| [2018] FWC 3255 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nicholas Jarmain
v
Linfox Armaguard Pty Ltd
(U2017/11425)
COMMISSIONER CAMBRIDGE |
SYDNEY, 14 JUNE 2018 |
Unfair dismissal - alleged serious misconduct - misconduct considered in context of industry/occupation - valid reason for dismissal - procedural deficiencies - unreasonable dismissal - compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 26 October 2017. The application was made by Nicholas Robert Jarmain (the applicant) and the respondent employer is Linfox Armaguard Pty Ltd (ABN 83 099 701 872) (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 12 October 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) which has involved a Hearing conducted in Sydney on 30 January, 21 February, 14 March and 10 April 2018.
[4] At the commencement of the Hearing on 30 January, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. Mr J Phillips, Senior Counsel, appeared for the applicant, and Ms V Bulut, barrister, appeared for the employer.
[5] On 30 January, following some unsuccessful further conciliation of the matter, the Commission made Orders (Confidentiality and Non-Publication Orders), by consent, pursuant to ss. 593 (3) and 594 (1) of the Act, and which, in summary, Ordered that all evidence, material produced, transcript of proceedings, and all filed material be confidential and not published. Further, the Commission Ordered that the Hearing be conducted in private.
[6] The Confidentiality and Non-Publication Orders have been made in circumstances where the employer operates in the Cash in Transit Industry (CIT Industry). Consequently, certain details surrounding the circumstances of the applicant’s dismissal which have security implications have been deliberately omitted from this Decision or otherwise anonymised.
[7] Mr Phillips called the applicant as the only witness to provide evidence in support of the unfair dismissal claim. Ms Bulut introduced evidence on behalf of the employer from a total of four witnesses each of whom was extensively cross-examined by Mr Phillips.
[8] The applicant had been employed for a period of about three years and five months. The applicant was engaged in a position described as a casual Road Crew member.
[9] The employer relevantly provides secure monetary transportation services to various clients including numerous retail operations. The secure monetary transportation services are provided directly by the employer in respect to overt (or uniformed) services, and additionally, covert (or discrete) cash collection services are provided through a subsidiary company called Point2Point Secure (P2P).
[10] The applicant performed overt cash transportation work for the employer, and he was also seconded to perform covert cash transportation services for P2P. When performing the covert cash transportation services for P2P, the applicant was dressed normally without any identifying uniform, and at all relevant times during his covert cash transportation work he carried a concealed loaded firearm under his clothes.
[11] The work of the applicant was regulated and governed by the Armaguard, Road Crew (New South Wales) Collective Agreement 2015 (the EA). The applicant worked as a regularly rostered casual employee, and he was engaged to work from one of two of the employer’s depots respectively located in the adjacent Sydney suburbs of Camellia and Rosehill.
[12] The employment of the applicant was without recorded incident or formal warning other than a discussion record that was issued in March 2017. The discussion record related to an incident at which the applicant was present when certain banking documentation was erroneously discarded by another Road Crew member and for which the applicant was not responsible.
[13] On 13 September 2017, the employer’s customer service centre received an email complaint (complaint A) from a client that conducted a chain of retail businesses. Complaint A documented concerns about the conduct of the applicant during his attendance upon one particular retail outlet when performing his covert cash transportation services. In summary, complaint A asserted that the applicant became overly engaged in interaction and discussion with both the client’s retail staff, and other customers present in the retail outlet at the time of his attendance. Complaint A asserted that the applicant unnecessarily extended the time of his attendance in the retail outlet, and the client requested that the applicant be instructed to conduct his cash collection services quickly and professionally.
[14] On 14 September 2017, the employer received a further email which provided a follow-up to complaint A. The follow-up to complaint A provided specific dates as to when the applicant was said to have unnecessarily extended his attendance at the retail premises. However, the follow-up specifically indicated that the applicant was quite friendly and not rude, but it reiterated the desire to have his attendance conducted in a quicker and more professional manner.
[15] The employer has a specialist regional security team which inter alia, monitors the work of Road Crew members such as the applicant. On 18 September 2017, the applicant was followed and observed by a member of the security team as he undertook his covert cash transportation services work. The applicant was aware that he was being followed and observed by a member of the security team on that day.
[16] Also on 18 September 2017, the employer received an email complaint (complaint B) from another of its retail clients. Complaint B was made by a different client which also operated a chain of retail stores but was unrelated to the client that had made complaint A. Complaint B involved an assertion that the applicant had visited a particular store on that day, 18 September, which was a day when there was no scheduled cash collection services to be provided at that store. Further, complaint B suggested that the applicant had visited the store and engaged in inappropriate discussions with one of the staff members in the store including exchanging telephone numbers with that staff member. Complaint B requested that the applicant not be scheduled to attend to perform any further cash collection services at that store or any other retail stores operated by the client.
[17] On the following day, 19 September 2017, the applicant was telephoned and asked to attend the Camellia depot on the basis that someone from the security team wished to talk with him. The applicant attended the Camellia depot, and he was subsequently advised that he was to be interviewed by a security support officer (Mr K). The applicant was provided with a support person who was a Union delegate.
[18] Mr K conducted a recorded interview with the applicant during which the applicant was questioned about the events that were alleged in complaints A and B. The applicant was also questioned about some other matters including observations that had been made when he had been followed and observed by another member of the employer’s security team on the previous day. Shortly after the interview had concluded the applicant met with the employer’s transport manager (Mr E). Mr E advised the applicant that he was being suspended from duty in order to enable the employer to undertake further investigation into the prospect that the applicant may have been involved in a breach of the employer’s policies and/or procedures.
[19] On 11 October 2017, the applicant attended a further meeting with Mr E during which the applicant was asked to explain the circumstances surrounding the events which were the subject of complaints A and B. The applicant was assisted during this meeting by the presence of a Union official, although he had requested the attendance of a particular Union delegate who was apparently injured and absent from work on workers compensation at the time. The applicant was also provided with an opportunity to provide the employer with information as to any aspects of the circumstances surrounding complaints A and B which represented any mitigation and which the employer should have due regard for.
[20] On the following day, 12 October 2017, the applicant again attended a meeting with Mr E at which time he was advised that he was dismissed from employment. The applicant was provided with a letter of dismissal dated 12 October 2017, which, in broad terms, stated that the conduct of the applicant in respect of the events mentioned in complaints A and B had been determined to represent wilful and deliberate breaches of the employer’s safety and security procedures. The letter of dismissal advised the applicant that his conduct had been determined to represent serious misconduct for which his employment was terminated. The letter further advised that because the applicant was a casual employee no notice was payable.
[21] The applicant has sought reinstatement as a remedy for his alleged unfair dismissal. The applicant commenced new employment from 15 January 2018. However this new employment is apparently also regularly rostered casual work.
[22] Mr Phillips SC who appeared for the applicant, made verbal submissions in amplification of documentary material that had been filed. Mr Phillips submitted that the dismissal of the applicant was harsh, unjust or unreasonable.
[23] Mr Phillips submitted that there was no valid reason for the dismissal of the applicant. Further, Mr Phillips said that the applicant’s case relied upon the good character of the applicant and his excellent work record with the employer. Mr Phillips also submitted that the dismissal of the applicant was unfair because the process that the employer had adopted for investigating and determining the matter was deficient, and in particular, had not been conducted in accordance with the terms of the EA.
[24] The submissions made by Mr Phillips stressed that the applicant was a person who had a good work record and he could only be dismissed summarily if he had been guilty of gross or serious misconduct. Mr Phillips submitted that there was a significant absence of evidence from the people that provided the complaints upon which the employer ultimately determined to summarily dismiss the applicant. Consequently, according to the submissions of Mr Phillips, the evidence of the applicant about the specific events which were the subject of the complaints had to be preferred over any of the documentary material that was not supported by witness evidence.
[25] Mr Phillips submitted that when the evidence of the manner in which the employer investigated the complaints was properly considered there appeared to be an attempt to “stitch up” the applicant. Mr Phillips suggested that the employer’s approach to investigation of the complaints against the applicant represented the actions of an overzealous detective, and this may have arisen because the applicant had made an earlier complaint about another of the employer’s managers who had allegedly failed to properly maintain gun register documentation. Mr Phillips submitted that the evidence revealed that the investigation interview conducted by Mr K on 19 September was simply an ambush, and reflected the ulterior motive of the employer connected with some retaliation in respect of the applicant’s previous complaint.
[26] Mr Phillips made further submissions which asserted that on any evaluation of the evidence of the two events which were the subject of the complaints made against the applicant, no case of gross misconduct could be established. Mr Phillips submitted that as the applicant had been summarily dismissed, conduct that represented gross misconduct which was completely incompatible with any continuation of the employment contract had to be established. Mr Phillips said that when each of the particular events which gave rise to the complaints was scrutinised the conduct of the applicant could not represent gross misconduct that could justify his summary dismissal.
[27] Mr Phillips made further submissions which analysed in detail the events that were the subject of the two complaints made against the applicant. Mr Phillips said that the first complaint had subsequently been withdrawn by the client and that it was clear that the client had no wish to see the applicant dismissed as a result of the complaint that had been made. In any event, according to the submissions made by Mr Phillips, the actions of the applicant in respect of either of the two events, did not amount to conduct that put him outside of the employment contract or was in any way repugnant or incompatible with the contract of employment. Therefore, Mr Phillips said that there was simply no valid reason for the summary dismissal of the applicant.
[28] It was further submitted by Mr Phillips that the particular reasons that were provided to the applicant in the termination letter were in some instances factually incorrect and in other aspects imprecise and unable to be relied upon as sound, well-founded and defensible basis for the dismissal of the applicant. Mr Phillips submitted that in many respects the applicant’s actions were attempts to provide enhanced customer service and could in no way amount to serious and wilful misconduct of a kind which would put the applicant outside of the employment contract.
[29] Mr Phillips submitted that the employer failed to properly consider the conduct of the applicant in respect to the two events which gave rise to the complaints against him, and further, it failed to have proper regard for the applicant’s good character and unblemished employment record. Mr Phillips said that the employer’s approach to consideration of the applicant’s conduct was consistent with an attempt to “stitch him up”.
[30] In further submissions, Mr Phillips asserted that the applicant had earnestly sought reinstatement as remedy for his unfair dismissal. Mr Phillips submitted that on account of the applicant’s length of service, his good employment record and his good character, the Commission should be satisfied that reinstatement was not inappropriate.
[31] In summary, Mr Phillips submitted that the summary dismissal of the applicant was without valid reason. Mr Phillips reiterated that the conduct of the applicant did not amount to serious or gross misconduct of the nature that was necessary to provide valid reason for summary dismissal. In addition, Mr Phillips submitted that the dismissal of the applicant involved a deficient process which was both contrary to the terms of the EA and driven by an ulterior motive. Mr Phillips urged that the Commission provide for the reinstatement of the applicant as remedy for his unfair dismissal.
[32] Ms Bulut appeared on behalf of the employer and she submitted that the dismissal of the applicant was not unfair. Ms Bulut made oral submissions which relied upon documentary material that had been filed on behalf of the employer.
[33] The submissions made by Ms Bulut firstly addressed the issue concerning the nature of serious misconduct that would warrant the summary dismissal of the applicant. Ms Bulut submitted that as the applicant had been employed on a casual basis he was not entitled to notice or payment in lieu of notice in respect to the termination of his employment.
[34] Consequently, according to the submissions made by Ms Bulut, the question of whether the nature of the applicant’s misconduct justified summary dismissal became irrelevant as he was not entitled to dismissal with notice in any circumstance. Further, Ms Bulut referred to a line of decided cases which had established that for the purposes of establishing valid reason pursuant to s. 387 (a) of the Act, no reliance should be placed upon whether the dismissal was summary in nature or provided with notice.
[35] Ms Bulut made further submissions which focused upon the applicant’s conduct and she stressed that that conduct needed to be considered in the context of the particular industry in which the applicant was engaged. In this regard Ms Bulut said that the employer operated in a very security focused environment where a person such as the applicant carried a loaded firearm while performing their duties. Ms Bulut said that the particular employment circumstances introduced significantly different levels of responsibility for security because of the potentially catastrophic consequences of failure to follow the established and heavily regulated procedures and protocols.
[36] According to the submissions made by Ms Bulut, the particular conduct of the applicant needed to be properly considered and understood in the context of the particularly stringent requirements for security practices and protocols to be scrupulously observed. Ms Bulut submitted that when the actions of the applicant were considered properly in the context of the particular employment circumstances, it was clear that in respect of both events that were the subject of client complaints the applicant engaged in serious breaches of safety protocols and procedures. Ms Bulut submitted that the applicant’s serious breaches of safety protocols and procedures established serious misconduct and represented valid reason for his dismissal.
[37] The submissions made by Ms Bulut examined the particular events which had led to the client complaints. Ms Bulut submitted that the applicant had initially recognised that his actions had increased security risks. However, the applicant appeared to have subsequently altered his view about the level of increased security risks associated with his conduct in respect of the two events which formed the basis for the employer’s decision to dismiss. In support of these submissions, Ms Bulut referred to the transcript of the interview involving the answers given by the applicant when questioned by Mr K on 19 September 2017. Further, Ms Bulut submitted that in large part the applicant had accepted or admitted the conduct in respect of the two events and he had attempted to retract or downplay his conduct which demonstrated that he did not show any real contrition and further, that he failed to understand the seriousness of the breaches of security procedures and protocols that he had committed.
[38] Ms Bulut also submitted that the applicant’s conduct brought the employer into disrepute and that this was clearly evidenced by the complaints made by the two separate clients of the employer. Ms Bulut said that it was largely irrelevant that one of the complainants had sought to withdraw its complaint, and that the employer was entitled to act upon the cumulative characteristics that were established by the circumstances of the two events. Ms Bulut submitted that the conduct of the applicant that was the subject of the complaint letters, and which was subsequently investigated by the employer, established that the applicant had committed serious breaches of security procedures and protocols which represented serious misconduct, and thus valid reason for his dismissal.
[39] The submissions made by the employer also addressed the various other factors contained within s. 387 of the Act. Ms Bulut submitted that the applicant had been notified of the reason for his dismissal both in the letter of dismissal and also in the meeting held on 11 October 2017. Further, Ms Bulut said that the applicant had been given an opportunity to respond and he had prepared a statement that he made in respect to any mitigation that should be considered by the employer. It was also submitted by Ms Bulut that the employer had not unreasonably refused to allow the applicant to have a support person present to assist during the discussions regarding his misconduct and dismissal. Ms Bulut noted that at the meeting of 11 October 2017 the applicant was represented by a Union official.
[40] Ms Bulut submitted that to the extent that there could be any criticism made of the interview process conducted by Mr K, any procedural deficiency that could be identified did not result in any prejudice to the applicant’s position. Consequently, Ms Bulut submitted that if any procedural deficiency could be identified such deficiency had not provided any prejudice to the position of the applicant.
[41] Further, Ms Bulut submitted that the particular personal circumstances of the applicant had been properly considered by Mr E before he made the decision to dismiss the applicant. Further, Ms Bulut submitted that the applicant was employed as a casual for a relatively short period of time and that his lack of contrition and insight into the awareness of the security breaches that he had committed strongly weighed against him.
[42] By way of an alternative submission, Ms Bulut said that reinstatement was strongly opposed. Ms Bulut said that if the Commission found that the dismissal of the applicant was unfair it would be inappropriate in this instance for any remedy of reinstatement to be provided. Ms Bulut referred to certain post dismissal conduct of the applicant which involved him contacting the employer’s clients and seeking character references in support of his unfair dismissal application. Ms Bulut said that these activities further brought the employer into disrepute, and established that there was a genuine loss of the trust and confidence in the applicant, such that the employment relationship could not be re-established.
[43] In summary, the submissions made by Ms Bulut asserted that there was a valid reason to terminate the employment of the applicant. Ms Bulut submitted that the actions of the applicant were clearly in breach of established safety protocols and procedures and in the particular context of the employment, where exposure to risk was an inherent concern, the conduct of the applicant had provided an increased and unnecessary exposure to risk. Ms Bulut submitted that the applicant had been dismissed for valid reason and that his dismissal did not involve any procedural deficiency which prejudiced his position. Ms Bulut urged that the Commission find that the dismissal of the applicant was not unfair and that the application be dismissed.
[44] The unfair dismissal provisions of the Act include section 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[45] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria 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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[46] In this case the applicant was dismissed upon the employer’s findings that he had committed serious misconduct. The employer’s finding of serious misconduct arose from its investigation into the events which underpinned what I have referred to as complaints A and B. Complaint A involved an event that occurred on 12 September 2017, and complaint B involved an event that occurred on 18 September 2017.
[47] In broad terms, both complaint A and B involved the applicant allegedly becoming engaged in unnecessary discussion and interaction with staff and customers of the employer’s clients at times when he was performing covert cash collection services. At the Hearing of the unfair dismissal claim, the applicant endeavoured to portray the events which gave rise to complaints A and B as innocuous and well-meaning exchanges with individuals as part of his attempts to enhance good customer relations. However, when interviewed by the employer on 19 September 2017, when he was first invited to comment upon the events concerning complaints A and B, the applicant acknowledged the security implications of his actions.
[48] The starkly different position that the applicant subsequently adopted about the security implications of his actions during the events of 12 and 18 September 2017 was revealed by a comparison of the answers he provided during his cross-examination compared to the statements that he made during his interview with Mr K on 19 September 2017. For example, in respect of the complaint A event, during cross-examination the applicant provided the following evidence:
“I put it to you that you interjected into that conversation? --- No, that’s not correct.” 1
[49] In contrast with this answer, in the transcript of the interview of 19 September the applicant stated, inter alia, the following in respect to the complaint A event:
“… I can understand because I did interject with that conversation because he did ask me about [omitted]. That was an interjection between the staff member, the client and the customer, …” 2
[50] When this inconsistency was further tested with the applicant during his cross-examination he suggested that he was confused 3 during the interview with Mr K on 19 September. However, the question of any interjection into a conversation during the complaint A event is a factual matter that would seem to be unlikely to be open to any confusion. Simply, there either was or was not some interjection by the applicant into a conversation that involved a customer attending the retail premises of the client of the employer.
[51] Similarly, in respect to the complaint B event, the applicant initially recognised that his conversation with the staff member of the retail outlet (Ms M) which involved him advising her of the anticipated time for cash collection on the following day, and providing his personal telephone number to Ms M, represented a security risk. During the interview on 19 September with Mr K the applicant was asked about why he had provided this information to Ms M and he was recorded as saying:
“No. I see what you mean, that is a security risk.” 4
[52] Once again the applicant’s initial acknowledgement of the security risk can be compared and contrasted with the following evidence provided by the applicant during his cross-examination:
“So the additional information you provided to [Ms M], that increase[d] the risk to that pick-up? --- No, I don’t, I don’t believe it did.” 5
[53] There should ordinarily be some accommodation made for a degree of inconsistency in aspects of any witness evidence. In this instance, such accommodation would particularly be relevant having regard for the fact that the interview with Mr K on 19 September was conducted without providing the applicant with any forewarning or notice of the matters under investigation. However, even providing for such accommodation, the nature of the particular alterations to the applicant’s consideration of the level of security risk associated with his conduct during both the complaint A and B events cannot be properly reconciled.
[54] On balance, and after careful consideration of the totality of the evidence, I am compelled to conclude that the applicant, at least initially, recognised and understood that his activities during the complaint A and B events involved significant breaches of established security procedures and protocols. The applicant’s subsequent attempts to recast his actions and to portray the complaint A and B events as little more than the harmless pursuit of good customer relations on his part, has provided little support for the adoption and acceptance of his evidence generally. Further, the evidence provided by the applicant particularly about his motivation for his conduct in the complaint B event was less than satisfactory.
[55] In the complaint B event the applicant decided to attend a retail outlet that was not scheduled for any cash collection on that day. He said that he attended that store to advise Ms M that he may possibly be undertaking the collection on the following day and that it was likely that he could be late. There was no logical explanation for why this unsolicited information would be provided to Ms M, particularly because the applicant was not certain that he would be rostered to work a collection schedule that would necessarily involve him attending that store in the following day, and further, whether he was going to be late or not was entirely unpredictable at that time.
[56] Additionally, even if the applicant was going to be involved in the collection from the store at which Ms M worked on the following day there was no plausible reason why he would provide Ms M with his telephone number. Consequently, it was understandable that the staff at that store, including Ms M, would have found the conduct of the applicant to be very curious indeed and thus prompted complaint B.
[57] In most employment circumstances conduct such as that exhibited by the applicant during the complaint A and B events might attract formal warning and reprimand and be unlikely to represent serious misconduct. However, there are special considerations that apply in the CIT Industry. The stringency that must apply in employment circumstances that involve individuals who are equipped with loaded firearms cannot be overstated.
[58] Upon careful consideration of the particular conduct of the applicant as can be attributed from his own evidence, and when considered in the context of the stringent standards that are to apply in the CIT Industry, the employer appropriately characterised the applicant’s role in the complaint A and B events to represent serious misconduct.
[59] In summary therefore, the reasons upon which the employer decided to dismiss the applicant, when properly considered in the particular employment context, represented serious misconduct. Therefore, the serious misconduct for which the applicant was dismissed has been properly established in the context of the particular employment circumstances and represented a reason for dismissal that was sound, defensible and well-founded. Therefore, there was valid reason for the dismissal of the applicant related to his capacity or conduct.
[60] The applicant was provided with notification of the reason for dismissal. Notification was provided in the termination of employment letter dated 12 October 2017 which referred to the meeting held on the previous day when the applicant was also advised that his conduct in respect to the complaint A and B events was being considered to provide for basis for his dismissal.
[61] Although the notification of the reasons for dismissal as set out in the termination of employment letter of 12 October 2017, contained certain factual errors and described the actions of the applicant in unfortunately broad terms, the evidence has established that the applicant would have been under no misapprehension that his conduct in respect to the complaint A and B events was considered to involve significant security and safety breaches, and broadly unprofessional conduct.
[62] The applicant was provided with an opportunity to respond to the reasons which the employer relied upon as basis for his dismissal. The applicant acknowledged that during the meeting on 11 October 2017, he was given an opportunity to speak in mitigation and he read from a pre-prepared mitigation statement.
[63] However, there was a very regrettable absence of any notification to the applicant of the circumstances particularised in complaints A and B prior to his interview with Mr K on 19 September 2017. The applicant had justifiable basis for grievance when he was summonsed to attend an investigation interview, the seriousness of which was reflected by it being recorded by Mr K, and for which a support person was organised, yet the applicant had not been given any prior indication of the events particularised in complaints A and B. The applicant was entitled to consider that this part of the process which ultimately culminated in his dismissal had all the characteristics of an ambush.
[64] Consequently, the dismissal of the applicant involved some very regrettable procedural deficiencies such that the applicant was initially interviewed in circumstances which on any reasonable and objective consideration were entirely unreasonable and unjust. A fair and just procedure would have allowed the applicant an opportunity to provide any initial response to the complaint A and B events having had the benefit of some prior notification of the issues under investigation.
[65] There was evidence that it was the employer and not the applicant who decided who would be the support person to assist the applicant. 6 Such an approach is, in practical effect, tantamount to an unreasonable refusal to allow a support person to assist the applicant. If the particular support person is selected by the employer and not the employee, that person could not objectively be regarded as a support person for the employee.
[66] This factor has no relevance in this instance.
[67] The size of the employer’s operation should have provided for a much higher standard of procedure to have been followed.
[68] The employer did have access to dedicated “HR specialists”. Unfortunately, the evidence has suggested that such specialists may not have assisted in ensuring that the applicant was provided with procedural fairness throughout the investigation process. Further, specialist assistance should have meant that the termination of employment letter included more accurate and specific articulation of the conduct of the applicant which represented the serious misconduct for which he was dismissed.
[69] It was argued that the misconduct of the applicant could not, when properly analysed, represent valid reason for what was said to be his summary dismissal. This proposition may well have been the correct common law position for an employee engaged under a contract of employment which provided for notice. However, in this instance the applicant was engaged as a regularly rostered casual employee and consequently there was no obligation to provide for dismissal with any notice. Therefore, in the particular circumstances of a casual employee such as the applicant, the question of dismissal without notice does not arise, and the ordinary common law tests regarding the nature of any serious and wilful misconduct that might properly warrant dismissal without notice have no application.
[70] Following the interview with Mr K on 19 September 2017, the applicant was suspended from duty without pay. The suspension of the applicant without pay would appear to have been contrary to particular provisions of the EA which relevantly stated:
“7.6 At the discretion of Armaguard, an employee involved in misconduct (other than act of dishonesty) may be stood aside pending an investigation.
7.6.1 Where suspension of duties is necessary while an investigation is taking place, this shall be by:
7.6.1.1 disengagement or without pay in the case of non-rostered casuals; and
7.6.1.2 on ordinary time payment only for permanent employees.”
[71] Consequently, it would appear that the procedure that the employer adopted whereby it suspended the applicant without pay during the period of its investigation was contrary to the terms of the EA. As a rostered casual employee the applicant would have been entitled to be paid for the loss of rostered or reasonably anticipated shifts during the period between 19 September and 12 October 2017.
[72] The employer’s failure to suspend the applicant in accordance with the obligations established by the EA has established an additional procedural deficiency in respect to the dismissal of the applicant. This further procedural deficiency is a factor which must be appropriately balanced and considered as part of any overall contemplation of all of the various factors relevant to any finding that the termination of the employment of the applicant was harsh, unjust or unreasonable.
[73] The proposition that the dismissal of the applicant was motivated by some form of retribution must be rejected. The decision to dismiss the applicant was taken by Mr E. Mr E provided very open and honest evidence as a witness. He gave answers during cross-examination which in some instances clearly did not assist the employer’s case. Mr E was an impressive witness who presented as an individual of integrity.
[74] Mr E gave evidence that he only recently became aware of the incident involving the applicant’s earlier reporting of a breach of the gun book procedure, and he had no detailed knowledge of that event. 7 Mr E also provided evidence which indicated that he had high personal regard for the applicant, and that his decision to dismiss was clearly based on his genuine concern about the safety and security implications of the applicant’s conduct in respect to the complaint A and B events.
[75] The applicant also sought to introduce the question of the alleged inconsistent treatment of his circumstances compared with other incidents of misconduct which had not resulted in dismissal for other employees. It is very difficult and potentially unsound to endeavour to compare different circumstances involving misconduct of different employees. Unless detailed evidence can be provided which demonstrates a manifestly inconsistent application of treatment, other instances of apparent misconduct are likely to be misconstrued because all of the relevant facts and surrounding circumstances may not be fully understood.
[76] The applicant was dismissed upon findings that the employer made of serious misconduct. Upon proper analysis of the conduct of the applicant on 12 and 18 September 2017, during incidents which have been referred to as the complaint A and B events, there was, in the context of the particular employment circumstances, proper basis for the employer to have established serious misconduct. As the employer operates in the CIT Industry it is obliged to apply stringent standards of employee conduct in respect to any security and safety protocol breaches. Consequently, the reasons for the applicant’s dismissal were sound, defensible and well-founded. The applicant was dismissed for valid reason related to his capacity or conduct.
[77] The procedure that the employer adopted in dealing with its investigation into the complaint A and B events involved important deficiencies, including that the applicant was not initially advised of the particulars of complaints A and B before he was subjected to a recorded investigation interview. Further, the employer selected the support person to assist the applicant during discussions relating to dismissal, and this had the practical consequence of refusing to allow the applicant to have a support person of his choice. In addition, the unpaid suspension of the applicant during the employer’s investigation was contrary to the employer’s obligations imposed by the terms of the EA.
[78] In summary, this case has involved a dismissal for serious misconduct which, in the particular employment circumstances, has represented valid reason for the applicant’s dismissal. Regrettably, the procedure that the employer adopted during its investigation into the events which ultimately established the serious misconduct was infected with serious deficiencies. The determination of the matter has involved a careful assessment and balance of all of the relevant factors, and, despite the existence of valid reason for dismissal, and by fine margin only, the important procedural deficiencies have rendered the dismissal to have been unreasonable.
[79] Consequently, although the dismissal was for valid reason, it involved significant and important procedural deficiencies. The dismissal of the applicant was unreasonable and therefore unfair. The applicant is a person protected from unfair dismissal, and he is entitled to have the Commission provide an appropriate remedy for his unfair dismissal.
[80] The applicant has sought reinstatement as a remedy for his unfair dismissal. In the circumstances, particularly as valid reason for dismissal has been established and which involved security and safety protocol breaches in the CIT Industry, reinstatement would not be an appropriate remedy.
[81] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.
[82] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that have been established in the Full Bench Decisions of; Sprigg v Paul’s Licensed Festival Supermarket 8 and, Smith and Ors v Moore Paragon Australia Ltd 9 and, more recently, the cases of McCulloch v Calvary Health Care Adelaide10 and Balaclava Pastoral Co Pty Ltd v Nurcombe11.
[83] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.
[84] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.
[85] There was no evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.
[86] The applicant had been employed as a rostered casual employee for a period of approximately three years and five months. The applicant would have been likely to have received remuneration of approximately $2,467.00 per week if he had not been dismissed. However, the applicant was scheduled to take a period of several weeks unpaid leave shortly after the date on which he was dismissed.
[87] There was no evidence to suggest that the employment of the applicant would not have continued for a significant period of time. However, it should be noted that in March 2017 the applicant had refused an offer to convert to “permanent” employment.
[88] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if he had not been dismissed I have notionally considered that the employment of the applicant would have continued for at least a further 26 weeks, less the three-week period of unpaid leave that had been planned. Therefore, the total remuneration that would have been received in the notional period of 26 weeks following dismissal amounted to a figure of $56,741.
[89] Following the dismissal, the applicant has sought alternative employment. The applicant secured some alternative employment in December 2017, and evidence of remuneration received from further employment during January to April 2018 has been provided. That amount was $19,289.71. The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated by projection of the average earnings of the applicant in alternative employment in a period of 12 weeks from 15 January to 8 April 2018 ($1561.95). The total for the period between dismissal and the making of the Order of compensation has been calculated as $19,289.71 plus ($1561.95 x 9 weeks) $14,057.55, giving a total figure of $33,347.26 (rounded to $33,347).
[90] Thirdly, in this instance there was established serious misconduct of the applicant which contributed to the employer's decision to dismiss. Therefore, pursuant to subsection 392 (3) of the Act, the Commission must reduce the amount that it would otherwise Order as compensation. I have determined that the appropriate amount of reduction on account of the misconduct of the applicant is an amount equivalent to 6 weeks of the average weekly earnings of the applicant. That figure is $14,802.
[91] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.
[92] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.
[93] The applicant was not paid during the period of suspension from duties, 19 September to 12 October 2017.
[94] Consequently, for the reasons outlined above I have determined that the amount of compensation to be provided to the applicant should be calculated by subtracting the actual and notional remuneration received as alternative employment together with the amount determined in respect of misconduct, from the amount determined as remuneration that the applicant would have received or would have been likely to have received if he had not been dismissed. Therefore, that calculation is: $56,741 minus $33,347 minus $14,802.
[95] The result is an amount of compensation of $8,592. Accordingly, separate Orders [PR607807] providing for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Mr J Phillips, Senior Counsel with Mr M Gamble appeared for the Applicant.
Ms V Bulut of Counsel appeared for the Employer.
Hearing details:
2018.
Sydney:
January, 30.
February, 21.
March, 14.
April, 10.
Printed by authority of the Commonwealth Government Printer
<PR607805>
1 Transcript @ PN 429.
2 Exhibit 12 - Attachment A @ paragraph 352.
3 Transcript @ PN 440.
4 Exhibit 12 - Attachment A @ paragraph 336.
5 Transcript @ PN 636.
6 See, for instance, transcript @ PN2649.
7 Transcript @ PN 2433-2434.
8 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
9 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
10 John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.
11 Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.