Mr Cork vs ACM in an Industrial Relations dispute
Sometimes reports of forced deportations appear at unlikely places, in this case a transcript of the NSW Industrial Relations Commission of an unfair dismissal claim against Australasian Correctional Management (ACM) after a deportation of 31 immigration 'removees' from Australia.
This page gives both a snapshot of 'the detention industry', a 'removals operation', the fact that those who are involved in such operations are also employees who can be vulnerable and get hurt, and it shows how massive such a removal operation can be.
12 January 2005: The man with the gag: witnessing a forced deportation - It had to happen sooner or later: someone on a flight, bound, gagged and muffled, moved under the highest secrecy, deported by force, not only with duct tape over his mouth, but the entire story covered up. Using the Christmas holidays, the absence of the lawyers, the expected silence of those advocates that can block their work...
18 August 2003: Two NADA News broadcasts on 3CR Community Radio - Two members of the National Anti-Deportation Alliance, recently formed in Australia, talk on-air at 3CR Community Radio in Melbourne, discussing the highly questionable practice of forced deportations and chemical restraints.
17 May 2003: Forming the National Anti-deportation Alliance - On Saturday 17 May 2003, 37 participants in a phone conference, representing many refugee groups from all States and territories around Australia, formed the National Anti-Deportation Alliance (NADA). This is the resource page for NADA.
15 March 2003: Self harm: answer to Government torture and powerlessness in detention - Indefinite incarceration of people without a criminal charge is one of the world's most severe breaches of International Human Rights conventions, yet this is what Australia does with the asylum seekers who, under the 'stitched-up' Migration Act, have been excluded from becoming successful in their determination by Australia as refugees. This page highlights the situation of some of the Iranian asylum seekers held in detention centres around Australia.
Cork and Australasian Correctional Management Pty Ltd  NSWIRComm 1056 (7 October 2003)
Last Updated: 1 December 2003
NOTE: This page is a Copy of the Transcript found here.
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
Coram: TABBAA, C.
Matter No. IRC 7420 of 2001
ROBERT LEO CORK and AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY. LTD.
D E C I S I O N
The Applicant filed a claim under Section 84 of the Industrial Relations Act, 1996 on 14 November, 2001 alleging that he had been unfairly dismissed by the Respondent on 09 October, 2001. Mr. Cork contended that he had been employed from 11 April, 1992 until his dismissal as a National Escort Manager. Conciliation attempts during two conferences failed to settle the claim and ultimately a filing schedule was directed and the matter was heard on 03 to 06 June, 2002 inclusive.
Mr. P. Rochfort, Agent, entered an appearance on behalf of the Applicant and called evidence from:
Robert Leo Cork - Applicant
Grant Andrew Cummins - Ex-employee
Ms N. Rudland, Solicitor, entered an appearance with Mr. Hollings on behalf of the Respondent and called evidence from:
Mr. Alan Stephen Hollings - National Operations Manager, Detention Services
Mr. Peter Anthony Barnsley - Detention Officer
Mr. Malae Sailiai - Detention Officer
Mr. Keith James Fyfe - Registered Nurse
Ms Debra Jane Diplock - Executive General Manager-Human Resources
Mr. Gerry MacCormack - General Manager, Detention Services
Mr. Richard James Laws - Manager Investigations
The primary business of Australasian Correctional Management Pty. Ltd. (hereinafter referred to as "ACM") was the provision of privately owned and operated correctional institutions and immigration reception and detention centres all over Australia. In accordance with the terms of the contract between ACM and the Commonwealth, detention services included providing escort services during the repatriation of detainees to their countries of origin.
A high security covert repatriation operation took place between 26 - 31 August, 2001. It involved taking 31 high profile and at high risk of escape and/or self-harm detainees and/or other unauthorised non-citizens (all of which were non-voluntary repatriations) to various Asian and European destinations. Only senior DIMIA officials and ACM staff were aware of the operation.
Mr. Cork had occupied ten different positions with ACM during his period of 9.5 years' service. Two years previously he had been transferred from Perth to Sydney under the title of Escort Administrator and in or about July 2001, he had been promoted to the position of National Escorts Manager. According to his evidence, the position description was exactly the same with the only change being a move from the Villawood Detention Centre to head office.
Reporting directly to him were two accountants and the supervisor of transport and escort at Villawood. In addition, there were other people who reported to him across Australia in relation to escorts conducted from those facilities. His duties primarily involved responsibility for gathering all the information and documentation relating to any escorts throughout Australia and invoicing the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). His duties did not include the selection of the staff to undertake the escort.
It was conceded that he did not have an unblemished work history. He had received warnings in 1992, 1996 and in 1999.
He had been involved in an overseas "removal" in the late 1990s. As a team leader or second in charge, he had conducted a removal of a group of Chinese from one facility to one destination, being China. A removal occurred when the federal government determined that a person had no right to remain in Australia and must be repatriated to their country of origin.
He was also second in charge of the removal in "Operation Long Haul" (the Operation). That involved the forced removal, under guard and under restraint, of 32 detainees from various Immigration Detention Centres (IDCs) and Immigration Reception and Processing Centres (IRPCs) to their various countries of origin. Handcuffs and restraining belts had been utilised.
Mr. Cork commenced duty at 6 am at Villawood IDC from where the Operation commenced on Sunday, 26 August, 2001. The staff involved in both the escort and the preparation of the detainees for repatriation had been required to be on duty at 6 am to take detainees to the property store and conduct a property acquittal on each of them in preparation for their removal. They proceeded to Richmond Air Base (NSW) where they met up with other detainees and staff brought from Maribyrnong by charter flight, and from Queensland by domestic flight. They boarded a Malaysian Airways charter flight which departed at approximately 11.10 am AEST with 12 detainees, 27 escort staff and 4 DIMIA representatives on board bound for Port Hedland via Alice Springs to refuel and to pick up more staff and detainees from Curtin and Port Hedland Detention Centres.
A further 21 detainees and 6 escort staff joined the flight when it departed from Port Hedland at 5.30 pm on the same day. All in all, there had been 34 ACM staff (which included the medical team of 3), 4 DIMIA staff and 32 detainees.
There had been seven drops of detainees made - the bulk to countries such as Kuala Lumpur, Dubai, Damascus, and Istanbul. On arrival at each location, designated detainees were removed from the plane and released from the care and control of the Respondent. Upon arrival at Kuala Lumpur at 10 pm on the same day, 8 detainees and 5 staff disembarked for those detainees to be removed to their country of origin. Approximately 6 hours' later, the flight arrived at Dubai where 1 detainee and 1 staff disembarked with the officer to return to the aircraft on the return trip. The aircraft flew on to Damascus arriving approximately 2.5 hours later and remaining for about 1 hour. At that point 13 detainees had been removed. All passengers disembarked upon their arrival at Istanbul late in the afternoon approximately 2 hours later. Four officers were required to remain at the Airport to supervise the remaining detainees who were awaiting a flight to Belgrade.
The applicant and Mr. Cummins were amongst the personnel who were taken to a pre-arranged hotel in the City. They were on downtime and were not required to meet until they gathered at 7 am the following morning for the return trip to the airport.
On route to Dubai where the aircraft was to refuel for the return journey, a bird flew into the engine cowling of the aircraft causing some damage. The pilot decided to continue the flight and upon inspection of the damage to the aircraft in Dubai, a decision was made to resume the return journey the following day on a charter flight. There was a great deal of consultation with local officials in relation to the restraint and other equipment carried on the aircraft. There was confusion as to the role of the senior Managers in those discussions.
They had all travelled together from Dubai to Kuala Lumpur where they spent another night. They separated and caught different commercial flights back to their various Australian destinations. Mr. Cummins left early on the morning of 30 October to return to Perth. Mr. Hollings and Mr. Cork left KL on the evening of the 30th and arrived in Sydney on the morning of the 31st. Other staff caught planes to Melbourne and Brisbane.
Overall, in terms of the successful repatriation of those detainees, the Operation had been a success. However, Mr. Cork had been concerned about the manner in which the Commander of the Operation, Mr. Cummins, had dealt with a number of issues which had arisen during the trip. It was contended that sleep deprivation, heat exhaustion and other stress factors described below had led to words being exchanged between the two Managers resulting in Mr. Cork being assaulted whilst on the tarmac at Dubai airport. They had later resolved their differences and returned to Australia in amicable terms.
Mr. Hollings was an officer under instruction from Mr. Cummins although he was higher in rank to him and was responsible to Mr. MacCormack. The purpose of his inclusion on the Operation was to experience and learn so that he would be capable of commanding a similar operation in the future. He had not been referred to in the grouping. As a result of a report by Mr. Hollings, an investigation was conducted which led to the suspension of the Applicant and the ultimate dismissal of both Managers. The applicant had appealed that decision internally but had been unsuccessful.
It was contended on behalf of the Applicant that, despite the prima facie fairness of the Respondent's processes, the termination had no basis in fairness and the intervention of the Commission was being sought for the following reasons:
The applicant was seeking reinstatement when associated payment of remuneration lost between the time of the dismissal and the time of reinstatement. In the alternative, the applicant was seeking a remedy of compensation equivalent to six months' pay.
It was contended on behalf of the Respondent that the dismissal was clearly the result of the behaviour of the applicant at Dubai International Airport when he spoke to the officer-in-charge of the operation, Mr. Grant Cummins, in a confrontational and insubordinate manner provoking in the latter retaliating in an inappropriate manner by assaulting him. His behaviour had been in breach of his obligations under the Respondent's code of conduct and the grievance and disciplinary procedures, the provisions of both of which he was very familiar with. Although, ultimately, the incident had no detrimental effect on either the Respondent or DIMIA, the potential risk to the Respondent, other officers and DIMIA was serious bearing in mind the attention already attracted from the foreign local authorities because of the restraint equipment in their possession.
The investigation which had commenced into Mr. Cummins' behaviour was properly expanded to include an investigation into the applicant's behaviour when it became apparent that his behaviour warranted questioning. The Respondent could not afford to ignore breaches to its lines of control and lines of command. He had been afforded procedural fairness in the conduct of both the internal disciplinary and appeal processes which ultimately determined that his behaviour had constituted extreme insubordination and justified summary dismissal. It was submitted that the dismissal was not harsh, unjust or unreasonable.
ORGANISATION OF THE REMOVAL
Mr. Cork stated that he became aware of "Operation Long Haul" some three or four weeks prior to its commencement as there had been a preliminary meeting with representatives from DIMIA to discuss the fact that overseas destinations were refusing to accept those detainees. It was the first multi-country repatriation operation conducted by ACM. He probably became aware that he was to be second-in-charge of the Operation at that time. As part of his duties he was asked to prepare an Operational Order (on which he described himself as Escort Team Leader) and to coordinate the movements of staff and detainees within Australia as they were being drawn from all over the country. ACM had no role to play in the coordination and liaison with the countries of origin. That was the responsibility of DIMIA.
Mr. Cork testified that he had been advised approximately a week prior to the commencement of the operation that Mr. Grant Cummins, an employee with 9 years' service, would be the Operation Escort Commander. Mr. Cummins had not been involved in the selection of either the staff or his second-in-command, Mr. Cork.
The Operational Order included, in part, that he was responsible for the coordination of relief arrangements for staff during the escort. He ensured that the staff were relieved from their escort duties to have meals and, if possible, to have a break from their normal duties by moving to the business class section on the aircraft. Mr. Cork testified that he also had the opportunity to have a rest period but he preferred not to as he considered that he had responsibilities for the security and safety of all on board. His role was also to collect the time sheets from each staff member and the per diem claims prior to the conclusion of the escort so that the escort could be billed out to DIMIA in a timely manner. Despite all of that, he testified that he had not been given a brief as to what his responsibilities were or any training in relation to conducting that operation.
He had also allocated tasks in that operational order to Mr. Grant Cummins and other Officers and to the medical team. Mr. Cork stated that, in allocating tasks, he had liaised with a number of other ACM personnel to determine who should have responsibility for what tasks based on previous removals they had been involved in. During that exchange with his colleagues, he had gained knowledge of what was required for different positions on the operation. DIMIA representatives were responsible for the majority of the time frames within the Operational Order as there were on-going negotiations as to which detainees were going to be on the Operation. It had remained a "living document" for approximately a week prior to their departure and he had been contacted daily about its revision.
There was another meeting in relation to the Operation between representatives of ACM and DIMIA on 16 August at Villawood to establish where the detainees and staff were coming from and how they were going to connect with the charter flight.
Mr. Cummins testified that he had attended that briefing which had concluded around lunchtime. He had suggested to Mr. Cork that they meet to discuss and organise plans for the trip. Mr. Cork had refused because he was booked on the 1 pm to Melbourne where he was spending the weekend. He agreed that Mr. Cork had responded with words to the effect that there was nothing in it for him. He had been disappointed because he had been directed to undertake the escort against his wishes and he had flown from Derby to Sydney, approximately 14 hours, and driven 2.5 or 3 hours to sort things out and yet everyone else had made plans for their weekend and left after the meeting. He agreed that he had complained about Mr. Cork's attitude to Mr. Hollings prior to the operation commencing to the effect that, "This is crap. I'm here to do something and no-one is here to do anything with." Mr. Cork could not recall Mr. Cummins suggesting that they get together to sort out issues involved in the Operation. Neither could he recall telling Mr. Cummins that he was going to Melbourne for the weekend and leaving at 1 pm although he obviously must have told him. He pointed out that his trip to Melbourne had been approved by the General Manager. He would not deny but he could not recall telling him that he did not get paid enough to do that. In any event, he thought that it was too early in the process to bother with meetings.
Mr. Cork agreed that on the eve of their departure from Australia, Mr. Cummins had held a meeting at Villawood in which he had participated. Following that meeting, Mr. Cummins had conducted a rehearsal of certain procedures for the operation during which the use of restraints was demonstrated and that was all he was aware of. He recalled being sent by Mr. Hollings on a retrieval mission to Darwin as an observer to re-acquaint himself with factors applying to remote operations. As National Escorts Manager, his role was to develop, and maintain the Escorts Manual which contained processes and policies on that issue such as obtaining security clearances to move detainees by air, creating a job number, invoicing a job and the responsibilities of different people on escorts. ACM contracts through DIMIA to provide the services to the Commonwealth. He was aware that there were aspects of the contract whereby financial penalties may be imposed on ACM in certain circumstances. He was also aware that there were sensitivities involved as an ACM staff member when dealing with DIMIA representatives and that there have been times when ACM staff have believed that DIMIA officials have taken an unfriendly view on the ACM staff's behaviour. He understood that embarrassing situations can have complications for ACM in its dealings as a company with DIMIA. He knew that as an officer of ACM, while in the company of DIMIA officials, that he needed to be behave professionally and in accordance with the code of conduct. He had been second in command during the overseas removal mission to China. It had been a long time ago and procedures and responsibilities had altered since that time. They had only been on the tarmac for half an hour. He had not had any interaction with Chinese officials although he was in their presence and was aware that when dealing with foreign officials he had to behave in a professional manner and things could get tricky and that was why DIMIA officials accompanied them on the trip. He was aware of that when he went on "Operation Long Haul".
Mr. Cummins described the operation as "a mess from the start to the end; a complete mess". They did not know how many detainees they were removing or their final destinations until just prior to the plane taking off. They had a Queen's Counsel on hand in case there were late applications filed to remain in Australia. On the aircraft, some detainees had been handcuffed and others were restrained in their seats depending on their level of risk. The detainees and their escorts were seated in what would normally be classed as the economy section of the plane. Seated in what would normally be business class were Messrs. Hollings, Cummins, Cork and DIMIA officials and other staff who used that part of the aircraft for meal breaks and rest periods. It was originally intended that Mr. Hollings, National Operations Manager, Detention Services, would remain in Australia and Mr. Cummins would report to him upon his return, however, he had accompanied them as an observer.
Mr. Hollings testified that he had seen Mr. Cork on a number of occasions seated in his seat. On some of those occasions he was working on the lap-top computer and on at least one of those occasions he was sitting with his eyes closed but could not tell whether he was asleep or not.
Mr. Cummins agreed that, despite it being Mr. Cork's role, he had taken an active role in the organisation of meal breaks and the security of detainees during such periods because he "thought things could be done better, yes....". Approximately 95 per cent of the detainees were considered to be extreme high risk people. There were a number of Palestinian detainees who were considered high/medium high risk. There were a couple of low risk people on the plane such as one lady and two young children. Depending on the degree of the risk, some officers were assigned two detainees and other detainees had four (4) officers each assigned to them. The DIMIA representatives had not played an active role in the actual handling of the detainees. They were on the operation to liaise with local officials and to participate in the decision-making process on pertinent issues. In his opinion, the whole trip had been poorly organised for a number of reasons. Firstly, there had been poor communication which left everyone confused. Secondly, there had not been any training provided. Staff, the majority of whom had never been involved in an escort project, had not been briefed until they left Port Hedland and were heading towards Kuala Lumpur. Thirdly, the equipment was wrong. He had been required to take the equipment despite his protestations and no preparation had been made for its suitable carriage. He had to go shopping and buy a suitcase the day before the trip as there was nothing provided to carry it in. Fourthly, upon his return to Australia, no arrangements had been made for his, and his staff's, accommodation or flight back to Western Australia.
DIFFICULTIES ENCOUNTERED DURING THE REMOVAL
Some difficulties had been encountered at the commencement of the operation.
Firstly, Ansett Airlines had been experiencing industrial action and therefore it had not been possible to load their bags in a set sequence in order to eliminate problems with dropping various persons off along the way. At every landing point, they had to sort through the luggage to retrieve individual's bags because their belongings were mainly packed in green garbage bans with a number written on them identifying their owner.
Secondly, a security problem arose when it was discovered, when the flight left Alice Springs, that the Palestinians at Port Hedland had received prior notice that they were going to be removed to Damascus, Syria. The latter had caused Mr. Cummins a great deal of concern as he could recall a similar occasion when death threats had been received by staff at Curtin in June 2001. Mr. Alan Stephen Hollings held the position of National Operations Manager, Detention Services, for ACM. He tendered an affidavit, as amended, in the proceedings (Exhibit R1). He commenced his position with ACM in December 2000 and prior to that he had been an officer in the Australian Army for nearly 25 years. Prior to entering the Australian Army, he had worked for a period of about eight months as a Store Manager with Kentucky Fried Chicken, Victoria. He confirmed that he had been on Operation Long Haul principally to observe the operation with a view to ascertaining how such operations were conducted. It had been a year since a similar operation had been conducted and therefore, at that point, he had been unfamiliar with the process. Notwithstanding that he did not have any operational role on the flight, he had considered himself to be on duty and had participated in operational matters. He testified that the leak had caused him some concern.
Thirdly, the seating arrangements on the flight over had caused dissention between Mr. Cummins and Mr. Cork. Mr. Cork testified that many days of planning had gone into gathering information in relation to the type of risk the detainees posed - be it self-harm or security risk. A seating plan for both detainees and escort staff had been developed strategically for security reasons. He had been concerned to find, when he boarded the flight, that the seating arrangements had not been complied with by Mr. Cummins and, in his view, had the potential to jeopardise the operation as he considered it dangerous to alter the planned arrangements. That seating remained unchanged until they arrived at Port Hedland at which time additional staff and detainees were taken on board and the seating arrangements had been rectified. He further testified that he had raised his objections to the change with Mr. Cummins on the plane. He had logged the incident in his running sheet but could not recall raising it with Mr. Hollings. He admitted, during cross-examination, that he had not filled in an incident report about the matter nor raised it during the debrief session on the plane. He further admitted that Mr. Cummins had actually devised the seating plan although there had been input sought from him.
Fourthly, the forced rehydration of a detainee whilst on the plane had caused further dissention between the Commander and the 2IC of the Operation. During the trip, Dr. Ghergori had become concerned about a detainee who was refusing to eat or drink and had examined him and continued to monitor the situation. Options, such as the use of force, rehydration without the consent of the detainee on the ground or in the air, the method of rehydrating and the force-feeding of the detainee were discussed in detail by Dr. Ghergori, the nurse, Messrs. Cummins and Cork and DIMIA staff. Mr. Cummins and the Doctor were at odds as to the most viable option. According to Mr. Cork, Mr. Cummins had stated several times during that conversation that he would prefer to force-feed the detainee water orally as rehydrating him on the ground would involve having to restrain him and force an IV into his arm. The Doctor recommended against force-feeding him preferring, at an appropriate time, to use the IV method. Mr. Cork further stated that at that point in time, Mr. Cummins had removed himself from the discussions, which were continuing, and made his way to the back of the plane where that detainee was seated. He thought that Mr. Cummins was attempting to convince him to take a drink. However, when he heard that detainee yell out "stop", he had turned around to find Mr. Cummins holding the detainee by the head and forcing a cup to his mouth. The Doctor had attended to that detainee and advised him later that he had a bleeding gum but was not seriously injured. He testified that during the discussion, he had agreed with the medical staff reminding Mr. Cummins that operational staff normally followed medical opinion but he had not been able to talk to Mr. Cummins privately prior to him force-feeding the detainee. After the event he had spoken to Mr. Cummins again advising that he did not think it was a smart move and indicating that they ought to have followed medical advice. During cross-examination, he stated that he regarded the force-feeding of the detainee inflight as a breach of duty of care as he understood it. He could not recall whether he had raised the issue with Mr. Hollings and was not in a position to dispute the evidence if Mr. Hollings claimed that he did not. However, he was sure he would have included it as a report on his running sheet. He had not prepared an incident report about that issue nor raised it during the debrief session on the plane. Mr. Cummins confirmed that there had been a number of discussions with different people in relation to one of the detainees who was refusing to take fluids. He agreed that he had a different point of view to the doctor. He wanted to try and encourage the man to drink fluids whilst the doctor took the view that was force-feeding and that that was inappropriate and considered that it more appropriate to put in an intravenous line. To do so, he would have to be chemically sedated and they had been told by the highest possible source from the Government that it was not to occur. He had actually encouraged the man to drink some fluids and once encouraged, he had drunk three or four cups by himself. He agreed that, almost from their first meeting, there was a difference of opinion between him and the doctor on a number of matters. The staff and the security of the aircraft were his responsibility and she refused to listen to him and the concerns he had. He reluctantly agreed that Mr. Cork said to him something along the lines of, "The doctor really believes we should rehydrate the person," and after the man had actually taken the three or four cups of water, he said to him something along the lines of, "The doctor doesn't think that was right," or "That wasn't a smart move. The doctor wasn't happy with that." In his view, Mr. Cork had sided with the doctor and, unlike him, was not looking at it from an operational perspective. He did not regard Mr. Cork as addressing him inappropriately on that occasion. Mr. Fyfe stated that control had been a big issue during the operation given that the staff had been drawn from different centres and were operating in a foreign, confined and often tense environment. They were undertaking an extraction which meant that the environment was potentially dangerous. The hydration of detainees ought to have been totally under the medical team's control and direction but that was not what had eventuated. Although the Doctor had commented to him, "Well, the final outcome has been achieved, hasn't it?" she clearly had not been happy about it and was actually taken aback by the actions of Mr. Cummins. Mr. Hollings testified that he had observed the doctor enter the business class area of the aircraft and speak to three (3) DIMIA officials about her concerns regarding the forced rehydration of the detainee by Mr. Cummins. He had not overheard any concerns being expressed by the DIMIA officials. Mr. Peter Anthony Barnsley tendered an affidavit in the proceedings (Exhibit R2). He had been employed as a detention officer with ACM at the Maribyrnong immigration detention centre, Melbourne and was involved on general detention/escort duties on Operation Long Haul. He had been seated in the aisle seat just past the centre, towards the rear of the aircraft with two detainees sitting closest to the window in his care. He had witnessed the detainee being rehydrated. He had been responsible for that detainee during the trip from Maribyrnong to Sydney as that was where he had originated from. That detainee was still cuffed from the time he boarded the aircraft. The nurse had pointed out that he required fluids or he was in danger of his kidneys shutting down. He saw Grant Cummins more or less hold the detainee's jaw open and forcibly tip one glass of water into his mouth. That had not caused him any concern. Mr. Cork had made an allegation of an incorrect procedure relating to making a passenger take fluid during a disciplinary hearing held into his conduct. Mr. MacCormack stated, during cross-examination, that it had not been investigated because it was merely an allegation, the reason being that the person who was subjected to being rehydrated was out of the country and the episode was closed. He agreed that the relevant procedures had not been complied with.
Fifthly, at Damascus, the officials took the pilot and the co-pilot away from the aircraft for about 1.5 - 2 hours while they were left at the end of the runway with lots of vehicles around them. Consequently, the plane's arrival time at Istanbul had been delayed.
Sixthly, the aircraft landed at Istanbul at about 1.10 pm local time (20.10 AEST) on 27 August, 2003, thirty-three (33) hours after departing Richmond. At that time, there were only five detainees remaining for repatriation. One was to depart on a flight to Moldovia later that evening and the others were due to depart the following morning local time to cities including Glasgow, Belgrade and Ho Chi Minh. During one of the DIMIA briefings, ACM had been led to believe that arrangements had been made with the local authorities for holding cells to be made available for securing those detainees overnight in Istanbul which would have allowed for rotation of staff. However, in Istanbul, they had experienced communication problems between the Australian and Turkish authorities and ACM staff were advised by DIMIA that the holding cells were no longer available and that the four remaining detainees would be held in a lounge at the airport. That caused some confusion. Although the roster had already been drawn up, the Turkish authorities would not allow shift changes. So while staff were standing down the aisle of the aircraft waiting to disembark, Mr. Cummins testified that he had to pick a system similar to drawing the short straw to select two female and two male staff to remain on static duty for the duration of their stay in Istanbul. He agreed that he had said to the internal appeal panel:
"The relief of static post was not allowed by the authorities in Istanbul. I had to select staff which was not in my role or responsibilities in the operation. However, Cork failed to do that, so I selected staff."
The assignment had basically finished for the remaining staff, including himself and Mr. Cork, at Istanbul. It took a considerable period of time before they were allowed to go through Customs and finally transported by bus to a Hotel in Istanbul. Upon their arrival, he and Mr. Cork had ensured that staff had been allocated rooms and keys and were aware of where and when they had to assemble in the morning for the bus ride back to the Airport. He shared a room with Mr. Hollings. They went up, he had a shower, changed out of his uniform and, with Mr. Hollings, went downstairs where he saw Mr. Cork at the bar near the foyer area. They stayed for about 45 - 60 minutes and then they went for a walk around the block and bought something to eat. He had not seen Mr. Cork after he left the bar area until the following morning. Personally, he had not had any sleep prior to arriving at Istanbul and, as far as he was aware, Mr. Cork had been in a similar position. He had about four hours' sleep that night. Mr. Cork confirmed that he had not had any sleep from the time they left Australia until arrival at Istanbul. He was able to relax there and enjoy a drink or two but estimated that he had only six (6) hours' sleep there despite being afforded 13 hours down time from the time of his arrival at the hotel until 7 am the following day. Staff paraded again for duty at the airport at approximately 7 am local time 28 August, 2001. Mr. Cummins explained that when he chased up Mr. Cork and the doctor at breakfast because they were running late and the bus was waiting to take them to Istanbul airport, the doctor started spruiking and saying, "Oh, he was naked outside my room last night. Didn't you know that?" in the presence of Mr. Cork. He admitted that he had concerns about the relationship between Mr. Cork and the doctor on the trip and was critical of the fact that Mr. Cork had not distanced himself from the doctor. The aircraft departed for Dubai at about 10.10 am. Mr. Hollings stated that, with the exception of the staff on static duty, they had departed the Airport for the Istanbul hotel at approximately 4.00 pm local time and between the hours of approximately 6 pm local time on 27 August and 7 am local time on 28 August had an opportunity to sleep and rest generally. By the time the plane left Istanbul for the return journey to Australia, there were no detainees in custody. Mr. Fyfe confirmed that most operation staff were in civilian clothes. He felt qualified to express the opinion that "Mr. Cummins and the operation staff were extremely fatigued at the time their duties in Istanbul were completed. However, by the time they departed Istanbul, most of the operation staff, although still tired, seemed more refreshed due to the overnight stay."
Seventhly, when the plane took off from Istanbul on 28 August, 2001, they had all gathered at the back of the aircraft for an operational debrief en route to Dubai. A bird flew into the engine cowling of the aircraft causing some damage. Upon being briefed by the Captain, Mr. Cummins briefed the staff. There was downtime because there were no more detainees and the staff could unwind. Mr. Fyfe gave evidence that alcoholic drinks were available on the charter aircraft after the plane departed Istanbul for the first time during the operation. He categorically stated that no one appeared to be indulging excessively in the consumption of alcohol nor did anyone appear to be under the influence. Mr. Cork confirmed that he had two beers on the aircraft. Apart from two ladies from Melbourne, the majority of staff drank on the aircraft, including Mr. Cummins and Mr. Hollings. He could not recall if Mr. Fyfe had drunk alcohol on the plane.
Eighthly, Mr. Cork had considered the following incident with the restraint equipment to be the final straw. He had been openly critical, in the presence of DIMIA officials and subordinate staff, of the manner in which Mr. Cummins had handled the local authorities in Dubai resulting in an assault by Mr. Cummins, in close vicinity of Dubai airport personnel.
When they landed at Dubai at about 3.25 pm local time (21.25 AEST) on 28 August, 2001, to refuel the aircraft, an inspection was conducted by Engineers to assess the extent of the damage. During that period of uncertainty, to escape the heat on the tarmac, arrangements had been made for ACM and DIMIA staff to be transported to the Transit Terminal as an indeterminate delay was expected. They were advised to meet at the lounge in 45 minutes for further details on the flight. In the interim, they did some duty free shopping. When they gathered together after 45 minutes, they were advised that there would be a further 30 minute delay. When the second period elapsed, they were advised that they were to be transferred to the MAS air-conditioned Business Class Hospitality Lounge for meals. Alcoholic beverages had been provided in that lounge where they remained for the next 2-3 hours. Mr. Barnsley testified that during the 4-hour delay in Dubai, he had witnessed both Mr. Cork and Mr. Cummins consuming alcoholic beverages on several occasions but was unable to quantify how much they had or what they consumed. Mr. Hollings testified that he had observed ACM staff, including Mr. Cummins and Mr. Cork, consuming, what he believed was alcohol, during the period spent in the lounge at Dubai airport. Mr. Fyfe also testified that he had witnessed Mr. Cummins drinking a beer of some description and Mr. Cork was also consuming alcohol but neither was drinking to excess. He could not state whether they had consumed more than one drink each. They had remained at the Airport for approximately 4- 5 hours. They had received several updates in the interim as to the progress of the assessment. At sometime between 7.45 - 8.30 pm local time, they had been gathered together via an announcement over the PA system to be informed that following contact by the Airline with Boeing in America, it had been decided that the aircraft would be grounded. They would be accommodated in Dubai overnight and would resume the return journey the following day on a charter flight.
At about 8 pm local time, (02:00 AEST) they were returned by shuttle bus to the aircraft to remove their belongings from the grounded aircraft. The bus parked about thirty (30) metres from the aircraft steps. They recovered their personal baggage from the chartered flight and placed them on the floor of the bus, just inside the front door. Parked between the bus and the aircraft were several police cars, a number of local police or military officers and other officials. They had been asked by local authorities if they were carrying any items that needed to be declared. As they were staying overnight in Dubai and were completing their return flight by commercial airline, it became apparent that there would be a problem with the removal, storage and security of their Centre Emergency Response Team (CERT) and other restraint equipment and medical supplies due to import, airline security and carriage regulations. Upon becoming aware of the nature of their cargo, the authorities insisted on viewing the equipment. The bags containing the equipment had been placed on the tarmac adjacent to the bus. As Mr. Cummins was not returning to Sydney, he had asked Mr. Cork to be responsible for the restraint equipment on the return trip. There were pockets of discussions held on the tarmac, which included the applicant and briefly, Mr. Cummins. Mr. Cork testified that the heat and noise on the tarmac had been oppressive. They had experienced confusion in communicating with the authorities in Dubai and uncertainty in ascertaining the extent of the damage to the plane. He had been tired and exhausted from the rigours of the job and had no idea when he would be able to return home. The bus had been pulled up alongside the plane and he had been inside the bus at the end closest to the stairway of their aircraft, approximately 10m away, when he observed Mr. Cummins, who had been standing on the tarmac with the authorities (approx. 8) about halfway down the length of the standard transit bus, become quite loud and upset with the authorities. The restraint equipment and batons were not allowed to be brought into Dubai and they were insisting on an inspection. There were staff members getting on and off the bus and several discussions involving, at various times, Mr. Cummins, Mr. Cork and Mr. Hollings and DIMIA officials with the Dubai authorities. He had alighted from the bus and walked towards the group which included Mr. Cummins, then turned back, boarded the bus and said in an urgent voice to Officer Thomas, "Make a log, make a log" in relation to the incident. He argued that Mr. Cummins' evidence was wrong, although it had not been challenged on his behalf, that Mr. Cummins was sitting at the other end of the bus and that it was only when he had observed Mr. Cork issuing instructions to commence a log, he had alighted to investigate what was going on. He had asked the staff on the bus if they were carrying any restraints and eventually Mr. Fordham owned up that he was carrying his own handcuffs. He agreed that he had a short disagreement with that officer because he had been reluctant to hand them over. Mr. Fordham had been standing near the other end of the bus. He alighted from the bus to put the handcuffs with the other equipment and to ensure that the argument with the authorities had quelled.
RUDLAND: But you weren't working at that point. You weren't on the job, were you?
CORK: Again, I'm on the job when I need to be on the job.
Q. Okay. So when you gave evidence earlier that from the time you arrived at the motel in Istanbul, to the time that you arrived in Australia, you weren't on the job; that was not, in fact, true. Is that what you are now saying? That there were periods when, in that time, when you were on the job.
A. Possibly. There are times when we have to take responsibility. Yes.
Q. At those times are you under obligations to the company?
Q. Indeed, the whole period that you were in Dubai, you were on duty.
A. I wouldn't say that personally but, again, we do things when we see there is a problem.
Q. So you were performing the job? Yes. No.
A. Well, technically, if you put it that way, yes.
Q. You had obligations as an employee in performing your job.
Q. One of those obligations you had as an employee was to behave in accordance with the code of conduct.
He had stated in his affidavit that "There continued to be agitated conversations between Mr. Cummins and the local authorities in relation to the restraints during which time Mr. Cummins again became quite loud and upset." He had not observed Mr. Cummins demonstrating the use of a belt to the authorities. He agreed that one had to speak louder than in their normal tone as it had been noisy on the tarmac. He further agreed that Mr. Cummins had overall responsibility for the restraint equipment under the operation order but pointed out that, because he was not returning to Sydney, he had apparently given that responsibility to somebody else for the return flight home. He stated that whilst he was in the bus, he had participated in a conversation with the Doctor during which they had discussed the inappropriateness of Mr. Cumming's actions and both he and the Doctor had concluded that it was "not a good idea for Mr. Cummins to be involved in any future negotiations". He agreed that she was not an officer of ACM but, rather, was a doctor on contract to provide medical services and further agreed that it was none of her business to discuss such issues. He had discussed it with her probably because she was nearby and he needed to bounce it off somebody. The situation regarding the equipment had been resolved and he had reboarded the bus as had Mr. Cummins. The upshot of those discussions was that it was agreed that the restraint equipment would be secured at the airport until their departure the following day.
Mr. Cummins testified that as the staff left the plane and reboarded the bus after retrieving their luggage, he became aware of a disagreement between Mr. Cork and another ACM officer, Greg Fordham. He later observed Mr. Cork come back onto the bus, saying to no-one in particular, "Start a log. This is an incident" meaning that there had been an incident which required recording. He thought, "Well, something's going on here. I had better check it out." He alighted from the bus and noticed that there were "little pockets of discussions" being held all around them under very difficult circumstances as they were adjacent to a plane with a jet going, the engine of the bus was also running, there were language difficulties and they did not have any interpreters to assist. He noticed that there were DIMIA officials negotiating with the local armed authorities. He understood that the Dubai officials were questioning some of the equipment, a restraint belt. He approached them and he physically demonstrated what it was for. At around the same time, Mr. Hollings approached him and said words to the effect of, "It's okay. I've sorted it out." He understood that they were satisfied to retain the equipment to record it and store it until it was transported out of the country. Mr. Fyfe stated that he saw Mr. Cork get on and off the shuttle bus on a number of occasions and on one occasion he had moved up and down the bus asking staff to hand in any restraint equipment they had on their person. He heard and saw Mr. Cork having some difficulty with Officer Fordham who seemed unwilling to comply with such order. Mr. Cork was clearly angered by the issue and raised his voice to say words to the effect, "Unless you hand them over, I will take this further when we get back." In the interim, he had observed Mr. Hollings engaged in negotiations outside the bus with local officials. Mr. Cork got off the bus and reboarded a few moments later to instruct Lynette Thomas, seated adjacent to the bus door to "start a log". That had caused Mr. Cummins to alight from the bus but he did not appear to participate in the negotiations. By that time they had been on the bus for approximately 20 minutes and he estimated the temperature to have been in excess of 40 degrees centigrade. In anticipation of questions from the local authorities in relation to their medical supplies, he and Dr. Ghergori had commenced re-arranging the medical supplies on the floor of the bus where they remained for approximately ten minutes. Although he had been on the Operation as an observer, Mr. Hollings stated that he had held discussions about the storage and security issue with the senior DIMIA official and MAS aircraft Captain and MAS security official. He had agreed with the recommendation that the equipment and stores be stored in the MAS office adjacent to the Dubai customs area so that they would not be considered as officially entering Dubai by leaving the Airport. He had made arrangements for the overnight storage of the two containers. After having that conversation, he proceeded to alight from the plane and saw Mr. Cummins engaged in talks with the Airport Security Police and MAS liaison staff. He was standing in a cluster of people adjacent to the bus and between the front and back doors of the bus on the side nearest the steps of the plane. The group consisted of about 12 ACM staff, airport security and other officials. He could not hear what was being said at that distance because the group was huddled together although he was aware that Mr. Cummins was talking. He could not recall if Mr. Cork was in that group. He had not heard the conversation but understood it to be over the same issue. As he was approaching Mr. Cummins on the tarmac, he could hear him say the words, "Like this" while he was talking. He had about his body one of ACM's restraining belts which was in one of the boxes and he was showing the people around him how it worked. As he approached Mr. Cummins, he had neither heard him swearing, nor being confrontational, nor antagonistic nor otherwise inappropriate. Mr. Cummins "did not appear to be arguing or behaving in any manner which may be regarded as confrontational or antagonistic or otherwise inappropriate." If he had observed or witnessed Mr. Cummins behaving in an inappropriate manner with the Dubai officials, he would have either spoken to him quietly, taken him by the elbow to one side away from the group with whom he had been talking and advised him to change his approach. He had a private conversation with Mr. Cummins and explained to him what arrangements had been negotiated. He turned towards the steps of the aircraft and Mr. Cummins boarded the bus.
Malae Sailiai tendered an affidavit in the proceedings (Exhibit R3). He testified in which he stated that he had overheard the conversation between Mr. Cummins and the Dubai officials during which the former had said words to the effect, "Whatever you want to do with the equipment is OK by me" to which the following reply was given by one of the Dubai officials, "We don't want to keep it, we only need to itemise and receipt it. All of the equipment will be returned to you before you depart Dubai." He was adamant that the relationship between ACM staff and the local officials had been cordial throughout the discussions and there was no suggestion of any friction at any time. He had not heard any raised voices or felt any animosity between them. During cross-examination, he was adamant that he had very clearly heard the discussion between Grant Cummins and the officials at Dubai airport. He had been talking to other officers on the bus before moving to the steps of the bus. He had been standing alone halfway in and halfway out of the centre door of the bus which had been open and the discussions were being held outside the bus. He had not been talking to anyone although there had been conversations going on around him. He agreed that the noise on the tarmac could be described as being of a high level with noise from aircraft engines and buses driving past. The discussions on the tarmac had included DIMIA officials, Grant Cummins, Steve Hollings, and Mr. Cork. He could only hear Mr. Cummins and Mr. Hollings speaking and he heard them explaining to the local officials why they were in Dubai. That was how he knew the Dubai officials wanted to know what was the nature of their work and what the equipment was used for. The group on the tarmac had been walking around. That was why he was able to hear the Dubai officials, about 15 mins. later, say words to the effect, "We don't want to keep it. We only need to itemise and receipt it. All of the equipment will be returned to you before you depart Dubai." They had moved closer to the door and were counting the CERT gears and packing it near the door. Approximately 15 minutes later, they removed their baggage off the aircraft, and Mr. Cummins exited the bus through the front door and went towards the Dubai officials. They were between the centre and back doors of the bus but closer to the centre door. When he walked up to the Dubai officials, they had engaged him in conversation about the equipment because they were pointing to it. The guts of the only words he heard Mr. Cummins say was that whatever they wanted to do with the equipment was okay by him. They had all been communicating in plain English. He had not overheard any conversations between Mr. Cummins and Mr. Cork or Mr. Cummins and Mr. Hollings, or indeed between Mr. Hollings and Mr. Cork. He had not heard any raised voices. Everyone had spoken in a normal tone but loud enough for him to hear over the hubbub of the airport noises.
Mr. Fyfe testified that he had seen Mr. Cork moving up and down the bus and asking staff to declare whether there were carrying handcuffs or other restraint equipment. He was aware that Mr. Cork had some difficulty with Mr. Fordham who seemed unwilling to comply with the order because he heard Mr. Cork say in a raised, and clearly angry, voice, words to the effect of "Unless you hand them over, I will take this further when we get back". He could see Mr. Hollings still engaged in discussions on the tarmac and attention was focused on the restraint equipment on the ground. Mr. Cork but of the bus and a few moments later reboarded giving instructions to two ACM staff, one of whom was Lynette Thomas, to "Start a log". As he said this, Mr. Cummins got up from his seat and went outside to investigate without appearing to get involved in the discussions. By that time, they had been in the bus for about 20 minutes and it had been extremely hot and humid with an estimate of 40 degrees centigrade.
Mr. Barnsley stated that there was baggage strewn over the floor of the bus. He could not recall where Mr. Cork was when he returned to the bus but Mr. Cummins was seated to his left, in the seat just behind the driver, for a couple of minutes before he went to join a discussion occurring outside the bus to find out what was causing the delay. The discussion involved a couple of DIMIA personnel, some ground officials, police and Mr. Cork. Mr. Hollings had joined in from time to time. He saw Mr. Cork board the bus and put his bags down and then get off the bus again. He returned after approximately 15 minutes and instructed a couple of officers who were just inside the front of the bus to "Start a log, Start a log now." Then he got off the bus and went back to the discussion that was going on outside the bus. He could not hear what was being said from where he was sitting. Several minutes later, Mr. Cork re-boarded the bus through the entrance door in the mid-section. There were three doors to the bus. Only the front door and the middle section door were being used. The rear door had been kept closed. Mr. Cork asked all staff whether any one had handcuffs on them or in their luggage. He asked that question loudly at several locations up and down the bus. At one point there was a heated discussion between Mr. Cork and an officer from Maribyrnong over a set of handcuffs. He could not recall what had been said but Mr. Cork appeared upset and agitated. The officer had refused to hand then over for several minutes because "he didn't like the way he was spoken to. That's why they had a heated discussion and then he gave them over". He agreed that there may have been some urgency in Mr. Cork's request and that was reflected in his voice. He concluded that the situation involved the issue of cuffs both from that exchange and the gear that had been taken out of the bag on the tarmac. He accepted that Mr. Cork had every right to give the direction and it was an important issue but "it was all over in a minute or two". He had not seen Mr. Cork get off the bus with the cuffs. Mr. Cummins had been seated on his left. He had lit a cigarette and an officer went past him to Mr. Cummins, took the cigarette off him and told him he was not allowed to smoke there and proceeded to put the cigarette out. Some time later he observed Mr. Cummins get up and exit the shuttle bus via the doors at the front of the bus to find out what was causing the delay. He returned through the front entrance and went to light another cigarette. He took the cigarettes off him and hid the packet so that it was out of his sight, saying "Grant you can't smoke here. You can't smoke here. Coppers, guns, you can't smoke here, mate." He did not consider his actions to constitute insubordination. He just did not want to get delayed any further. He wanted to get out of there. He worked at Melbourne Airport and was aware that smoking attracted a fine there of $550 and instant dismissal as there was aircraft fuel at various points on the tarmac. He denied that he had given his superior a direction as he did not consider it to be work-related although, officially, he had been on duty.
During cross-examination, Mr. MacCormack stated that the incident involving forcibly taking cigarettes off Mr. Cummins did not require an amendment to the procedures. He was not sure if it constituted insubordination, "It would depend - like most things, it depends on the circumstances and the situation."
Ms Diplock stated that, in her opinion it would constitute assault if a subordinate grabbed the cigarettes away from a superior officer and secreted them away somewhere. However, if that superior officer had lit the cigarette in highly dangerous circumstances, it would not be assault to take immediate action to put it out because it involved health and safety issues. In other words, there were circumstances in which it would be appropriate to take immediate action. It would depend upon the circumstances at the time and the potential for some sort of repercussion.
Mr. Cork testified that he did not think that Mr. Cummins had been very diplomatic in the way he handled the situation with the authorities. Although he did not deny the words, he could not recall saying to Mr. Cummins, "We don't have to take shit from these people" and receiving the response, "Shut up Rob, when in Rome we'll do what the Romans want." He did recall, however, saying words to the effect that, "I don't want to work with you on an escort ever again" and "I do not trust you" because he did not appreciate the way he dealt with issues. They had been having that conversation at the back of the bus, in line with the stairway to the aircraft, the point round where he had been earlier. Mr. Cummins had responded with words to the effect, "No-one speaks to me like that" and indicated that he wanted to "settle the matter." Mr. Cummins proceeded to hit him with a loosely clenched fist which prompted Mr. Cork to ask "what was that for?" Mr. Cummins had hit him a second time. Mr. Hollings had come between them at one point and basically stopped Mr. Cummins from hitting him again. He was unsure as to how many times Mr. Cummins attempted to hit him but he had hit him over the shoulder of Mr. Hollings knocking him backwards off his feet, landing on top of his personal luggage. The altercation had occurred in the vicinity of Nurse Fyfe, Lynette Thomas, other subordinate staff and DIMIA staff on the bus. Nurse Fyfe and Dr. Ghergori had come to his assistance. He could not recall a Dubai official coming on the bus to investigate nor Mr. Fyfe saying words to the effect that he had fainted as he was dazed at the time. He, at no time, attempted to retaliate. He stated that he had sustained numerous injuries including a split upper lip, a bruised and bleeding nose and an abrasion to the chin which were treated on the scene. He could not recall saying words to the effect, of "You're as weak as piss. You should have stood up to them. We don't have to take this shit from these people." He agreed that it was quite likely that Mr. Cummins said words to the effect, "Don't talk to me like that." He denied that he had said to him words to the effect of, "As far as I'm concerned, you'll never do another escort again" as it was not his decision to make nor did he play a part in such decisions. He argued that he had said, "I don't want to work with you on an escort ever again. I don't trust you." In his opinion, the situation appeared to be deteriorating to the point where there was going to be further action by the local authorities. Mr. Cummins had been shouting and yelling loudly and getting louder. It appeared as though he was, interspersed with bad swearing, questioning their authority and why they wanted the restraints. He denied that he had been annoyed with Mr. Cummins because he had not challenged the Dubai authorities and had given in to them. When he had said to Mr. Cummins, "I don't want to work with you on an escort ever again" and "I do not trust you" it was a global issue for him and not related just to the negotiations with the Dubai authorities, it had also included his dissatisfaction with the non-adherence with the seating plan on the aircraft and the force-feeding of the detainee inflight.
Mr. Cummins stated that when he reboarded the bus, Mr. Cork approached him and started berating him about the way he had handled the Dubai authorities. He had said, "We shouldn't have to take this shit." He had replied, "Shut up, Bob. When in Rome we'll do what the Romans do." Mr. Cork had replied, "You're as weak as piss. You should have stood up to them. We don't have to take this shit from these people." He preferred to describe Mr. Cork's manner towards him as "inappropriate" rather than abusive although he agreed that such comments had cast aspersions upon his character. He had warned, "Don't talk to me like that" to which Mr. Cork had replied "As far as I'm concerned, you'll never do another escort again...You can't be trusted". He had given Mr. Cork a backhander with his left hand. Mr. Hollings had observed the incident and had stepped between them. He admitted that he had another go at Mr. Cork over Mr. Hollings' shoulder. The bus had already started going towards the terminal and Mr. Cork lost his balance and fell onto bags. A Dubai official got onto the bus and he could not remember what happened after that. Both ACM and DIMIA staff had been on the bus at the time.
Mr. Hollings stated that when he re-boarded the bus, he saw that Mr. Cork was to his left rear and Mr. Cummins was standing about three metres inside arguing with Mr. Cork. The only words he heard were those of Mr. Cummins saying, in a confrontational manner, "You can't speak to me like that." or "I won't take such talk from you". He knew they were arguing because Mr. Cummins was flushed and appeared to him to be very angry and was standing in an aggressive posture because he was leaning forward slightly. In addition, the words that he used led him to believe that he was reacting to a comment that had been made prior to that which he had not heard. He did not have a clear vision of Mr. Cork because of his position but was conscious of any aggression by him. As he had only just stepped on to the bus, he had not seen any physical contact between them. Nevertheless, he had stepped in between them, facing Mr. Cummins, who continued to berate Mr. Cork and to get past him to get at Mr. Cork. He had directed Mr. Cummins to sit down and cool off but the latter had lunged over his left shoulder with his right arm. He heard a noise and turned around to see Mr. Cork, who was sprawled over a number of travel bags, being attended to by another staff member. Again he had directed Mr. Cummins to sit down and he had done so alongside Lynette Thomas. He noted that Peter Barnsley was standing close by. He directed his attention back to Mr. Cork who was being attended to by Dr. Ghergori. He had been reclined among the bags with a small gauze over his nostrils. He was in no doubt that Mr. Cork's actions, in challenging the authority of Mr. Cummins in front of clients and staff constituted a most serious act of insubordination. His understanding of the term "insubordination" was attributable, in part, to his experience as lieutenant colonel in the Australian Army. It was also gleaned from his experiences in relation to prefecture at school of others and his subsequent term as school prefect, his prior employment and also through his wife's employment and her relationships with superiors and subordinates. He did not believe that the incident had any detrimental effect upon ACM's relationship with DIMIA but the potential was there as he was aware that the DIMIA representatives had witnessed it. noted it and were disappointed over it. Mr. Vardos, then Assistant-Secretary of the Department of Immigration, had spoken to him about it. Mr. Hollings recalled that after passing through Customs and Immigration and as they were walking through the airport terminal, Mr. Cummins had said to him words to the effect, "I tried to speak to Bob, but he won't talk to me." Although it appeared to him that Mr. Cummins was still upset and very angry over the incident, he did seem to recognise that his actions had been inappropriate. He had personally attempted to ascertain from Mr. Cork whether he was alright and the latter appeared to be very upset and non-communicative.
Mr. Barnsley testified that about three or four minutes after Mr. Cummins boarded the bus, his attention was drawn to Mr. Cork who re-boarded the bus. Mr. Barnsley had drawn a diagram of the tarmac at Dubai and given it to Mr. Laws during his investigations. He had indicated the location of their plane and the position at which he (indicated as "A"), Bob Cork ("B") and Grant Cummins ("C") were standing in the bus when the exchange occurred. Also depicted were other unidentified staff officers and DIMIA staff standing around them. They had been at the top end of the bus, between the wing and the stairs of the plane. He had been standing on the opposite side of the bus to Mr. Cummins and Mr. Cork, about one to two metres away when the altercation occurred at approximately 9 pm on 28 August, 2001 (3 am on 29 August, 2001 AEST). He clearly heard Mr. Cork say in a loud voice to Mr. Cummins words to the effect of, 'You will never come on another one of these again, you cannot be trusted with the responsibility.' He had sounded upset. Both officers were no more than a 1-2 metres apart. At that distance, he did not need to use a raised voice if he was merely talking to him. He had not heard Mr. Cummins respond, "I won't be coming on another one of these." He was pretty confident about his recollection as he had been "watching Bob from the time he came back on the bus" and he had felt "revitalised, re-energised" after his shower and shave. A couple of times in his life he had experienced situations when he had gone upwards of 50 hours without sleep. His reaction at the end of that time was not good physically but was good mentally. He had not heard Mr. Cork use the word "fucking". He had heard that one remark before Mr. Cummins hit Mr. Cork in the mouth with his left hand clenched into a fist, "The blow was not a full forced punch, in fact I would describe it as a left handed jab". He heard Mr. Cummins then say words to the effect of, "I don't care who the hell you are, no-one speaks to me like that." In his recollection, Mr. Cummins had used words to that effect more than once. He agreed that there was a potential for that incident to keep going had Mr. Hollings not interfered and stood between the two of them. Mr. Cummins threw one punch, like a left jab to the mouth. Mr. Cork appeared stunned. Mr. Hollings placed himself between the two of them, facing Mr. Cummins, and uttering words in an attempt to placate him and defuse the situation. However, Mr. Cummins said words to the effect of "C'mon we'll sort this out right now" and threw another three or four punches around and over the shoulder of Mr. Hollings. One hit Mr. Cork who had been holding on to a vertical hand pole support. It was after the second blow that he saw him slide down the pole onto the bags that were on the floor of the bus. Mr. Cummins attempted to pass Mr. Hollings and get closer to Mr. Cork but when Mr. Hollings stood his ground, Mr. Cummins took a seat on the bus. He saw a local uniformed man heading towards them. He had obviously seen a body going down. He told the nurse, Keith Fyfe, who had been standing next to him, "Go and tell that copper he has fainted." The nurse obviously relayed it on to Dr. Ghergori who told the policeman that Mr. Cork had fainted. He could not recall the exact conversation but he recalled that both the doctor and the nurse had used gestures to try to deflect the local official. The staff gathered around and lifted up Mr. Cork and fanned him attempting to give the impression that he had fainted from the heat. Mr. Cummins wanted to continue the fight. Mr. Bansley did not want to get delayed any further, he had had enough. He testified that he, and another officer, had shadowed Mr. Cummins from that point on staying behind him. Several times he wanted to turn, "Where is he? Let's sort this out now. Where is he." Mr. Barnsley had urged him to keep going and he kept moving him on until they were out of the terminal. Once they were out of the terminal, he left him alone. He did not consider his actions to be insubordination, "I just didn't want the fight to continue."
ROCHFORT: Well, Mr. Cummins wanted to go on with it and you weren't prepared to let him. Is that right?
BARNSLEY: Not physically, no. I wouldn't physically, no, and if that had have cost me my job at the time, so be it.
Q. Well, it cost Mr. Cork his job, didn't it?
He had the opportunity in the past to act in the position of officer in charge and second in charge. If he had seen an action by his superior, who was the person in charge of an operation, as having an inherent, immediate consequence for the operation, he would take him aside and suggest that he find another strategy to solve the situation. He stated that DIMIA officials had witnessed the altercation between Mr. Cummins and Mr. Cork, "they would have to be blind to have missed it". Although nothing had been said to him nor had he overheard any comments from them about the incident. He considered that the incident had the potential to jeopardise future contracts and operations with DIMIA. He had actually kept a log along the way and had made a note of what was said in that log. He had transferred its contents into the report that included the statement, "At no time during the incident did I see Mr. Cork raise his hand or make any other threatening act or gesture towards Mr. Cummins." That statement did not appear in his affidavit in these proceedings. It was sent to Mr. Richard Laws and he presumed from there it went to ACM's Solicitors who condensed it and then sent it back to him to consider for acceptance and signature. He was familiar with the code of conduct in the employee handbook (Exhibit C3) which stipulated that extreme insubordination may result in summary dismissal. He defined "insubordination" as "not following a directive or an order from a superior officer" and "extreme insubordination" as "If I'm told to do something by a supervisor or officer above me whose control I'm under, I should do what they request that I do." His understanding of the appropriate way to question a direction from a superior officer at ACM was that he would ask that officer, one on one, to explain the thinking behind that direction. If he was dead against it, he would lodge a grievance and if it was urgent, he would fax it to the appropriate person. If there was no time to go through the formal grievance process, he would do as he was told because, at the end of the day, it was that officer's responsibility to ensure that the task was carried out.
Mr. Fyfe testified that he had been kneeling on the floor with Dr. Ghergori sorting out the medical equipment and for at least 10 minutes could not see outside the bus. Mr. Cummins got back on the bus and had a conversation with Mr. Cork. He had been kneeling less than 20 cm from Mr. Cummins' leg when he heard the following conversation clearly:
Cummins: I won't be coming on another one of these.
Cork: You won't, you'll have to wait till you're fucking asked. I decide who comes on these trips.
One of them said "You're gutless".
Cummins: No-one speaks to me like that.
Mr. Cummins stepped slightly backwards and Mr. Fyfe stood up to prevent Mr. Cummins from stepping on him or his medical bag. He saw Mr. Cummins strike Mr. Cork with a loosely clenched fist twice with his right hand under the left side of Mr. Cork's chin. Mr. Hollings placed himself between them facing Mr. Cummins. He yelled at Mr. Cummins to calm down and appeared angry telling him several times to "Come on Grant, settle down and sit down". He then saw Mr. Cummins strike out around and over the shoulder of Mr. Hollings in a similar manner. Mr. Cummins struck Mr. Cork three times with his left hand to the right jaw. Mr. Cork collapsed backwards on top of the luggage at Dr. Ghergori's feet. Mr. Cummins sat down and the Doctor tended to Mr. Cork. He had looked out of the window of the bus towards the UAE army staff. A soldier, wearing a green beret, took particular notice of what was happening inside the bus and started walking across the tarmac towards the rear of the bus. A staff member had said to him, "Fifey, don't let him on board." He stepped towards the rear of the bus and stood on the bottom step at the rear door where he was eye to eye with the soldier standing on the tarmac. He said words to the effect, "I am doctor [pointing to his chest and hoping to be considered as speaking with authority] ... this man sick [pointing to Mr. Cork]... it very hot [waving hand in the motion of a fan]". The soldier had looked at Mr. Cork, back again at Mr. Fyfe, once again at Mr. Cork followed by a little look around the back of the bus before leaving. The shuttle bus was allowed to convey them back to the terminal without any further incident. He disagreed, during cross-examination, that he had used pigeon English pointing out that he had intended to use basic English as he had experience dealing and working with people from middle eastern background. Mr. Malae Sailiai testified that Mr. Cummins had no sooner re-boarded the shuttle bus than he was followed by Mr. Cork through the front door. He observed both men talking but could not hear what they were saying because of other conversations going on in the bus and the general airport noise. During cross-examination, he testified that he had good hearing and denied that he may have selective hearing. He had turned away to carry on a conversation with other officers around him when his attention was drawn to the front of the bus. He saw Mr. Cork lying on his back on top of some luggage on the floor and the Doctor was attending to him. When he inquired from those around him, he was told that Mr. Cummins had struck him in the face. He turned away and continued his conversation with the other officers around him.
They had been transported to their overnight accommodation in Dubai shortly after that. Mr. Fyfe stated that Mr. Cummins seemed to be very remorseful for his actions and he had seen both Mr. Cork and Mr. Cummins speaking quietly together outside the airport. That evening the whole group had dined together at three large tables. The following morning he had again witnessed Mr. Cork and Mr. Cummins speaking quietly at both the hotel and later at the airport.
In his statement, Mr. Cork stated that later that afternoon, Mr. Cummins had apologised to him and they went for a drink together. Yet, during oral evidence, Mr. Cork testified that Mr. Cummins had apologised to him the following morning outside the Hotel in Dubai. The next day, the group had continued on to Kuala Lumpur where they stayed another night and both Managers had a drink together. He and Mr. Cummins had made it a point to travel together in the presence of the remainder of the party. He did not consider that there was any ill feeling between him and Mr. Cummins at any stage as they had known one another for several years. He admitted, during cross-examination, that he could not recall recording that incident in his running sheet or filing an incident report. He agreed that the assault of an officer by another officer whilst on duty, regardless of seniority, was a serious issue. Mr. Hollings had attempted to talk to him but he was not in a state of mind to actually discuss the issue at the time. Mr. Hollings had approached him once again the following day to discuss the issue. He denied that he had placed any DIMIA official in a dangerous position nor had he received any expressions of concern from any DIMIA official about their position. He pointed out that no foreign official, including the officials in Dubai, had expressed any concern that there had been any incident which was of the nature of an international incident. The Dubai officials had accepted the explanation as to why he had collapsed and departed the bus. During re-examination, he stated that He and Mr. Cummins had apologised to one another in Dubai. He had apologised for "probably for being a little out of order or the way I dealt with the situation."
Mr. Cummins testified that his attempts to discuss the incident later that evening with Mr. Cork had been rebuffed but they had sorted matters out the following day. Whilst he acknowledged that the incident had to be noted, in his view there more important issues to be addressed, such as equipment. Although he had discussed the Operation with a DIMIA official the following day in Kuala Lumpur, no mention had been made to him of the incident between him and Mr. Cork. Mr. Hollings stated that he rang Mr. MacCormack from his hotel on the same evening and gave him a verbal report on the incident. In his opinion, as an experienced Lieutenant Colonel in the Australian Army and as National Operations Manager with ACM, there was "no doubt that Mr. Cork's actions in challenging the authority of Mr. Cummins in front of clients and staff constituted a most serious act of insubordination". He defined "a serious act of insubordination" as "one that undermines the management or the leadership of the person who is in charge of a particular activity or group of people, particularly in a hierarchical organisation, and that might take effect insofar as resistance to the authority of the person in charge, or defiance. It could even be passive." Mr. Cork's comments had been defiant and rebellious. He held that view for the following reasons - firstly, Mr. Cork had verbally attacked a superior in front of subordinates thereby influencing their impression of the competence of their superior at a time when they needed to rely on his judgment and trust in their abilities; secondly, Mr. Cork had attacked the competence of his superior in front of clients of ACM. That not only served to embarrass both ACM and Mr. Cummins personally, but also undermined the client's perception of the competence of the Respondent's staff, possibly putting its contract in jeopardy; and, thirdly, the incident had taken place in the vicinity of Dubai officials and military personnel. Had the incident not been diffused, it could have put into question the veracity of the operation as a whole, the competency of its Commander, and the legalities of the operation with the potential for arrests, confiscation of equipment and an escalation of an "international incident".
Mr. Gerald McCormack, General Manager, Detention Services for ACM, tendered an affidavit in the proceedings (Exhibit R8). He had previously been employed as an officer with the Australian Defence Force for 37 years rising through the ranks to Colonel. During cross-examination, he indicated that, in his opinion, a second-in-charge was an understudy to the commander of the unit, undertook administrative responsibilities to ensure that the unit could function, was a teacher to subordinate officers, and was a figurehead for subordinate officers and other staff senior staff. He also had a responsibility, if he considered it necessary, to join issue with a decision that the commanding officer had taken, and to take up the issue with the commanding officer. He explained that a second-in-command was normally carefully selected because of his abilities, and he would know when it was appropriate to take up an issue with the commander, and would do it in a quiet and subtle manner, and would select an opportunity out-of-the-public-gaze. He could not imagine that anything could be so extreme, short of the commander being unable to continue his role, that would cause the 2IC to take the matter up differently. In the event that the commander was unable to continue, then his superior should be contacted for advice or it would be classed as mutiny. The composition of the team was determined at a planning conference working party and proposed to him. He had agreed to it. He gave evidence that Mr. Hollings had contacted him from Dubai and informed him of the incident with the plane resulting un the team having to stay there overnight and return the following day to Australia by commercial aircraft. That was the purpose of the call. However, he had gone on to inform him that there had been an incident at Dubai International Airport between Mr. Cork and Mr. Cummins during which the latter had physically struck the former. He had regarded the incident as a serious occurrence.
SUSPENSION OF THE APPLICANT
They had arrived back in Australia on Thursday, 30 August. Mr. Cork stated, during cross-examination, that he had worked a full day without incident. Mr. Cummins had flown back from Western Australia and both had attended the debriefing session on 03 September, 2001 attended by DIMIA representatives and ACM senior staff and management. He testified that the DIMIA officials had complained about other issues that occurred some days prior to the "milk run" but had not raised any concerns about the Operation itself. They had congratulated ACM on a job well done and expressed their contentment with the fact that the operation had been completed without incident. He agreed that he had neither raised nor completed any incident reports on those issues he had considered as serious. That was because Mr. Laws had asked him to step into the General Manager's office, closed the door, and advised him that there was going to be an investigation into the incident. He was asked if he wanted to lay any charges against Mr. Cummins in relation to the assault. He had declined to do so and there followed idle chatter about the escort itself and its outcome. Mr. Cummins recollected that the DIMIA staff did raise a few issues in regards to the trip - the logistical nightmare of multiple drop-offs and their resolve not to take handcuffs and such restraint equipment with them on the plane in future. A commitment was sought from ACM that leaking of information would not occur again, that is, the Palestinians becoming aware beforehand of the trip. DIMIA staff had concluded by passing on the personal commendation from the Minister, Mr. Ruddock, on a job well done and for meeting the demands of a very complex task in a "professional manner".
Mr. Cork stated that on the following day, 04 September, he had been asked to participate in an investigation against Mr. Cummins and the circumstances leading up to the incident in Dubai. He had been interviewed by Mr. Laws and signed a record of the interview. He testified that he understood the investigation to be an inquiry into Mr. Cummins' conduct in relation to the assault incident and was not aware that any statement he made may be used to his disadvantage. He had not been shown the statements prepared by other persons on the Operation. It was not until approximately 5 pm on Wednesday, 05 September, that he became aware that an investigation was being conducted into his conduct. He had been called into Mr. MacCormack's office and, in the presence of Ms Traci Fricker, Human Resources Manager, had been suspended on full pay pending further investigation into the incident due by no later than 07 September. At that meeting, he had been provided with a report that included ten sworn statements from other personnel who had been on the escort. In his view, there had been considerable and significant inconsistencies in the versions of the events leading up to the incident and they had failed to indicate what was said and by whom. The report had contended that he had been "insubordinate" because he had "violated the prescribed standards of behaviour" for managerial staff. He had never been given a definition of the word "insubordinate" nor was it explained to him how his behaviour had "violated prescribed standards". He had not, at any time, refused to obey an instruction by Mr. Cummins or exercised rebelliousness towards him. He had, at all times, respected Mr. Cummins role as officer in charge of the mission.
Mr. MacCormack stated, during cross-examination, that when the team returned, he had a further discussion with Mr. Hollings in relation to the operation generally and the incident between Mr. Cork and Mr. Cummins. He had then informed the Managing Director, Mr. Kevin Lewis, of the incident and initiated the investigation by Mr. Laws (Terms of reference - Exhibit C7). He confirmed that it had been his decision to stand Mr. Cork down, with pay. Mr. MacCormack confirmed that it had been his decision to stand Mr. Cork down, with pay, from 05 September pointing out that on or about 4 or 5 September, Mr. Laws had given him an interim report on elements of his investigation which had included records of interview with Messrs. Cork, Cummins and Hollings and which then became the basis of his letter of suspension. He was aware that Mr. Laws had, by that time, interviewed some, but not all, of the witnesses including Messrs. Cummins, Cork and Hollings.
Ms Diplock pointed out that the suspension was not to be considered to be a punishment. It was simply a device to allow investigations to be conducted without the alleged incident having an impact on the individual by having them stay at work or in the environment. Upon their return to Sydney, as part of the post-operation administration, they needed to access the records of the trip which included such things as the running log of events, the officers' time sheets, the officers' per diem claims for recovery of costs and so forth. That fell within the duties of Mr. Cork who was at about that time suspended.
Mr. Hollings stated Mr. Cork had been asked for his report and his response had been that it was on the computer. When he accessed the data on the floppy disk, he had found very little information. He recalled there was a tabulated file, maybe an Excel spreadsheet type style, which appeared to have been made up in advance to allow information to be entered into it. There was minimal information entered into it. There was also a file with very little text. He did not believe that there was any entry relating to operational problems involving seating or rehydration of the detainee. He agreed, during cross-examination, that it was possible there had been some glitch in the system. He agreed that it was a condition of suspension that one can be recalled at any time to perform work. Yet no-one had asked Mr. Cork to return and trace that information which seemed to have disappeared.
Mr. Richard Laws, employed by ACM as Manager Investigations, tendered an affidavit in the proceedings (Exhibit R9). He stated that he had received instructions and terms of reference from the Managing Director to conduct an investigation into the alleged assault upon Mr. Cork by Mr. Cummins. The terms of reference were signed on 31 August, 2001 and he was supposed to file his report by 07 September, 2001 but he had not received them until 03 September.
On 04 September, 2001, he had been directed by the Managing Director to interview both those officers. He had interviewed those officers and also spoken to Mr. Hollings, who was also in Sydney on the same day and provided a verbal report to the Managing Director the following day. He was subsequently advised that both officers had been suspended from duty pending the outcome of his investigations and he was made aware that he had a timeframe of 14 days in which to conduct that investigation, the maximum period prescribed by ACM's disciplinary proceedings that an employee may be suspended pending an investigation, unless the period was extended by the Managing Director. Although the Managing Director had been aware of his progress, he had not extended the deadline.
He had commenced his investigations with an interview of Mr. Hollings as he was the officer who had notified the incident and had been a witness to it. He recalled that the account that Mr. Hollings gave him of that incident was consistent with the later account that he supplied in his witness statement. Mr. Hollings had identified other employees who had been in the vicinity and may have witnessed the incident. During cross-examination, he pointed out that progressively as he conducted the investigation, he confirmed with those being interviewed that they had been present and asked them who else had been present. He could not recall whether he had asked either Mr. Cork or Mr. Cummins to nominate any witnesses to the incident. He also confirmed that after the initial interviews with Mr. Cork and Mr. Cummins he had not interviewed them again or advised them or showed them what had been said about them by other witnesses. He further confirmed that DIMIA officials had not been interviewed because he had been told by both Mr. Hollings and Mr. MacCormack that they regarded the matter as an internal ACM disciplinary issue and did not want them involved. He recalled informing Mr. Cork, at the outset of the interview, what the investigation was about:
"This is an interview. Mr. Cork, as you know I am Richard Laws, employed by ACM in the position of investigations manager. I have been given terms of reference to conduct an investigation into an allegation that you were assaulted by centre manager, Mr. Grant Cummins, whilst on a removal operation in Dubai on or about 28 August 2001. The investigation is to include the circumstances leading to the alleged assault. I would like to ask you some questions about this matter. I must advise you that the answers you may care to give will be recorded and will be provided to your employer and the decision-maker in any disciplinary proceedings. Do you understand?"
He recalled that Mr. Cork had responded "Yes". During cross-examination, he stated that he had certainly been fair to Mr. Cork. He had advised him that any answers he may care to give would be provided to his employer and the decision maker in any disciplinary proceedings. He pointed out that such information would normally not be given to a witness, only to a person who was being interviewed. Mr. MacCormack agreed that it would have been obvious from that opening statement that it was an investigation into the incident. He agreed that any member of staff who was alleged to have committed a disciplinary offence, or was suspected of having committed one, and was interviewed in the course of the investigation must also be informed that they were under investigation for alleged or suspected misconduct which may lead to disciplinary reaction. Mr. Cork would have been aware, both from the terms of reference and the contents of the letter of suspension that he was under investigation for alleged or suspected misconduct because the words were quite specific, the "Investigation is to include circumstances leading to the alleged assault."
Mr. Laws stated that at the conclusion of his investigation, he had prepared a report dated 21 September, 2001 and submitted it to the Managing Director on or about that date. It had taken that long because he had experienced difficulties in getting hold of witnesses. Firstly, ACM, at that time, had been using Ansett as its carrier and he had problems with air travel. He had conducted a number of the interviews by telephone and documents were exchanged by facsimile transmission. For presentation purposes, he had included typed copies of the statements in his report. Secondly, witnesses were difficult to get hold of because they had gone their different ways since their return to Australia. During cross-examination, he stated that he was unsure as to when it had been handed over to Mr. MacCormack as he had been reluctant to submit his report until he received two signed statements he was awaiting. The statements of both Mr. Barnsley and Dr. Ghergori were dated 24 September. He was confident that he had submitted it complete. In his affidavit he had referred to the fact that a handwritten communication, dated 06 September and faxed to ACM on the same day, had been received by the Executive General Manager, Human Resources from officer Helen Floros. He had not interviewed Ms Floros independent of that statement as, from recollection, he had received it about the time the report was concluded and he could not delay its submission. He could not recall the exact contents of that communication but was conscious of the fact that it contained a litany of issues, some of which were not relevant to the investigation. Nevertheless, he had attached it to his report as he thought it was proper to do so and did not want to be seen to be excluding an account that somebody had submitted on the incident.
He had recommended that disciplinary action be taken against Mr. Cork because he had reached the conclusion that he:
He had formed the view from the evidence, and from Mr. Cork's own admission, that Mr. Cork's conduct constituted "serious insubordination" as he had "directly challenged his commanding officer in an angry and abusive manner in front of, or in the vicinity of, subordinates, Department of Immigration and Multicultural Affairs officers and Dubai Police/officials". During cross-examination, he defined "insubordination" as being "challenging, or really being rebellious.... refusing to obey an order". He admitted that he did not have any information that Mr. Cork had refused to obey an order. Serious insubordination would depend on the circumstances at the time. Had he spoken to his employer and challenged his view of things, saying that he was either weak or gutless, or suggested that he was dishonest, or that he would not want to work with him again, or that he was not fit to do the type of work that he was doing, he would expect him to think that he was insubordinate. Had he done that in front of other people that were working for him, he would expect him to think that was even more serious; and had he done that in front of his clients, and people that he depended upon for his business, he would expect him to think that was very serious. He did not have any information that Mr. Cork had used the word "gutless". He had information from Mr. Cummins that he had used the term "weak as piss" and information from Mr. Fyfe that one of the Managers had used the word "gutless" although he could not determine which. Nevertheless, he did not agree with the notion that Mr. Cummins could have referred to Mr. Cork as "gutless" because he had not defended himself against him as that would not have been consistent with the timing of the conversation that Mr. Fyfe gave to him.
It was his view that the challenge -
In his view, the fact that there were no longer detainees in the care and control of ACM staff neither negated nor reduced the seriousness of that challenge, particularly as it had emanated from the second-in-charge. He suggested that there were more appropriate ways in which to raise issues of concern with Mr. Cummins - he could have done so quietly, privately and professionally. If he continued to have concerns, he could have approached Mr. Hollings, or he could have prepared an incident report for the National General Manager, Detention Services and/or the Managing Director or contacted them directly. During cross-examination, he argued that he had been required to produce a summary of his findings and recommendations. In his experience an investigating officer must make an assessment whether or not the evidence justified disciplinary proceedings. In so doing, he had recommended that a disciplinary hearing be conducted.
Mr. Cork contended that at no time during the internal proceedings were the following mitigating circumstances taken into consideration the following:
He had raised those issues with Mr. Laws in his original report to him although there was no reference to them in Mr. Laws' subsequent investigation report to the Managing Director. He was not aware whether additional issues he had raised concerning procedural problems had been noted. He agreed during cross-examination that he was aware that he was required to fill out incident reports in a timely manner in order to pass on information on incidents. He agreed that they were important documents in the ACM operations in that if an incident occurred from an operational point of view that could have consequences for the company, it was important that that be recorded and reported. That was known to him from his first day of employment.
Mr. MacCormack stated during cross-examination that he had accepted the recommendation by Mr. Laws that disciplinary action be taken in respect of Mr. Cork. He had convened and presided over a disciplinary hearing on 09 October, 2001, notes on which had been kept by the Human Resources Manager, Ms Kotsopolous. At the commencement of the disciplinary hearing, he had advised Mr. Cork what the offence was that had been alleged against him and what he was being charged with. That had not been noted in the minutes. He had asked Mr. Cork if he wanted to comment and his response had been "The only thing I disagree with in his statement is that point where I said it was my decision for him to be appointed as commander. Everyone knows that, that that was not true. I don't believe I would have said it. But the rest of it is fairly accurate."
In his view that was an admission that Mr. Cork had used words to Mr. Cummins which he considered to be aggressive and challenging - "You won't come on one of these missions. You'll have to wait till you're fucking asked." He did not accept them as mere comments as they were made by a second in command to a commander in the presence of subordinates, DIMIA personnel and Dubai airport authorities.
ROCHFORT: You personally put to Mr. Cork ... what Mr. Barnsley said Mr. Cork said. Mr. Cork said, "No, I don't believe I would have said that. But again with the confusion and everyone going in circles it escalated very quickly. But I am sure I wouldn't have said anything like that." That is what Mr. Cork says. Do you remember him using those words?
Q. He denied it, didn't he?
A. No.... He said, "I am sure I would not have used that." He didn't say, "I did not say it."
Mr. Cork had a further opportunity to comment on the correctness, or otherwise, of the minutes during cross-examination and he had not commented. DIMIA personnel had not complained but they let Mr. MacCormack know that they had heard them and that they were quite surprised. Later on in cross-examination he stated that they had made a verbal complaint to him about it. If Mr. Fyfe was correct and Mr. Cummins had first uttered the words "I won't be coming on another one of these" it did not in itself invite a comment or a reaction and he certainly would not have replied to it if he was in the position of second in command, "Well, you don't query the boss in public". He confirmed, during cross-examination, that he had been satisfied, at the time of the disciplinary hearing, that Mr. Laws had complied with the terms of reference and had investigated as to whether or not all relevant orders (both direct and indirect) and procedures had been complied with. He went on to point that out the company procedures were a vast compilation of corporate and company procedures. They had not been complied with because the issues involved were contrary to corporate procedures - insubordination and assault. He agreed that Mr. Laws had not complied with the requirement that the report be furnished within 14 days and that it was reasonable to conclude that it had been finished on or before 21 September although Dr. Ghergori's statement had been dated 24 September. Mr. Laws had taken into account the inability of Mr. Cummins and Mr. Cork to get some sleep before Istanbul and he had obtained statements from all relevant persons able to provide material information.
The minutes indicated that at the conclusion of that hearing he had said, "I am sure that there is enough evidence to confirm that you were insubordinate. I will be, therefore, recommending to the managing director that you be dismissed. I am sure that there is enough evidence to confirm that you were insubordinate."
He admitted that, contrary to the provisions ACM policy (4.5.10): "If the alleged misconduct is found proven the person conducting the hearing must, in deciding what action to take, in the light of the hearing take into account the employee's disciplinary record", he had not taken into account all the issues required by the policy or the mitigating factors found by Mr. Laws as he did not think they were relevant. He had taken into account his general work record, position, length of service, the nature and seriousness of the misconduct involved. He was aware that Mr. Cork had been given a commendation on a previous removal exercise because he reported directly to him and he had selected him for that particular mission. As far as he was concerned, he viewed Mr. Cork as an experienced senior officer with a depth of knowledge as to corporate policies and procedures and therefore should have known how to handle a situation involving a disagreement with his commander. Mr. Cork was the most experienced person in the company at conducting transport and escort services, be they multi-drops or single drops. It was his recommendation to terminate Mr. Cork on the authorisation of the Managing Director. DIMIA staff had given him a commendation about the way in which the overall exercise was carried out.
The situation involving Mr. Fordham having to be prevailed upon by Mr. Cork to surrender restraint equipment was, in his opinion, not insubordination, "it's probably disobeying an order". Mr. Fordham had handed in the handcuffs and therefore was not disobedient. Mr. Laws had not recommended that the incident be investigated and neither had he. He did not believe that the possession of the handcuffs had the potential for a far more serious international incident as Mr. Fordham had been on the bus and the authorities were on the tarmac. In his opinion, it had not been a serious offence. He distinguished between the requirement to hand over the complete package of security items which included batons and handcuffs and one set of handcuffs on one officer.
Mr. MacCormack responded, during cross-examination, that he had considered the period without sleep as a possible mitigating factor. However, during the planning process for the exercise, they had considered the time span over which the Operation would be conducted (42 - 48 hours) and made a conscious decision to proceed with it regardless. It was considered that the commander and his 2IC would roster their times so they got short periods of rest. They had been carefully selected for that Operation because they had demonstrated that they had that ability. It was a normal operating procedure. He would not accept that they had gone without sleep for about 40 hours before they rested in Istanbul.
...the commander and the second-in-command were carefully chosen because they had that experience and they knew their responsibilities and they would have had an arrangement where one was resting and the other was on duty.
No-one was allowed to sleep whilst on duty. The policy stated, "No staff member is to sleep whilst at their post on duty." Another policy stated, "Staff travelling to and from assignments as directed by the company are deemed to be on duty throughout the entirety of their travel." Mr. MacCormack pointed out that those provisions were related to the payment of staff on duty. The arrangements between the commander and the 2IC, and in fact the commander and other staff, as to when staff are on stand-down and able to rest, was a normal responsibility of a commander of an operation such as that. Mr. Cork would have been paid for 12 hours in 24, irrespective of how long he was asleep or not. The number of persons allocated to an operation was determined by the number of hours that the operation was likely to take. The number of people allocated were such that there would be sufficient people to be on duty at any time and that there would be sufficient time for people who were not actually on duty to be resting: "Each mission is individually assessed and each detainee is individually assessed. The staff is then appointed, both in numbers and quality."
In relation to the issue of training, he stated that it was an on-going exercise within ACM in addition to the requirement to provide 40 hours of refresher courses.
Mr. Cummins confirmed that his employment had also been terminated by the Respondent and that he had taken separate proceedings in relation to that termination as he considered that he had been treated unfairly, unjustly and unreasonably. He had participated in an internal appeal hearing that was conducted by Debra Diplock and Colin Kelaher on 10 October, 2001 during which he had raised a number of issues. As he was required to travel to Sydney for the appeal, he had been booked into a motel where he found copies of statements made by a number of other persons on the operation, including Mr. Cork. Mr. Cork had made a number of statements about how Mr. Cummins had behaved immediately prior to assaulting him. He agreed that he told the appeal panel the following day that Mr. Cork had lied to them to protect himself and that they had believed him. He agreed that he had told the appeal panel that Mr. Cork had abused him, and had provoked him and that he had been insubordinate to him in that he had spoken to him in a derogatory manner in questioning the manner in which he had dealt with people outside the bus. He agreed with the transcript taken of what he had said. He further agreed that he had pointed out that the only person to corroborate what Mr. Cork said was the doctor and agreed with the comments he was stated to have made about her. Mr. Cork, rather than supporting him as his deputy, had supported her actions. He had told the internal appeal committee that at the time of the assault on Mr. Cork, he had been fatigued and suffering from sleep deprivation and jet lag. They had left Australia at 6 am on 26 August and arrived in Istanbul 42 or 43 hours later having made a number of stops and having been through eight time zones. He had travelled an extra 30 to 40 thousand kilometres to anyone else having left WA. at 3.30 or 4 am on the Friday and turned home 9 or 10 days' later at 3 pm. He had received a letter dated 16 October in which it was confirmed that his termination of employment was to stand. He agreed that in the course of that appeal, he had stated that his intent in physically hitting Mr. Cork was to make him stop as his verbal attempts at doing so had failed. He had stated to the appeal committee that he had "distanced an irrational and abusive person who was starting to get out of control in front of junior staff and threatening my decisions in control of the escort." Although it was eight months since that interview, he agreed that he had stated that he had taken "measures to control a thing that could have... and would have got out of control." He did not resile from that position:
Stopping him" - yes, "If you see a child pull boiling water off a stove, what do you do? You grab them to remove them from the cause, ... I verbally did and that wasn't working. As I indicated, he was not listening to me verbally. I escalated my verbal commands, still a denial, refusal - propagation?
Mr. Cork testified that he had received a letter, dated Wednesday, 10 October, stating that on 29 August he had been suspended on full pay and would remain suspended while investigations into the incident at Dubai were conducted and that after considering the results of the investigation and the disciplinary hearing of 9 October that he was summarily dismissed effective from 9 October and that the reason for his dismissal was extreme insubordination. He had been notified of his right to appeal that decision.
Mr. Cork testified that, on 17 October, he had sent a letter to the Managing Director indicating that he wanted to appeal the summary dismissal and asked him to reconsider the severity of the determination with the possible down-grading of the determination. He had pointed out that the investigation report reflected there was considerable confusion preceding the incident and was some question as to who said what and when. Mr. Lewis had been asked to take into consideration his track record during his almost 10 years service as an employee. He had highlighted the fact that he had been a loyal, positive and productive employee of ACM since its commencement of operations in Australia. He agreed, during cross-examination, that he had not raised the issue of mitigating circumstances.
He had attended the appeal hearing on 08 November conducted by Ms Diplock and Mr. Kelaher. He agreed that he had been given the opportunity of putting forward further information to the appeal committee in support of his case. Nevertheless, he stated that he had been prejudiced by the fact that he had not been represented... "... I was unaware of the magnitude of the decision to waive my right to question Mr. MacCormack's decision making process and with the benefit of the information that has now been supplied to me I believe that the opportunity to question the conduct of the meeting would have affected the outcome." He explained that it had been strongly recommended to him by Mr. MacCormack, at the conclusion of the disciplinary hearing, that he appeal the decision to dismiss him and, on that basis, he had proceeded with it quite confident that his appeal would be successful.
The minutes of that disciplinary hearing indicated that Mr. MacCormack had said, "You know that you can appeal and that you have 10 days to do so.... I will authorise any support that you need to help you with the appeal... Unless you have anything more to say," and he had responded, "No, that's all. There was never anything between us. We always worked well together..........,". Mr. Cork agreed that it reflected what had been said between them. He agreed that he had not questioned the accuracy of those minutes. The appeal committee advised him that they had considered the transcript of the disciplinary hearing and the contents of his letter of 17 October. The minutes of the appeal hearing went on to say: "Today is an opportunity for you to introduce any other mitigating circumstances or evidence and to state your case why the decision of your dismissal should be overturned." It was then that he had raised the issue as to the seating plan not being adhered to and the force-feeding of a detainee with water. He had gone on to argue his interpretation of the term "insubordination" pointing out that he considered it to be not complying with a direct order and he could not find anything in the reports that specified how he had been insubordinate.
Debra Jane Diplock, Executive General Manager, Human Resources, for ACM tendered an affidavit in these proceedings (Exhibit 5). She had been a member of the appeal committee in relation to the termination of the employment of Mr. Grant Cummins. Also tendered were the transcript of that appeal hearing and the letter to him advising of its outcome (Exhibit R6). She had also been a member of the appeal committee in relation to the termination of Mr. Cork. She had attached, as the last two pages of her affidavit, a comprehensive note of the events that occurred during the hearing. The hearing had been very short, "it was about 10 minutes, maybe five minutes".
She stated that the appeal committee had explained to Mr. Cork the process of the appeal hearing and confirmed that he understood. They asked him if there was anything he wanted to add, or any issues he wanted to raise about procedural fairness or unfairness throughout the process, any new or other evidence he wanted to submit that had not already been considered. He declined to do so and merely outlined the issues raised in his letter of appeal and asked that his previous work record with ACM be considered. Mr. MacCormack was not available on that day but Mr. Cork was given the opportunity to postpone the appeal and to reconvene on another date so that Mr. MacCormack could be present to clarify any issues relating to the disciplinary hearing. Mr. Cork had declined that offer preferring instead to have the whole process completed quickly. She believed that Mr. Cork had been afforded sufficient information to deal with disciplinary matters. He was an employee of long-standing and held senior management positions. Apart from him being in possession of all relevant policies and training, he had an obligation to understand and enforce those policies. As a senior manager for Perth, he also had been in possession of the corporate policy manual. She considered all ACM employees on the Operation to be on duty and the flight itself was an ACM establishment. All employees on that assignment were bound by the disciplinary procedures and guidelines which continued to have effect irrespective of their location.
They had decided the appeal on 09 November and advised the Managing Director of their decision. During their consideration of the appeal, they had taken into account the issues included in the disciplinary procedure. They had disregarded the incident in 1999, and was adamant that they had taken into account the mitigating circumstances put forward by Mr. Cork and those referred to in Mr. Laws' report. They had not made any inquiries as to the effects of sleep deprivation. They were aware that both officers had gone for periods without sleep but could not recall anyone advising them that it was for 40 hours. They had decided that those factors were not sufficient to impact on the final decision because of the seriousness of the actual incident and the seriousness of the insubordination.
Mr. Cork had been aware of his right to call any witnesses, to have the procedure reviewed that led to the decision to terminate him, and to introduce any fresh evidence into the appeal. He also had the right to be accompanied by a support person, albeit an employee of ACM. He chose not to exercise that right. She pointed out that Mr. Cork could have sought advice and prepared his case prior to attending the appeal hearing. Mr. Cork had been advised, in writing, that he was accused of extreme insubordination towards Mr. Cummins on 28 August at Dubai Airport resulting in the latter assaulting him. During cross-examination, she accepted that the advice indicated only the word "insubordination". She argued that he had been encouraged to elaborate on mitigating circumstances in his evidence but agreed that he had not been advised as to how to present it. She also agreed that he had not been provided with a strict definition of "insubordination" despite the fact that there had been some confusion as to what had been said. She pointed out, however, that Mr. Cork had acknowledged that he had made derogatory comments to Mr. Cummins and he had been invited to explain the circumstances in which that had occurred and to give an account of the incident. She denied that there had been any external pressure to decide the appeal in the manner in which she did. In her opinion, if the person acting as second-in-command thought that a decision was wrong, the appropriate way of dealing with that would be to follow the normal line of control. It was untenable having a situation where there were three people running the operation.
Mr. Cork testified that on 10 October he had received notification that his termination was maintained, effective from the 9th.
He admitted, during cross-examination, that he has had personal experience over 9 to 10 years of the disciplinary processes of ACM. Not only had he been personally at the end of disciplinary proceedings on at least two occasions, he had also been involved in disciplining subordinate staff in the past. He agreed that he had been in a position over those years to form an opinion, to a degree, as to those disciplinary processes and what was expected of employees of ACM in order to maintain their employment. He had been aware, through his own experience, that it was his last opportunity to overturn the decision to terminate his employment. He agreed that nothing had been omitted from the report on the appeal hearing which had not taken very long. He further agreed that he had not taken the opportunity to introduce any mitigating circumstances or evidence. Prior to joining ACM, he had been employed as a Correctional Officer with another private correctional facility. He agreed that it, too, had pretty clear lines of hierarchy, a pecking order. He further agreed that, as a correctional officer, there were appropriate processes to be undertaken if he was questioning or challenging decisions or orders given by a superior officer. He was aware that if he had an issue with his commanding officer in that correctional facility that it would be inappropriate for him to raise it in front of inmates or other staff. He agreed that the same had applied when he had been employed as a nursing assistant. There was a clear pecking order in the hospital and a clear procedure for challenging or questioning the acts or decisions of a superior officer. He agreed that, generally speaking, it was inappropriate to challenge a superior officer in front of patients. When he commenced employment at Arthur Gorrie correctional facility, run by the Queensland Government, he was aware of the proper processes to question decisions,. He knew the line of command which had been established and he knew that he could not question a superior officer generally in front of inmates or subordinate staff or the representatives of the client although he qualified that in relation to the urgency and nature of the situation.
He admitted that he had overreacted as a result of the urgency and nature of the situation. He conceded that, although the conditions pertaining at the time (sleep deprivation, the heat and concern as to how they were to return to Australia) did not justify his comments, they were a contributing factor. He had made the comments to Mr. Cummins hoping that the situation would not recur although he knew that the matter had been resolved with the Dubai officials, everyone was getting back on the bus to be taken to the Hotel, and he would soon have the opportunity to speak to Mr. Cummins privately. He stated that he had not considered all that because they were still on the tarmac and he probably was not thinking clearly at the time. He agreed that if the situation had been reversed and a subordinate officer had made the same comments to him, he would have perceived those comments as derogatory and partly aggressive, but not necessarily offensive. He would not consider the statements as inappropriate if he deserved them or they were constructive criticism.
It was submitted on behalf of the applicant that:
It was submitted on behalf of the Respondent that:
Regarding his concerns over the seating arrangements and the rehydration of a detainee, he had been assured that the Managing Director had taken those allegations very seriously and an investigation was being conducted.
He had been given an opportunity to adjourn that hearing until Mr. MacCormack could be in attendance to answer any inquiries by the applicant, however, he had indicated that he was happy to proceed. He had also been asked if he wanted to introduce any other matters and he had declined to do so.
It was agreed that the appeal hearing was of a short duration. That was because the applicant's participation had been limited and he had not pursued remedies for what he now claims to be unfair, harsh, or unreasonable conduct.
The ACM personnel had been specifically handpicked for the delicate Operation in question. The Applicant confirmed that he had undertaken the initial training course with ACM followed by mostly mid-management type training with the Australian Institute of Management (eg management skills course, train the trainer, etc). He had not received, nor had he applied for, further training with ACM since 1996. He agreed, however, that a short time prior to the Operation in question, he had been sent by Mr. Hollings on a repatriation exercise to a number of remote localities to learn and observe the requirements of such operations. He had received commendation for a similar repatriation exercise to China but that had not been a multi-drop exercise.
Mr. Cork stated that he had not been provided with a formal job description or contract when he was promoted to the position of National Escort Manager. I do not accept that the provision of either would have made a difference to the circumstances under consideration.
Mr. Cork had been responsible for the preparation of the Operational Order. There was no evidence, apart from submissions from the bar table, that sufficient staff had not been allocated to the Operation. The evidence before the Commission indicates that there was very little preparation by Mr. Cummins and Mr. Cork for the share of roles on the Operation. They each seemed to be running their own show instead of providing support for one another. They certainly would have been able to obtain the necessary rest during the trip had they organised it better between them. That was evident in relation to the seating arrangements on the aircraft, the rehydration of the detainee on the flight, the election of those to remain on static duty at Istanbul airport and the negotiations regarding the restraint equipment.
That is not to say that both Mr. Cork and Mr. Cummins were not performing their roles. The evidence indicated, however, that both had taken their roles so seriously that they pushed themselves to the limit instead of working together as a team to share the responsibility for the tasks.
It was contended on behalf of the Applicant that previous disciplinary issues ought not have been considered by the Respondent. Mr. Cork had been involved in disciplinary proceedings in 1992, 1996 and 1999. Although the 1999 warning ought to have been removed from his record because its life of 12 months had expired, it had remained on his file and had been taken into account in determining the appeal proceedings. Mr. Cork had asked for his work history to be taken into account. Whilst it had not been counted as a warning, I am satisfied, nevertheless, that it formed a record on his personnel file to be considered in the overall scheme of things.
I cannot detect anything wrong in the detailed and fair process provided by the Respondent for dealing with grievances. I accept that the Respondent was not obliged to conduct an investigation akin to a police investigation.
Mr. Cork admitted that he was familiar with Clause 26, Code of Conduct of ACM's employee handbook that all employees were provided with. He acknowledged that it provided for disciplinary action for extreme insubordination. He further admitted that he had been involved in at least 10 investigations leading to the disciplining of subordinate employees and was familiar with the procedure. I am satisfied that when one is advised that an incident is being investigated, including all events leading up to it, then as in this case, the cause of the assault would also be under scrutiny.
All witnesses, including those in a subordinate position to the applicant, were very much aware of the fact that superior officers could not be spoken to in the manner in which the Applicant had spoken to Mr. Cummins. I prefer the definition of "insubordination" contained in the Shorter Oxford Dictionary which states "...resistance to or defiance of authority; disobedience". Mr. Cork had not actually done any deed that was contrary to the instructions of Mr. Cummins. Nevertheless, he had been openly critical of decisions of Mr. Cummins and therefore, openly defiant, of his authority. I am very critical of the fact that he had been openly critical of Mr. Cummins in his discussions with the Doctor and of the fact that the issue of restraints, already defused, had been taken up in the presence of subordinate staff and representatives of the client - not to mention the fact that they were in the vicinity of Dubai military/police officials. That the situation had been handled very efficiently by quick thinking of a subordinate staff member was no thanks to either Mr. Cummins who was certainly in no fit mood to deal with it, or Mr. Cork, who was out of it at the time.
Nevertheless, it was obvious, during the proceedings, and hopefully picked up by ACM, that certain flaws had occurred. Apart from his interview at the commencement of the investigative process by Mr. Laws, the applicant had not been provided with an opportunity to respond to the statements obtained from other witnesses. ACM had relied upon those statements to suspend him and later to require him to attend a disciplinary hearing.
The Applicant had not been asked to provide names of any witnesses to the incident although other witnesses had been asked for input in that regard.
I do not accept that the applicant, in view of his background, did not know the meaning of the term "insubordination" and neither do I accept that, if he was unaware of its meaning, that he did not have time to find out for himself before the appeal proceedings. Nevertheless, I am critical of the fact that ACM, even up to the time of the hearing, was not aware that confusion had reigned in relation to the degree of insubordination he was being accused of.
I do not accept that the staff had been chosen at the last minute. What I am critical of is the fact that the staff, drawn from Centres all over Australia, had not been acquainted with one another and briefed on the Operation prior to its departure from Australia. This was particularly crucial in relation to the roles of the Commander and the 2IC of the Operation. That, to my mind, was the cause of the Officers each running their own race on the trip. Mr. Cummins had made the effort but Mr. Cork had not been prepared to give up his personal time for the purpose and neither should he in ordinary circumstances. However, he had been engaged and paid as a Manager and as he had been responsible for the preparation of the Operational Order should have made the time to discuss the Operation with Mr. Cummins.
The fact that certain detainees had prior knowledge of the Operation would have caused the staff a certain amount of stress, at least until they were dropped off.
Those who have visited Dubai at that time of the year would understand the discomfort caused by the heat whilst travelling by shuttle bus from the tarmac to the airport. That would have been particularly compounded by the delay during which time negotiations took place in relation to the restraint equipment.
I am critical of the fact that senior ACM staff giving evidence before the Commission had either been unaware that staff had drunk alcohol on the Operation or had been unaware of whether or not company procedures had been breached by staff partaking of alcoholic beverages during the Operation. That was because they were unaware of whether staff were on or off duty during certain aspects of the Operation. How then would staff on the Operation know whether or not they were breaching procedures by partaking of alcohol during their downtime?
There is no doubt that both Managers would have been tired by the end of the Operation. There was evidence from Mr. Fyfe that one or the other was always checking the economy section of the plane to make sure everyone was alright. However, both were Managers and should have communicated with one another regarding such arrangements. It was not something that management could have pre-arranged. Each appeared to be working independently of the other. Mr. Cork had been responsible for preparing the rosters for the staff and had not done anything for himself or Mr. Cummins. In any event, the evidence indicated that the incident had occurred after they had an opportunity to relax and sleep. The amount of sleep they had at Istanbul depended on them and no one else.
Irrespective of Mr. Cork's feelings towards Mr. Cummins or his decisions in relation to issues occurring during the Operation, Mr. Cork had an obligation to respect his position as Commander of the Operation.
I have considered in great detail the statements and oral evidence of all of the witnesses and of the detailed submissions made on behalf of both parties. I have formed the view that the Respondent was entitled to take disciplinary action against the applicant but not by summary dismissal based on the omissions by ACM in the preparation for the Operation and the issues I have raised in relation to the initial investigation. I believe his summary dismissal had been harsh, unjust and unreasonable.
There is no doubt that Mr. Cork was a responsible and trustworthy employee. There was no doubt that he intended the Operation to be conducted perfectly but that was an unrealistic expectation based on the type of operation and the persons involved. I do not accept that were he to be re-employed he would not continue to excel in his work. He had not sought to retaliate in any way, shape or form on that occasion although I accept that his comments to Mr. Cummins had caused the latter to react.
I have considered the claims made by both parties in relation to costs and I am not convinced to award either claim.
1. Mr. Cork be re-employed to another position that is available and is no less advantageous to the Applicant in terms of rank;
2. The previous period of employment of the Applicant shall be counted as service;
3. Each party shall bear its own costs.
4. The Order shall take effect on and from 13 October, 2003.
* * * * *
 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 517-519,520, 526 reported in Mabey v Australian Film Commission, a decision of Wilcox CJ, Federal Court of Australia, General Division
 Wilcox, J., 1984, 9 IR 406 at p. 424 and 425
 McLeay C, (1999) NSWIRComm 331 (03 August, 1999
 McKeon, J.  AR 273 at 279-280
 Wright P, Walton VP and Redman C  NSW IRC 328 (30 July, 1999)
 Sams DP, Unreported; 27 October, 2000
 (1893) 6R67
 Chief Justice Gleeson (1990) NSWLR 677 at 686
 Mahoney JA (1977) 19 NSWLR 219 at 236-7
 Outboard World Pty. Ltd. t/as Budget Waste Control (Sydney) v. Muir (1993) 51 IR 167 at 183