| [2019] FWC 8010 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vu Do
v
MSS Security Pty Ltd
(U2019/2357)
COMMISSIONER GREGORY |
MELBOURNE, 27 NOVEMBER 2019 |
Application for an unfair dismissal remedy.
[1] Mr Vu Do has worked as a Security Officer at the DHS Debney Park site for around eight years. He has been employed by MSS Security Pty Ltd (MSS) since 1 April 2018, following a contract change at the site. However, he was dismissed from his employment on 14 February 2019 following claims made about him taking excessive breaks and failing to perform patrols, as required.
[2] Mr Do subsequently lodged an unfair dismissal application and the matter was dealt with in hearings on 6 and 27 June 2019. Mr Sheldon Oski of United Voice appeared on behalf of Mr Do. Ms Natalie Colosimo, the HR/IR Manager at MSS, appeared on its behalf. Mr Oski was also a witness in the proceedings, and Mr Resic of United Voice conducted the examination-in-chief in regard to Mr Oski.
[3] Section 385 of the Fair Work Act 2009 (Cth) (the Act) provides that a person has been unfairly dismissed if the Commission is satisfied the dismissal “was harsh, unjust or unreasonable.” 1
[4] Section 387 continues to require that the Commission must take into account certain matters in deciding whether the dismissal was harsh, unjust or unreasonable. It states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(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.” 2
[5] The Commission is accordingly now required to determine whether Mr Do’s dismissal was “harsh, unjust or unreasonable” taking into account each of the matters in s.387.
The Evidence and Submissions
The Applicant
Mr Sheldon Oski
[6] Mr Oski is an Industrial Officer with the Victorian Branch of United Voice. He attended a disciplinary meeting on 4 February 2019 as Mr Do’s designated support person. Mr Stewart Mayne and Ms Natalie Colosimo attended on behalf of MSS.
[7] Mr Mayne detailed the following allegations during the course of the meeting and the following responses were provided on behalf of Mr Do.
• The first allegation – Mr Do failed to ensure shift staff were following the site instructions and duty orders. This related to Mr Do being the on-site Supervisor on the evening of 11 January 2019. Mr Do denied that he was the on-site Supervisor that evening and indicated instead that he had been following the directions of his Supervisor during the course of the shift.
• The second allegation – Mr Do failed to ensure patrols were completed correctly. Mr Do denied this allegation and stated that he had performed his patrols correctly. He also provided photos which he said were taken during the patrols performed that evening.
• The third allegation – Mr Do failed to ensure that his shift break times were adhered to. It was indicated that MSS had records of Mr Do taking breaks in excess of four hours during the course of a single shift. Mr Do denied this allegation.
• The fourth allegation – Mr Do failed to conduct the services in accordance with the client’s instructions. The Supervisor had attempted to contact Mr Do by radio about a noise complaint during the course of his fourth patrol that evening but had been unable to make contact with him. He had therefore been required to send two other Security Officers to investigate the complaint. Mr Do responded by indicating that the Supervisor had already directed him to speak to a tenant about a water leak and he was dealing with this issue when the Supervisor attempted to contact him.
• The fifth allegation – Mr Do was sleeping in his vehicle during the course of his shift. At approximately 1.30 a.m. he was asleep in his car while he was supposed be on duty. Mr Do denied this allegation and also denied that he had ever slept in his car while on duty. However, he indicated that he sometimes moved his car when taking breaks as his vehicle had been vandalised on occasions. 3
[8] Mr Mayne continued to indicate that the evidence in support of the allegations was based on the account of one eyewitness, and that the video evidence that had been reviewed did not necessarily support, or was unable to confirm, any of the allegations. Mr Mayne refused to disclose who was the eyewitness but indicated that Mr Do was now going to be provided with a “show cause” letter as his responses to the allegations had been inconsistent. However, Mr Oski pointed out in response that this was due, in large part, to the fact that English was his second language and the inconsistencies could be put down to miscommunication.
[9] A further meeting was then held on 14 February 2019 by telephone. Mr Oski again participated in the discussions as Mr Do’s designated support person. Mr Mayne indicated that the findings in regard to the allegations had been substantiated, apart from the allegation about him sleeping in his vehicle, and it was intended to terminate his employment, effective immediately. He again indicated that the allegations had been substantiated on the basis of eyewitness reports but refused to disclose the names of those involved.
Mr Vu Do
[10] Mr Do has worked as a Security Officer at the DHHS Debney Park site for around eight years. He has been employed by MSS since April last year after it gained the contract to provide security services at the site. He has worked in the security industry for a total of fourteen years and claims that he has never had any performance issues raised with him in that time.
[11] On 11 January 2019 he was rostered to work at the site from 7:00 p.m. until 3:00 a.m. The other staff on duty were the Supervisor, Mr Thu Doan, and three other Security Officers, Mr Minh Huynh, Mr Bekele Lakew, and Mr Idris Mahmoud. Mr Sajid Rajput was also present, and it was explained that he was “a reliever” who would be undertaking some training during the course of the shift that evening.
[12] It was normal to carry out four patrols during the course of a shift, with the first patrol commencing at 7.15 p.m. Mr Do conducted the first patrol with Mr Lakew. This normally took around two hours to complete. After completing the patrol, they returned to the Control Room. The Supervisor was the only person in the Control Room at that time and each took a break for around 10 to15 minutes. They then left to carry out their second patrol, which took around an hour and a half. After completing this patrol, they again returned to the Control Room and took another break of around 10 to 15 minutes. Mr Do rejected any suggestion that this break went for as long as one hour.
[13] Mr Do then prepared to carry out the third patrol and was told by the Supervisor that he was to accompany Mr Rajput on this patrol, and Mr Lakew would remain in the Control Room. As Mr Rajput had not worked at the site previously Mr Do considered that it was important that he conduct a patrol that would enable Mr Rajput to appropriately understand the layout of a large-scale site. However, Mr Rajput was smoking during the course of the patrol and this limited the nature of the patrol that could be carried out as the tenants did not like to see a guard smoking. This third patrol again took around an hour and a half. Both men then returned to the Control Room and each took a further break of around 10 to 15 minutes.
[14] Mr Do was then asked by the Supervisor to remain in the Control Room while Mr Lakew accompanied Mr Rajput on the final patrol of the evening. During this time a tenant came to the Control Room and complained about a water leak. The Supervisor asked Mr Do to go and investigate and he went to the fourth floor of one of the buildings with the tenant. After investigating he discovered that it was not a significant leak and advised the tenant to contact the housing authority on the following day. He then returned to the Control Room. He estimated that this investigation took around an hour and a half.
[15] Mr Do indicated that during the course of his discussion with the tenant his Supervisor had attempted to contact him by radio, and he responded by indicating that he would return to the Control Room after dealing with the tenant. The Supervisor then told him that he had endeavoured to contact him about a noise complaint in the community room, but two other Security Officers had already been sent to deal with this issue. Mr Do then spent the remainder of the shift in the Control Room.
[16] Mr Do was unable to recall the exact length of the three breaks that he had taken during the course of his shift on that evening but denied that they amounted to anywhere near four hours in total. He also indicated that there was no schedule for when breaks were taken, and they were instead taken as directed by the Supervisor.
[17] On 25 January 2019 Mr Do received a letter from MSS containing various allegations and indicating that he would be stood down while they were investigated. He provided a written response to those allegations on 30 January 2019. He indicated in that response that the Supervisor on site was responsible for what occurred during the course of the shift, and he always followed the Supervisor’s orders and directions. However, there were no clear directions about the nature of the patrols to be conducted, or when breaks were taken. It had also been difficult for him on the night in question because he was required during the course of that shift to provide Mr Rajput with an understanding about the layout of the site. He also denied having ever slept in his vehicle, but often moved his vehicle at break times because he was concerned about possible vandalism.
[18] On 4 February 2019 he met with Mr Stewart Mayne and Ms Natalie Colosimo, together with Mr Sheldon Oski from United Voice, who attended as his support person. Mr Do was not told who had made the claims about him but was informed that there was only one witness. He again denied the allegations. There was then a short break in the meeting, and when it resumed, he was told that he was going to be issued with a show cause letter. He also indicated that MSS had attempted to misrepresent what he had said about taking breaks, and he had not said that he never takes a break. He indicated instead that he often takes his breaks outside the Control Room on a nearby bench.
[19] He received the Show Cause Letter on 6 February 2019 and provided a response on the following day. He referred in that response to his long career in the security industry and his good employment record during that time. He again rejected the allegations made about him sleeping in his vehicle, or that he had taken excessive breaks, and suggested this could be clarified by speaking with Mr Lakew, or with the Supervisor. He again denied not performing patrols correctly and always acted as directed by his Supervisor. He also emphasised that only one witness was being relied on to substantiate the allegations made about him, and the fact that some confusion occurred in regard to his responses was due to English not being his first language. He was then asked to attend a further meeting with MSS on 14 February 2019, which was conducted by telephone. He was told in that meeting by Mr Mayne that MSS believed the allegations had been substantiated based on the reports from witnesses, and it had been decided that his employment was to be terminated with immediate effect.
[20] Mr Do has a wife and two children and is the only full-time worker in the family and his job was very important to him. If his employment had not been terminated, he had expected to continue working in that job until he retired.
Mr Bekele Lakew
[21] Mr Lakew has worked as a Security Officer at the Debney Park site since November 2011. He was also rostered to work on the same shift has Mr Do on 11 January 2019 and confirmed that he left with him to complete the first patrol at around 7:00 p.m. They then returned to the Control Room to take a break. Mr Lakew cannot remember the exact length of that break but estimated that it lasted for between 15 to 30 minutes. He took his break in the Control Room with the Supervisor, whilst Mr Do took his break outside.
[22] They then completed their second patrol and returned to the Control Room to commence their meal break. This lasted for approximately 30 minutes. Mr Do and Mr Rajput then left to carry out the third patrol while Mr Lakew remained in the Control Room and completed some training. They then returned from the third patrol and took their break. A noise complaint was then received, and Mr Lakew left with Mr Rajput to investigate. When they returned to the Control Room the Supervisor was the only person present. Mr Lakew then took a further break of around 15 minutes, and then left on the fourth patrol with Mr Rajput. This took around an hour and a half to complete and they then returned to the Control Room prior to the conclusion of their shift at 3:00 a.m.
[23] Mr Lakew also indicated in cross-examination that the site did not have a specific patrol schedule and patrols were carried out based on the instructions received from the Supervisor. He also stated that the Supervisor had to call on the radio to get Mr Do to attend the noise complaint because at the time he was outside taking a break. Mr Lakew also denied that he ever slept while on duty during the course of his shifts.
The Applicant’s Submissions
[24] Mr Do submits that a valid reason for dismissal must be one that is sound, defensible and well founded. The Commission must also determine on the balance of probabilities whether the conduct in question actually occurred. The principal claims made against him in this case are that he took excessive breaks during the course of his shifts and failed to carry out patrols in an appropriate manner. These claims rely solely on the witness evidence of Mr Sajid Rajput and Mr Idris Mohamed, together with the relevant activity logs.
[25] He continues to submit that the witness evidence of Mr Rajput should not be relied upon as he only accompanied Mr Do on one patrol during the course of the shift on 11 January 2019, and was therefore in no position to provide evidence about what occurred on the remainder of the patrols that evening. He was also not in a position to be able to substantiate whether Mr Do took excessive breaks during the course of his shift. It is also submitted that his evidence is not credible in any case because he also attempted to deny being involved in a physical altercation when employed by another security company. Mr Do also submits that Mr Rajput has conspired in some way with Mr Mohamed in an attempt to have Mr Do removed from his position, apparently so that Mr Mohamed can take over his role.
[26] Mr Do also takes issue with the evidence provided by Mr Mohamed and submits that he acknowledged in cross-examination that he did not carry out any patrols with Mr Do on the evening of 11 January 2019. This impacted on the credibility of the evidence he provided about how the patrols were conducted, and the length of the breaks taken by Mr Do during the course of his shift. It is also submitted that Mr Mohamed was wanting to take on Mr Do’s role and accordingly had a reason to try and discredit him.
[27] In addition, Mr Mayne confirmed in cross-examination that he had initially relied only on what he had been told by Mr Rajput, and only sought to rely upon the evidence of Mr Mohamed when it became clear that he was simply relying upon the accounts of a single witness to substantiate the allegations made against Mr Do.
[28] Mr Mayne also indicated in his evidence that he had examined a number of activity logs that he claimed related to the shift performed on 11 January 2019. However, in cross-examination it became clear that at least four out of five of these activity logs had been submitted approximately 17 hours before the shift commenced. They were therefore not related to the shift performed on the evening of 11 January 2019. MSS subsequently provided additional activity logs which were said to relate to the shift performed on 11 January 2019, however, these appeared to have been submitted by the Supervisor, and not by Mr Do. However, no attempt was made to speak to the Supervisor to verify what was contained in the activity logs, particularly in circumstances where Mr Mayne appeared to believe they had been falsified. It was therefore unclear as to how they could be used to substantiate the allegations made about Mr Do. Mr Mayne also confirmed in cross-examination that he had not spoken directly to the Supervisor about the activity logs. He has also now resigned from his employment at MSS, but Mr Do submits that this did not prevent him from being spoken to, and he was still employed at the time MSS began its investigation into the allegations.
[29] Mr Mayne also confirmed in cross-examination that he had not spoken to other potential witnesses who were at the site that evening, and he did not check the CCTV footage. Mr Do submits in response that this was because that evidence would not have supported the allegations made about him.
[30] Mr Do continued to submit that his evidence, and the evidence of Mr Lakew, should be preferred as they have both been employed at the Debney Park site for an extended period of time and both had “exemplary work records.” It is also noted that allegations raised about Mr Do in regard to shifts carried out prior to 11 January 2019 were not put to him in cross-examination and should not be relied on. Mr Do submits in conclusion that there is not sufficient evidence, on the balance of probabilities, to substantiate the allegations made against him and there was accordingly no valid reason for his dismissal.
[31] He continues to submit that the remaining matters in s.387 are largely neutral considerations, apart from those contained in s.387(h). The failure to provide him with the statements or identities of the witnesses that were relied on was a relevant factor to be taken into account in determining whether his dismissal was unfair and represents a denial of natural justice. In particular, MSS appears to have relied upon the account of one eyewitness in circumstances where there were evidently a number of other potential witnesses who could have been spoken to.
[32] Mr Do’s termination has also had a significant impact on him, both personally and financially. He has a wife and two children and is the sole full-time employee in the household. He is also 50 years old and English is not his first language. These factors, together with the fact he was dismissed on the basis of serious misconduct, have made it difficult for him to find other employment. He has also worked in the security industry since 2006 and has not received any complaints or warnings in the time he has been employed.
[33] He also submits that his dismissal on grounds of serious misconduct was a disproportionate response, and none of the allegations made against him, even if they can be substantiated, come within the definition of serious misconduct. This again provides another compelling reason why his termination was unfair.
[34] In terms of remedy Mr Do seeks to be reinstated with an order for continuity of employment and the restoration of lost remuneration. However, if the Commission determines that reinstatement is inappropriate then he seeks an order for the maximum permissible amount of compensation, particularly given his length of service and the fact that he intended to continue working as a Security Officer until the date of his retirement.
The Respondent’s Submissions and Evidence
Mr Stuart Mayne
[35] Mr Mayne is the Business Manager – Client Services with MSS and has worked for the business for the past 22 years. He has been in his current role for around five years and is responsible for MSS’s Victorian contracts with the Department of Health and Human Services (DHHS).
[36] Mr Do commenced employment with MSS on 1 April 2018 as a Security Officer located at the Debney Park site pursuant to a contract of employment he signed on 4 April 2018. Mr Do had also been trained as a Control Room Operator and he and another employee, Mr Thu Doan, alternated in carrying out Control Room Operator duties at the site. The Control Room Operator is also the Supervisor and the most senior employee on site. In addition, when Mr Do was not rostered on as the Control Room Operator he was the second in charge at the site.
[37] The site has a patrol schedule which the Security Officers are required to follow on each shift and all employees, including Mr Do, are well aware of what this schedule requires. It specifically outlines the patrols that the Security Officers must perform during the course of each shift.
[38] Two employees raised concerns with Mr Mayne about the conduct of the Security Officers at the site. The first was Mr Ralph Sikic, who is a Night Manager with MSS and works across a number of different sites. He contacted Mr Mayne on 1 December 2018 and said he had been at the Debney Park site that evening and saw three Security Officers taking a break at the same time when there should have only been one unit taking a break at any one time. The second employee was Mr Idris Mohamed, who had commenced working at the Debney Park site in November 2018. He had raised concerns about other Security Officers at the site not conducting patrols or carrying out their work in a proper manner, and Mr Mayne met with him on 18 December 2018 to discuss these concerns.
[39] Mr Mayne had also been informed by the DHHS Client Manager in November 2018 that tenants at the Debney Park site had commented that they never saw the Security Officers around the site.
[40] Mr Mayne subsequently decided that he needed to carry out further investigations and directed Mr Sajid Rajput to observe a shift at the site on 11 January 2019 and to report back to him. Mr Rajput is a Supervisor at another DHHS site and was trusted by Mr Mayne to make reliable observations about what was occurring. The Security Officers at the Debney Park site were told on that evening that Mr Rajput would be at the site for the purpose of undertaking some additional training.
[41] After Mr Rajput had worked at the site on that evening he forwarded an email to Mr Mayne on 13 January 2019 detailing what he had observed. He noted, in particular, that the patrols carried out during the course of the evening did not match the patrol schedule, and it appeared that the activity logs had been falsified. Mr Mayne subsequently concluded that the Security Officers at the Debney Park site were not performing patrols, as required.
[42] However, he subsequently provided an amendment to his original witness statement which attached some additional documentation. He indicated in his examination-in-chief that these were the correct activity logs that related to the shift on 11 January 2019, and they indicated that patrol times were being falsified as staff were listed as being on shift when they were not. However, he also acknowledged in cross-examination that these new activity logs had been submitted by the Supervisor, but he had not spoken to him about them because he had now resigned from his position with MSS.
[43] Mr Mayne subsequently sent Mr Do a letter on 25 January 2019 detailing the various allegations and indicating that he was to be stood down while they were investigated. Mr Do provided a response on 30 January 2019 and a further meeting was then scheduled with him on 4 February 2019.
[44] Mr Do denied that he was the on-site Supervisor during the shift, and he was instead following the instructions of the Supervisor. However, as one of the more experienced Security Officers at the site it was expected that he would comply with and enforce compliance with the patrol schedule. Mr Mayne also concluded that the patrols at the site were not being carried out in a correct manner and were instead being rushed through without full checks being conducted. It was also noted that despite Mr Do indicating that he had been required to deal with a tenant who complained about a water leak there was no report logged of this incident. In addition, he was still expected to respond to the radio call from the Supervisor about the noise complaint while he was assisting the tenant in dealing with a water leak, but he did not do so.
[45] He had also provided inconsistent responses about the length of the breaks taken during the course of the evening and had initially indicated that he did not take breaks. However, he subsequently confirmed that he would sit on the bench outside the Control Room while taking his breaks. However, Mr Mayne did acknowledge that allegation made about him sleeping in his vehicle during the course of the shift were not able to be substantiated.
[46] After providing Mr Do with a show cause letter on 5 February 2019, and then considering his subsequent response which was received on 7 February 2019, it was decided during the course of a further discussion with him on 14 February 2019 that his employment was to be terminated with immediate effect. The employment of Mr Lakew and Mr Huynh was also terminated on similar grounds. The Supervisor, Mr Doan, also resigned. However, it was decided that no action would be taken in regard to Mr Mohamed as he was new to the site and had been proactive in raising concerns about what was occurring at the site.
[47] Mr Mayne also confirmed in his examination-in-chief that it had been concluded as a result of the investigation that the employees at the site were conspiring with each other to avoid carrying out their required duties, and to take longer breaks than permitted.
[48] However, he also acknowledged in cross-examination that the activity logs that had been attached to his witness statement could possibly have been the wrong activity logs and may have related to the shift carried out on the previous evening. He also confirmed in cross-examination that he did not check any of the CCTV footage at the site because he was relying on the information provided to him by two witnesses and was confident that he could rely on what they had told him. He was also not aware about whether there was any specific CCTV footage available that would have assisted his investigations, and, in any case, the footage belonged to the client.
Mr Idris Mohamed
[49] Mr Idris Mohamed has been employed by MSS as a Security Officer since April last year and has worked in the industry for more than 10 years. He transferred to the Debney Park site in November 2018.
[50] After working at the site, he noted that there were no standards and no site orders provided to him and the Security Officers often remained in the Control Room for the majority of their shifts. On one occasion Mr Do told him that he was to remain in his vehicle and keep a watch out for any Inspectors or Night Duty Managers who might arrive at the site.
[51] Mr Do and the other Security Officers also had a practice of splitting up during their patrols, which is not the correct procedure as it is unsafe to move around the site alone. The correct procedure is instead to remain “partnered up” at all times during patrols, and all of the Security Officers should have been aware of this requirement. In addition, the patrols or “walk downs” which should have taken around 45 minutes to complete were being completed in a much shorter time frame, with the Security Officers then returning to sit in the Control Room for extended periods. He was also told by the Supervisor that it was up to the Security Officers as to how long each patrol took. He was also told that there were no set times for breaks to be taken.
[52] Mr Mohamed first raised his concerns with Mr Mayne about what was happening at the site in an email he sent to him on 15 December 2018, and he subsequently met with him on 18 December 2018 to discuss his concerns. He sent a further email to him reiterating many of his concerns on 5 January 2019, and again sent further emails on 8 and 9 January 2019.
[53] On the evening of 11 January 2019 Mr Mohamed conducted the first two patrols with Mr Huynh and Mr Rajput. After completing a 45-minute patrol they then took a one-hour break. Mr Mohamed also observed Mr Do spend a lot of time during the course of the shift either talking on his mobile phone, sitting in his car, or sitting on a bench outside the Control Room. The Supervisor also attempted to contact Mr Do on one occasion by radio, but he did not respond. Mr Mohamed also stated that he did not hear any reference during the course of the evening to a tenant complaining about a water leak in their apartment and, in any case, Mr Do should not have been attending to this matter on his own. Mr Mohamed also reiterated that on each occasion when he returned to the Control Room during the course of the shift Mr Do was either outside in his car or talking on his mobile phone.
[54] It also appeared that Mr Do did not complete a full patrol during the course of the shift and he indicated to Mr Mohamed that one walk down of one building per shift was sufficient during each patrol. However, when working as the Control Room Operator he made false reports in the activity log indicating that full walk downs for each of the four buildings had been completed, despite the fact that this was not the case.
[55] Mr Mohamed also confirmed in cross-examination that he did not carry out any patrols with Mr Do on the evening of 11 January 2019, but did not believe that he had carried out his patrols as required during the course of the shift because every time he completed a patrol Mr Do was either in his car or sitting on the bench outside the Control Room. The employees also took breaks of around one hour during the course of the shift.
Mr Sajid Rajput
[56] Mr Rajput has been employed by MSS as a Security Officer since November 2016 and was promoted to the role of Site Supervisor at another DHHS site in Fitzroy where he is currently located. He was asked by MSS to observe what was occurring at the Debney Park site after complaints having been received from the client about the Security Officers at the site not carrying out their jobs in the required manner.
[57] He attended at the site on the evening of 11 January 2019 on the basis of his understanding that the other Security Officers had been told that he was carrying out training on site, and they were to ensure he was made aware of the relevant site operations. Mr Rajput was directed by the Site Supervisor to work with each of the different employees during the course of their patrols and he subsequently provided the following observations about what occurred during the course of the shift on that evening.
[58] In regard to the assertion by Mr Do that he did not respond to the Supervisor’s calls during the fourth patrol because he was dealing with a water leak that had been reported by a tenant Mr Rajput stated that if this was correct Mr Do should not have attended to that incident on his own, and the Security Officers at the site are required to be partnered up, or to work in pairs, at all times for safety reasons. It was a mandatory requirement that the Security Officers at the site only attend incidents when accompanied by another Security Officer and Mr Do should have contacted the Supervisor in order to obtain assistance.
[59] Dealing with an incident like a water leak was also a reportable incident which must be reported by radio or telephone to the Control Room Operator. However, Mr Do did not do this. As someone who was often in the role of Control Room Operator, he should have been well aware of this requirement, and should have ensured that a report about the incident was provided. In addition, once an incident of that kind is notified the Control Room Operator is required to provide a written report, and it should also be reported to DHHS for maintenance purposes.
[60] Mr Rajput also reported that Mr Do did not wear the proper uniform during the course of the shift, and a high visibility vest should be worn in the evenings. However, Mr Do did not wear this vest and stated that he did not want to be seen so as to catch people out.
[61] Mr Rajput indicated in conclusion, “I think we did about two hours of work during the 11 January 2019 shift. There were many locations that should have been checked out and attended to which were not.” 4
[62] Mr Rajput also attached a copy of the report he provided to MSS following his attendance at the site on that evening. It stated in conclusion under the heading “Observation”,
“1) Most of time, guard spent sitting outside the Control Room or their cars and sleep.
2) Guards who work there longer are seniors and they decide what to do. For example, Idris just follow meaning, who decides when to conduct control.
3) Bekele was sleeping in the room I could hear him snoring.
4) They are taking 82 90 minutes break the every 20 – minute patrol.
5) Peter told me that the supervisor is retiring in 2 months’ time and he doesn’t care about anything that happens on the estate.
6) There is no radio communication at all.
7) Guards are very close to each other and they make plans on how to spend the night.
8) In the whole shift, supervisor spoke to the guards only once, which was for the noise complain. He was busy with his own work on the computer.
9) As a trainee they didn’t give me much information about the site or any patrol they conduct or any explanation.
10) I hardly worked for two hours max.” 5
[63] Mr Rajput also denied in cross-examination that he had been terminated from his employment with a different security company at an earlier point in time due to a physical altercation. However, he was required to attend a disciplinary meeting as a consequence of what occurred but was not involved in any fight or physical altercation. He also indicated that he performed the third patrol on the evening of 11 January 2019 with Mr Do, but did not perform any other patrols with him on that evening. He also stated that he had met Mr Mohamed prior to attending the site on 11 January 2019 but had not spoken to him for at least six months prior to that time.
The Respondent’s Submissions
[64] MSS referred in its submissions to the terms of the contract of employment entered into by Mr Do when he commenced employment with MSS in April 2018. He had also committed to comply with the relevant “guard post orders” and the workplace values that MSS requires its staff to comply with.
[65] It continues to submit that the Debney Park site is a high-risk site because of some of the issues that can arise, and MSS’s contract with DHHS requires it to conduct regular foot patrols. These are to be carried out in pairs and require extensive checking of the various facilities on site. The Security Officers are also required to maintain radio contact with the Control Room at all times. They are also required to maintain a detailed and comprehensive written record of all patrols, and any interactions and incidents that occur during the course of each shift. The site also has a specific patrol schedule that outlines the patrols to be performed during each shift.
[66] MSS had a number of concerns about the nature of the security operations at the Debney Park as a result of issues raised by its client, and it was therefore decided to send Mr Rajput to observe the conduct of the shift on 11 January 2019. His subsequent report indicated that the Security Officers on the shift, including Mr Do, were not performing patrols in accordance with the patrol schedule, and were not following other procedures, as required.
[67] After further investigation it determined that Mr Do had engaged in serious misconduct by failing to comply with lawful and reasonable instructions and the various procedures set out in the guard post orders and patrol schedules. This put MSS at risk of breaching its contract with DHHS. It also submits that the termination of his employment was not a disproportionate or inconsistent response, and two other Security Officers at the site had also been terminated on similar grounds, while the Supervisor had resigned.
[68] Mr Do was also the second in charge during the course of the shift and failed to ensure that other staff followed site instructions and duty orders. He also failed to ensure the patrols were completed correctly, and that the relevant shift break times were adhered to. He had also failed to provide appropriate training to Mr Rajput during the course of the shift. In addition, his actions had the potential to place the health and safety of the Security Officers and other persons at the site at risk.
[69] It also highlights a number of inconsistencies in the evidence of Mr Do. For example, he stated that the site did not have a patrol schedule, and he had never seen the schedule until 29 January 2019. However, he had previously sent an email to Mr Mayne with a copy of the site patrol schedule attached. There was also a meeting with all Security Officers at the site in December 2018 when the frequency and scheduling of patrols was discussed. There were also inconsistencies between the evidence of Mr Do and Mr Lakew in regard to where they were when taking breaks. Mr Do also claimed that he was attending to the issue to do with the water leak at the tenant’s premises at the same time as Mr Rajput saw him sitting on a bench outside the Control Room. Mr Do’s own evidence also appeared to indicate that he was on a break and attending to the issue about the water leak at the same time. There was also no record of any report that he had compiled in regard to the issue associated with the water leak. He had also failed to respond to the radio call from the Supervisor when he was supposedly dealing with the water leak issue, which was again in direct breach of the site policies and procedures which required that Security Officers remain in radio contact at all times.
[70] MSS also submits that the CCTV footage that is recorded at the site belongs to DHHS, and its access to that footage is restricted. In addition, the footage would not necessarily provide an indication about whether an employee was remaining in their vehicle or taking extensive breaks at a location away from the Control Room.
[71] It submits, in conclusion, that Mr Do’s conduct was sufficiently serious to warrant his summary dismissal when judged objectively as it was clear from the investigation that was carried out that he had acted deliberately and wilfully, and this accordingly constituted a valid reason for his dismissal. It continues to submit that the evidence of Mr Mohamed and Mr Rajput provides reliable substantiation of the claims made about Mr Do. It also submits that the other requirements in s.387 have been satisfied.
[72] This matter involves some significant claims about the alleged coordinated behaviour of a number of employees at the Debney Park site, including Mr Do. Three of those employees, including Mr Do, have had their employment terminated, and the most senior employee at the site, being the Supervisor, has resigned. However, Mr Do denies the allegations made about him. He otherwise attributes blame to the Supervisor, who he submits was responsible for what occurred at the site and claims that was acting in accordance with the Supervisor’s directions at all times. There are also some evident deficiencies in the processes gone through by MSS, which perhaps suggest that it placed a greater priority on maintaining its ongoing relationship with its client than ensuring that a thorough process of investigation was carried out. Regardless, the Commission is now required to consider whether Mr Do was unfairly dismissed in the sense that his dismissal was harsh, unjust or un-reasonable having particular regard to the matters contained in s.387.
[73] It is noted at the outset that the circumstances in which an employee’s dismissal can be considered to be “harsh, unjust or unreasonable” have been considered in a number of previous decisions. The decision in Byrne v Australian Airlines Ltd 6 is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded:
“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 7
[74] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 8 also provides guidance about the Commission’s role in regard to each of the matters in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh unjust or unreasonable.” The Full Bench concluded:
“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 9
[75] I turn now to deal with each of the considerations in s.387, and those authorities that are relevant to the determination of this matter.
[76] Before coming to the particular circumstances involved in this matter it is noted again that previous decisions have had regard to what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 10 is often referred to in this context. His Honour came to the following conclusions:
“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.
Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 11
[77] In Parmalat Food Products Pty Ltd v Wililo 12 the Full Bench also concluded that:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 13
[78] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 14 (“Australian Postal Corporation”) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:
“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 15
[79] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 16 when it stated:
“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 17
[80] These authorities make clear that the existence of a “valid reason” is often the most important consideration among the matters in s.387 that the Commission must have regard to. It is also clear that a “valid reason” must be one that is “sound, defensible and well founded” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.
[81] It has also been made clear that the Commission’s role in dealing with an unfair dismissal application is not to stand in the shoes of the employer, and to then decide whether the decision made by the employer was the same one that would have been made by the Commission in the same circumstances. Its role is, instead, to determine whether, on the basis of the available evidence, the circumstances that existed at the time can be said to have justified the decision to terminate the employee.
[82] MSS only took on the contract to provide security services at the Debney Park site in April last year. Prior to that time the contract was held by another Company. MSS also took on a number of the employees, who had been employed at the site by the previous contractor, including Mr Do. The site is evidently a large one, with several different buildings extending over a large area. It is also a potentially dangerous site, given some of the activities that occur at the site.
[83] MSS was first alerted to some of the issues at the site following complaints passed on to DHHS from residents at the site, who were concerned that they were not seeing regular visible security patrols during the course of each evening. This of itself seems somewhat unusual. It could perhaps have been expected that after taking over the contract at the site MSS would have carried out a thorough review of the operations at the site with all stakeholders as a matter of priority in order to determine whether there were any particular issues that needed to be addressed.
[84] It was also alerted to some issues at the site by one of its managers who works across a number of different sites. He attended at the site late last year and subsequently contacted Mr Mayne on 1 December to advise him that he had witnessed three Security Officers taking a break at the same time when only a single unit should have been taking a break at any one time.
[85] MSS was also alerted to some issues at the site by Mr Idris Mohamed. He indicated in his evidence that he has worked in the security industry for more than 10 years, however, he only commenced at the Debney Park site in November last year. After commencing work at the site he became concerned about a number of things that were occurring, including the lack of standard procedures and site orders, and the extended breaks taken by the Security Officers during the course of their shifts.
[86] He was also concerned about the practice of the Security Officers whereby they would split up during their foot patrols, apparently to enable them to be completed more quickly. This practice was in breach of policy, which requires that the Security Officers always remain in pairs during their patrols and maintain radio contact with the Control Room at all times. Mr Mohamed also provided evidence about what occurred on the evening of 11 January 2019, although he also acknowledged in cross-examination that he did not accompany Mr Do on a patrol during the course of that shift. However, he indicated in his evidence that he observed Mr Do taking extended breaks of up to one hour during the shift. He was also not able to be contacted by radio by the Supervisor at one point at a time when he later claimed that he was dealing with an issue concerning a water leak that had been reported by a tenant. He had again apparently attended to this issue on his own, which was again in breach of policy. There was also no evidence of any report having been provided by him about this incident.
[87] Mr Mohamed first raised his concerns about what was occurring at the site in an email to Mr Mayne on 15 December 2018. He later met with him and then provided further email up-dates about what he had observed. Mr Do attempted in his submissions to discredit Mr Mohamed’s evidence on the basis that he was angling for the position of Supervisor at the site. However, I am not satisfied that there is any evidence to suggest that Mr Mohamed was otherwise motivated by anything other than what he had observed after commencing at the site in November 2018.
[88] MSS next relies on the evidence of Mr Rajput, who is a Site Supervisor at another DHSS site where MSS has a contract to provide security services. He has been employed by MSS since November 2016. He was asked by Mr Mayne to attend the Debney Park site on the evening of 11 January 2019 and to provide a report on what he observed. The other employees were told that he was “a reliever,” who was at the site to receive some additional on-site training. Mr Rajput apparently knew Mr Mohamed as they had previously worked together at another security company, however, the two men did not acknowledge that they knew each other on that evening. Mr Rajput also indicated that he had not seen Mr Mohamed for at least six months prior to that time.
[89] Mr Rajput’s evidence about what he observed during the course of the shift on that evening has been detailed already and is not restated now. His evidence makes reference to what he observed in regard to several of the employees who worked on that evening, but also makes specific reference to what he observed in regard to Mr Do. This included the limited scope of the site that was inspected on the patrol they completed together; his failure to complete a report into the alleged incident involving the water leak; the fact that he apparently attended to this issue on his own; and his failure to wear the appropriate clothing. A summary of his general observations about the evening that he provided to Mr Mayne has also been set out at an earlier point in this decision. It does suggest that the employees at the site had contrived to act in breach of what was expected of them and, in particular, carried out abbreviated patrols and took extended breaks during the course of their shift. Mr Rajput particularly singled out the two senior employees at the site, being the Supervisor, Mr Doan and Mr Do, who was the second in charge.
[90] Mr Do again attempted in cross-examination to discredit Mr Rajput’s evidence by suggesting that he had been dismissed by a previous employer after being involved in an altercation with another employee, but this allegation was denied by Mr Rajput and I am not aware of any evidence that suggests it can be substantiated, or that it is of any particular relevance to the determination of this matter.
[91] MSS also seeks to rely on the activity logs from the evening of 11 January 2019 in support of its submission that Mr Do was acting in breach of what was required of him. However, I have placed little weight on this evidence. The activity logs that were originally attached to Mr Mayne’s witness statement were discovered in cross-examination to not relate to the shift performed on the evening of 11 January 2019 but were apparently related to the previous shift. A series of further activity logs were subsequently provided, and Mr Mayne made himself available to be cross-examined about them. He indicated that they had been prepared by the Supervisor, Mr Doan, however, he was no longer employed by MSS and Mr Mayne had not been spoken to him about them. Mr Doan was also not available to give evidence about how the activity logs were compiled. As a consequence, I have attached little weight to this evidence.
[92] As indicated, Mr Do denies the allegations made about him, or suggests in the alternative that he was simply acting in accordance with the direction of his Supervisor, who ultimately had responsibility for what occurred at the site during the course of each shift. However, I am not necessarily satisfied that this provides an adequate defence in circumstances where employees might be knowingly colluding to avoid carrying out their required work functions. He also claims that the fact that English is not his first language caused some confusion in terms of the responses that he provided at different times during the course of the investigation.
[93] It also appears that he failed to provide an adequate response to some of the allegations that have been raised. For example, he claims that he was required to attend to the issue raised about a water leak at a tenant’s premises. He indicated that he took around 95 minutes to deal with this matter. However, there is no evidence of him having provide any report about this incident, despite being required to do so. He apparently attended to the incident on his own despite the requirement that security officers work in pairs at all times. The Supervisor also attempted to contact him during this time about another matter and Mr Do claims that he responded to this radio call. However, there is no evidence of any other employee hearing or receiving his radio response. He also suggested at one point that he had been directed to attend to the water leak issue by his Supervisor. If this was the case it is not clear why his Supervisor would then be attempting to locate him by radio in order to have him deal with the issue concerning the noise complaint. His evidence about his whereabouts at the time also appears to be in conflict with that of Mr Lakew, who suggested that Mr Do was taking a break at a time when he claimed he was attending to the issue concerning the water leak.
[94] Mr Do also relies on the evidence of Mr Lakew. The two men carried out the first of the two patrols on that evening. He was unable to recall the length of the break that they took after the first patrol but estimated that it lasted between 15 to 30 minutes. After their second patrol he indicated that the two men had their meal break which lasted for around 30 minutes. He also indicated that the site did not have a specific patrol schedule, and instead operated on the basis of directions received from the Supervisor. It is also noted that some of his evidence conflicted with that of Mr Do. For example, Mr Do indicated that at the time that he was asked to attend to the noise complaint he was already attending to the issue concerning the water leak that had been reported by a tenant. However, Mr Lakew indicated in his evidence that when the Supervisor made the request to investigate the noise complaint Mr Do was outside the Control Room taking a break. It is also noted that Mr Lakew was also dismissed from his employment as a result of what occurred at the Debney Park site. While I do not intend to impugn the credibility of his evidence it can be assumed that he does not have a high regard for his former employer.
[95] I am satisfied, in conclusion, that there was more that MSS could have done to endeavour to substantiate the allegations made about Mr Do. While it is acknowledged that they only took over the site in April last year it is hard to comprehend how the practices at the site were allowed to continue for as long as they did. However, in dealing with the issue of “valid reason” I have had particular regard to the evidence of Mr Rajput and Mr Mohamed and am satisfied that their evidence is clearly to be preferred. I am also satisfied that this evidence about the nature of the work practices at the site and the extended breaks taken by the employees, including Mr Do, can be said to constitute serious misconduct.
[96] The evidence makes clear that the Debney Park site is a potentially dangerous worksite. The actions of the Security Officers at the site had the potential to put at risk the safety of the employees at the site, as well is the residents. MSS can take no credit for allowing the situation to exist for as long as it did, although it is acknowledged that it did eventually take action to establish what was actually occurring at the site after it became aware of concerns from its client and residents at the site about what was occurring. I am accordingly satisfied that despite some of the shortcomings in its investigations MSS had a valid reason to dismiss Mr Do on grounds of serious misconduct in the sense that the reason was sound, defensible and well founded.
[97] Mr Do was notified of the reason for his dismissal in the meeting that took place on 14 February 2019.
[98] Mr Do was given an opportunity to respond to the reasons that ultimately led to his employment being terminated in the disciplinary meeting that took place on 4 February 2019. He subsequently provided further written responses after that time.
[99] There is no evidence of any unreasonable refusal by MSS to allow Mr Do to have a support person present in the discussions relating to his dismissal, and Mr Do did have a support person present in those discussions.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[100] Mr Do was summarily dismissed from his employment and there is no evidence of him having previously been provided with any warnings.
[101] It is appropriate to deal with both of the above matters together. MSS is a large employer and has employees with dedicated HR expertise. It can accordingly be expected to be aware of the appropriate procedures to follow when terminating an employee.
[102] Mr Do is clearly upset by what has occurred and indicated that it has caused him significant anxiety, as well as impacting on him financially. He has been employed as a Security Officer for a significant period of time and had hoped to continue in this employment for the foreseeable future. These circumstances are clearly unfortunate, but at the same time they are regrettably often encountered in circumstances involving the termination of an employee’s employment.
[103] I have had regard to all of the submissions and evidence provided in this matter, and the various considerations in s.387 that the Commission is required to take into account. I am not satisfied, in conclusion, that Mr Do can be said to have been unfairly dismissed in the sense that his dismissal was harsh, unjust or unreasonable. In coming to this decision I have had particular regard to the conclusions reached in regard to the issue of “valid reason.” It follows from this decision that Mr Do’s application must be dismissed. An Order to this effect is issued in conjunction with this decision.
COMMISSIONER
Appearances:
S. Oski, for the Applicant.
N. Colosimo appeared for MSS Security Pty Ltd.
Hearing details:
2019:
Melbourne:
June 6 and 27.
Printed by authority of the Commonwealth Government Printer
<PR714573>
1 Fair Work Act 2009 (Cth) s.385.
2 Ibid s.387.
3 Form F2 attachment VD-3.
4 Exhibit 4 paragraph 35.
5 Ibid SR-1.
6 (1995) 185 CLR 410.
7 Ibid 465.
9 Ibid [20].
10 (1995) 62 IR 371.
11 Ibid 373.
13 Ibid [24].
15 Ibid [58].
16 Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).
17 Ibid [19].