Alessandra Urbanski v MSS Security Pty Ltd
[2012] FWA 3443
•24 APRIL 2012
Note: An appeal pursuant to s.604 (C2012/3782) was lodged against this decision - refer to Full Bench decision dated 30 July 2012 [[2012] FWAFB 6399] for result of appeal.
[2012] FWA 3443 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Alessandra Urbanski
v
MSS Security Pty Ltd
(U2011/1478)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 24 APRIL 2012 |
Termination of employment.
Introduction
[1] This decision concerns an application by Alessandra Urbanski (the applicant) seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The applicant was dismissed from MSS Security Pty Ltd (the respondent or the employer) on 7 July 2011. She was represented at the hearing by a friend, Scott Treloar, and the respondent was represented by Roger Ottrey, National Training Manager and Human Resources Manager - SA/NT. The respondent had previously sought permission to be represented by a legal practitioner but this was declined. 1
[2] The applicant commenced employment with the respondent on 20 October 2004. The respondent has a contractual arrangement with Channel 7 (the client) to provide security services at the client’s premises at Hindmarsh, in Adelaide’s inner west. As at the date of dismissal the applicant was one of four permanent security officers based at the client’s premises.
[3] It is agreed that the application was filed within the requisite 14 day time limit specified in s.394(2)(a) of the Act, and that the applicant:
● Is protected from unfair dismissal in accordance with s.382 of the Act; and
● Has been dismissed within the meaning of s.386(1)(a) of the Act;
[4] It is also agreed that the Small Business Fair Dismissal Code has no application to the present matter and that the applicant’s dismissal was not a case of genuine redundancy. The issue that falls for determination is whether the dismissal was harsh, unjust or unreasonable.
[5] Section 387 of the Act sets out the matters that the Tribunal is required to take into account, as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
The reasons for dismissal
[6] A meeting was held at the employer’s premises on 7 July 2011, at the conclusion of which the applicant’s employment was terminated. The reasons for dismissal were subsequently set out by the respondent in a letter to the applicant dated 7 July 2011, which included the following passages:
“Re: Termination of employment
We refer to the allegations against you for fraudulently making entries into the site Log book to state that you had conducted internal patrols when in fact you had not been. By your own admission this has been occurring for at least 3 months.
As you are aware an investigation into the allegations has been conducted.
At the meeting held on 7 July 2011 you were informed that entering false entries into the site Log book is in breach of the Site Standing Orders and a failure to adhere to Security Officers Standing Instructions 2010. Your conduct is also in breach of the Trade Practices Act. During the interview you acknowledged you made the decision not to do the internal patrols without consultation with the client and/or MSS Security Management.
As you were informed at the meeting, the Company has considered your response, the evidence provided and reached the decision that your conduct constitutes serious misconduct and therefore your employment with MSS Security is terminated effective 7th July 2011.”
The evidence
[7] The applicant gave evidence. 2 I find her evidence to be largely unreliable and lacking in credibility on important matters. She presented a case at trial which, in respect to her response to the key allegations against her, bears little resemblance to the position she adopted at the dismissal interview, in her application for an unfair dismissal remedy and/or in her witness statement. I can only conclude that the applicant’s oral evidence in this regard is a recent invention. Where the applicant’s evidence conflicts with that of the respondent’s witnesses on this issue, the evidence of the respondent’s witnesses is preferred.
[8] The applicant relied on witness statements from Stephen Smith, the client’s Commercial Manager and Geoffrey Waters, who was previously employed as a Senior Security Officer with the respondent and had worked with the applicant. These statements 3 were admitted by consent and neither witness was required for cross-examination. Mr Smith’s statement deals with the security arrangements in place for the client and the respondent’s access to records from the swipe card system and CCTV footage held by the client. His evidence is accepted.
[9] Mr Waters’ statement addresses security arrangements at the client’s premises; an incident at the client’s premises in mid-2009; and his experience of the applicant’s work performance. His evidence is generally accepted, but is of limited weight in relation to the mid-2009 incident for reasons discussed later in the decision. Mr Waters had not worked at the client’s premises for some time, and where his evidence in relation to the security arrangements in place conflicts with other evidence, the other evidence is preferred. 4
[10] The respondent led evidence from three witnesses. John Toser, is the respondent’s State Operations Manager and the person who made the decision to terminate the applicant’s employment. Jarrod Toon is the respondent’s Operations Supervisor. Mr Toon conducted the investigation leading to the allegations against the applicant and led the meeting on 7 July 2011. Megan Fox is the respondent’s Business Manager. She had some involvement in the investigation that preceded the meeting on 7 July 2011 and was also present at that meeting.
[11] I find the evidence of these witnesses to be generally reliable and it is accepted other than where specifically stated in the narrative of facts that follows. A witness statement from Mr Ottrey was admitted by consent and he was not required for cross-examination. 5 His statement concerned a meeting with the applicant and Mr Treloar in August 2011, which was raised in the applicant’s witness statement. I do not consider that the statement is relevant to the matters I am required to determine.
The relevant facts
The security arrangements and CCTV footage
[12] The respondent has in place Security Officer Standing Instructions, 6 which deal with issues associated with working for MSS, including appropriate standards of conduct and performance, responsibilities, operational instructions and health and safety matters. The applicant signed an Employee Declaration on 30 August 2010,7 attesting to the fact that she had read and understood the Security Officer Standing Instructions and agreed to abide by them. Standing Instruction 1.29 is as follows:
“Falsifying Records and Reports
Any security officer found to have falsified records or reports will be terminated.”
[13] There were four permanent security officers, including the applicant, based at the client’s premises at the time of the applicant’s dismissal. The officers worked either a day shift or night shift of 12 hours duration to provide 24 hour coverage at the site. The duties to be undertaken are specified in site standing orders which are kept at the site. The orders for the night shift (19:00 hours to 07:00 hours) set out the required tasks to be undertaken at specified times, and relevantly includes:
“19.30
Begin internal patrols locking store rooms and file room, Lock Meeting room 4 and Boardroom cupboards, Lock generator room, graphics room and secure roller doors. Patrols carried out every hour and a half. Patrol 15 minutes duration.” 8
[14] The applicant understood the requirement to conduct these patrols and agreed that it was an important part of security officers’ work. 9
[15] During the night shift the security officer is based in the reception area at the reception desk. To conduct an internal patrol, the officer is required to exit the reception area through an internal security door (“the internal door”). Each officer is allocated a swipe card which opens the door and when the card is swiped the date and time is electronically recorded. The internal door can also be opened using a computer terminal located at the reception desk and it is possible to keep the door open by placing a piece of paper across the swipe card panel of the door.
[16] There is a site log book where each officer records, among other things, when they commence and finish their shift, when internal patrols and other duties are undertaken and matters of note that occur during their shift.
[17] There is a camera placed in front of the reception desk pointing outward and toward the external door. The reception desk and the security officer stationed at it are not visible on this camera, but any movement toward the external door would be captured. The internal door is located behind and to the left of the reception desk. Inside the internal door is a stairwell that leads to the upper floors of the building. A camera is located at the top of the stairwell facing back down the stairwell and also captures the internal door, such that people entering and exiting through this door are captured by this camera. 10 It is apparent that the applicant was not aware of the camera in the stairwell, and stated in her evidence that the internal door is not captured on CCTV footage.11
The investigation
[18] Ms Fox stated that at the end of June 2011, one of the security officers at the client’s site conducted a security audit as part of a front line management course. She stated that the officer “uncovered issues relating to the accuracy of log book entries for internal patrols … and these log book entries did not match up with internal swipe card records”. 12 Mr Toon commenced an investigation, although there is conflicting evidence on who directed him to do so.13
[19] The client provided the swipe card records for all security officers on site for the period 9 June to 30 June 2011 and Mr Toon compared these with the log book entries over the same period. 14 As a result of this reconciliation he concluded that two of the four security officers were accurately recording their internal patrols in the log book, but that two security officers were recording in the log book that they had carried out internal patrols when the swipe card records indicated that certain of these patrols had not been conducted.15 Mr Toon stated that the investigation concentrated on the night shift records because the presence of the client’s staff on day shift and the more frequent use of the internal reception door made the swipe card records difficult to interpret.
[20] The log book attached to Mr Toon’s statement includes his notations representing the information obtained from the swipe card records. His statement that two of the officers were accurately recording their internal patrols does not accord with the evidence since on a number of occasions the internal patrols were carried out up to 30 minutes before or after the time entered into the log book. This was also the case for the internal patrols conducted by the applicant and the other security officer.
[21] Mr Toon and Ms Fox attended at the client’s premises on 5 July 2011 16 to view some of the CCTV footage in the period covered by the swipe card records. Mr Smith and another officer from the client were present at the time. According to Mr Toon, footage for two of the days in the period to which the audit related was viewed. This footage showed no movement from the reception desk or through the internal reception door at any time proximate to particular entries in the applicant’s log book relating to internal patrols.
[22] The CCTV footage was not available at the hearing. Mr Treloar was critical of the respondent for failing to obtain the footage from the client and submitted that this undermined the reliability of the respondent’s evidence on its contents. He stated that he first became aware that the respondent relied on the footage to dismiss the applicant when the respondent filed its witness statements in December 2011, by which time the footage was no longer available. 17
[23] Mr Smith’s witness statement was prepared after the applicant had received the respondent’s witness statements so he could have given evidence on the CCTV footage since he was present on 5 July when it was viewed by the respondent. As the CCTV footage was the property of the client, there was no obligation on the respondent to produce it.
[24] I accept Mr Toon’s evidence about the content of the CCTV footage, which was confirmed in the evidence of Ms Fox. However, this evidence is not crucial to my conclusions because of other findings I have made.
The information given to the applicant prior to the meeting
[25] Mr Toser determined that a meeting should be held with the applicant to advise her of the results of the investigation and to seek an explanation from her. This meeting was arranged verbally on 4 or 5 July 2011 and there is no documentation which outlines the purpose of the meeting or the outcome of the audit. The applicant’s witness statement indicated that she was not given any details of the matters to be discussed at the meeting prior to attending. 18 However at the hearing she said that she believed she was going to get a “slap on the wrist for not writing the correct times down”. She stated that she understood that the meeting had something to do with an audit conducted on site and also that Mr Toon may have mentioned that it had to do with patrols.19
[26] According to Mr Toon, he told the applicant on 4 July that the meeting was in relation to the frequency and accurate recording of patrols and that it was a serious matter. Mr Toon stated that he had a subsequent phone discussion with Mr Liberts, the applicant’s union representative, at which time he informed Mr Liberts that the meeting concerned the fact that the applicant’s log books did not reflect the patrols undertaken. 20
[27] I accept the evidence of Mr Toon concerning the nature of the advice given to the applicant prior to the meeting on 7 July 2011, which is broadly consistent with the applicant’s evidence at the hearing.
The meeting on 7 July 2011 and the applicant’s response to the allegations
[28] At the meeting on 7 July 2011, 21 the applicant attended with Mr Liberts. The respondent was represented by Mr Toon and Ms Fox. A number of matters relating to the meeting are contested.
[29] Mr Toon’s typed notes of the meeting (JT2) and Ms Fox’s handwritten notes (MF1) were put in evidence. 22 There is some divergence in the content. A number of the matters that appear in JT2 do not appear in MF1, and vice versa. Some of these matters were subsequently confirmed by Ms Fox or Mr Toon, as the case may be, in their evidence to the Tribunal or in their witness statements. It may be that having viewed the other’s notes it jogged a memory, but at the least it indicates that neither set of notes is a comprehensive record of the meeting.
[30] I am satisfied that Ms Fox’s notes were made contemporaneously and that Mr Toon’s typed notes were based on his contemporaneous notes of the meeting, although the latter was not put in evidence. I consider that JT2 and MF1, together, provide a reasonably accurate representation of what transpired.
[31] In making findings in relation to the contested facts I have had regard to the credibility of the respective witnesses, the extent to which the oral evidence corroborates the notes and/or the evidence of other witnesses. I note that the applicant failed to call evidence from Mr Liberts, the other person present at the meeting. I consider that I am entitled to take the view that his evidence would not have assisted the applicant. 23
[32] One of the key issues between the parties at the hearing was whether the applicant admitted at the meeting that she had not conducted the patrols. I find that the meeting commenced at 10.00am, and after the introductions, the applicant was advised that her log book records show that she conducted internal patrols but this was not supported by the swipe card records and that relevant CCTV footage had been reviewed. The swipe card records and log book entries were on the desk and were referred to by Mr Toon, and while I do not think that he went as far as to show the applicant the specific entries he was referring to, the applicant had the opportunity to view them, had she or Mr Liberts so requested.
[33] The oral evidence of Mr Toon and Ms Fox was unequivocal that almost immediately after the allegations were outlined, the applicant admitted that she had not done the patrols. By way of explanation, she stated that in her view a better use of her time was to watch the monitors relaying vision from cameras providing surveillance of the exterior of the building. The fact that the applicant admitted the alleged conduct is common to both sets of meeting notes and is consistent with Mr Toser’s evidence of what Mr Toon and Ms Fox advised him when they consulted him later in the meeting. It is also consistent with the applicant’s witness statement which records:
“7. It was only when I was in the office was I advised an investigation had been conducted in relation to internal patrols at Channel 7 during night shifts…
a. ...
b. I was quite taken aback in the first instance but did admit that I may not have conducted all patrols as I had already checked off and knew the building at Channel 7 to be secured and safe. I had no reason to not be honest as I did not know my actions were so serious.
…
j. I said to Jarred that it was common practice amongst the security officers to not conduct all internal night patrols as once the last cleaning staff and camera crew had left - which was usually around midnight, that once everything was turned off and secured, that there was no need to do further checks, as everything could be monitored safely from the reception area using the camera and alarms. …” 24
[34] WhenIasked the applicant to explain the apparent inconsistency between her witness statement and oral evidence, the applicant stated that Mr Toon had told her at the meeting that if she did not put the correct time in the log book then the patrol did not happen. 25I reject this evidence as inherently improbable. It does not appear in the applicant’s witness statement and is inconsistent with the passages referred to above.
[35] In addition, I reject the applicant’s evidence at trial that she opened the internal door via the computer terminal at reception and kept the door open “every time I did night shift”. 26 This was put forward as an explanation for the absence of swipe card records for patrols that the applicant stated that she had undertaken. The applicant acknowledges that she didn’t raise this at the meeting on 7 July and said this was because she forgot.27
[36] This was also raised for the first time at the hearing. It is not supported by the evidence before the Tribunal, which shows that the applicant did in fact conduct certain internal patrols during night shift using the swipe card in the period covered by the audit. For example, the swipe card records for 25 June 2011 show that the applicant opened the internal reception door at 01:02, 1:56 and 06:24 on that shift, but there is no swipe card record that corresponds with the applicant’s entry in the log book that she conducted an internal patrol at 03:00.
[37] In answer to questions from Mr Toon and Ms Fox at the meeting, the applicant admitted that she understood the requirement to conduct internal patrols under the site standing orders and was familiar with the Security Officer Standing Instructions. She acknowledged that her view about the relative benefit of monitoring the external cameras had not been raised with management. She admitted that she had not been conducting all required patrols and had been falsifying log book entries for several months at least.
[38] I find that the applicant was contrite about her actions at the time - she promised that she would never repeat this conduct if she was given another chance and apologized to the respondent. The applicant and/or Mr Liberts asked that the applicant’s good employment history and length of service be taken into account. The applicant also stated that she had been dealing with personal issues related to her son, and this had affected her judgment. 28
[39] The meeting was adjourned to enable Mr Toon and Ms Fox to consult with Mr Toser. When they returned the applicant was dismissed and the meeting closed at 10.25am.
[40] In so far as the discussions between Mr Toser, Mr Toon and Ms Fox are concerned, it is clear that Mr Toon and Ms Fox reported the outcome of the meeting with the applicant. As a result of Mr Ottrey’s absence on leave, Mr Toser also involved the National Human Resources Manager, by phone, in the meeting, but Mr Toser stressed that it was his decision to dismiss the applicant.
[41] Mr Toser stated that he took into account that the applicant had experienced personal issues and her good employment history, but believed that dismissal was warranted because of the seriousness of her actions and the period over which they had occurred. He stated that the applicant’s personal issues had not existed over the entire period of the misconduct and did not negate the applicant’s dishonesty. He estimated that his meeting lasted 30 minutes, but conceded that this was not possible if the start and finish times as recorded by Mr Toon were correct.
[42] I consider that Mr Toser’s meeting lasted about 10 minutes. Given the applicant’s admissions, the only matter to be considered was the penalty to be imposed. It was suggested by Mr Treloar that Mr Toon could not give consideration to the applicant’s personal issues because he did not know what they were. I agree. Mr Toser’s own witness statement indicates that he was of the view that no personal issues could be serious enough to mitigate the applicant’s actions. 29 I also do not consider that it was open on the information presented to Mr Toser to conclude that the applicant’s personal issues post-dated the time she commenced falsifying the log book entries.30
Other matters
[43] Under cross-examination, Mr Toser conceded that there was no requirement in the site standing orders that the internal door must be locked at all times, and nor was there a requirement for security officers to gain entry through the internal door by using their swipe card. While this may point to a deficiency in the site standing orders it does not mitigate against the actions of the applicant.
[44] The applicant alleges that the doors leading to the balcony on the upper level of the client’s premises had been left open for an entire weekend, and the security officer concerned had recorded all patrols as having been conducted. It is relied upon by the applicant as showing that the respondent had taken lesser action in relation to similar conduct by another employee. Mr Toser was questioned about this incident under cross-examination. He stated that he was aware of the incident and, while not conceding that the particular officer was on shift for the whole of the weekend in question, he accepted that the officer was responsible for not locking the balcony doors and that he had recorded internal patrols as having been conducted.
[45] Mr Toser expressed the view that this incident involved a failure to undertake all requirements of the patrol, but a patrol was nonetheless conducted. In his mind there was no issue of falsifying log book entries although he acknowledged that the entries in the log book implied that all aspects of the patrol had been conducted when this was not the case.
The Submissions
[46] As noted earlier there is some ‘tension’ between the case presented at trial and that contained in the written material filed by the applicant. At trial Mr Treloar submitted that the respondent’s case against the applicant is based solely on the swipe card records but these records are not conclusive proof that the applicant did not conduct the internal patrols. In the written submissions it was argued that the dismissal was disproportionate to the conduct, and that a warning would have been more commensurate with the applicant’s actions.
[47] Mr Treloar stated that the applicant was dismissed for serious misconduct, but the respondent has failed to show how the applicant’s actions meet the definition of serious misconduct set out in Regulation 1.07 of the Fair Work Regulations 2009. In particular the respondent has not satisfied Fair Work Australia (FWA) that the applicant’s conduct caused serious and imminent risk to the health and safety of a person and the reputation, viability or profitability of the employer’s business as required by Reg. 107(2)(b).
[48] Mr Treloar also argued that the respondent dealt with similar conduct by other employees in the past in a less severe manner. In this regard Mr Treloar referred to the mid-2009 incident and stated that the applicant’s conduct was no worse and that it is common practice for security officers not to conduct patrols. Swipe card records for the security officer in question for the months of August and September 2009 were put in evidence 31 and these were said to show that a range of internal patrols were not conducted. I note that this evidence was not challenged by the respondent, other than as to relevance.
[49] It was contended that the respondent failed to take mitigating circumstances into account and that these circumstances were:
● At all times the applicant provided physical security at the client;
● There were no documented security breaches during the period of the applicant’s assignment to the client’s premises;
● The applicant performed additional duties at the request of the client;
● The applicant had a sound employment record with no prior warnings;
● The applicant’s length of service (6.75 years); and
● The applicant’s personal issues including that she was fatigued after working a substantial period of 12 hour shifts.
[50] In relation to procedural matters, Mr Treloar submitted that the employer failed to conduct a full and proper investigation and that it had determined to dismiss the applicant prior to the meeting on 7 July 2011.
[51] A summary of the respondent’s written submissions and the oral submissions of Mr Ottrey are as follows. There was a valid reason for dismissal. The applicant understood the requirement to conduct internal patrols, but she failed to undertake them and dishonestly recorded that she had in fact undertaken the patrols. This was a breach of the respondent’s site standing orders and the Security Officers Standing Instructions and the applicant was aware of this.
[52] The applicant was afforded procedural fairness. She was aware of the purpose of the meeting on 7 July 2011 in advance of it occurring; she was represented by an official of her union; and at no stage did the applicant or her representative query the detail that was provided to them or indicate that the applicant was not in a position to respond. The applicant admitted the alleged conduct.
[52] The applicant was aware of the importance of the contract with this particular client and her actions placed the respondent in breach of the contract. Failure to conduct internal patrols meant that expensive equipment relied upon by the client to provide a continuous service was not monitored for wilful or accidental damage. Falsification of records could have serious consequences in the event of an incident where the accuracy of such records was relied upon by police.
Consideration
Was there a valid reason for dismissal?(s.387(a))
[53] FWA is required to be satisfied on an objective analysis of the facts that the termination was for a valid reason. 32 My conclusion that the applicant admitted to the alleged conduct in the meeting on 7 July 2011 does not obviate the need to determine whether it did in fact occur having regard to all the evidence before FWA. However, the applicant’s admission of the conduct does bear on her credibility in light of the position she adopted at the hearing and this has had a bearing on the resolution of conflicts in the evidence in some areas.
[54] The swipe card and log book records relied upon by the respondent that the applicant did not undertake patrols and falsified her records is persuasive. The alternative explanation advanced by the applicant, that she left the internal reception door open and that she did not need to use the swipe card to conduct the internal patrols is inconsistent with the swipe card records and the evidence concerning the CCTV footage.
[55] It is uncontroversial that the applicant was aware of the requirement to conduct the internal patrols and the seriousness with which the respondent viewed the falsification of records. I conclude that there was a valid reason for dismissal related to the applicant’s conduct.
[56] The Regulation referred to in the applicant’s submissions relevantly provides that:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
...
(5) ...”
[57] I consider that the applicant has incorrectly interpreted this Regulation as requiring that conduct will only be serious misconduct if both Reg. 1.07(2)(a) and (b) are satisfied. Serious misconduct is to be given its ordinary meaning as per Reg. 1.07(1) and is not limited by the matters set out in Reg. 1.07(2)(a) and (b), as Reg. 1.07(3) illustrates.
[58] The applicant’s actions in not conducting all internal patrols may not constitute serious misconduct justifying summary dismissal. However the falsification of the log book entries over a substantial period of time is inconsistent with the fulfillment of the employee’s obligations under the contract of employment and it is destructive of the necessary confidence between the employer and employee. 33 I am satisfied that the applicant’s actions are properly regarded as serious misconduct.
[59] I note that the term “valid reason for dismissal” does not import a requirement that the conduct be serious misconduct. 34 However if there is a finding that there was no serious misconduct then this may weigh in the consideration of the proportionality of the dismissal.
Was the applicant notified of the reason for dismissal? (s.387(b))
[60] The notification of the reasons must be given to the employee in advance of the decision to terminate in order for the employee to be given an opportunity to address the reasons identified. 35 The allegations in this case were not documented in advance of the meeting on 7 July 2011. Based on the evidence I find that the respondent advised the applicant of the fact that an audit had been conducted and that irregularities had been found between the swipe card records and her log book entries concerning the internal patrols.
[61] I do not consider that the respondent went so far as to allege the falsification of records but on the applicant’s own evidence, she knew that an audit had been conducted and that the meeting related to times she had recorded as having undertaken patrols. In addition, I am satisfied that at the meeting the respondent again advised the applicant of the alleged misconduct and the evidence on which it was based. I conclude that the applicant was notified of the reasons for dismissal.
Was the applicant given an opportunity to respond to the allegations of misconduct? (s.387(c))
[62] It is apparent that the applicant was given this opportunity and did respond to the allegations against her. It may have been prudent for the employer to have approached the provision of information to the applicant in a more detailed manner in advance of the meeting. However, the applicant’s immediate admissions at the meeting effectively set the course for the remainder of the meeting, and in the absence of any request to have further time to respond to the allegations I conclude that the applicant was given an adequate opportunity to respond.
Was there an unreasonable refusal to allow the applicant to have a support person present? (s.387(d))
[63] It is agreed that there was no such refusal and that the applicant was represented at the meeting on 7 July 2011.
Sections 387(e), (f) and (g)
[64] It is agreed that these matters are not relevant to this case.
Other relevant matters (s.387(h))
[65] I now deal with the applicant’s submission that she received less favourable treatment than other employees who had demonstrated similar conduct by reference to the mid-2009 incident.
[66] The applicant has not established similar conduct. The swipe card records for the officer in question cover the period of August and September 2009, and there is no evidence that this is when the incident occurred. Even if this was the relevant period, there is no evidence that the employer was aware of the apparent inconsistencies. The evidence before FWA is that the employer disciplined the officer in question for not completing all aspects of the internal patrols. I am not satisfied that the conduct that was dealt with by the employer in mid-2009 was sufficiently similar with that of the applicant, such that it is a matter that should properly be taken into account. 36
[67] Finally, the most relevant example of the manner in which the respondent has treated similar conduct by other employees concerns the other security officer against whom allegations of falsification of records and failure to conduct internal patrols were levelled, as a result of the 2011 audit. While there is no evidence of the officer’s response to the allegations i note that this officer was dismissed on the same day as the applicant.
Conclusion
[68] The applicant has not established that her dismissal was harsh, unjust or unreasonable and for the foregoing reasons her application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr S Treloar for the Ms A Urbanski
Mr R Ottrey for MSS Security Pty Ltd
Hearing details:
2012
Adelaide
April 3 and 4
1 [2012] FWA 1789
2 In addition to her oral evidence the applicant filed a witness statement on 31 October 2011, Ex A3.
3 Ex A1 and A2, respectively.
4 For example, in relation to the location of cameras.
5 Witness statements were admitted for each witness - Ex R3, R4, R8 and R9, respectively.
6 Ex R2.
7 Ex A3 Annex 3.
8 Ex R4 Attach JT1.
9 PN 474.
10 PN 850-851.
11 PN 228-230.
12 Ex R8, para 4.
13 Ex R8 para 5 compared with Ex R3 para 16.
14 Ex R4 Attach JT3 and JT4, respectively.
15 Ex R4 at paras 8 and 9.
16 Ex A1 at para 15.
17 PN 1627.
18 Ex A3 para 7.
19 PN 437-9.
20 PN 878.
21 The respondent initially wanted the meeting to be conducted earlier but the applicant was unable to attend.
22 Ex R4 Attach JT2 and Ex R8 Attach MF1, respectively.
23 Jones v Dunkel (1959) 101 CLR 298.
24 Ex A3.
25 PN 529-536.
26 PN 254.
27 PN 242, 437.
28 Although at the hearing, the applicant stated that the issues with her son did not affect her work at all, at PN 121.
29 Ex R3 at para 27.
30 Mr Toon’s evidence was that he advised Mr Toser that the applicant said she had personal issues over the last 3-6 months.
31 Ex R6.
32 Rode v Burwood Mitsubishi, Print R4471 at PN 19.
33 Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 per McHugh J.
34 Potter v WorkCover Corporation, PR948009 at PN 53.
35 Crozier v Palazzo Corporation Pty Limited T/as Noble Park Storage and Transport, Print S5897 at PN 73.
36 Mihajlovski v IR Cootes Pty Ltd, PR943954 at PN 52; Terry v Chubb Security Services Limited[2007] AIRC 657 at PN 121.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR522706>
0
3
0