Dismissal or redeployment: What are employers' obligations?

In a recent decision, the Fair Work Commission considered the dismissal of a facility operations manager at the Perth Immigration and Detention Centre. The applicant worked at the respondent, Serco, which operates several immigration detention facilities across Australia. While the respondent is responsible for recruiting staff, the Department of Home Affairs imposes several restrictions to ensure that the respondent’s employees meet the Department’s requirements.

Further, under the commercial contract between the respondent and the Department, the Department may remove any employee by providing a “withdrawal of access” letter. Upon receipt of this letter, the respondent is compelled under the contract to “promptly arrange for the removal of [the respondent’s employee] from work… at the Immigration Detention Facility.”

In May 2020, the respondent sent the applicant a letter stating that he was suspended from duty following allegations made by the Australian Border Force. The allegations related to the applicant’s authorisation of the release of a detainee from involuntary isolation in the High Care Accommodation area to the visits room.

The respondent asserted that, in July 2020, it received notification that the Department had withdrawn the applicant’s access to all immigration detention facilities. The applicant attended a show cause meeting with the respondent, whereby he expressed his desire to be kept employed in any capacity or on reduced hours. The respondent subsequently terminated the applicant’s employment, and he was paid five weeks’ remuneration in lieu of notice.

The Commission found that the applicant’s capacity to perform his role was adversely affected by the actions of a third party, namely the Department. It further accepted that the respondent could not challenge or otherwise alter the Department’s decision to withdraw the applicant’s access to immigration detention facilities.

However, given the respondent employed many workers in roles other than in immigration detention facilities, the Commission found that the respondent could have plausibly redeployed the applicant in another role.

“Serco had a positive obligation to actively investigate redeployment opportunities for [the applicant],” the Commission said. “The evidence is that Serco did little or nothing to investigate how [the applicant] could be redeployed.” Satisfied that this constituted an unfair dismissal, the Commission awarded $48,535.64 to the applicant.

Key Takeaways:

• “Middleman” employers may be required to investigate redeployment opportunities for employees before dismissing them