alcohol testing only”, Mr Taylor stated that he
reverted to another part of the Policy in cl 4.2, which states:
13 Witness statement of 24 July 2019, Exhibit R3.
14 PN909.
15 PN965.
16 PN976, 984, 1254.
17 PN1238.
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“if the misconduct is sufficiently serious to justify summary dismissal, the worker shall
be dismissed and paid up to the time of dismissal only”.
[48] Mr Taylor’s evidence was that he was surprised that Mr Morcos worked a shift the day
after his positive alcohol test. Mr Taylor acknowledged during cross-examination that he was
aware of other employees who had been ‘found to be under the influence of drugs or alcohol’
but had continued in their employment with Serco.18
[49] Mr Taylor stated that Mr Morcos was dishonest in initially declaring that he had had
one beer around lunchtime before his breath test, then only stating he had consumed a second
beer within an hour and a half of coming to work after the first positive reading.19 Further
contributing to the seriousness of Mr Morcos’ behaviour was that he attended work a short
time after drinking, and of ‘extreme seriousness’ was the reputational damage to Serco as a
contracted service provider.20
[50] Mr Taylor stated that among other reasons he had regard to cl 1.1 Purpose of the
Policy when terminating Mr Morcos’ employment.21
Submissions
[51] Serco submitted that the dismissal was not unfair and the reasons for his dismissal
were justified and substantiated. Serco submitted in particular that Mr Morcos was well aware
of the Policy and the need to attend for work with a zero-alcohol reading. Mr Morcos had had
the opportunity to decline the additional shift, but instead took a calculated risk in accepting
it. When asked how many alcoholic drinks he had consumed, Mr Morcos was not entirely
truthful in responding to Mr Drury’s questions.
[52] Serco submitted that the dismissal process was carried out in a procedurally fair
manner. Mr Morcos was provided with every opportunity to respond to the allegations
regarding his conduct. Due to the nature of the work and the special circumstances of a
detention facility environment, the dismissal could not be considered to be unfair. Mr
Morcos’ actions were deliberate and constituted acts and omissions that justified summary
dismissal. It was further put that should unfairness be found, Mr Morcos should not be
reinstated, as the employer no longer had the necessary level of trust and confidence in Mr
Morcos. Serco said this was evident from the evidence of Ms Travis and Mr Taylor.
Was the dismissal harsh, unjust or unreasonable?
[53] Section 387 of the Act provides that, in considering whether it is satisfied that a
dismissal was harsh, unjust or unreasonable, the Commission 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
18 PN1184.
19 PN1285.
20 PN1267.
21 PN1291.
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(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.”
[54] I am required to consider each of these criteria, to the extent they are relevant to the
circumstances of the unfair dismissal application.22
[55] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[56] The term “valid reason” was considered by Northrop J in Selvachandran v Petron
Plastics Pty Ltd,23 in relation to s.170DE of the Industrial Relations Act 1988. While under a
different legislative framework, the below comments of Northrop J remain apposite:
“Section 170DE(1) refers to ‘a valid reason, or valid reasons’, but the Act does not give
a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows
that the word `valid’ has a number of different meanings depending on the context in
which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: `2.
Of an argument, assertion, objection, etc.; well founded and applicable, sound,
defensible: Effective, having some force, pertinency, or value.’ In the Macquarie
Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same
time the reason must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
22 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith & Ors v Moore Paragon Australia Ltd PR915674 (AIRCFB,
Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
23 (1995) 62 IR 371, 373.
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applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must `be applied in a practical, common-sense
way to ensure that’ the employer and employee are each treated fairly, see what was
said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the
construction and application of a s 170DC.”
[57] In B, C and D v Australian Postal Corporation T/A Australia Post,24 a Full Bench of
the Commission commented on the approach to assessing whether there is a valid reason for
an employee’s dismissal pursuant to s.387(a) of the Act, relating to their capacity or conduct,
where the employee is alleged to have committed misconduct:
“[34] In considering whether there was a valid reason for a dismissal under s.387(a), the
reason(s) being considered are the employer’s reason(s). In a misconduct case, the
Commission is concerned with whether the misconduct in fact occurred, not with
whether the employer has reasonable grounds to believe that it occurred (eg. Yew v
ACI Glass Packaging Pty Ltd,25 Sherman v Peabody Coal Ltd,26 Australian Meat
Holdings Pty Ltd v McLauchlan.27
[35] Subject to that, as indicated by Northrop J in Selvachandran,28 “valid reason” is
assessed from the perspective of the employer and by reference to the acts or
omissions that constitute the alleged misconduct on which the employer relied,
considered in isolation from the broader context in which they occurred. It is the
reason of the employer, assessed from the perspective of the employer, that must be a
“valid reason” where “valid” has its ordinary meaning of “sound, defensible or well
founded”. As Northrop J noted, the requirement for a valid reason “should not impose
a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the
fundamental term of the contract of employment that obliges employees to comply
with the lawful and reasonable directions of the employer. In this way, a substantial
and wilful breach of a policy will often, if not usually, constitute a “valid reason” for
dismissal.” (emphases in original)
[58] The above cases provide authority for holding that a ‘valid reason’ means the reason
for the dismissal must be sound, defensible or well founded, and should not be ‘capricious,
fanciful, spiteful or prejudiced’. The Commission continues to adopt this approach to
determining whether a valid reason exists in unfair dismissal matters.
[59] Mr Morcos tested positive after being subject to a random drug and alcohol test. Serco
then summarily terminated Mr Morcos’ employment because it found he had committed
numerous breaches outlined in the dismissal letter, as follows:
“Breach of Contract of Employment
24 (2013) 238 IR 1.
25 (1996) 71 IR 201.
26 (1998) 88 IR 408.
27 (1998) 84 IR 1.
28 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
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o Clause 1(b) – Organisation Arrangements-Failed to perform his duties and
responsibilities to work to the best of his ability to promote the interests of the
company
o Clause 10 – Company Policies – Failed to comply with Company Policies
The Serco Code of Conduct
o Failed to ensure actions did not bring SIS or the Immigration Detention
Facilities into disrepute.
o Be honest, courteous and helpful.
o Provide prompt attention, accurate information and meet commitments.
o Observe the spirit and letter of the law, and company policies governing the
workplace.
o Ensure that the Department’s “duty of care” obligations are met where I am
involved.
o Providing high standards of service to detainees and staff.
Breach of the Serco Immigration Services Agreement- 2018
o Clause 11 (I) - It is a condition of employment that employees maintain a state
of readiness on duty and conduct themselves in a manner which ensures their
ability to respond throughout their period of duty.
Breach of the DSO Position Description
o Failed to take reasonable care to ensure his own safety and health at work and
to avoid adversely affecting the safety and health of any other person by their
act or omission at work.
Breach of the Serco Drug and Alcohol Policy
o Clause 1.1 Purpose of this Policy - ... Serco has a zero-tolerance approach to
any Worker working under the Influence of Alcohol or Drugs. Under no
circumstances shall any work be conducted where the Worker has consumed or
is under the influence of Alcohol or Drugs”
[60] I accept, as put by the applicant’s counsel, that having regard to the above, the reasons
for dismissal appear to be “a grab bag of allegations”.29
[61] There is no dispute between the parties that Mr Morcos attended for work with a level
of alcohol concentration above 0.00, as measured by a breathalyser. On this basis, under the
Policy, he would be unable to commence work. This is established having regard to the
purpose of the Policy at clause 1.1 that “[u]nder no circumstances shall any work be
conducted where the Worker has consumed… Alcohol”. The reference to having consumed
alcohol is taken to mean registering a reading above 0.00.
29 Applicant’s written submissions 23 August 2019 [5].
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[62] It is not a requirement, in establishing whether a valid reason for a dismissal exists, to
conclude that the reason for the dismissal was serious enough to justify summary dismissal, as
occurred in this case. The Commission need only be concerned that the reason for the
dismissal is well founded and not capricious, fanciful, spiteful or prejudiced. Mr Morcos
accepted a shift knowing that he had consumed alcohol earlier that day and was therefore at a
risk of being above 0.00 in respect of his blood alcohol content, contrary to the employer’s
Policy, of which he had full knowledge. In addition, having arrived at the worksite, he then
misled the person conducting the random drug and alcohol testing as to his level of alcohol
consumption.
[63] Having regard to the matters above, I find that there was a valid reason for the
dismissal related to the applicant’s conduct being that Mr Morcos agreed to attend work
despite knowing that he could be in excess of 0.00 while performing work in breach of the
Policy.
[64] While it is not necessary to further consider the other breaches that Serco relies on to
establish a valid reason for Mr Morcos’ dismissal, I would have had difficulty accepting that
all the listed breaches were made out to the requisite standard.
[65] Having found that a valid reason for the dismissal exists, the Commission is obliged to
consider the other factors contained in ss.387(b)-(h) of the Act. As stated by the Full Bench in
Container Terminals Australia Limited v Toby30:
“In our view, the consideration of whether there was a valid reason for termination is a
separate issue from the determination of whether a termination was harsh, unjust or
unreasonable.”
Was the Applicant notified of the valid reason?
[66] There was no controversy regarding Mr Morcos having been notified of the reason for
his dismissal. The dismissal letter sets out the employer’s reasons for dismissing him.
Was the Applicant given an opportunity to respond to any valid reason related to their
capacity or conduct?
[67] This was not in dispute. Mr Morcos was advised of the allegations made against him
in correspondence dated 26 March 2019, attended a meeting on 28 March 2019 and provided
a written response to the allegations on 1 April 2019.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[68] As the dismissal did not relate to unsatisfactory performance, but rather a one-off
incident that the employer deemed to be serious misconduct, this factor is not relevant to the
present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the
procedures followed in effecting the dismissal?
30 Print S8434 at [15].
[2019] FWC 7675
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[69] Neither party submitted that the size of the employer’s enterprise was likely to impact
on the procedures followed in effecting the dismissal. Serco stated in its initial response
(Form F3) to the application that it had 2,400 employees. I find that the size of Serco’s
enterprise had no impact on the procedures followed in effecting the dismissal.
To what degree would the absence of dedicated human resource management specialists or
expertise in the Respondent’s enterprise be likely to impact on the procedures followed in
effecting the dismissal?
[70] There was no evidence that Serco lacked dedicated human resource management
specialists and expertise. While Ms Travis, the People and Capability Manager, said she had
no input into the General Manager, Mr Taylor’s decision to dismiss Mr Morcos, she did assist
in preparing correspondence signed off by Mr Taylor, and arranged and attended the two
meetings with Mr Morcos.
What other matters are relevant?
[71] Section 387(h) of the Act requires the Commission to take into account any other
matters that it considers relevant. It is well-established and accepted that a dismissal may still
be harsh notwithstanding that there is a valid reason for dismissal. In Byrne v Australian
Airlines Ltd,31 McHugh and Gummow JJ said:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”32
[72] In the circumstances of Mr Morcos’ dismissal, there are a number of other matters that
I consider relevant.
The Policy
[73] There was no dispute that Mr Morcos was aware of the Policy. I am, however,
concerned that the decision maker, Mr Taylor, was not aware of the details of the Policy, and
that he interpreted and applied it incorrectly.
[74] The Policy states at cl 1.1, under the heading “Purpose of this Policy”:
“Serco Immigration Services (Serco) is committed to a safe, healthy and secure
environment for all Workers, and for those affected by its operations and activities,
including clients, visitors and stakeholders. As a result of this commitment, Serco has a
zero tolerance approach to any Worker working under the influence of Alcohol or
31 (1995) 185 CLR 410.
32 Ibid 465.
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Drugs. Under no circumstances shall any work be conducted where the Worker has
consumed or is under the influence of Alcohol or Drugs.”
(my underline)
[75] It is noted that the Policy refers to a zero-tolerance approach to an employee working
who has consumed or is under the “influence” of alcohol. Having regard to the Policy in its
entity, the zero-tolerance approach is limited to not allowing a worker to perform any work
where they have consumed or are under the influence of alcohol. The definition of having
consumed alcohol is, presumedly, where they return a breath alcohol reading greater than
0.00. One may also assume any worker under the influence of alcohol must have also
consumed alcohol.
[76] Mr Taylor explained that “zero tolerance” meant that no work could be performed, but
any disciplinary action arising from testing positive was discretionary.33 In this regard,
Serco’s zero tolerance approach to alcohol does not automatically result (as is the case with
some drug and alcohol policies, particularly in safety-critical industries and occupations) in
summary dismissal where an employee tests positive to the presence of alcohol above
prescribed tolerances.
[77] Clause 3.1 of the Policy states that drug and alcohol testing, which may include
random testing, may occur for a number of reasons. Where random alcohol testing is
conducted, clause 3.2 of the Policy states it will be undertaken via the use of a breathalyser by
a suitably trained and authorised collector who has been deemed competent under Australian
law. Where a worker returns a positive reading of above 0.01, the procedures in section 4 of
the Policy apply.
[78] Clause 4.2 of the Policy is titled “Non Negative results”. In the first part of clause 4.2,
it refers to Serco treating “proven Intoxication” as serious misconduct justifying dismissal. In
dealing with allegations of Intoxication:
“if Intoxication has occurred, Serco will in its absolute discretion and depending on the
circumstances take action according to one or more of the following options:
● direct the Worker to undergo independent medical assessment by a Serco designated
medical practitioner,
● make findings of fact and, if the facts prove serious misconduct due to intoxication
or on safety reasons:
o Dismiss the Worker with or without notice,
o Consider disciplinary action short of dismissal, such as a warning or some
lawful direction including that the Worker must undergo a rehabilitation
program under the EAP, or
o as above, but failure to undergo the rehabilitation program or failure to
successfully complete the program as a separate form of serious
misconduct due to failure to comply with a reasonable and lawful direction
33 PN1261-4.
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● if the misconduct is sufficiently serious to justify summary dismissal, the worker
shall be dismissed and paid up to the time of dismissal only…”
(my underline)
[79] At cl 4.2, the Policy also sets out what is to occur “in respect of Alcohol testing only”:
“in respect of Alcohol testing only:
o where testing is undertaken within the first hour of the Worker’s shift and returns a
reading between 0.00 and 0.01, the test will be retaken after 30 minutes. If the
result is still above 0.00, the Worker will be required to undertake formal
counselling,
o where a Worker returns a reading of between 0.01 and 0.05, the Worker will be
stood down from their work duties immediately and will be given a formal
warning at the commencement of their next shift. Another positive reading of
above 0.01 may result in disciplinary action (including dismissal), and
o where a Worker returns a reading of over 0.05, the Worker will be required to
undergo an accredited rehabilitation program and may only return to normal work
duties following the provision of certification (that the Worker has completed the
accredited rehabilitation program) to the Human Resources Manager. Another
positive reading of any level may result in disciplinary action (including
dismissal).”
[80] As seen above, where an employee returns a reading of between 0.01 and 0.05, as Mr
Morcos did, they are to be stood down immediately and given a formal warning at the
commencement of their next shift. There is no reference to dismissal being an outcome unless
another positive reading of above 0.01 occurs (presumably, on another shift). Then
disciplinary action, which may include dismissal, may be taken. Of course, Serco retains the
overriding ability to dismiss an employee if, as the Policy states, the misconduct is
sufficiently serious to justify summary dismissal, as Mr Taylor concluded in Mr Morcos’
case.
[81] Where testing produces a non-negative test result, clause 4.2 of the Policy, “Non
Negative results”, also sets out what is to occur where a worker is found to be “Intoxicated”.
This is presumed to apply to alcohol or drug consumption:
“Serco will:
● in accordance with Regulation 1.07 of the Fair Work Regulations 2009:34
○ treat proven Intoxication as serious misconduct justifying dismissal…”
although the Policy goes on to state that Serco may “consider disciplinary action short of
dismissal”, such as a warning or direction to undergo a rehabilitation program.
34 This regulation provides guidance on what may be considered serious misconduct where the term is used in the Act.
However, the term is not used in the Act’s unfair dismissal provisions; see Owen Sharp v BCS Infrastructure Support Pty
Limited [2015] FWCFB 1033 [33].
[2019] FWC 7675
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[82] It is noted that the Policy refers to “Intoxication” with a capital ‘I’, indicating it is a
defined term. At clause 1.2 of the Policy, “Definitions”, “Intoxicated” is defined as follows:
“means, in respect of a Worker, that a Worker’s faculties are by reason of the Worker
being under the influence of Alcohol or Drugs, so impaired that the Worker is unfit to
be entrusted with the Worker’s duties or with any duty that the Worker may be called
upon to perform. A Worker who is intoxicated may show Signs of Impairment or
Signs of Intoxication, or both. “Intoxication” has a corresponding meaning.”
[83] The Policy also defines at 1.2 the terms “Signs of Impairment” and “Signs of
Intoxication”.
[84] “Signs of Impairment” are said to include:
“• aggressive outbursts,
problems with coordination, forgetfulness or near miss incidents, and
possible time management issues.”
[85] “Signs of Intoxication” are defined under the Policy to include:
“• strong smell of alcohol on breath,
slurred or incoherent speech,
poor balance or unsteadiness on feet,
red, bloodshot or watery eyes,
flushed or ruddy face,
noticeably smaller or larger pupils,
lack of, or poor, motor coordination,
being aggressive or argumentative,
being overexcited or agitated,
being unable to follow simple instruction,
drowsiness or falling asleep during job break,
difficulty in concentrating on tasks or conversation, and
loss of inhibitions.”
[86] When asked during cross-examination whether there was “proven Intoxication” in Mr
Morcos’ case, Mr Taylor stated that in his view, intoxication was the presence of alcohol, and
so, a reading of 0.01 would mean an employee is intoxicated.35 This understanding is contrary
to the plain wording of the Policy, which defines intoxication as being so impaired that the
employee is unfit to be entrusted with their duties.
[87] In the concluding paragraph of Mr Taylor’s witness statement, he states:
“The Applicant demonstrated to me that he was prepared to attend work under the
influence of alcohol … “
(my underline)
35 PN977-88.
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[88] The Policy does not define the meaning of being under the “influence” of alcohol,
though that word is used in the definition of Intoxication. However, Mr Taylor was of the
view, consistent with his understanding of the meaning of intoxication, that being “under the
influence of alcohol” was equivalent to the presence of any alcohol in one’s system.36
Serious misconduct
[89] The Policy provides under the heading “in respect of Alcohol testing only”37 that
where a worker returns a reading of between 0.01 and 0.05, they will be stood down from
their work duties immediately and given a formal warning at the commencement of their next
shift. Serco did not apply this aspect of the Policy to Mr Morcos, on the basis that his actions
constituted serious misconduct.
[90] Mr Taylor explained that the key contributing factors to the seriousness of Mr Morcos’
misconduct were that he willingly attended work after drinking alcohol only a short period
before his shift and had taken a risk of not being detected. Secondly, and described as being
extremely serious, was the reputational damage to Serco as a contracted service provider.38
[91] Wilful or deliberate behaviour amounting to serious misconduct is conduct which
strikes at the heart of the employment relationship. In North v Television Corporation Ltd, 39
Franki J stated:
“It is clear that a single act of disobedience may be sufficient to justify dismissal on the
ground of misconduct but it was held in Laws v London Chronicle (Indicator
Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act
must be such as to show that the employee was repudiating the contract of service or one
of its essential conditions.”
[92] The decision of Laws v London Chronicle (Indicator Newspapers) Ltd, referred to
above, makes it plain that an act of disobedience or misconduct (justifying summary
dismissal) requires that the disobedience must be also be ‘wilful’:
“... I do, however, think (following the passages which I have already cited) that one act
of disobedience or misconduct can justify dismissal only if it is of a nature which goes
to show (in effect) that the servant is repudiating the contract, or one of its essential
conditions; and for that reason, therefore, I think that one finds in the passages which I
have read that the disobedience must at least have the quality that it is “wilful”: it does
(in other words) connote a deliberate flouting of the essential contractual conditions.”
[93] In Buitendag v Ravensthorpe Nickel Operations Pty Ltd,40 Le Miere J made the
following observation at [48]:
“The defendant [the employer] bears the onus of establishing the serious misconduct.
The applicable standard of proof is on the balance of probabilities, but both
36 PN1259.
37Attachment LT5 to the witness statement of Ms Lorraine Travis at page 17, Exhibit R2.
38 PN1287.
39 (1976) 11 ALR 599, 616.
40 [2012] WASC 425.
[2019] FWC 7675
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commonsense and authority dictate that findings of serious misconduct should not be
made lightly: Carter v Dennis Family Corporation41 [46] (Habersberger J).”
[94] Serco did not explain, in view of the perceived seriousness of Mr Morcos’ conduct,
why it invited him to work an additional 12-hour shift (which he did) commencing at 6:00 pm
the following day, despite the details of his positive reading having been sent to Mr Taylor at
9:10 am that morning.42 Mr Taylor appeared to be unaware of this fact, notwithstanding it
being raised in Mr Morcos’ witness statement, which Mr Taylor acknowledged he had read.43
[95] The Policy, as extracted above, provides that employees testing up to a reading of 0.05
receive a warning at the commencement of their next shift. Those returning a reading over
0.05 are required to undergo a rehabilitation program. On this basis, it was not explained how
employees receiving these sanctions would not have attended work willingly knowing they
were at a risk of detection like Mr Morcos did.
[96] Serco also did not explain how Mr Morcos’ positive reading would cause serious
reputational damage when the Policy provides for employees with a positive alcohol reading
to return to work on their following shift if recording between 0.01 and 0.05, or, if recording
over 0.05, after completing a rehabilitation program.44
[97] Mr Taylor acknowledged that there were Serco employees who had tested positive to
the presence of alcohol who had not been dismissed.45 While the circumstances of other
employees will never be identical to those of Mr Morcos, exhibits A4 to A7 demonstrated that
a positive alcohol reading did not always result in dismissal of the employee.
[98] The seriousness of Mr Morcos’ conduct included his misleading responses to Mr
Drury when asked how many alcoholic drinks he had consumed. Although this aspect was not
dealt with in Mr Taylor’s witness statement, it is referred to in the dismissal letter.
[99] It should be noted that irrespective of how many drinks Mr Morcos consumed or
stated he had consumed, the breathalyser result, together with whether the circumstances
constitute serious misconduct, determines what action Serco takes under its Policy, unless it is
demonstrated to be inaccurate.46 Mr Morcos did not dispute that he was not entirely frank
when first discussing with Mr Drury his alcohol consumption, having commenced by saying
he had had one beer and later saying he had consumed two. However, he also did not at any
stage deny he had consumed alcohol prior to attending for work.
[100] In considering all the circumstances and having regard to the evidence of the decision-
maker, Mr Taylor, I do not accept that Mr Morcos’ conduct could be described as serious
misconduct. Under Serco’s Policy, which states that attending for work with a reading of
between 0.01 and 0.05 results in a warning and over 0.05, a requirement to attend a
41 Carter v The Dennis Family Corporation Pty Ltd [2010] VSC 406.
42 Annexure LD2 to the statement of Mr Drury, Exhibit R1. Mr Taylor acknowledged he had received the email at [10] of his
witness statement, Exhibit R3.
43 PN1063.
44 Recording exactly 0.05 is presumed to be a reading between 0.01 and 0.05.
45 PN1184.
46 Unless some other acceptable explanation is provided for the reading.
[2019] FWC 7675
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rehabilitation program. The only exception to this procedure is where serious misconduct
occurs.
[101] Even where the facts prove serious misconduct due to intoxication or for safety
reasons, in addition to the option of dismissal without notice, the Policy provides for the
consideration of:
“disciplinary action short of dismissal, such as a warning or some lawful direction
including that the Worker must undergo a rehabilitation program under the EAP...”47
[102] In accordance with Serco’s own Policy, Mr Morcos was supposed to be given a
warning at the commencement of his next shift. The Policy does not state that knowingly
attending work having consumed alcohol is considered serious misconduct. Alleged
reputational damage coupled with attending for work having consumed alcohol cannot
reasonably be viewed as serious misconduct when the Policy contemplates the possibility of a
lesser sanction for that same conduct.
[103] It appears that Serco had no or little regard to the fact that Mr Morcos was on a day off
when it asked him at 4:45 pm to work an extra shift that would commence with a briefing at
5:45 pm.48 Although it was common for Mr Morcos to be asked to work on a day off, he had
not consumed alcohol at a time when he knew he was shortly to commence work.
[104] Where an employee has not been entirely frank, or even where they have been
misleading, it does not follow that that a dismissal was not harsh, unjust or unreasonable. As
stated in Woodman v Hoyts Corporation Pty Ltd,49 “[i]t is the totality of the relevant facts in
each case which must be considered in the context both of the particular employment
relationship and the employer’s undertaking.”
[105] Where an employer’s disciplinary actions are judged to lie outside the description of a
reasonable and just response to the relevant conduct, and are disproportionate, a finding of
unreasonableness or injustice may be made.50 Having considered each of the matters specified
in s.387 of the Act, I am satisfied that Mr Morcos’ dismissal was unreasonable. In all the
circumstances, I am therefore satisfied that he was unfairly dismissed within the meaning of
s.385 of the Act.
Remedy
[106] Being satisfied that Mr Morcos was unfairly dismissed the Commission may, subject
to the provisions of the Act, order reinstatement, or the payment of compensation. The
primary remedy for a finding of unfair dismissal is reinstatement;51 compensation alone is not
to be awarded unless the Commission is satisfied that reinstatement is inappropriate. This is
reflected at s.390(3) of the Act, where it states that the Commission must not order the
payment of compensation unless:
47 Exhibit R2 annexure LT5 cl 4.2.
48 Witness statement of Mr Morcos of 1 July 2019, Exhibit A1 [21]-[23].
49 (2001) 107 IR 172 [30].
50 DP World Sydney Ltd v Lambley [2012] FWAFB 4810 [26].
51 Explanatory Memorandum, Fair Work Bill 2008 [1555].
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“(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all
the circumstances of the case.”
Is reinstatement of the Applicant inappropriate?
[107] Mr Morcos sought reinstatement as a remedy. On his evidence, I accept that he has
encountered difficulties in finding alternative employment, which may continue for some
time.
[108] Serco submitted that reinstatement should not be entertained on the basis that they had
lost trust and confidence in Mr Morcos. This was the evidence of Ms Travis and Mr Taylor,
who both stated that employees must take personal responsibility for ensuring safety and
compliance with Serco policies. Mr Taylor also expressed the view that reinstatement had the
potential to cause reputational damage to Serco and would significantly undermine Serco’s
attempts to ensure the health and safety of its workforce and detainees.
[109] Serco referred to the Full Bench decision of Nguyen v Vietnamese Community in
Australia t/a Vietnamese Community Ethnic School South Australia Chapter.52 In this
decision at [27], the Full Bench distilled from a collection of decided cases a number of
propositions relevant to the impact of loss of trust and confidence on the appropriateness of an
order for reinstatement:
“• Whether there has been a loss of trust and confidence is a relevant consideration in
determining whether reinstatement is appropriate but while it will often be an
important consideration it is not the sole criterion or even a necessary one in
determining whether or not to order reinstatement.
Each case must be decided on its own facts, including the nature of the employment
concerned. There may be a limited number of circumstances in which any ripple on
the surface of the employment relationship will destroy its viability but in most cases
the employment relationship is capable of withstanding some friction and doubts.
An allegation that there has been a loss of trust and confidence must be soundly and
rationally based and it is important to carefully scrutinise a claim that reinstatement
is inappropriate because of a loss of confidence in the employee. The onus of
establishing a loss of trust and confidence rests on the party making the assertion.
The reluctance of an employer to shift from a view, despite a tribunal’s assessment
that the employee was not guilty of serious wrongdoing or misconduct, does not
provide a sound basis to conclude that the relationship of trust and confidence is
irreparably damaged or destroyed.
The fact that it may be difficult or embarrassing for an employer to be required to re-
employ an employee whom the employer believed to have been guilty of serious
wrongdoing or misconduct are not necessarily indicative of a loss of trust and
confidence so as to make restoring the employment relationship inappropriate.”
52 [2014] FWCFB 7198.
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(references omitted)
[110] The Full Bench also stated at [28] that in making an assessment it is appropriate to
consider the “rationality of any attitude taken by a party”.
[111] The Full Court of the Federal Court in Perkins v Grace Worldwide (Aust) Pty Ltd,53 in
discussing the concept of trust and confidence, stated:
“In most cases, the employment relationship is capable of withstanding some friction
and doubts. Trust and confidence are concepts of degree. It is rare for any human being
to have total trust in another.”
[112] In Regional Express Holdings Limited trading as REX Airlines v Richards, 54 the Full
Bench made the following observations regarding loss of trust and confidence:
“Whenever an employer dismisses an employee for misconduct, assuming the employer
is acting honestly, there is an implied loss of trust and confidence in the employee. If it
is subsequently found that the termination was harsh, unjust or unreasonable it is
appropriate to consider whether the relationship can be restored if the employee is
reinstated. That question cannot be answered solely by reference to the views of
management witnesses. All of the circumstances should be taken into account.”
[113] The following reasons indicate that Serco has overstated the impact Mr Morcos’
reinstatement would have on its operations. First, Serco has a Policy that accepts employees
may test positive to alcohol and still remain employed unless serious misconduct is involved.
The applicant has provided examples of such employees.55 Secondly, Mr Morcos consumed
alcohol on his rostered day off, as opposed to doing so knowing he was rostered to work the
same or following day. Finally, Serco invited Mr Morcos to return to work the following day
and commence another 12-hour shift, despite having tested positive the previous day.
[114] Mr Morcos acknowledged that he was not upfront in explaining to Mr Drury details of
his actual alcohol consumption. Serco have not submitted that Mr Morcos continues to be
untruthful. I do not consider Mr Morcos’ lack of candour to questions from Mr Drury to be so
critical that his reinstatement should be ruled out.
[115] Other than Mr Taylor’s reference to reputational damage, nothing further was put to
support Serco’s position.
[116] Despite Serco’s submissions, I am not satisfied that the working relationship between
Mr Morcos and Serco would be so untenable that it should prevent Mr Morcos being
reinstated.
[117] Section 391(1)(a) of the Act provides that an order for the applicant’s reinstatement
must be an order that the employer at the time of the dismissal reinstate the applicant by:
53 (1997) 72 IR 186, at 191.
54 (2010) 206 IR 17 at 24 paragraph [26].
55 Exhibits A4-A7.
[2019] FWC 7675
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“(a) reappointing the Applicant to the position in which the Applicant was employed
immediately before the dismissal; or…”
[118] I am satisfied that it is open to the Commission to make an order reinstating Mr
Morcos to the position in which he was employed immediately before the dismissal and such
an order will issue.
Reinstatement – is it appropriate to make an order to maintain continuity?
[119] Section 391(2) of the Act provides that, if the Commission makes an order for
reinstatement and considers it appropriate to do so, the Commission may also make any order
that the Commission considers appropriate to maintain:
“(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer...”
[120] In all the circumstances, I consider it appropriate to make an order to maintain Mr
Morcos’ continuity of employment and the period of his continuous service with Serco.
[121] As explained by the Full Bench in Kenley v JB Hi Fi,56 continuity of employment
ensures that the period specified is taken into account when determining any entitlement to
service-related benefits.
Reinstatement – is it appropriate to make an order to restore lost pay?
[122] Section 391(3) of the Act provides that, if the Commission makes an order for
reinstatement and considers it appropriate to do so, the Commission may also make any order
that the Commission considers appropriate to cause the employer to pay to the applicant an
amount for the remuneration lost, or likely to have been lost, by the applicant because of the
dismissal.
[123] Section 391(4) of the Act provides that, in determining an amount for the purposes of
such an order, the Commission must take into account:
“(a) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order for
reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement and the
actual reinstatement.”
[124] An order to restore lost pay does not necessarily follow an order for reinstatement. The
Commission “may make any order that it considers appropriate”; thus, it is a discretionary
exercise to be undertaken by the Commission.
56 Print S7235 (AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) [34].
[2019] FWC 7675
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[125] Mr Morcos’ evidence was that while he had looked for worked since his dismissal, he
had not been successful and had applied for the Age Pension.
[126] Where an employee has engaged in misconduct, the Commission may refuse to make
any order to restore lost pay.57 In the circumstances of this matter, I do not intend to make any
order for lost pay. I consider that although Mr Morcos’ conduct did not warrant termination of
employment in the circumstances; it was still inappropriate. As he acknowledged in his
written response to Serco of 1 April 2019, he understood despite believing he would not test
positive if subject to random testing, he had made a mistake by attending work after having
consumed alcohol. I have also taken into consideration the reinstatement order that will
maintain his continuity of employment and period of continuous service in declining to make
any order to restore lost pay.
[127] The applicant’s claim that he was unfairly dismissed is upheld. An order for
reinstatement with an order to maintain continuity of employment and his period of
continuous service will issue with this decision. The order will come into effect 14 days from
the date of the order.
DEPUTY PRESIDENT
Appearances:
Mr I Latham of Counsel and Mr Y Maksisi, Solicitor, for the Applicant.
Mr P Brown, Solicitor, and Ms L Tran for the Respondent.
Hearing details:
Sydney.
2019.
August 7.
Final written submissions:
Respondent
30 August 2019.
Applicant
57 See Regional Express Holdings Ltd v Richards (2010) 206 IR 17 [29].
THE FAIR WORK Oil MISSION THE SEAL OF THE F
[2019] FWC 7675
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23 August 2019.
4 September 2019.
Printed by authority of the Commonwealth Government Printer
PR714096
