Bekele Lakew v MSS Security Pty Ltd

[2019] FWC 4462

[2019] FWC 4462

FAIR WORK COMMISSION

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 during the shift on 11 January 2019.

[7] Since 1 April 2018, MSS has been contracted by DHHS to provide after-hours security services to its housing estate at Debney Park. The estate comprises four high rise buildings and several surrounding low lying buildings. Prior to 1 April 2018, Wilson Security held the contract with DHHS for security services at the site. Mr Lakew worked for Wilson Security at Debney Park for a number of years. He commenced employment with MSS on 1 April 2018.

[8] Mr Mayne’s evidence, which I accept, was that the Debney Park estate is considered a high risk facility, and encounters security issues such as drug dealing, burglaries and theft, and that this is why there is a need for a security service. He said that the company’s security officers at Debney Park are rostered to work shifts between 7pm and 3am. Five officers are rostered to work each shift. There are two patrol units, each comprising two security officers, and one person works as the control room operator. Four patrols are conducted on each shift by each unit. The company has a patrol schedule for Debney Park that security officers are required to follow. The patrol schedule previously used by Wilson Security continued under MSS until 21 January 2019.

[9] The company’s ‘Employee Standing Instructions’ state that employees must correctly record their foot patrols, and conduct them in accordance with the instructions of the relevant client, in this case DHHS. 1 Employees are required to be familiar with the standing orders that apply to a particular site.2 The Employee Standing Instructions state that effective patrolling requires the employee to maintain a high degree of alertness and observation.3 Mr Lakew’s contract of employment signed 28 March 2018 stated that breaches of the Employee Standing Instructions may result in disciplinary action including termination of employment.4

[10] Mr Mayne’s evidence was that in late 2018 he developed concerns about the conduct of security officers at Debney Park. First, on 12 November 2018, the western region client manager for DHHS met with Mr Mayne and told him that tenants at Debney Park had complained that they never see security officers at the site. Soon afterwards Mr Mayne sent a message to the control room at Debney Park directing that patrol units on shift ensure that they be visible to residents. Next, in early December 2018, the company’s Victorian night shift manager, Mr Ralph Sikic, contacted Mr Mayne and said that he had visited Debney Park on 1 December 2018 and seen three security officers having their break at the same time, when only one unit was supposed to be having a break at a given time. 5 Then on 15 December 2018 Mr Mohammed, who had recently transferred to the site, sent an email to Mr Mayne raising his concern that security officers were not conducting patrols or working properly.6 Mr Mohamed spoke with Mr Mayne about his concerns on 18 December 2018.

[11] Mr Mayne decided to make further inquiries into the performance of security officers at the site. He directed a MSS security supervisor from another DHHS estate, Mr Rajput, to observe a shift at Debney Park on 11 January 2019 and to report back to him. It was decided that Mr Rajput would be assigned to the shift under cover and presented to security officers as a trainee.

[12] On 11 January 2019, Mr Lakew was rostered to work between 7pm to 3am, together with Mr Doan, who was the site supervisor, Mr Do, who was the second in charge, Mr Minh Huynh, another security officer, and Mr Mohamed. Mr Rajput also worked this shift. The other officers were told that Mr Rajput was a trainee. Mr Doan was rostered to be the control room operator. The other officers were rostered to foot patrol.

[13] Mr Mayne received Mr Rajput’s report on 13 January 2019. 7 It stated the following. There had been two units on shift, unit one comprising Mr Mohamed and Mr Huynh, and unit two made up of Mr Lakew and Mr Do. Mr Rajput was first assigned to unit one. After the first patrol of unit one, Mr Mohamed, Mr Huynh and Mr Rajput had a break from 8:20 pm to 9:35 pm. During this period, Mr Huynh sat with Mr Lakew in the inside room with the lights off. After the second patrol of unit one, Mr Mohamed, Mr Huynh and Mr Rajput had another break between 10:20 pm and 11:40 pm. During this period Mr Huynh and Mr Lakew sat in the inside room with the lights out.

[14] The report stated that from 11 pm, Mr Rajput joined unit two. He went on the third patrol with Mr Do. Then there was a further break, from 12:05 am to 12:50 am. Mr Rajput noticed Mr Lakew sleeping. Mr Rajput then went on the fourth patrol with Mr Lakew, during which they attended a noise complaint. The noise was coming from the community centre. Mr Lakew did not speak to anyone in the centre. They returned to the control room where they remained until the end of the shift. The report stated that for most of the shift, officers were in the control room, in their cars, or asleep. Mr Rajput stated that he heard Mr Lakew snoring. He said that officers took 80 to 90 minutes break for every 20 minutes of patrol, and that he barely did two hours’ work all night.

[15] Mr Mayne compared the report with the activity logs from 11 January 2019 and saw that they did not correspond, and also did not match the patrol schedules. 8 For example, the officers paired in each unit did not match. There was also a reference in the records to a Denver Fairbanks, who did not work on that shift. Mr Mayne suspected that the security officers on the shift, including Mr Lakew, had not performed patrols as required.

[16] On 25 January 2019 Mr Mayne sent a letter to Mr Lakew stating that the company was conducting an investigation into his conduct and behaviour during the shift on 11 January 2019. The letter raised the following allegations against Mr Lakew: that he had failed to complete patrols; failed to adhere to his shift break times; failed to address a noise complaint in the community room; failed to conduct services in accordance with the client’s instructions and contract; and that he had slept while on duty. 9 The letter did not identify the source of the allegations. Letters of allegation were also sent to Mr Do and Mr Huynh.

[17] On 31 January 2019, Mr Mayne met with Mr Lakew, a Mr McDonald from United Voice, and Ms Colosimo from human resources. Mr Lakew said that he had performed his patrols properly. He had not undertaken his third patrol, and had instead stayed in the control room to do training on the computer. Mr Lakew’s evidence to the Commission was that Mr Doan had told him that he did not need to go on the third Patrol, because Mr Rajput would join it, and that he should do training instead. Mr Mayne’s evidence was that there was no record of any online training having been done by Mr Lakew during the shift that commenced on 11 January 2019.

[18] Mr Lakew denied that he had failed to adhere to break times, respond to a noise complaint, or provide services in accordance with DHHS’s requirements. He also denied sleeping while on duty. He told Mr Mayne that he never sleeps on duty. Mr Lakew also denied the allegations in a written response to the allegations letter. 10 In this letter, he said that he believed Mr Mohamed had raised the allegations against him, and that he had recently made a complaint to management about Mr Mohamed being aggressive towards him, following which Mr Mohamed had apologised to him.

[19] Mr Mayne did not accept Mr Lakew’s explanations. Mr Mayne trusted Mr Rajput and believed the report that he had prepared. On 1 February 2019 he met again with Mr Lakew and told him that the company considered the allegations substantiated, and that they amounted to serious misconduct. Mr Lakew was given a letter asking him to show cause why his employment should not be terminated, and to respond in writing by 4 February 2019. Mr Lakew did so, again denying the allegations.

[20] Mr Mayne offered to meet with Mr Lakew to discuss the company’s decision, but Mr Lakew’s preference was for a telephone call. On 14 February 2019, Mr Mayne telephoned Mr Lakew and told him that the company had decided to terminate his employment with immediate effect. A letter confirming dismissal was sent to Mr Lakew on 18 February 2019.

[21] MSS also terminated the employment of Mr Do and Mr Huynh in connection with their conduct during the shift on 11 January 2019. Mr Doan resigned. Mr Mayne said that the company did not dismiss Mr Mohamed because he had initially raised the concerns about the conduct of officers at Debney Park, and he was also new to that site.

[22] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. I will address each of these in turn.

Was there a valid reason for dismissal (s 387(a))?

[23] The Act requires the Commission to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is sound, defensible or well-founded. The Commission does not stand in the shoes of the employer and determine what the Commission would do if it had been in the employer’s position. The question the Commission must address is whether there was a valid reason for dismissal, in the sense both that there was a good or sufficient reason, and a substantiated reason.

[24] Mr Lakew contends that none of the reasons for dismissal cited in the termination letter he received was a valid reason, because the conduct that each of these reasons refers to did not occur. He further contends that there was no basis for the company to conclude that he had committed serious misconduct. The company says otherwise. There is a factual contest that must be determined.

[25] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred.¹¹ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, the nature of the relevant issue necessarily affects the process by which ‘reasonable satisfaction is attained’¹² and where serious allegations are made, such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘circumstances pointing with a wavering finger to an affirmative conclusion’.¹³ Mr Lakew contends, and I agree, that the allegations against him were grave and that the considerations in Briginshaw are engaged.

[26] The termination letter stated that the company found Mr Lakew had engaged in serious misconduct by sleeping on duty, not adhering to meal and rest breaks, not completing patrols as outlined in the patrol schedule such that services were not conducted in accordance with DHHS instructions, and failing to fulfil the fundamental requirements of a security officer. It also stated that Mr Lakew had not been entirely truthful with the company during the investigation. I now address whether I consider these matters to be substantiated, and if so, whether they constitute a valid reason or reasons for dismissal, individually or together.

Sleeping on duty

[27] The company concluded that Mr Lakew had been asleep on the job during his shift on 11 January 2019. Two witnesses gave evidence about Mr Lakew sleeping during the shift. Mr Rajput said that during his first break, which he said went from 8.20 pm to 9.35pm, he was in the control room, and Mr Lakew was in a small room behind the lunch area. Mr Rajput said that he could hear Mr Lakew snoring. He said that he went into the room to check, and when he opened the door, Mr Lakew woke up. 14 Mr Rajput also said that during the third break, which he says occurred from 12:05 am to 12:50 am, Mr Lakew was snoring in the back room of the control room. He said that Mr Doan woke Mr Lakew and asked him to attend to a noise complaint.15 Mr Mohamed also gave evidence that he heard Mr Lakew snoring during the first break. He said that Mr Rajput asked him what the sound was and then went to check, and found Mr Lakew sleeping.16 He said that he also heard Mr Lakew snoring during the second break.17

[28] Mr Lakew stood by his written and oral responses to the allegations letter. 18 He said that at no point during the shift on 11 January 2019 did he fall asleep. In his written response to the allegations letter Mr Lakew had stated that he was not sleeping on shift and that when he read the allegation he thought there must have been some misunderstanding. In his response to the show cause letter however, he was less certain, and stated that he did not believe he had fallen asleep, but if this had occurred, he was sorry.19

[29] I accept the evidence of Mr Rajput. I found him to be a candid and convincing witness who answered questions directly and without an eye to forensic advantage. His evidence of what he saw and heard was clear and detailed. He described Mr Lakew snoring ‘softly’. He explained where Mr Lakew was sleeping. Mr Rajput had no reason to make up false allegations against Mr Lakew. He was a company security supervisor from a different DHHS site at Fitzroy.

[30] It is not contentious that Mr Rajput and Mr Mohamed knew one another. Mr Lakew said in oral evidence that the two were friends. 20 Mr Mohammed agreed in cross-examination that he knew Mr Rajput from working for Wilson security at the Collingwood DHHS estate.21 Mr Rajput also acknowledged that he knew Mr Mohammed from a previous security role with Wilson. However this does not provide any basis to doubt the credibility of their evidence, nor does it call into question the legitimacy of Mr Rajput’s undercover placement at Debney Park. It was Mr Mayne who decided to deploy Mr Rajput on assignment to the Debney Park estate to investigate the work of officers at the site. Further, Mr Rajput’s report does not seek to shield Mr Mohammed from criticism. For example, it notes that during the first break of an hour and a quarter, Mohammed was sitting in the dining room.

[31] I note Mr Lakew’s submission that Mr Rajput did not work in the same patrol unit with him for the first half of the shift on 11 January 2019, and that the two patrol units did not have synchronised break times. However, the breaks taken by the two units clearly overlapped, which is hardly surprising, given the very lengthy span of the breaks taken by officers in both teams (see below).

[32] Mr Lakew sought to cast doubt on Mr Rajput’s credit. He contended that Mr Rajput had been dismissed from a previous job in connection with involvement in a physical altercation with a co-worker. Mr Lakew tendered a United Voice internal record of a telephone conversation between a Mr Stephen Lennon of the union and Mr Rajput on 6 April 2016, which purported to record Mr Rajput seeking advice from the union about a ‘physical altercation’ and a pending disciplinary meeting. Mr Lakew also gave evidence that he had heard from a friend who used to work with Mr Rajput that Mr Rajput had been dismissed for fighting.

[33] The union’s record is hearsay as Mr Lennon did not give evidence. Mr Lakew’s evidence about Mr Rajput being dismissed from his previous job is also hearsay and unreliable. Mr Rajput denied that he was involved in a physical altercation with a co-worker in a previous job and that he was dismissed for this reason. 22 I believe him. Contrary to the suggestion of Mr Lakew, an historical involvement in an altercation would not have affected Mr Rajput’s credibility as a witness. Credit issues could have arisen if Mr Rajput had been shown to have denied something that was in fact true. But this was not the case at all.

[34] I record my concern that the union divulged a record of what was in my view a presumptively confidential telephone conversation with a person who was then a member, but is now not a member, without that person’s consent. The privacy implications of this matter and associated questions of admissibility of evidence were not the subject of argument, however I would note that the relationship between a union and a member is of a special character and a member could reasonably expect that discussions with union representatives would continue to be treated with confidence even if later the person ceases to be a member.

[35] In Mr Lakew’s final written submissions, it was suggested that the fact that Mr Rajput had been ‘under cover’ on the shift in question and did not tell the other officers that he was a supervisor from another site is a matter that tells against his credit. I reject this contention. The company had good reason to be concerned about, and wish to investigate, the conduct and performance of security officers at the site and to assign Mr Rajput to observe a normal shift, and therefore to present him to the shift as a trainee. Mr Rajput was doing his job in accordance with the company’s instructions.

[36] Mr Rajput’s evidence alone is sufficient to comfortably persuade me that Mr Lakew was sleeping during the shift. However, there is also the corroborative evidence of Mr Mohamed. In my assessment, Mr Mohamed was a believable witness who gave evidence openly and without embellishment or design. Mr Lakew contested the credibility of Mr Mohamed. In his supplementary statement, and in oral evidence, Mr Lakew suggested that Mr Mohamed had conspired against Mr Do and sought to assume the supervisor position when Mr Doan retired. Mr Lakew suggested that Mr Mohamed had solicited his assistance in this plan. I found Mr Lakew’s evidence on this point hard to follow and unconvincing. Mr Mohamed denied having such a discussion with Mr Lakew. I believe him. I reject the contention in Mr Lakew’s final submissions that Mr Mohamed had expressed a desire to get rid of him and Mr Do, or that Mr Mohamed had any motivation to lie about what occurred on the shift on 11 January 2019.

[37] I take note of the fact that Mr Mohamed made a complaint to the company about security guards at Debney Park not doing their duty. In particular, in an email to Mr Mayne dated 5 January 2019 he complained about Mr Do (referred to also as ‘Peter’) and Mr Lakew not doing their jobs properly. He asked the company to look into the matter. He said that he wanted the company to intervene and fix the problems, because if something went wrong and he had not informed the company, he would consider himself accountable. 23 In my assessment, Mr Mohamed’s concerns about the working arrangements at Debney Park were genuinely held and not motivated by self-interest or ill will towards other security officers. He was worried about what he considered to be lax work practices and wanted the company to look into them.

[38] For the above reasons, I find that Mr Lakew was asleep during his shift on 11 January 2019.

[39] Mr Lakew’s contract of employment dated 27 March 2018 contains a non-exhaustive list of what the company considers to be serious misconduct. It includes sleeping whilst on duty. Further, the contract states that his duties ‘are outlined in the MSS Group of Companies Employee Standing Instructions (as provided), Site Operating Procedures (SOPs) and as directed by Senior Security Officers and Management.’ Section 1.8 of the ‘MSS Group of Companies - Employee Standing Instructions – 2017’ (Standing Instructions), which was the subject of employee induction procedures, states the following:

“1.8 Sleeping on Duty

Protection and prevention is an employee’s prime responsibility and they must always be alert. Sleeping whilst on duty disables your ability to perform your role effectively and may place your own or others’ health, safety or welfare in jeopardy. Sleeping on duty is considered one of the most serious offences an employee can commit and can result in their employment being terminated summarily.

An on-duty employee who feels unwell or fatigued and believes they are at risk of falling asleep must notify their supervisor or the MSS Operations Centre immediately.”

[40] Even in the absence of contractual stipulations, I consider that, for a security guard, sleeping on duty is an inherently serious matter and a fundamental failing. In the present case, the Standing Instructions have specifically elevated this matter to a high level of seriousness and underscored that it is a matter that can warrant dismissal. Mr Lakew was asleep during his shift on 11 January 2019. This clearly constituted a valid reason for dismissal. I also consider that it constituted serious misconduct. I return to this further below.

Rest breaks

[41] The company concluded that Mr Lakew had not adhered to the authorised lengths of meal and rest breaks, and had taken in excess of four hours of breaks throughout the 8-hour shift. Again there is an evidentiary contest between Mr Rajput and Mr Lakew.

[42] Mr Rajput said that he and others took a break from 8:20 pm until 9:35 pm, during which time he, Mr Mohamed and Mr Huynh were in the control room. Mr Rajput said in his statement that he believed Mr Lakew was already in the control room when he arrived at the control room, and that Mr Lakew remained there for most of that time. 24 Mr Rajput said that during his second break he sat in the dining room from 10:20 pm to 11:40 pm, and that Mr Lakew was in the small room within the control room for the whole of this period.25 Mr Rajput also gave evidence of a third break from 12:05 am to 12:50 am, and that again Mr Lakew was there.26

[43] Mr Lakew’s evidence was that he took three breaks. He said that he took one break of 15-30 minutes, a meal break of 30 minutes and then another break of 15 minutes. 27 He said that there were no schedules of when breaks should be taken, and that they occurred at the direction of the supervisor, Mr Doan. Mr Lakew contends that taking such breaks is consistent with clause 18 of the MSS Security Victorian Enterprise Agreement (Agreement), which allows for a thirty minute meal break on shifts over five hours, and a crib break of 20 minutes on an eight hour shift.

[44] I accept Mr Rajput’s evidence, and reject that of Mr Lakew, for the following reasons. First, as I have explained earlier, I found Mr Rajput to be a credible and convincing witness. Secondly, in Mr Lakew’s written response to the allegations letter and the show cause letter, he said that he took breaks as directed by his supervisor. He did not say that he took breaks at the specific times mentioned later in his evidence. Thirdly, the evidence of Mr Rajput and Mr Mohamed that Mr Lakew was sleeping, which I have accepted, is consistent with a conclusion that Mr Lakew was taking lengthy breaks.

[45] Mr Lakew’s evidence about the length of his breaks differed from that of Mr Do, with whom he was partnered that night, 28 although they did both profess to have taken only short breaks. However I did not find Mr Do to be an impressive witness. Mr Do said in his witness statement that his three breaks lasted 10 to 15 minutes each. But later in his statement he said that he could not remember the exact length of the breaks although they were nowhere near 4 hours in total.29 This is hardly a reassuring affirmation that the times given earlier were at least approximately correct.

[46] Further, under cross-examination, Mr Do would not concede that there were any serious security concerns at Debney Park. He said it was a quiet site, that there was ‘no trouble’, no domestic or other violence, and no breaks-in or thefts. 30 Asked what problems exist at the site, he said that there were noise complaints, and children playing in the playground too late at night.31 I do not consider this evidence to be candid or credible. The state of Victoria does not contract a commercial security firm to tell children to leave the playground. Mr Do also denied that the patrol schedule that applied prior to 21 January 2019 was the same as the Wilson security patrol schedule. He said emphatically that it was ‘totally different’.32 I reject this evidence. It is contrary to the evidence of Mr Mayne and also of Mr Lakew that the schedule was the same.

[47] Mr Lakew submitted that the company failed properly to investigate the matter because it did not check CCTV footage from the site or speak to Mr Doan. Mr Mayne explained that Mr Doan was on annual leave at the time of the investigation, and then resigned. He acknowledged that the company did not check the CCTV footage. But the company had direct witness evidence about what occurred. It was not necessary to gather additional evidence in the form of the CCTV footage. If Mr Lakew considered that the CCTV might have supported his position that in fact he was working appropriately on 11 January 2019, he could have made an application for that footage to be produced. He could also have sought an order for Mr Doan to attend and give evidence. I draw no inference from his failure to do these things. I simply note that Mr Lakew was free to pursue these avenues.

[48] I find that Mr Lakew took breaks at the times attested to by Mr Rajput, which vastly exceeded the authorised lengths. I note that the company stated in the termination letter that the break time amounted to four hours of the eight hour shift. The total of the three ‘break’ periods referred to above is three hours and twenty minutes. However, Mr Rajput’s evidence was that after attending to the noise complaint, which was part of the fourth patrol that commenced shortly before 01:00, his unit returned to the control room. (Mr Lakew’s evidence was that the noise complaint occurred during the third patrol, but I prefer Mr Rajput’s evidence because of his general credibility and also the fact that this is recorded in Mr Rajput’s report for Mr Mayne which he made later the same day.) Mr Rajput did not say exactly when the fourth patrol ended, but he stated that he was back in the control room at 01:25, and that everyone had left the site by 02:45, 15 minutes before the end of shift. This accounts for the extra time attributed to ‘breaks’ by the company. The total time exceeded four hours.

[49] Mr Lakew said that he took breaks when his supervisor directed him to. He also said that the timing of breaks was flexible, in that there were no specific times when breaks had to be taken. I accept that breaks did not have to commence at predetermined times. But the lengths of those breaks were not flexible; they were fixed by the Agreement. Mr Lakew grossly exceeded the permitted break times. This too was a valid reason for dismissal.

Not properly conducting patrols

[50] The termination letter stated that Mr Lakew failed to complete patrols in accordance with the patrol schedule, such that services were not conducted in accordance with DHHS instructions. This allegation goes hand in glove with the company’s allegation that Mr Lakew took breaks that substantially exceeded legitimate break times. The corollary of my finding that Mr Lakew took some four hours of breaks is that he did not undertake patrols as he should have done.

[51] Mr Mayne’s evidence was that the company has in place at Debney Park a patrol schedule which the security officers had to follow on each shift. The patrol schedule outlines the patrols that the Security Officers must perform during each shift at Debney Park. Mr Mayne said, and I accept, that the patrol schedule is available on site at Debney Park and that Mr Lakew was well-informed about and had acknowledged the requirement to comply with the patrol schedule. 33 The schedule identifies which parts of the estate each of two units must patrol, and provides for four patrols per unit with breaks in between patrols. Mr Lakew first said in his evidence that there were no foot patrol schedules at Debney Park until 21 January 2019, but later acknowledged that the schedule that applied on 11 January 2019 was the same one that had been in place when Wilson held the contract with DHHS.34 I note that the Employee Standing Instructions require employees to familiarise themselves at the commencement of duty with the instructions for the particular site and follow them.35 The DHHS requirements for foot patrols state clearly that patrols will be conducted on foot and in pairs on a continuous basis, except for mandatory breaks.36

[52] Mr Lakew says that he performed all of his patrols correctly in accordance with the instructions of his supervisor, Mr Doan. He did not say specifically what these instructions were, other than that Mr Doan directed him not to undertake the third patrol and instead to undertake training because there was no need for a third person to go on patrol, as Mr Rajput, the ‘trainee’, would go instead. The company says there is no record of any online training having been undertaken by Mr Lakew. However the evidence about how online training occurs and the manner in which the company can ascertain through electronic records whether or not training has been undertaken is not established by the evidence. Mr Doan was not called to give evidence about what he instructed Mr Lakew to do. Mr Lakew gave evidence that he undertook training on ‘reporting and camera’ in the control room for an hour. 37 I accept his evidence on this point.

[53] Nevertheless, in view of my earlier findings about the length of the breaks that were taken by Mr Lakew, it is clear, and I find, that Mr Lakew did not undertake patrols in accordance with the patrol schedule, which he knew to be in place. There is no basis to conclude that Mr Doan directed Mr Lakew not to follow the patrol schedule, save in relation to conducting on-line training instead of undertaking the third patrol.

Other allegations

[54] The letter of termination referred to two further apparent grounds for dismissal. It stated that Mr Lakew had failed to fulfil the fundamental requirements of a security officer. In my view, vigilance – and at the very least, staying awake – is a fundamental requirement of a security officer and by sleeping on duty Mr Lakew failed to meet this requirement. The termination letter also stated that Mr Lakew had not been entirely truthful with the company during the investigation. I do not find it necessary to make a finding about this matter. It is sufficient to reiterate that I accept the evidence of Mr Rajput and Mr Mohamed about Mr Lakew’s sleeping during, and their evidence in respect of the other matters I have noted earlier.

[55] It is not necessary for me separately to address the other accusation that was levelled at Mr Lakew by the company but not referred to in the termination letter, namely that he failed to properly address the noise complaint at the community room.

[56] I consider that there was a valid reason for dismissal related to Mr Lakew’s conduct constituted by his sleeping while on duty. I also consider that taking excessive breaks and failing to properly carry out patrols each constituted a further valid reason for dismissal.

Notification of reasons for dismissal and opportunity to respond (s 387(b) and (c))

[57] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their conduct or performance. To tell against a conclusion that a dismissal was unfair, notification of the reason for dismissal should occur before the decision to dismiss is made, and be made in explicit, plain and clear terms. The question of whether an employee had an opportunity to respond to reasons relating to conduct or performance should be understood in a common sense way; the focus is whether the employee is treated fairly, rather than on any formality.

[58] It is not contested, and I find, that Mr Lakew was notified of the reasons for dismissal and that he had an adequate opportunity to respond to those reasons. Mr Lakew’s written submissions contend that these are both neutral considerations. In my view they support a conclusion that the dismissal was not unfair.

Support person, warning about performance (s 387(d) and (e))

[59] The company did not refuse to allow Mr Lakew to have a support person present to assist at discussions relating to dismissal, as contemplated by s 387(d). There is no suggestion to the contrary. Nor is it contended that the consideration in s 387(e) is a relevant factor in this case. Mr Lakew submits that it is a neutral consideration. I agree that the reasons for dismissal in the present case fundamentally concern conduct, although there is not necessarily a bright dividing line that distinguishes conduct from performance. In any event the conduct that I have found to constitute valid reasons for dismissal would not, even if viewed from the standpoint of performance, require or warrant the giving of warnings in the present case.

Size of the enterprise, human resources specialists etc. (s 387(f) and (g))

[60] The Commission is required to consider the degree to which the size of the employer’s enterprise, and any absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f)(g)). Mr Lakew submits that these are neutral considerations and I agree.

Any other matters the Commission considers relevant (s 387(h))

[61] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant. The Commission should consider all of the circumstances, and weigh the gravity of any misconduct, poor performance or other circumstances telling against a conclusion that a dismissal was unfair, with any mitigating circumstances and other relevant matters that might support the applicant’s claim that the dismissal was harsh, unjust or unreasonable.³⁸

[62] Mr Lakew raises a number of matters for consideration. First, he says that the company’s failure or refusal to provide him with the identities of the witnesses against him during the investigation process was unfair. He says that this denied him procedural fairness because it was much more difficult for him to respond effectively to the allegations that had been put against him.

[63] I take note of the fact that Mr Lakew did know who his principal accuser was until after he had filed his unfair dismissal application. He did not see Mr Rajput’s report. It is not clear to me why the company did not provide this information to Mr Lakew. In my opinion it would have been preferable for it to do so. However, in light of my factual findings above, I consider this procedural deficiency to be a matter that is inconsequential. I am satisfied that the conduct occurred; the provision of further information to Mr Lakew at the time of the investigation would not have altered this fact. And of course, Mr Lakew was provided with the evidence of Mr Rajput and Mr Mohamed as part of the present proceedings and he has had the opportunity to respond to it.

[64] Secondly, Mr Lakew submits, and I accept, that it is relevant to take into account the impact of the dismissal on his personal and economic situation. Mr Lakew is the sole income-earner for his family and his dismissal has clearly had an adverse financial impact on him. He has worked as a security officer at the Debney Park estate since November 2011. Debney Park is the only place he has worked since moving to Australia. He says that it is likely that he will have significant difficulty in finding employment following his dismissal by MSS on these serious grounds. I take these matters into account.

[65] Thirdly, Mr Lakew submitted that he had a long unblemished work record. However, although he had worked at the site for a number of years, with no disciplinary issues prior to 11 January 2019, he had only been employed by MSS for less than a year.

[66] Fourthly, Mr Lakew contends that the company’s dismissal was disproportionate to the reasons for dismissal. The question of whether an employer’s decision to dismiss an employee was a proportionate response to the relevant conduct is clearly relevant to whether the dismissal was unfair. Mr Lakew says that, even if his alleged conduct is established, dismissal was not a proportionate disciplinary response. He also says that his conduct was not sufficiently serious to constitute serious misconduct. In the latter respect, he says that Regulation 1.07 defines serious misconduct, and that his alleged misconduct did not fall within it. He also contends that serious misconduct involves conduct that shows that the employee does not intend to be bound by the contract, and that this was not the case here.

[67] I reject these contentions. I would note firstly that Regulation 1.07 is not directly relevant to s 387. Section 12 of the Act states that ‘serious misconduct’ is to have the meaning prescribed by the regulations. But the expression ‘serious misconduct’ is not used anywhere in Part 3-2, which deals with unfair dismissal. It is elsewhere in the Act that this expression is found and has work to do. The fact that particular conduct might not fall within the regulation does not mean that it does not amount to serious misconduct in the context of an unfair dismissal matter. In any event, the definition in the regulation is not exclusive.

[68] Further, Mr Lakew’s submissions put forward too narrow a formulation of the conduct that may qualify as serious misconduct. In Melbourne Stadiums Ltd v Sautner³⁹ the Full Federal Court cited a passage from Rankin⁴⁰ noting that ‘there are offences which justify dismissal but which would not, in themselves, show that the employee was intending not to perform contractual obligations in the future’.⁴¹ The Full Court in Melbourne Stadiums also noted that the applicant’s conduct in that case did not necessarily have to amount to a repudiation of his contract of employment in order to justify summary dismissal.⁴² Summary dismissal embraces termination of employment arising from breach of an essential term of the employment contract, a serious breach of a non-essential term, or conduct manifesting an intention not to be bound by the contract in the future.⁴³

[69] I consider that Mr Lakew’s sleeping on the job and also his taking of excessive breaks and not properly undertaking patrols were contraventions of essential terms of his contract of employment. This is particularly so in respect of his sleeping during the shift, which is identified in the contract as a species of serious misconduct. Were the relevant terms to be considered non-essential, the breaches of them would still have been serious ones. There were several instances of sleeping, and gross departures from break times and patrolling requirements. The conduct was clearly of sufficient gravity to constitute serious misconduct.

[70] A fifth consideration invoked by Mr Lakew is that he suffered differential treatment compared to other employees on the shift in question, because he was dismissed and Mr Rajput and Mr Mohamed were not. He says that this is a relevant matter that may be taken into account under section 387(h) in determining whether the dismissal was unfair.

[71] I reject this contention. The company dismissed Mr Do and Mr Huynh in connection with the same type of conduct for which Mr Lakew was dismissed. The company did not dismiss Mr Rajput, obviously, as he was sent to Debney Park to observe the 11 January shift and was doing his job. The company did not dismiss Mr Mohamed because he had raised with the company concerns about work practices and was relatively new to the site. Mr Doan resigned from his employment with the company. I do not consider that the company was inconsistent in its disciplinary treatment of the various security officers who worked on the 11 January 2019 shift.

[72] I note that Mr Doan’s performance and conduct was also impugned by the company’s investigation, and I have considered whether it could be said that Mr Lakew’s conduct on the 11 January shift was the result of poor supervision. However the evidence comes nowhere near establishing this. To the extent that Mr Lakew might contend that Mr Doan acquiesced in his sleeping on the job, taking long breaks or not undertaking patrols properly, I consider that any such indulgence on the part of Mr Doan would have been patently illegitimate and could not have been relied upon by Mr Lakew as a defence to the allegations against him, or to dilute the seriousness of his conduct.

[73] The company contends that a relevant consideration under s 387(h) of the Act is the serious health and safety implication of Mr Lakew’s conduct. I agree. DHHS considers that there needs to be a security presence at the housing estate at Debney Park. MSS is contracted to provide it. The evidence of the company, which I accept, is that Debney Park is a high risk site. Mr Lakew’s job was to be vigilant and provide proper security services. He did not do this on the night of 11 January 2019. This was a serious failing.

Conclusion

[74] I am comfortably satisfied that during his shift on 11 January 2019 Mr Lakew slept, took excessive breaks and did not properly undertake patrols. The allegations have been substantiated to the requisite standard of proof, taking into account the observations in Briginshaw. Two credible witnesses have given convincing evidence about Mr Lakew’s conduct on the night in question, substantiating the valid reasons for dismissal. The dismissal was not disproportionate to the relevant conduct, which is properly classified as serious misconduct.

[75] Taking into account all of the circumstances, I consider that the dismissal of Mr Lakew was not harsh, unjust or unreasonable and that his dismissal was therefore not unfair. The application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Oski for Mr Lakew

N. Colosimo for MSS Security Pty Ltd

Hearing details:

2019

Melbourne

2 July

Final written submissions:

Mr Lakew: 23 July 2019

MSS Security Pty Ltd: 30 July 2019

Printed by authority of the Commonwealth Government Printer

<PR709765>

 1   Clause 3.10 of the Standing Instructions

 2   Ibid, clause 4.1.1

 3   Ibid, clause 4.1.3

 4   Witness statement of Mr Mayne, SM-1

 5   Witness statement of Mr Mayne, paragraph 14(a)

 6   Witness statement of Mr Mohamed, paragraph 16, IM-2

 7   Witness statement of Mr Mayne, SM-9

 8   Witness statement of Mr Mayne, paragraph 25

 9   Ibid, SM-11

 10   Ibid, SM-12

11 Edwards v Giudice (1999) 94 FCR 561, at 564

12 Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363

13 Ibid per Dixon J at p 362, and Rich J at p350

 14   PN657-659

 15   Witness statement of Mr Rajput, paragraphs 21 and 23

 16   Witness statement of Mr Mohamed, paragraph 26

 17   PN558

 18   Witness statement of Mr Lakew, paragraph 13

 19   SM-12, SM-14

 20   PN313

 21   PN608-609

 22   PN 704

 23   Witness statement of Mr Mohamed, IM-5

 24   Witness statement of Mr Rajput, paragraph 12; PN747-749

 25   Witness statement of Mr Rajput, paragraph 15; PN 753-755

 26   Witness statement of Mr Rajput, paragraph 21; PN 758

 27   Witness statement of Mr Lakew, paragraphs 6, 8 and 11 respectively

 28   PN370-376

 29   Witness statement of Mr Do, paragraph 19

 30   PN127-133

 31   PN146

 32   PN143

 33   Witness statement of Mr Mayne, paragraphs 12 and 13; SM-7

 34   PN340

 35   Section 4.1.1

 36   SM-6

 37   PN399-404

38 B v Australian Postal Corporation (2013) 238 IR 1

39 (2015) 229 FCR 221 at [12]-[14]

40 Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117

41 Ibid at [254]

42 Melbourne Stadiums v Sautner (2015) 229 FCR 221 at [15]

43 Ryman v Thrash Pty Ltd[2015] FWCFB 5264 at [27]