Mr Cork vs ACM in an Industrial Relations dispute

The contents (and length!) of this page is in line with what usually happens in courts: the documentation seems endlessly long - but intriguing. If you really want to know what goes on, perhaps bookmarking this page will assist, so you can return to this place to complete your study!

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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

BACKGROUND

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 30^th and arrived in Sydney on the morning of the 31^st. 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:

1. The determination by the Respondent that his behaviour constituted extreme insubordination was unjustified;

2. His behaviour towards his commanding officer at Dubai Airport did not justify summary dismissal;

3. He had not been provided with proper training and/or instruction in relation to his role on the Operation;

4. The investigation into the incident was flawed and/or afforded no due process to the Applicant;

5. The disciplinary hearing conducted into his conduct was lacking in procedural fairness and/or natural justice; and

6. The appeal hearing conducted by the Respondent was flawed and afforded no procedural fairness and/or natural justice to the applicant.

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.

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.

THE ASSAULT

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."

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:

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.

THE AFTERMATH

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.

INVESTIGATION REPORT

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:

1. failed to exhibit a professional approach towards his supervisor;

2. failed to be honest and above reproach in every manner and failed to conduct himself with propriety whilst carrying out his duties;

3. quarreled when on duty;

4. acted in the manner which was a discredit to the company and which may have brought the activities of the company into disrepute;

5. behaved in a manner in violation of prescribed standards of behaviour required of a senior officer.

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 -

• undermined Mr. Cummin's control and discipline of the staff;

• had future implications for control and discipline within the organisation;

• undermined the company's credibility with DIMIA and had potential implications for ACM's contract with the Commonwealth; and

• had the potential to create an international incident, particularly in circumstances where the Dubai authorities were questioning the emergency response equipment, including mechanisms of physical restraint.

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:

1. Sleep deprivation: Mr. Laws had asked him to estimate how long it had been and he still had not actually formally sat down and worked it out. He told Mr. Laws that they had been on duty for over three (3) days and had responsibilities for both detainees and staff. They had landed in Istanbul at approximately 11.30 am on the Monday, but, because of the nature of their business, there were protracted negotiations between the department and customs at Istanbul Airport, so they did not get to their motel until about mid afternoon.

2. Group Dynamics: The staff did not meet as a final group until they arrived in Port Hedland and therefore were never assembled together and given some instructions or training for an Operation of that magnitude; and

3. He personally had not been given any specific instructions in relation to his role although he was the second in command. He was unsure as to who had informed him that he was the second in command. It was either Mr. McCormack or Mr. Hollings, or both, but neither had told him what his responsibilities were. He had a general idea of what those responsibilities might be as he had participated in a single group removal to China on a previous occasion.

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.

DISCIPLINARY HEARING

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.

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.

INTERNAL APPEAL

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.

SUBMISSIONS

It was submitted on behalf of the applicant that:

1. It was contended that the previous disciplinary issues should not have counted against the applicant because the 1992 issue had not been dealt with and the manner prescribed by the company's policies, the 1996 issue had been resolved before the Queensland Industrial Relations Commission and finally, the 1999 issue expired after a period of 12 months;

2. Detainee removal was not part of Mr. Cork's normal duties. Nevertheless, he had received a commendation with respect to a removal to China. Operation Longhaul was the first multi-country destination mission of its type conducted by ACM;

3. The operation had not been administratively successful, partly because of poor organisation by ACM and particularly for extraneous reasons. The staff involved had been chosen at the last minute and had been introduced to one another virtually as there were embarking on the operation. There had been no training or instruction given on how to handle given situations or expectations of him as second-in-charge. In fact, Mr. Cork had not received any training since 1996. There were unreasonable expectations of Mr. Cork and Mr. Cummins in that they had to remain a week and vigilant until the final drop off of detainees. There had been no attempt made to prescribe or proscribe Mr. Cork's responsibilities on the trip;

4. ACM had failed to provide adequate human resources for the operation. In contrast with other operations, it appeared that ACM was trying to get the job done as cheaply as possible, irrespective of the toll on its employees;

5. Both Mr. Cork and Mr. Cummins agreed that they had been without sleep for 40 hours dealing with other issues as part of their responsibilities and the trauma of the events with the plane. Sleep deprivation can have only lead to their awareness and reasoning deteriorating to the point where it impacted on their capacity to act rationally and functionally (Exhibit C6). Despite the six hours sleep in Istanbul, Mr. Cork suffered from significant and severe sleep deprivation with major consequences for his physical and mental well-being by the time they landed in Dubai;

6. The evidence was clear that Mr. Cork accepted the decision to surrender the restraint equipment to the airport authorities overnight as he had encouraged other staff to surrender same to him for inclusion. It was clear the report that he was not acting insubordinately and he had been exercising his responsibilities in a conscientious manner. In fact, Mr. Cork's action had averted an international incident in that he had exercised authority in order to get possession of Mr. Fordham's handcuffs. It was at the time of the so-called Tampa controversy when international eyes were well and truly focused on Australia;

7. Apart from the evidence of Mr. Cork and Mr. Cummins, the evidence of Mr. Fyfe the group was the most reliable and credible as he had been situated only 20 cm away from Mr. Cummin's knee when the exchange took place. The environment had been extremely noisy and confused as well as oppressively hot. Mr. Cork had not been the provocateur, as has been alleged, but had responded to the words of a man who was showing exasperation and tension. Mr. Cork's reply could have been an expression of his own frustration or it could have been simply an acknowledgement of Mr. Cummins statement. Suffice to say Mr. Cork did not retaliate although Mr. Cummins continued to berate him.

8. There was general agreement that Mr. Cork could question decisions by the leader of the operation. Mr. Cork did not do so at the place where the issue arose. It was done in confidence between himself and Mr. Cummins although overheard by a handful of others within the immediate area. Setting aside the evidence of Mr. Fyfe, what other witnesses heard was so garbled and unreliable as to be essentially of little u position for se, further proof that the conversation had been discreet. It had not taken place in the presence of Dubai authorities and there was no evidence that it had been overheard by DIMIA personnel. If a DIMIA official had expressed his disappointment to Mr. MacCormack, why had he not included it in his affidavit. In addition, why had DIMIA officials congratulated ACM on the success of the operation and made no formal adverse comment;

9. As stated by Mr. Fyfe, the incident was trivial and had been blown out of all proportion by the company's reaction. If Mr. Hollings had regarded it is a major incident, it would have featured more prominently in his report to Mr. MacCormack.

10. The Respondent had not accorded much comment in its evidentiary material to the reconciliation between the two principal officers -- almost as if it wanted the issue to be seen as remaining on foot;

11. It was relevant that Mr. MacCormack had not taken the immediate steps to suspend either or both employees and charged Mr. Hollings with the responsibility for bringing the crew home;

12. The letter supposedly written to Mr. Cork by Mr. MacCormack on 5 September could not be produced by the Respondent even on subpoena;

13. It was contended that by Mr. MacCormack deciding on the issue as to whether disciplinary action should be taken, he had placed himself and the position of "accuser". There was authority to the effect that an accuser, in Mr. MacCormack's position, is obliged to act in accordance with the dictates of natural justice and exclude himself from such as deliberations;^[1]

14. It was further contended that ACM had paid lip service only to its obligations under the Act which requires that it fairly determine the grounds upon which termination had taken place (there must be a basis in fact, sufficient to justify the action taken);

15. Whilst it was acknowledged that "extreme insubordination" justified summary dismissal, at no time was Mr. Cork accused of "extreme insubordination" or given an opportunity to respond to that allegation. Mr. MacCormack conceded that he had added the word "extreme" to the allegation;

16. The meaning ascribed to the term "insubordinate" by Mr. Cork was akin to that contained in the Oxford English dictionary and had universal recognition and usage. ACM clearly ascribed to it a meaning which was not in common usage and it was neither fair nor reasonable to expect him to defend himself when he had no idea of exactly what he had been accused of;

17. The termination was clearly harsh, unjust and unreasonable because Mr. Cork had not been made aware that the investigation was examining his own conduct, he had not been interviewed about the statements made against him, he had not been formally informed of the reason for the disciplinary meeting that may result in dismissal or his rights as to the conduct of the meetings;

18. Mr. Cork had acted with discretion when he questioned Mr. Cummins in relation to the seating arrangements and the rehydration of the detainee. It was submitted that he had acted with no less discretion on the occasion of the incident involving Mr. Fordham. He had not been given any credit for his action in the above regard. It was conceded however that his mode of expressing concerns "may have gone beyond what may well have been conventionally expected";

19. The whole incident should have been considered from the point of view of Mr. Cummins' propensity for "losing it" under certain situations. Mr. MacCormack had described him as having a "short fuse" yet he had appointed him to head that operation knowing that they were going to be some very tense set of circumstances encountered. For that, ACM should wear the consequences and not the individuals;

20. ACM had failed to give proper and reasonable consideration to the very substantial mitigating factors despite the fact that the Respondent had been in flagrant breach of occupational health and safety principles in allowing its two principal officers on the mission to go without sleep for upwards of 40 hours and for not providing "task specific safety and emergency response training". In the incident report of Mr. Laws, when he had acknowledged that there were mitigating circumstances yet Ms Diplock and Mr. MacCormack both admitted under cross-examination that they had not been considered;

21. Considering what has been stated in evidence in relation to the actions of other employees on the operation, and the fact that no disciplinary action had been taken against those employees, it stands to reason that the action against Mr. Cork was "over the top" and discriminatory;

22. There was no evidence that the positive aspects of Mr. Cork's employment history were ever given proper and fair recognition. In fact, the evidence points to the fact that the material in his file was used either erroneously or out of context;

23. It was relevant to note that Mr. Lewis, who had the sole right to fire, had not interviewed Mr. Cork in order to form conclusions of his own;

24. No regard was had to the harsh effects dismissal would have on the Applicant, particularly given his age and background;

25. At no time was Mr. Cork detracted from his position under cross-examination and at all times he came across as credible, truthful and reliable;

26. Mr. Cummins, who gave evidence under subpoena, corroborated the applicant's evidence. In particular, he gave evidence of the poor planning for, and administrative execution of, the Operation as well as the external impacts on the Operation on the basis that those factors contributed significantly to the traumas suffered, not only by himself, but by Mr. Cork. He gave evidence that there were "numerous verbal disagreements amongst staff" and "there were a number of breaches of gross misconduct on (the) escort" yet they had been unfairly singled out for disciplinary action;

27. Mr. Cummins further gave evidence that Mr. Laws' report had not addressed the terms of reference, had not drawn attention to the inconsistencies between the versions of the witnesses and did not address the shortcomings in the organisation of the Operation;

28. Mr. Hollings had a more senior position within ACM than either the Applicant or Mr. Cummins. On his version, Mr. Cummins had been both the provocateur as well as the perpetrator of the physical assault. He had not been critical of Mr. Cork's actions and, on his evidence, the only basis for his conclusions, was the report of Mr.Hollings. He had not observed Mr. Cork "verbally attack a superior in front of subordinates". His evidence in relation to the alcohol policy was ambiguous. He sought to defend his own position and that of the others who had been drinking by stating they had "stood down" because they had no active role to play at that point in time. It was pointed out that this further highlighted the ambiguities in the policy and emphasised another example in which ACM policy had not been followed to the letter;

29. Mr. Barnsley gave evidence that the selection process of staff remaining at Istanbul airport was a spontaneous one by Mr. Cummins while Mr. Cork was some distance away. He corroborated the evidence of both Mr. Cork and Mr. Cummins in relation to the effects that sleep deprivation had on the staff. He further gave evidence that both senior officers had consumed alcohol in Dubai but had failed to mention that other officers, including Mr. Hollings, had also consumed alcohol. He had confirmed the action taken by Mr. Cork in relation to the handcuffs on the bus yet it had apparently served no useful purpose in ACM's deliberations as to his future. In relation to be incident itself, it was contended that either Mr. Barnsley was confused or mistaken to put it at its least, or it confirmed that no one could really hear anything in the confusion and hubbub around them and the words were merely speculative. He also confirmed that Mr. Cummins was the aggressor in the incident but there was no evidence that the material contained in his eyewitness report had been taken into account in determining Mr. Cork's future. Finally, his own definition of "insubordination" was consistent with that of Mr. Cork and should be read as evidence of the company's view on this matter.

30. Mr. Rochfort wondered whether the affidavit and evidence of Mr. Sailiai contributed anything except to question what motive ACM had in having him make an affidavit at all. He claimed to have heard Mr. Cummins and Mr. Cork talking at the front of the bus but could not make out what they were saying because their voices were not "particularly loud" yet he claimed to have overheard conversations from outside the boss where the airport noise was apparently quite overwhelming. It was significant to note, however, that he made no accusations regarding Mr. Cork;

31. Mr. Fyfe gave evidence that "the operation staff were extremely fatigued" and that there were "still tired "even after leaving Istanbul. He gave evidence that both Mr. Cork and Mr. Cummins were "subjected to a certain amount of anxiety....." and had been involved in reassuring and calming concerned staff. He was also objective about the consumption of alcoholic drinks and did not specifically indicate that Mr. Cork partook of alcoholic drinks on the flight. Mr. Fyfe's version of how he had conducted the discussion with the Dubai official was vastly different to that of Mr. Sailiai in relation to the description of the language used. Finally Mr. Fyfe attested to the fact that Mr. Cork and Mr. Cummins had resolved their differences in a way which was noticeable by all other staff;

32. The report of Mr. laws had been given to the Managing Director, Mr. Lewis, who had taken no apart in the process although he was the only person authorised to dismiss an employee and had not been called to give evidence;

33. Ms Diplock had drawn conclusions from the report which were not available to her. For example, she stated that "the applicant's challenge was extreme insubordination" yet nowhere in the report were the words "extreme insubordination" used. Ms Diplock had switched forwards and backwards between the terms "insubordination" and "extreme insubordination". It was contended that not only can the inference be drawn that she had prejudged the matter before the disciplinary hearing took place, it was questionable as to the influence Mr. MacCormack had on her statement as he had conceded during cross-examination that he had added the word "extreme" to the alleged offence;

34. She had admitted, during cross-examination, that she had not been aware that they had gone 40 hours without sleep. It was concluded that the internal appeal hearing was perfunctory to say the least. Despite the fact that he had the opportunity to examine witnesses, of having a witness of his choosing present and was able to speak in his defence, the processes were nevertheless wholly unfair and prejudicial. She had admitted that he had not been afforded any advice on the presentation of his case. It was contended that he was limited in relation to the persons who could call on to assist him and could be described as a "babe in the woods";

35. It was further contended that the reasons for the decision of the appeal committee were flawed. Firstly, at no time didn't committee have before it any evidence that Mr. Cork had acted "without provocation or justification". It was argued that the Mr. Cork was acting in the context of his role of 2 IC of the operation. Secondly, the committee refers to the applicant's long history of employment with ACM but went on to consider only those factors which were not in his favour. Thirdly, Ms Diplock had detailed a number of policies and procedures that Mr. Cork "had or ought to have had" appropriate knowledge of. It was argued that there was absolutely no evidence that Mr. Cork did have that knowledge or did not apply it except with respect to the consumption of alcohol during working hours. Again it was pointed out that they had been no follow-up training for Mr. Cork since approximately 1996.

36. There was no allegation that Mr. Cork had not dealt appropriately, and complied with, local authorities. Further, there was no evidence that his alleged conduct could have had the potential of creating an international incident. The fact that he had actually averted an international incident in relation to the handcuffs had not been given any recognition. In addition, there was no evidence that his actions had the potential to undermine ACM's contract with the Commonwealth. To the contrary, his contribution to the positive outcome only serve to enhance the relationship with the Commonwealth government.

37. Ms Diplock's evidence that ACM did not turn a blind eye to any breaches of its policies was in stark contrast to be evidence regarding, amongst other things, Mr. Fordham's behaviour, sleeping on duty and the consumption of alcohol. She admitted that Ms Floro's actions in taking away in Mr. Cummins' cigarette was "unjustifiable" insubordination. ACM's lack of action was further support of the proposition that Mr. Cork and Mr. Cummins had been unfairly singled out for disciplinary action;

38. Mr. MacCormack's evidence had been brittle and evasive. He did make the concession that the decision to proceed with disciplinary measures against Mr. Cork had been his alone. It was concluded that the concession put in the position of being Mr. Cork's accuser. He made the further concession that he had added the word "extreme" to the allegation of insubordination which caused Mr. Cork to suffer the ultimate penalty;

39. The letter of 05 September allegedly advising Mr. Cork of the allegations against him and the procedures which would follow was never received by the Applicant and the Respondent was unable to produce a copy. It can only be inferred that it was never written;

40. Mr. MacCormack admitted that the minutes of the appeal hearing were not an accurate record of the proceedings and that he had not taken into account Mr. Cork's disciplinary record, his age, mitigating circumstances and maybe his work record. That, in itself, was a breach of ACM's disciplinary policy;

41. Doubt was cast on the ability of Mr. Laws to make any recommendations to Mr, MacCormack on 05 September when the evidence he relied on for the report was collected by him on 21 September and on 24 September with respect to Mr. Barnsley and Dr. Ghergori;

42. Doubt was cast as to the importance of that report given that it merely stated what other people said to him, the time it took to prepare despite the fact that only 8 persons had been interviewed, and Mr. Laws had selected the persons to be interviewed with no thought being given to seeking the views of Mr. Cork or Mr. Cummins as to possible eyewitnesses. The inference may be made that Mr. Laws intended to prepare a report to justify that outcome. In addition, there had been no attempt by Mr. Laws to analyse why there may have been essential differences between the versions of the witnesses and not all persons interviewed for the report were called by the Respondent to give evidence. Further, Mr. Laws had arrived at conclusions which was not part of his terms of reference. One of those conclusions was that Mr. Cork's conduct had constituted "serious insubordination" and he had been "angry and abusive", "challenging his commanding officer", "challenging control" and "openly expressing no confidence";

43. Serious doubt was cast on the purpose and validity of the Report. Mr. Laws stated in cross-examination that he had not included the serious allegations raised in Ms Floro's statement because it had been received late. However, it appeared that it had been faxed to him on 06 September. The inference was made that Ms Floros had not been called to give evidence as her evidence would have been detrimental to the Respondent's case. In addition, Mr. Laws found sufficient time to obtain an additional statement from Mr. Hollings but not to re-interview Mr. Cork or Mr. Cummins in accordance with ACM policy;

44. It was contended that the failure of the Respondent to call key witnesses to give evidence could only mean that their evidence would have favoured the applicant;

45. It was submitted that at each step of the process there had been an inherent unfairness at both company level and at the level consistent with contemporary community standards;

46. In relation to the conduct of the investigation, ACM had breached the guiding principles of the disciplinary policy by the failure of Mr. Laws to act fairly in compiling the report and in investigation the incident. Mr. Laws had submitted his report two days outside the prescribed time with interviews being conducted haphazardly and with no attempt being made to re-interview either Mr. Cork or Mr. Cummins. Ms Floro had put Mr. Laws on notice that there were incidents that required investigation and areas that could be improved but he did nothing about them. Dr. Ghergori's account was dated 3 days after the submission of the Report. Mr. Barnsley's evidence at the hearing was contrary to his report to Mr. Laws. Both statements of Mr. Hollings and the statement of Ms Agius were undated and one may conclude that they were made after the submission of the Investigation Report and therefore subject to question. Although Mr. Laws obtained two statements from Mr. Hollings, he had not required either of the accused parties to attend a second interview and had not thought it appropriate to put to Mr. Cork any of the allegations contained therein regarding his insubordination. Mr. Cork had not been informed that he was under investigation nor was he informed of his right to be accompanied at the interview. Mr. Cork had not been provided with a definition of the term insubordination;

47. Other matters raised in the terms of reference had not been addressed. It was submitted that breaches to the terms of reference were breaches of company policy. By not complying with the directions of the General Manager, Mr. Laws had unfairly prejudiced the applicant as neither the disciplinary hearing nor the subsequent internal appeal panel had available to it all of the relevant material;

48. The minutes of the disciplinary hearing had not been provided to the Applicant and he had been denied an opportunity to adequately make out a case on appeal;

49. Apart from the fact that there was no substantive insubordination, Mr. MacCormack confirmed, during cross-examination, that he had not considered the factors stipulated in the company policy and, in addition, had rejected sleep deprivation as a mitigating factor as it had been factored into the pre-operation calculations. He had not adhered to company policy, let alone principles of natural justice;

50. Mr. Cork was, at no time, guilty of disobeying a direct order, or of being rebellious. Mr. MacCormack had used statements against Mr. Cork which ought not have been used. In particular, Mr. Cork's own statement had been prepared for the investigation into Mr. Cummins. Had Mr. Cork been advised that the investigation was also into his conduct, he may have emphasised other aspects of the incident, and the circumstances surrounding it, which had impacted on his own conduct and not that of Mr. Cummins;

51. In light of the blatant breaches of policy outlined above, Mr. Cork was not able to exercise his right to have the disciplinary procedure reviewed. He did not have a witness of his choice accompanying him and he had been rushed through the process which took "about 5 minutes" according to Ms Diplock. Had he been accompanied by an adviser, he could have been cautioned about the implications of agreeing to proceed in the absence of Mr. MacCormack. Had ACM acted reasonably, it could have properly advised him of the consequences of such a waiver. It was contended that Mr. Cork's acquiescence "should be read as the actions of a man at the mercy of his inquisitors";

52. The company was in breach of its own policies and procedures by neither following, nor reviewing, the processes in the disciplinary hearing in the conduct of the appeal hearing. The appeal board had compromised the fundamental role of an appeal which was to review the substance and procedural aspects of the disciplinary process;

53. The Applicant relied on the decision in Mabey v. Australian Film Commission^[2] in which it was stated:

    But the minimum requirements, in a case where the termination of enjoyment of office is under consideration, must include disclosure to the employee of the whole of the matters being put against him in a manner sufficiently specific to enable a full and detailed response together with an opportunity for him to demonstrate the inaccuracy of any factual matter alleged. In a case where serious allegations are made against a person, it is not enough for the decision maker to ask the affected person questions relating to the subject matter of the allegations .... it would be critical, if the rules of natural justice were to be observed, to exclude from its final deliberations any person ... who was in effect an accuser. A multi-member body, obliged to act in accordance with the dictates of natural justice, must exclude from its deliberations even one of its own members who stands in the position of accuser.

54. The applicant also relied on the decision in Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of John Rawling v. Coffs Harbour City Council^[3]:

    In this matter the whole of the decision is relevant, particularly the parallels drawn between the circumstances of that case and in this particular matter. Special attention is drawn to page 18 of the printed decision handed to the Commission in which the learned Commissioner asks the question, "his behaviour may not be described as entirely appropriate, but is it a matter of such significance as to warrant termination of employment"' to page 23 and the reference by the Commissioner to the "different understandings, of the parties of the meaning of the word "insubordination", which is clearly an issue in this matter and, finally, whether or not insubordination was a sufficient enough reason to justify dismissal in those particular circumstances, which is an issue under the circumstances in this matter; whether or not any form of dismissal was justified - I say not.

55. The applicant's conduct was insufficient to justify his dismissal at all, let alone his summary dismissal. The operation had been adjudged by all to have been an overall success when the flight took off from Istanbul. What had happened after that "paled into insignificance" considering that prior to Istanbul, he had not had any sleep for 40 hours and had dealt with three eventualities. The multi-destination trip was the first of its kind, the staff had not work together previously, they were untrained in the exercise and were not briefed on the mission until it took off;

56. The applicant and Mr. Cummins had to contend with a different set of eventualities post Istanbul. It fell on them to reassure staff when a bird hit the plane as they left Istanbul and to deal with the consequences of the damage to the aircraft;

57. Mr. Cork had not been the provocateur. He had been conversing with Mr. Cummins privately and could only be overheard by Dr. Greghori and Mr. Fyfe. Whilst it was conceded that the comments by Mr. Cork may have been foolish, they did not constitute any form of insubordination and he appeared to have been made "the victim of backwash". They had worked together for approximately 9 years and enjoyed a familiarity not common amongst the others who had worked together for the first time on this trip. The conversation was "almost of the nature of a 'boys will be boys' by-play".... "a momentary interlude between these two workmates of some years standing, occurring at a time of great stress and under very adverse circumstances at the airport...";

58. Scant regard was had to the harsh effects the dismissal would have on him, including being thrust, at 46 years of age, into unemployment without payment of notice or access to his long service leave;

59. No evidence had been given that it would be impracticable to re-instate the applicant to his former position of National Transport/Escort Manager and it was not disputed that the applicant had earned no income since his dismissal. It was submitted that the applicant should be reinstated to his previous position with full pay for the period he was forced into unemployment. In the alternative, he should be paid the maximum allowable under the Act, twenty-six weeks compensation, as there was no basis for any adjustment to that amount.

It was submitted on behalf of the Respondent that:

1. On his own admission, the applicant had limited interest in preparation for the operation;

2. As a result of that limited interest, he had prescribed and/or proscribed his own responsibilities as Escort Team Leader when drafting the operational order;

3. The applicant had, on his own admission, demonstrated little interest in the contents of the training session conducted for available personnel to deal with specific issues particular to the operation;

4. The parties were agreed that the personnel who were not on static duty at Istanbul airport, including the applicant and Mr. Cummins, were taken to their hotel by at least late afternoon;

5. There was at least 13 hours break from the time the group arrived at, and their departure from, the hotel at Istanbul the following morning. During that time, the applicant had been responsible for his own activities and, on his evidence, had met his colleagues for a drink, had dinner, undertook some sightseeing and had approximately 6 hours sleep;

6. The Commission ought not be impressed with the testimony of the applicant that he had not been required to participate in the debrief on the aircraft shortly after takeoff from Istanbul as it was clearly an attempt to downplay his obligations and responsibilities a second in charge on the operation in an effort to overcome the seriousness of the breach of his obligations at Dubai;

7. Whilst it was not disputed that Messrs. Cork and Cummins had a prolonged period without sleep, the applicant did have an opportunity to sleep on the flight to Istanbul. After departing Istanbul, it was pointed out, there was no evidence to support the contention that they had been severely traumatised;

8. Whilst it was also not disputed that the effects of such long periods without sleep had a deteriorating effect on a person's capacity to function, there was no evidence before the Commission to support the proposition that the applicant had suffered any effects from it, whether physiologically, or on his ability to act rationally and/or functionally. That was evidenced by the fact that he had participated in the game of Trivial Pursuit conducted by one of the DIMIA personnel during the flight to Dubai and in his actions on the ground in relation to handcuffs and items of restraint being carried personally by the ACM staff;

9. There was no evidence put before the Commission confirming the symptoms or behaviours described in the dictionary definition of "sleep deprivation" tendered before the Commission. Nor was a true to state that the applicant suffered from such a condition at the time when the operation landed in Dubai;

10. The applicant had confirmed that he had been on duty when he boarded the bus and asked all personnel if they had restraint equipment in their possession. That was contrary to some of the evidence and submissions of the applicant wherein he claimed that he had not been on duty at the time of the incident at Dubai;

11. Mr Cummins had delegated his responsibilities in relation to the restraint equipment to Mr Cork as he was not returning to Sydney. Mr Cork had boarded the bus and asked for a log to be commenced causing Mr Cummins to alight from the bus to investigate what was happening. Upon noticing the interest in the equipment, particularly the restraint belt, he had demonstrated its use to the Dubai officials and arranged for the local authorities to keep the equipment whilst there were in transit in that country;

12. The applicant's and evidence confirms that Mr Fordham was not insubordinate and did not seek to refuse to surrender his handcuffs without any real issue being taken between the two or from. Had the former contested this surrender, it could have constituted extreme insubordination and had the potential to cause an international incident;

13. There was no support from any other witness to the applicant's contention that Mr Cummins had been loud, abusive or aggressive towards the Dubai officials despite the fact that Mr Siliai was in very close proximity to where Mr Cummins was communicating with the Dubai authorities;

14. Mr. Hollings had approached Mr. Cummins at about that time and advised him that the issue had been resolved and had not observed anything untoward in his demeanour or communications towards the Dubai officials;

15. It was pointed out that had Mr. Cummins indeed been loud, abusive or aggressive, the Dubai officials would have taken offence at such behaviour and reacted accordingly. They had not done so and therefore the Commission was invited to draw the conclusion that the applicant gave that evidence in an attempt to somehow mitigate his own conduct;

16. It was not contested that each of the witnesses heard and/or observed different things at different times depending upon where there were at particular time and what was going on around them;

17. Irrespective of who was the first person to speak in the conversation that led to the incident, it was not denied by the applicant that he had made "derogatory" comments to Mr. Cummins and that the latter had responded by assaulting him;

18. Mr. Hollings had considered the incident to be of a particularly serious nature and give reasons for his view in his affidavit. In fact, Mr. Hollings had telephoned Mr. McCormack, General Manager - Detention Services, in Sydney to report the incident and his recollections upon his arrival at the hotel in Dubai;

19. The evidence made it abundantly clear that the conversation had not been conducted in private and had been witnessed by ACM and DIMIA personnel;

20. It was argued that to suggest that it was "agreed also by the military chaps" was not only disrespectful of the senior management representatives who gave evidence in the proceedings but also an attempt to place a higher responsibility upon the applicant than he had as second in command;

21. His role and duties as second in a man's cannot be used to justify the inappropriate conduct of the applicant at Dubai international airport;

22. Even though DIMIA personnel and local authorities may not have heard the conversation, the incident had occurred on the transit bus used to transport DIMIA personnel to and from the Aircraft and in close proximity to the Dubai officials, so close in fact as to attract the attention of one of them 200 which is that now comes without me and her the all came to the bus to inquire as to why Mr Cork had fallen to the ground;

23. It was undisputed that the Dubai officials had taken significant interest in the restraint equipment and the scuffle on the bus. It was therefore an attempt at belittling the seriousness of the situation when the applicant submits that it was nonsense to suggest that the issue was capable of causing a national incident;

24. To suspend the applicant and Mr. Cummins immediately, as has been suggested by the applicant, would have created a number of difficulties. Firstly, it was necessary to conduct a proper investigation of the incident. Secondly, both men had been in Dubai and they would have experienced difficulty in returning to Australia or, alternatively, their suspension may have caused difficulties for the personnel involved in the operation returning to Australia; and, thirdly, as the two staff members involved had resolved their differences, it was unnecessary to take any action prior to their return to Australia;

25. The staff returned to Australia on Thursday, 31 August, 2001 at which time Mr. McCormack set about drafting terms of reference for an investigation to be conducted by Mr. Laws into the incident;

26. Upon receipt of those terms of reference on 03 September, 2001, Mr. Laws commenced his investigations by having an initial discussion with the applicant during which he inquired as to whether he wanted to lodge a complaint against Mr. Cummins but the applicant declined to do so;

27. The result of the initial verbal report of Mr. Laws was a determination by Mr. McCormack that the applicant should be suspended on full pay pending the investigation. The applicant had admitted in evidence that he was familiar with that process as it was the common practice.;

28. During that period of suspension, Mr. Laws completed his investigations and interviews of persons identified, initially by Mr. Hollings and subsequently by persons interviewed, to have been in close proximity to the incident. The applicant's account of the incident was completely contrary to the accounts given by all other persons save and except for the doctor;

29. The applicant had, at no time since the incident, been able to give evidence as to what he had said to Mr. Cummins immediately prior to the assault other than to say that "it is likely that I used some words of a disparaging nature";

30. It was denied that Mr McCormack put himself in the place of the accuser of the Applicant when he convened the disciplinary hearing. In actual fact, the applicant had been given an opportunity to answer the allegations and could not rely on the authority of Stollery v. Greyhound Racing Control Board (1972) 128 CLR 509;

31. The notion that Mr McCormack should not have both convenor and sat on the disciplinary hearing was rejected. The realities of industrial relations at the workplace are that where allegations are made as to the conduct or behaviour of an employee there is a line of command which is also the line of decision-making as to, firstly, the truth of the allegations and, secondly, the consequences if proven;

32. The applicant was aware of his rights under the Code of Conduct and Policies and Practices of the Respondent, yet he chose not to have a member of staff or a union representative accompany him to the disciplinary hearing because, on his evidence, he saw no benefit in doing so;

33. The applicant had agreed, during the course of cross-examination, that the minutes of that disciplinary hearing were an accurate reflection of what had been said and nothing had been omitted from the document;

34. It was pointed out that, when asked during the disciplinary hearing about whether he had any questions in relation to Mr. Laws' conduct of the investigation, he had responded, "no, not at all". The minutes further record that Mr. Cork had been given, and had taken, the opportunity to comment on the statements made by all those interviewed and also had the opportunity to raise other issues;

35. The minutes noted that the applicant had been advised of the conclusion arrived at and the fact that he had seven days in which to appeal the decision. When asked if he had anything further to add, he had replied, "no that's all" the applicant. That advice was confirmed in writing on 9 October 2001. Also confirmed was his right of appeal at and the time limit to lodge such an appeal;

36. Despite the detail in the letter of appeal, the applicant at no time sought clarification from the Respondent as to "the insubordinate" meant;

37. The applicant confirmed, during cross-examination, that the notes of the internal appeal hearing was an accurate reflection of what had been said and that there were no omissions;

38. At the appeal hearing, conducted by the various senior personnel from both the human resources and operations perspective, the applicant was advised that it was an opportunity for him to introduce any other mitigating circumstances, or evidence, and to state his case as to why the decision to dismiss him should be overturned. The Applicant had raised his concerns about the seating plan and the rehydration of the detainee. There followed a discussion about the meaning of the word "extreme insubordination";

39. There was no dispute that the internal appeal hearing had been off very short duration what because of the applicant's limited participation or his lack of pursuit of a remedy for what he now considers to be unfair, harsh or unreasonable;

40. The evidence suggests that the appeal panel had considered that, notwithstanding the positive aspects of the applicant's work history, there were also negative aspects since approximately six months after he commenced employment involving serious disciplinary breaches and therefore the decision to dismiss was upheld;

41. It was submitted that the submissions made on behalf of the applicant had been punctuated with unhelpful gratuitous comments by his representative;

42. Mr. McCormack has testified before the Commission that it was he who recommended the termination of the applicant's employment. In accordance with the rule in Browne v. Dunne, any suggestion of some other covert reason for the termination should have been put to him. That was not done and it was therefore not available for the applicant's representative to suggest in submissions that the real reason had been camouflaged;

43. There was no evidence put before the Commission about a circular letter allegedly being sent to staff advising of the applicant's termination. In any event, such information would have been irrelevant to the proceedings;

44. The Respondent submitted that the process of investigation, disciplinary hearing and internal appeal could hardly be described as "lip service" and more attention should have been paid to defending, rather than ignoring, the applicant's conduct in relation to the disciplinary and appeal hearings;

45. The evidence does not support the contention that the applicant had not been given the opportunity to respond to the allegation of extreme insubordination;

46. There was no evidence before the Commission that the Respondent had ascribed anything more than the common usage to the meaning of the word "insubordinate". It was submitted that in a person's day-to-day living, through family, school and work, the concept of insubordination is one generally learnt along the way. Attention was drawn to the unsophisticated concept put forward by Mr. Cummings that one does not "backchat your mum and dad ";

47. The evidence before the Commission does not substantiate the submission made on behalf of the applicant that he had been misled both during the interview process and the subsequent hearing;

48. The Respondent is not obliged to conduct an investigation akin to a police investigation (AWU/FIME Amalgamated Union v. Queensland Alumina);

49. It is not the requirement at law or by statute took afford an employee subject to disciplinary hearing the opportunity to have an expert witness in attendance. Grievance and disciplinary procedures in industrial awards/agreements generally entitle employees to have present a witness of their choice or a union official/delegate. The applicant's evidence clearly indicates that he knew of that entitlement and chose not to have anyone present. Mr. Cork had conducted approximately 10 such investigations himself;

50. The manner in which the Applicant raised the issues of the seating arrangements and the rehydration of the detainee whilst on the operation was proof that the applicant knew the appropriate means by which to raise issues with, or question the decisions of, his commanding officer;

51. The evidence is that all those involved in the decision to terminate the applicant gave consideration to the mitigating circumstances. In any event, the mitigating circumstances cannot be relied on to justify any misconduct by the applicant bearing in mind that the applicant had been chosen for the role based on his skills and experience;

52. There was no evidence to justify the bold statements made on behalf of the applicant that the Respondent's action was "over the top" and discriminatory;

53. The evidence before the Commission was that Mr. McCormack had taken into account the positive aspects of Mr. Cork's employment history and the minutes of the appeal hearing made it clear that both the positive and negative aspects of his employment history had been considered;

54. The 1996 proceedings before the Queensland Industrial Relations Commission had resulted in an agreed settlement being reached between the parties. In addition, the Respondent was entitled to rely, not on the lapsed written warning of 1999, but on the fact that Mr. Cork had been removed from his position as Centre Manager at the Perth Immigration Centre. In any case, the applicant had requested that his employment history be taken into account and therefore both the negative and the positive aspects had to be considered;

55. It was submitted that to suggest that Mr. Cork had been a credible, truthful and reliable witness belied the numerous instances when the applicant proved otherwise when giving his evidence. The Commission was reminded of one instance in particular when the applicant was unsure as to how to answer a question and when it was suggested to him that he do so honestly, he had gone on to give evidence which established the unreliability of his previous evidence;

56. It was submitted that in circumstances where there was conflict between the evidence of the applicant and that of the Respondent's witnesses, then the evidence of the latter ought to be preferred. Indeed, the evidence of Mr. Cummins ought to be preferred to that of the applicant;

57. There were differences between the contents of statements made by witnesses to Mr. Laws and the affidavits of evidence filed in these proceedings because they had been prepared for differing purposes;

58. To suggest that Mr. Cork was a "babe in the woods" belied the history and experience of Mr. Cork in his employment with the Respondent and the system in which he worked. In addition, the applicant gave evidence that he had previously been involved in disciplinary processes and knew the system very well;

59. It was submitted that the decision of McLeay, C. in Federated Municipal and Shire Council Employees Union of Australia, New South Wales division, on behalf of John Rawlings and Coffs Harbour City Council was distinguishable on the facts and Ms Rudland went on to describe that distinction;

60. In contrast, the Respondent relied on the following authorities - Western Suburbs District Ambulance Committee and Tipping^[4] and Paul Antonakopoulos v. State Bank of New South Wales^[5] - as setting out the relevant principles;

61. It was suggested that the decision in Foster v. Woolworths Limited^[6], was highly persuasive in relation to the issue of procedural deficiencies;

62. The central purpose of the rule in Browne v. Dunne^[7] is to secure fairness and natural justice in the conduct of adversarial proceedings. In R. v. Birks^[8], it was held that it was a general requirement that a cross examiner put to a witness for the other side those matters that the cross examiner intended to contradict in respect of that witness' evidence. In Seymour v. Australian Broadcasting Commission^[9] some of the consequences of a failure to do so were addressed. Both those judgments made it clear that a consequence of the rule is that in circumstances where a proposition contradicting the evidence of a witness is not put to that witness, the person seeking to put the proposition cannot rely upon it to discredit the evidence of that witness, or to draw inferences or to use it as evidence once the person has left the witness box;

63. It was pointed out that where persons were not employed by and/or available to a party, it cannot be said that the evidence is available for the party to offer;^[10]

64. Based on the evidence before the Commission and the authorities cited, it was available to the Commission to find that the applicant was afforded procedural fairness, there were no technical deficiencies and if there were any deficiencies, there were of the technical nature and did not render the applicant's dismissal unfair, harsh or unreasonable;

65. The Commission must first determine whether the termination was harsh, unjust or unreasonable^[11]. On review of the evidence and submissions, the Commission would determine that the applicant's conduct constituted extreme insubordination. The insubordination was of significant seriousness because it had occurred in a foreign country, in the vicinity of the Dubai officials who already had concerns about their cargo, in the presence, and within hearing, of subordinate personnel and representatives of the client. The applicant was a senior, experienced officer who had played a major role in developing policies and procedures and was also a second in charge court challenged the authority of his commanding officer;

66. Extreme insubordination was serious and/or wilful misconduct which was grounds for summary dismissal. Unlike the majority of employers, the Respondent had provided for an internal appeal hearing and it was the applicant who chose not to take every opportunity and assistance offered to participate effectively in that process;

67. It was concluded that the Commission should dismiss the application. In the alternative, if the Commission was to find in the applicant's favour, then it ought to concede that reinstatement or re-employment were not appropriate remedies as the employer/employee relationship had irreconcilably broken down.

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.

CONSIDERATION

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.