[2010] FWA 1810

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr David Mydlowski
v
AAA Cleaning, Security Maintenance Pty Ltd
(U2009/13916)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 10 MARCH 2010

Summary: dismissal from employment – security guard – leaving site unattended – policies and procedure – contractual relationship between contractor and principal – the meaning of “to assist” as per s.387(d) of the FW Act 2009.

[1] Mr David Mydlowski (“the Applicant”) was employed by AAA Cleaning, Security, Maintenance Pty Ltd (“the Respondent”) as a security guard and shift supervisor between 29 April 2009 and 5 November 2009, whereupon his employment was terminated by the Respondent.

[2] The Applicant subsequently lodged an application under s.394 of the Fair Work Act 2009 (“the FW Act”).

[3] The reason the Applicant’s employment was terminated was because he attended an off-site incident and by so doing left the Westfield Garden City Shopping Centre (“the Site”), for which the Respondent held a contract to provide security services, totally unattended by any security staff, or himself as shift supervisor.

[4] The Applicant’s initial report of the incident stated that he was away from the Site for 41 minutes (or so) in total. That is, he stated he left the site at approximately 0019 hrs and returned at 0100 hrs. 1

[5] In a subsequent interview with the Respondent on 5 November 2009 the Applicant claimed that the period over which the Site was left unattended was about 20 minutes. In his witness statement the Applicant claims that he was absent for the period between 12.30-12.35am until 12.50am, about 20 minutes. 2

[6] Under cross examination, the Applicant stated he was at the incident scene (the 7-Eleven store) for 15-20 minutes. 3

[7] Ms Burson, who was a witness for the Applicant gave evidence in her witness statement that she recalled the Applicant being absent from the Site for 15- 20 minutes or so 4, though Ms Burson also admitted that she had had a discussion with the Applicant about this very matter after the termination of the Applicant’s employment.5

[8] The incident that led to the termination of the Applicant’s employment arose when the mobile security crew (comprising two of the Respondent’s employees) was patrolling the car parks of the Site. The security guards observed two individuals walking away from one of the car parks on Site. They subsequently noted a bright yellow graffiti tag on a wall.

[9] After searching the near-by streets, the two security guards (Mr O’Neill and Mr Demos) located the two individuals at a local 7 –Eleven store and observed that one of them had a can of yellow spray paint in their possession. 6

[10] They detained the two suspects by seating them on the ground of the 7-Eleven car park. 7

[11] The security guards then contacted the Applicant and informed him that they had detained the two suspects and had them sitting on the ground of the 7-Eleven car park and asked him to contact the Queensland Police, which the Applicant did promptly.

[12] Mr O’Neill gave evidence for the Applicant that at that time he also asked the Applicant to bring to the scene a digital camera, presumably to photograph the can of yellow spray paint, or the witnesses, for whatever purposes. 8 The Applicant made no mention of this request in his evidence or in his reasons for attending the Site.

[13] The Applicant in his capacity as shift supervisor, made contact with Queensland Police, and then, upon informing a cleaner (Ms Burson) of his intentions, decided to attend the scene at the 7-Eleven store:

[14] There is no evidence to suggest that the two guards were in any danger whatsoever. Mr O’Neill gave evidence he was not in any danger at all, and had told the Applicant when he first contacted him that the two suspects were sitting on the ground at the 7-Eleven car park. 10

[15] Upon his arrival an off-duty police woman had already effected an arrest of the two suspects. 11 A few minutes after his arrival, two detectives arrived on the scene12 along with two detectives and an off-duty police woman.13 Shortly thereafter the Queensland Police arrived and the Applicant returned to his Control Station.

[16] The Applicant claimed his duties included:

[17] The Applicant claims his actions in absenting himself from the Site were appropriate for the following two reasons. Firstly, his training notes for 6 August 2009 record that:

[18] This, the Applicant believed, meant he was to react to incidents inside and outside the property line for the client, though the plain words of his notes seem to suggest otherwise.

[19] Secondly, he has liaised with Queensland Police in the past and that this had necessitated leaving the site, in relation to such issues as collecting a dog in a bus way, dealing with an intoxicated individual on a bus, and assisting a Police Officer escort two suspected offenders to the Police Station. 15

[20] It is a moot question as to whether these incidents were known to the Respondent, what their wider facts and circumstances were, or whether they were all incidents that occurred outside the client’s property line. 16

[21] The Applicant claims that upon filing a report of the incident set out above, he was requested (on 5 November 2009 at around 12 noon to attend a meeting with Mr Gerard, Regional Manager later that day at 6.30pm). He attended with a support person as the Liquor, Hospitality and Miscellaneous Union (“LHMU”) had no one available to attend the Site at the time. 17 The support person recorded the interview and this was tendered as evidence for the Applicant.18

[22] At this meeting, Mr Gerard informed the Applicant that his employment was being terminated for reason that he abandoned his post.

[23] The record of interview (which was recorded by the Applicant’s support person) states relevantly as follows:

[24] In the interview, the Applicant subsequently requested copies of the SOP’s in which these instructions (to stay in the control room or on Site) were said exist by Mr Gerard, but as no copy was available Mr Gerard said they were documents that would be made available at a later date (if the Applicant contested the decision to terminate his employment). Mr Gerard, I should observe, did indicate during the termination interview on 5 November 2009 that the relevant documentation, to which reference has been made above, had been available in the Control Room “for as long as [the Applicant’s] been here”. 20

[25] On my reading of the record of interview the Applicant was informed at the time that:

[26] The SOPs to which the Respondent averted in the Record of Interview above were the Westfield Security Staff Policies and Procedures 22 and Westfield Garden City Security Specific Site Orders.23

[27] Despite some vacillation, the Applicant eventually confirmed over the course of his cross examination (as well as in response to my own questioning) that he had been provided with both of these documents and had been given an opportunity to read them and had been made aware that a copy of each was appropriately filed in the Control Office. The Applicant had signed a document indicating he had received and read the documents in each instance. The Applicant also stated he was given “four hours roughly” to read the documents at the induction, which was evidence he provided only at my further questioning during re-examination. 24

[28] Page 4 of the Westfield Garden City Security Specific Site Orders states that the responsibility of the Security Supervisor to “ensure compliance with the Westfield Security Staff Policies and Procedures, Site Orders and Customer Service Policy by all Security Offices. The later document reads relevantly at page 20 thereof, under the heading “No Chasing Policy”:

[29] The Applicant, despite his exposure to the documents as set out above, claimed that that he was only required to adhere to the Respondent’s policies and guidelines 25 but need not to have any regard for the client’s guidelines.

[30] That is, the client’s guidelines were superfluous documents for all practical purposes as the only SOPs he followed were his employers SOPs. This was despite the fact that the Respondent’s policies and SOPs which he claimed to follow, stated he had to follow the client’s guidelines. 26

[31] In this latter regard, the Respondent’s policies under the heading of “Departmental\Site Induction”, which comprise the relevant SOPs (for all practical purposes) the policies read:

[32] At page 15 of the Respondent’s policies, under the Heading of “Compliance Policy”, the policies read:

[33] Mr Horvath, Security Supervisor, gave evidence for the Respondent and indicated that he appreciated the requirement not to leave the client’s property line and to observe the client’s policies and procedures. 28

[34] He also gave evidence that the relevant Westfield documents were filed properly in the Control Room and are accessible to staff and familiarisation with them was important:

[35] The Applicant also agreed that his signature appeared on that document. 30

[36] Mr O’Neill, who appeared as a witness for the Applicant, also gave evidence that he understood Westfield’s policies applied to him. 31 Mr O’Neill also gave evidence that the understood that he was not permitted to chase an offender off the Site32, though he claimed knowledge of instances where security guards have done so.

[37] The Applicant also stated over the course of his evidence that he acknowledged the Security Officer Induction Checklist (which he appears to have signed). 33

[38] Included on that check list is the following heading and instruction:

[39] Next to this are boxes, one for ‘Yes’ and one for ‘No’ responses. In this case, the ‘Yes’ box has been manually ticked.

[40] The Applicant also contended that when he was promoted to a Supervisor level no-one informed him that he had to read the relevant documentation again and sign off on it again. He seemed to be of the view that the promotion had an implication for the need to adopt Westfield policies and procedures when providing contracted services to a Westfield Site. 34

CONSIDERATION

[41] For the purpose of an arbitration, in determining whether a termination was harsh, unjust or unreasonable, regard must be had to the matters set out at s.387 of the FW Act, which are:

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[42] On the evidence before me I do not believe the Applicant set out to knowingly flout the procedural framework in which he was required to perform his duties. His initial incident report, at least, does not seek to conceal facts or disguise his actions. Further, as is evident from the record of interview, the Applicant appeared to be genuinely surprised that his single act of conduct on the morning of 5 November 2009 could be the cause of the termination of his employment.

[43] But that said, the Applicant appeared not to appreciate that the fundamental requirements of his position were readily apparent and not capable of reasonable disputation – that he was to provide security services (at a supervisory level) to a significant asset for a major client (indeed it seems the only client) of his employer in Queensland.

[44] It would appear that it was reasonable for him to have appreciated (by reason of the procedures that applied to his duties as set out above) that those services could only be applied within the confines of the property line of the client, and not in the wider public domain. These were matters about which the Applicant ought to have been reasonably aware at the commencement of his employment and the relevant guidelines were continuously accessible to him in the Control Room.

[45] A reasonable inference could be drawn also that Applicant’s own training notes (cited above) reflect the same limitation (in respect of the client’s property line), which appears to have been the point Mr Gerard laboured to make towards the conclusion of termination interview of 5 November 2009:

[46] I note also in passing only that there are a range of common contractual reasons that require contractors to adopt the policies and procedures of their principals, and for the contractors’ services to be confined to the principal’s legal boundaries. Occupational health and safety and liability issues are probably the most obvious.

[47] That said, the Applicant’s conduct in departing from the Site to involve himself in an incident to which he could make no meaningful contribution reflected an underlying na´vetÚ in his approach to and his understanding of his duties as a Supervisor.

[48] This is because he did not appreciate at the time and did not appreciate at any point over these proceedings that a contract supervisory security guard cannot absent himself from the client’s asset and seek protection from the implication of this by claiming that he had told a cleaner (seemingly employed by some other contractor) of his movements. 36

[49] I cannot confidently explain from the evidence the reasons for the Applicant’s decision to absent himself from the Site. On the evidence before me, to claim, however, as the Applicant did, that he left the Site, in part, because he had reason to be concerned for the safety of the two guards is fanciful.

[50] Under cross examination the Applicant conceded that there had been no threat of violence. 37 Mr O’Neill, one of the two guards who attended the 7-Eleven store did not mention to the Applicant that there was any risk of danger either when he telephoned him about the incident:

[51] As I set out above, the Applicant, while admitting to being provided a copy of the relevant Westfield policies 39 and being required to read them (over a period of 4 hours on his evidence) and then sign off on them, simply contended they were irrelevant documents. He said this notwithstanding his reliance on his employer’s induction policies, which required observance of the client or principal’s policy and procedures.

[52] On the balance of probability, given the evidence in this matter, including that of Mr Horvath and Mr O’Neill, I find that the Respondent intended that familiarisation with the suite of documentation was a required condition of performing security duties on the Site. I very much doubt that the Respondent went to the efforts it did to allot a four hour period within which the Applicant had to read the documents (which are not of any length or complexity) and to provide the induction checklist and so forth for idle reasons (though the Applicant appeared to so believe).

[53] In my view, the disregard for the express procedures and policies that framed the conduct of his professional duties and the consequence of that disregard (leaving an asset unprotected where his employer had been contracted to provide security services to that asset) provide a valid reason for the termination of the Applicant’s employment.

[54] The Applicant appreciated that the security of the client’s asset was important 40, but was misled by his own instincts (which I have not found to have been related to any sense of imminent danger of the guards) rather than being led by the applicable body of policy and procedure. The potential damage to the employer’s contractual relationship with client or principal might be a further reason, if one was necessary.41

[55] I do not view the duration of the absence from the Site as being especially relevant in relation to my present deliberations. The Applicant was absent from his contracted duties for a period of between 20-41 minutes, during which time the Garden City Shopping Complex was left unprotected. The Applicant’s initial report which was unaffected by any concerns for his employment status indicated the period of absence was of some 41 minutes in duration.

[56] In the circumstances, I consider it reasonable for both the employer and the client (Westfield) to have been strongly concerned about such an incident.

[57] For these reasons, I find there is a valid reason for the termination of the Applicant’s employment.

(b) whether the person was notified of that reason

[58] As I have set out above, on the evidence before me, it does not appear as though the Applicant was notified of the reason for the termination of his employment in advance of the decision to terminate his employment.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[59] The Applicant was permitted to engage the employer about the generalised key issue (leaving the Site unattended), but not within the wider meaning of the provision. The opportunity afforded to the Applicant had no impact on the employer whose mind was closed to any alternative course of action and the nature of the exchanges fell well short of a genuine opportunity to respond to the reasons related to the Applicant’s conduct that gave rise to the decision (which had already been taken and was not able to be changed). In effect, the interview of 5 November 2009 was a forum at which the Respondent terminated the Applicant’s employment for a stated reason, and little more.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[60] The Respondent provided some 6.5 hours advanced notice of the meeting (that resulted in the Applicant's dismissal). The Applicant advised the Respondent within that time frame that the Applicant was unable to secure the representation of the LHMU for the scheduled meeting.

[61] It was open to the Respondent to delay the dismissal interview in such circumstances so that the Applicant had an opportunity to access the services and experience of the LHMU, but it chose not to do so.

[62] A refusal to delay the meeting in such circumstances does not appear to me to be directly relevant to the statutory intention of s.387(d) of the FW Act.

[63] I have reached this conclusion because the Respondent did not refuse to allow the Applicant to have a support person. With the LHMU not available, the Applicant identified an alternative external support person and that person was permitted to attend the “discussions relating to dismissal”. That person appears to have recorded the dismissal interview (as cited above) and been somewhat active in the discussions with the Respondent. It would appear therefore that that support person assisted the Applicant in some respects.

[64] A different situation might arise where the only available support person might have been a person who could not have assisted the Applicant in the interview. It is not difficult to envisage such situations. Examples might be where the support person, for example, is appointed by the Respondent or else is the only person available at the time but is unsuited to the role and provides no “assistance” to the Applicant. Such circumstances, arguably, might be inconsistent with the requirements of s.387(d) of the FW Act.

[65] What constitutes “assistance” or who will be a person who can “assist” will depend on the circumstances and the facts in each case.

[66] In the facts of this case, however, it could not be concluded that the Respondent “unreasonably refused” the Applicant scope to “have a support person present to assist at [the] discussions relating to the [Applicant's] dismissal”.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[67] If the Applicant was terminated for reason of unsatisfactory performance 42 - and I very much doubt he was given the nature of the Respondent’s claims - he was not provided any warnings in relation to that performance.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[68] No evidence was put to me in relation to this consideration and I therefore make no finding in relation to it.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[69] No evidence was put to me in relation to this consideration and I therefore make no finding in relation to it.

(h) any other matters that FWA considers relevant

[70] Was the decision of the Respondent to terminate the Applicant’s conduct disproportionate to the conduct of which he stood accused?

[71] It may appear so in relation to an employee who acts naively and in respect of one single action undoes his employment relationship with his employer.

[72] But here the Applicant’s single action evidenced an inexplicable disregard for the relevant procedures that had implications for the security of the Site to which his employer was contracted to provide security, and threatened to impact upon the contractual relationship between the employer and the client, to the former’s potential detriment.

[73] Further, as I have noted above, the Applicant demonstrated an on-going inability to comprehend the status of the client’s policies and procedures. When the Applicant conceded under questioning that he had been provided these documents, told to read them, provided at least a four hour opportunity to do so, and then understood the policies were to be kept in the Control Room, and signed off on those documents (which included express reference to “adherence to Westfield Policies and Procedures”) and his record of training, he regarded those documents as superfluous to his duties.

[74] The other two witnesses (one for the Applicant and the other for the Respondent) seemed not to labour under the same misapprehensions (to the same extent) as the Applicant.

[75] Consequently, while it has been an understandably difficult matter for the Applicant to internalise for reason his conduct arises most likely from disregard borne of naivetÚ, I am not of the view that the Respondent’s actions, in the facts of this particular case, were disproportionate to the course of conduct he evidenced.

[76] In the context I have set out above, it appears to me that while I have found above that the Applicant was denied the full benefit of the procedural opportunities to engage his employer about the reasons for the termination of his employment, it is most unlikely that such a discussion, if it had occurred, would have been very fruitful. When the Applicant did come to accept that he had been in receipt of various key policy and procedural documents, he disputed their applicability to his role. I very much doubt that a discussion about the same matters at the interview of 5 November 2009 would have added much to the employer’s judgment even if it had been receptive to change.

[77] An argument may be made that merely because an employee is directed to be removed from Site (as Westfield seemingly requested in this instance) 43 by reason of a contractual term with a third party that does not make the dismissal not harsh, unjust or unreasonable. In this instance, Mr Gerard contended that regardless of the directive, the Applicant would have been terminated for breach of policy and procedure.44

[78] Having objectively considered the evidence, my own finding in this regard is set out above: there was a valid reason for the termination of the Applicant’s employment.

[79] The Applicant made reference to other incidents in which he had been involved which had required him to take himself off Site, or where he understood another employee had left the Site. These other incidents are unclear in their detail, factual basis and context, as well as whether they resulted in the Site being unattended.

[80] I have considered the impact of the decision to terminate the Applicant’s employment upon his earnings, as this may impact upon the harshness (in particular) of the decision to terminate his employment. The Applicant has lost a considerable component of his prior earnings (being unemployed for some 3 weeks after the termination), but has continued to source work nevertheless. The Applicant is not demonstrably unemployable.

[81] Nor was the Applicant was not a long term employee of the Respondent. He had been employed since April 2009. In effect he had been an employee of the Respondent for a little more than six months (though the performance of his duties must have been such that he was promoted in that time).

CONCLUSION

[82] Section 381(2) of the FW Act indicates that the procedures and remedies of s.381(1)(b) and (c) of the FW Act are intended to produce an outcome which provides a “fair go all round” to both employers and (former) employees concerned.

[83] I have considered all the matters above on balance, and whilst I consider that the Applicant (amongst other things) was not afforded procedural fairness in all respects, I have reached the view that the decision to terminate the Applicant’s employment was not harsh, unjust or unreasonable in the circumstances I have set out.

[84] The application under s.394 of the FW Act is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr R Reed of Counsel instructed by the Liquor, Hospitality and Miscellaneous Union for the Applicant

Mr C Pollard of Jones Ross for the Respondent

Hearing details:

2010.

Brisbane:

March, 3.

 1   See Exhibit R4 being a handwritten statement of the Applicant dated 4 November 2009

 2   Statement of Mr David Mydlowski dated 3 March 2010 at PN 19, 22 and see Annexure DM3

 3   Transcript of Proceedings of 3 March 2010 at PN 217

 4   Statement of Ms Suzanne Burson dated 3 March 2010 at PN 8

 5   I did not find Ms Burson to be a credible witness and having heard her responses to my questions I am not persuaded that the full extent of her discussions with the Applicant about her statement were revealed. Ms Burson initially stated that she had had no discussions about this case with the Applicant but a short while later seemingly revealed otherwise. See Transcript of Proceedings of 3 March 2010 at PN 444-447

 6   Statement of Mr Luke O’Neill dated 3 March 2010 at PN 9-10

 7   Statement of Mr Luke O’Neill dated 3 March 2010 at PN 11

 8   Transcript of Proceedings of 3 March 2010 at PN 483-485

 9   Statement of Mr David Mydlowski dated 3 March 2010 at PN 18

 10   Transcript of Proceedings of 3 March 2010 at PN 499-500

 11   Statement of Mr Luke O’Neill dated 3 March 2010 at PN 16

 12   Statement of Mr Luke O’Neill dated 3 March 2010 at PN 17-18

 13   Statement of Mr Luke O’Neill dated 3 March 2010 at PN 14-16; Statement of Mr David Mydlowski dated 3 March 2010 at PN 22

 14   Statement of Mr David Mydlowski dated 3 March 2010 at PN 9

 15   Statement of Mr David Mydlowski dated 3 March 2010 at PN 10-11

 16   Transcript of Proceedings of 3 March 2010 at PN 944-947

 17   Statement of Mr David Mydlowski dated 3 March 2010 at PN 31

 18   Statement of Mr David Mydlowski dated 3 March 2010 at PN 33 and Annexure DM4

 19   Statement of Mr David Mydlowski dated 3 March 2010 at Annexure DM4

 20   Statement of Mr David Mydlowski dated 3 March 2010 at Annexure DM4

 21   Arguably this conversation may have been in respect of Westfield Security Staff Policies and Procedures as it relates to breaches of the Policies and Procedures by a Security Officer under Contract – see” Procedure”, page 3 or otherwise as Mr Gerard gave evidence, a contractual term between the Respondent and its client (Westfield).

 22   See Exhibit R2

 23   See Exhibit R1; Transcript of Proceedings of 3 March 2010 at PN 313-353, 399-406

 24   See, for example, Transcript of Proceedings of 3 March 2010 at PN 223 399-406

 25   Statement of Mr David Mydlowski dated 3 March 2010 at Annexure DM1

 26   Transcript of Proceedings of 3 March 2010 at PN 256, 354 , 387-393

 27   Statement of Mr David Mydlowski dated 3 March 2010 at Annexure DM1 on page 7

 28   Transcript of Proceedings of 3 March 2010 at PN 787, 795-796, 875

 29   Transcript of Proceedings of 3 March 2010 at PN 770-775, 878

 30   Transcript of Proceedings of 3 March 2010 at PN 161-163

 31   Transcript of Proceedings of 3 March 2010 at PN 522-524

 32   Transcript of Proceedings of 3 March 2010 at PN 531

 33   See Exhibit R3 being a Bundle of Training Documents relating to the Applicant, especially pages 2 and 3 containing the “Westfield Security Officer Induction Checklist” signed by the Applicant on 16 June 2009

 34   Transcript of Proceedings of 3 March 2010 at PN 264

 35   Statement of Mr David Mydlowski dated 3 March 2010 at Annexure DM4

 36   Statement of Mr David Mydlowski dated 3 March 2010 at PN 19

 37   Transcript of Proceedings of 3 March 2010 at PN 223

 38   Transcript of Proceedings of 3 March 2010 at PN 499-500

 39   Exhibit R1 and Exhibit R2

 40   Transcript of Proceedings of 3 March 2010 at PN 245

 41   Transcript of Proceedings of 3 March 2010 at PN 938

 42   Transcript of Proceedings of 3 March 2010 at PN 954

 43   Transcript of Proceedings of 3 March 2010 at PN 956-957

 44   Transcript of Proceedings of 3 March 2010 at PN 1004 and 1007-1010




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