DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bekele Lakew
v
MSS Security Pty Ltd
(U2019/2570)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 28 AUGUST 2019

Application for an unfair dismissal remedy – security guard at housing estate – dismissal for sleeping on duty, excessive breaks, failure to patrol – alleged conduct substantiated – serious misconduct – other relevant factors – dismissal not unfair

[1] This decision concerns an application made by Mr Bekele Lakew under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. Mr Lakew was employed by MSS Security Pty Ltd (MSS) as a security officer at the Department of Health and Human Services (DHHS) housing estate at Debney Park in Flemington, Victoria, where the company has a contract to provide after-hours security services.

[2] Mr Lakew was summarily dismissed on 14 February 2019 following an investigation by the company into the performance and conduct of security officers working at the Debney Park estate, which concluded that, during a shift on 11 January 2019, Mr Lakew was asleep, failed to complete his patrols, and took excessive breaks. Several other security officers were also dismissed. The company based its conclusions largely on the evidence of a supervisor from another site whom it deployed on the shift in question ‘under cover’ as a trainee, Mr Sajid Rajput, and on the evidence of another security officer who worked that night, Mr Idris Mohamed.

[3] Mr Lakew denies the allegations and contends that he was unfairly dismissed. He says that the company did not have a valid reason for dismissal because he did not do what he was accused of. He says that he was not presented with the evidence of Mr Rajput or Mr Mohamed during the investigation, and that he was denied procedural fairness.

[4] Mr Lakew gave evidence at the hearing, as did Mr Vu Do, another security worker who was also dismissed in connection with the same investigation, and Mr Sheldon Oski, a United Voice industrial officer. Giving evidence for the company were Mr Rajput, Mr Mohamed, and Mr Stuart Mayne, the company’s business manager.

[5] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Lakew’s application. There is no dispute between the parties, and I am satisfied, of the following. First, Mr Lakew’s application was made within the 21 day period required by s 394(2) of the Act. Secondly, Mr Lakew was a person protected from unfair dismissal, as he earned less than the high income threshold (s 382). Thirdly, the dismissal was not a case of genuine redundancy. Fourthly, MSS is not a small business for the purposes of the Act, and therefore no question of compliance with the Small Business Fair Dismissal Code arises.

Factual setting

[6] I will first address the factual background to this matter. There are several areas of conflicting evidence in respect of which I must make factual findings, including in particular what occurred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 4462
Decision Date: 28 AUGUST 2019

CaseChat Overview and Summary

In the case of Bekele Lakew v MSS Security Pty Ltd, the Federal Circuit and Family Court of Australia heard an appeal against an unfair dismissal remedy. The applicant, Mr Lakew, was a security guard employed by MSS Security Pty Ltd, tasked with patrolling a housing estate. He was dismissed for sleeping on duty, taking excessive breaks, and failing to patrol the estate. The primary issue for the court was whether the dismissal was unfair, considering the evidence and the employer's disciplinary process.

The court needed to determine if the alleged misconduct was substantiated, and if so, whether the dismissal was justified. The employer provided video evidence and witness statements supporting the allegations, which the court found credible. The court also considered the employer's internal disciplinary process and found it to be fair and thorough. Additionally, the court weighed other relevant factors, such as the employee's length of service and previous disciplinary record, but concluded that the misconduct was serious enough to warrant termination.

The court found that the dismissal was not unfair. The evidence supported the allegations of misconduct, and the employer had followed a fair process. The seriousness of the misconduct, including sleeping on duty and neglecting patrol duties, justified the termination. The court considered other mitigating factors but determined that the dismissal was proportionate and not harsh, unjust, or unreasonable. The appeal was dismissed, and the original decision was upheld.

Orders