Christopher Sparkes v MSS Security Pty Ltd T/A MSS Security
[2014] FWC 5121
•5 AUGUST 2014
| [2014] FWC 5121 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Sparkes
v
MSS Security Pty Ltd T/A MSS Security
(U2014/3737)
COMMISSIONER LEE | MELBOURNE, 5 AUGUST 2014 |
Application for relief from unfair dismissal - whether dismissal was harsh, unjust or unreasonable - Fair Work Act 2009, ss.387, 394
[1] This is an application for unfair dismissal remedy made under s.394 of the Fair Work Act2009 (the Act).
[2] Mr. Christopher Sparkes (the Applicant) was dismissed from his employment with MSS Security Pty Ltd T/A MSS Security (the Respondent) with immediate effect from Monday 6 January 2014. He was dismissed for misconduct. The Applicant was advised verbally of the dismissal during a meeting with the Respondent held on 6 January 2014. He was also provided with a letter of termination setting out the basis for the termination dated 8 January 2014. 1
[3] The matter was heard before me in Launceston on 7 May 2014. Mr J Kitto of Counsel was granted permission to appear for the Applicant as I was satisfied that it was appropriate to do so taking into account subsections 596(2)(b) and (c) of the Act. Mr M Luddington, the HR/IR Manager Vic/Tas appeared for the Respondent.
[4] The Applicant gave evidence on his own behalf. Ms. Angela Davis, the Applicant’s partner also gave evidence on behalf of the Applicant. Evidence for the Respondent was given by Mr. Luddington himself, Mr. Keith Dunham (Aviation Protection Officer) and Ms. Lynette Dowd (Aviation Services Manager).
Background:
[5] The Respondent provided security services under contract for Launceston Airport. The Applicant was employed by the Respondent, and previously by Chubb Security, until his termination. The Applicant was a security officer and his duties included screening baggage intended to be loaded into the undercarriage of departing aircraft. The Applicant was dismissed for a number of reasons related to his conduct. There are four reasons relied upon by the Respondent for the dismissal as follows.
Conduct reason 1 - The note incident of 28 May 2012.
[6] The Respondent asserts that on 28 May 2012, the Applicant placed an offensive note in a position on a notice board behind the X-Ray machine at the screening point at Launceston Airport. The note was said to have read, “God save the Company as nothing will save the Supervisor”. This conduct was viewed to be threatening and targeted towards the Applicant’s supervisor and a breach of the MSS Security - Employee Standing Instructions - 2012 (the Employee Standing Instructions). A final warning was issued to the Applicant in relation to this incident in 2012.
Conduct Reason 2 - Failure to conduct the Explosive Trace Detection Test (ETD)
[7] A routine internal quality audit conducted by the Respondent in 2013 found that the Applicant was not performing his duties to the required standard of the Respondent’s Regulated Process. 2 In particular, the audit concluded that the Applicant was failing to conduct the Explosive Trace Detection Test on the various bags that required further investigation.
[8] This failure is said to have potentially put aircraft at risk. The Respondent removed the Applicant from performing the checked bag screening function at that time. The Applicant was placed on a “supported retraining process” and monitored for a 3 month period to ensure he complied with the process. On 8 November 2013, the Supervisor confirmed that the Applicant had conducted compliant process for the preceding 3 months and the underperformance review was completed.
Conduct Reason 3 -The Jan Swiggs incident
[9] This incident occurred on 21 November 2013. Ms Jan Swiggs held the position of Manager Terminal Services in Launceston. The Applicant admits that he did say to Ms Swiggs words to the effect;
● That he was going to be very "polite" in advising her of some facts;
● That he stated that he knew it was Ms Swiggs who dobbed him in last week;
● That he had spoken to his lawyer who advised that "it is work place harassment" and that Ms Swiggs needs to be very careful.
[10] The reference to being dobbed in related to Ms. Swiggs reporting the Applicant for being absent from his post to go to the toilet. The Respondent held that for the Applicant to approach Ms. Swiggs and speak to her in this manner was a breach of the terms of the Employee Standing Instructions regarding “Attitude and Conduct” and “Employee Complaints”.
Conduct Reason 4 - Failure to follow a lawful instruction.
[11] It is common ground that on a day in early November 2013, the Applicant left his post to go to the toilet. In doing so the Respondent alleges that he breached the Respondent’s Employee Standing Instructions, in particular the instruction at paragraph 1.13 “Leaving Guard Post or Place of Duty” that expressly stated that he was not permitted to leave his post. In failing to follow the Employee Standing Instruction the Respondent asserts the Applicant failed to follow a reasonable and lawful direction.
[12] It is clear from the letter of termination that the combination of reasons, rather than any single reason, formed the basis for the Respondent terminating the employment of the Applicant. The letter of termination, referring to all of the issues in combination concludes that they “...form a pattern of behaviour that is detrimental to our relationship with the client and portrays a negative image of MSS Security, which is unacceptable. As a result of this continued poor behaviour, your employment with MSS Security was terminated with immediate effect on Monday 6 January 2014”. 3
[13] The Applicant claims the dismissal was harsh, unjust and unreasonable in all the circumstances.
The law to be applied
[14] Under the Act, a person is protected from unfair dismissal if:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[15] I find the Applicant is a person protected from unfair dismissal as he had completed the minimum employment period and it is clear that his earnings are less than the high income threshold. It is also likely that a modern award, the Security Service Industry Award 2010 applied to the Applicant in relation to his employment. 4
[16] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal;
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[17] With regard to s.385(a), section 386 of the Act sets out the meaning of ‘dismissed’. There is no dispute that the Applicant was dismissed by the Respondent in line with the meaning of dismissal outlined in s.386(a) of the Act.
[18] With regard to s.385(c) of the Act, the Respondent is a large employer and as such is not a small business employer within the meaning of s.23 of the Act. The Small Business Fair Dismissal Code does not apply in this matter.
[19] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.
[20] The remaining matter for my consideration as to whether the Applicant was unfairly dismissed is whether the dismissal was harsh, unjust and unreasonable (s385(b) of the Act).
The Evidence:
A note about the evidence
[21] The Applicant did not supply a witness statement in this matter due to a claimed “oversight” by his legal representative. Instead, the Applicant’s evidence was adduced through a lengthy examination in chief from his legal counsel. The failure of Mr. Kitto, the Applicant’s lawyer, to submit a witness statement from his key witness in the case is lamentable.
[22] Mr. Luddington supplied a number of witness statements. However, only Ms Dowd, Mr Dunham and Mr Luddington himself appeared to give evidence. As the bulk of the evidence in the other witness statements filed by the Respondent is disputed by the Applicant, I am unable to have regard to those statements.
Conduct Reason 1 - The note incident of 28 May 2012.
[23] The Respondent submits that the Applicant’s supervisor at Launceston Airport, Ms. Carlene Scott was greeted by Ms Jody Goodyer, the Team Leader, when she arrived to attend her afternoon shift on 29 May 2012. It is submitted by the Respondent that Ms Goodyer advised Ms Scott that a note had been found by staff on the commencement of the shift of that day and that the note stated, “God save the company as nothing will save the Supervisor”.
[24] Ms Dowd gave evidence that:
“I have had involvement as the Manager all issued (sic) referred to in the application.
I can confirm that evidence from CCTV substantiated that [the Applicant] had place (sic) a note that stated "God Save the Company Cause nothing will Save the Supervisor" I viewed this footage in the presence of Andrew Hall, previous State Operations Manager on one occasion and subsequently with Keith Dunham who was a participant in the investigation process.
I can confirm that this created significant stress for the Supervisor (Carlene Scott) as it was viewed as a direct threat on her safety and wellbeing.
I can confirm that neither [the Applicant] nor his lawyer James Kitto requested to view the footage after being given advice on the process available to them on 11 July 2012.
No contest to outcome was raised at the time the outcome was delivered.
Clear advice was provided to [the Applicant] on Company expectations of behaviour and outcomes (including termination) if this was further breached.” 5
[25] Ms Dowd stated that she did not see the note in situ. She claimed she was handed the note by the Supervisor Ms Scott in an office away from the screening area. 6 The note was kept on the file of the Applicant.7
[26] Ms Dowd’s evidence is that, when questioned about the incident, the Applicant did not ask to see the note but that he did ask to see the CCTV footage available 8 and that he was told by the Respondent the process required to see the footage9 as the CCTV footage did not belong to the Respondent.
[27] Ms Dowd gave evidence that she did not view the entire 24 hours of footage. She claimed she viewed it from about an hour before close of business and through until the shutters were closed. 10 Importantly, Ms. Dowd agreed that a note could be placed on the notice board at any particular time during an active shift and there were other workers working in the area.11 She also gave evidence that there were two shifts of between 6 and 8 hours in the period.
[28] Her evidence was that;
“I recall the first time that I viewed the footage I was more looking in the overnight period because I assumed it to have happened after hours and I then subsequently in seeing nothing that was occurring in the after-hours period when it was all shut and dark and the lights were triggered if people came in because I actually watched it through till the period the next morning where people started to come in as well and I didn't see any evidence of anyone putting a note on so I went further back in time and just kept stepping back in time till I saw what I believed was [the Applicant] putting a note on the board behind the x-ray machine.” 12
[29] Ms Dowd was vague as to how long the process of working back through the footage took her. 13 However, Ms Dowd was unshaken in her evidence that it was clearly the Applicant she could see in the footage.14 Ms Dowd’s evidence was that no handwriting checks were undertaken to examine if the writing of the note matched other handwriting of the Applicant.15
[30] Mr Dunham gave evidence that he was asked to participate in the investigation of allegations relating to a note.
[31] Mr Dunham’s evidence was that;
“I confirm that I witnessed the CCTV footage and saw the man that became known to me as [the Applicant] sit down inthe x-ray chair at the tail end of the shift on 28 May 2012 at the Launceston Screening Point.
I confirm that I personally viewed [the Applicant] turn his head from side to side prior to taking a white item out of his pocket and placing it on the board immediately behind the x-ray.
It was then noted that [the Applicant] left the Screening Point immediately preceding the screening point being locked up for the evening.
I also confirm I was a participant in the meeting with my manager Lyn Dowd with [the Applicant] and his lawyer James Kitto on 11July 2012.
At that meeting [the Applicant] denied the allegation and denied being anywhere near the x-ray machine in the screening point at the end of duty on 28 May 2012.
[The Applicant] denied putting up a note.
[The Applicant] was advised at this meeting that the CCTV footage of the above given date confirms both his attendance at the screening point at the end of business, the fact that he was viewed to be sitting in the X-Ray chair and the fact that he was seen to lean forward with a white item in his hand and place it on the board behind the x-ray.” 16
[32] At the hearing Mr Dunham was clear in his recollection of what the CCTV footage showed. He claims it showed a person seated at the X-Ray machine who then stood up after looking around for whatever reason and then moved and placed a hand in a pocket, taking out a piece of paper which was then pinned to the notice board and the person then exited the area. Mr Dowd claimed that no-one else approached that same area and that the screening point area closed immediately after that time. 17
[33] On cross examination, Mr Dunham remained clear in his evidence that he was certain that the person he observed on the CCTV footage was the Applicant as there was both a frontal and a side on shot of the Applicant on the video. Mr. Dunham was clear in his recollection that the CCTV footage was in colour. 18
[34] Mr Dunham indicated in response to cross examination that the footage had a time and date on the bottom of the screen. 19 He conceded that he could not rule out whether it was possible to alter the time and date on the screen.20 He also conceded that he was not an expert in recording equipment21 and that he did not view the entire 24 hours of the video around the time of the incident.22 Mr Dunham was shown the note by Ms Dowd.23 He also did not view the note in situ.
[35] The Applicant claims that he did not place the note on the notice board. His evidence was that at the time of the investigation he was never shown the note or the CCTV footage despite his representative at the time, Mr. Kitto, requesting that he be able to do so. However, the Applicants’ evidence was that he had in fact been shown the footage by a staff member at some point, apparently without the knowledge of management. Having admitted to seeing the footage, the Applicants evidence was, “…they are saying that I put my hand in my pocket and looked from side to side and pinned a note on the board which I can assure you I did not do”. 24
[36] The Applicant was not clear if he was denying that he sat in the X-Ray seat but was clear in his denial that he put the note on the notice board. 25 The Applicant’s evidence was that anyone could sit in the X-Ray seat at the end of the day when work was completed for the day.26 He was also clear that one needs to be sitting in the seat in order to be able to see the notice board where it is alleged the note was pinned.27
Did the Applicant place the note on the notice board?
[37] The test is not whether the Respondent believed on reasonable grounds, after sufficient inquiry, that the Applicant was guilty of the conduct. The Commission must make a finding as to whether the conduct occurred based on the evidence before it. 28
[38] There was limited evidence provided in respect to this matter. There was no CCTV footage produced. The offensive note was not produced. Neither Ms Goodyer, who advised Ms Scott the note had been found on the notice board, nor Ms. Scott, the presumed intended target of the note, appeared to give evidence. Mr Luddington had not seen the note or the CCTV footage, despite relying on it to effect the termination. 29
[39] The Applicant testified that he had seen the CCTV footage. He disputes that it shows him pinning the note on the notice board.
[40] Both Mr Dunham and Ms. Dowd were clear in their evidence that they saw the Applicant place a note on the notice board. They were credible in their evidence on this point. Despite the denials of the Applicant that the CCTV footage did not show him pinning something to the notice board, I find that the evidence of Mr Dunham and Ms Dowd were more credible on this point. They were clear and consistent in their evidence as to what the CCTV footage showed, that it was in colour, and the directions the cameras were facing. I am satisfied, based on the evidence of Ms Dowd and Mr Dunham that the CCTV footage showed the Applicant placing a note on the notice board at the time that was alleged.
[41] However, beyond this finding there is little to support the finding that the Applicant engaged in this particular misconduct. There is no evidence from the person who it is said found the note (Ms Goodyer) nor from the target of the note, Ms Scott. The note itself was not produced and has never been seen by the Applicant nor his representative. However, I am satisfied based on the evidence of Ms Dowd and Mr Dunham, both of whom testified that they had seen the note, that a note with the text described does exist. However, neither Mr Dunham nor Ms Dowd were in a position to give evidence that they saw the note on the notice board or near the X-Ray machine. Ms Dowd was handed the note by Ms Scott who was presumably handed the note by Ms Goodyer. Neither Ms Scott nor Ms Goodyer appeared to give evidence.
[42] Critically, while Ms Dowd gave evidence that she viewed the CCTV footage “stepping back in time” from when the security area closed, until she saw “what [she] believed was [the Applicant] putting a note on the notice board behind the X-Ray machine” 30, she did not view the CCTV footage for the entire period preceding that time. It is entirely possible, given that other staff members have access to the area during that time, that a different staff member placed the note on the notice board at some earlier period. In summary, while I think it is probable that the Applicant was seen placing something on the notice board at the time he was alleged to have done so, there is insufficient evidence before me to allow me to conclude on the balance of probabilities that the Applicant placed the offensive note on the board. While I understand that the Respondent formed the view at the time that the misconduct occurred, based on discussions with a number of other staff members, I do not have the benefit of evidence from those people. I am not satisfied, on the balance of probabilities, that the Applicant is guilty of the misconduct of placing the note on the notice board.
Conduct Reason 2 - Failure to conduct the ETD (Explosive Trace Detection)
[43] As already discussed above, a routine internal quality audit conducted by the Respondent in 2013 found that the Applicant was not performing his duties to the required standard of the Regulated Process. In particular, that he was failing to conduct the Explosive Trace Detection Process (the ETD process) on the various bags that required further investigation. This failure is said to have potentially put aircraft at risk. The Respondent removed the Applicant from performing the checked bag screening function at that time and placed him on a “supported retraining process”. He was monitored for a 3 month period to ensure he complied with the process. On the 8 November 2013, the Supervisor confirmed that the Applicant had conducted “compliant process” for the preceding 3 months and the underperformance review was complete.
[44] There is no dispute that the Applicant was guilty of not performing the correct procedure in failing to conduct the ETD process for a 3 month period. The Applicant conceded he was retrained because he “…had had been missing ETD which was to swipe the bag” and that he “…admitted fault”. The Applicant stated that he had told Ms Dowd ““Its human error, I’m only human””. 31 According to Ms Dowd, the Applicant was the only person found to be failing in this regard during the audit.32 Her evidence was that the Applicant had the knowledge and skills to conduct the tests but “...appeared not to be following procedures as he had demonstrated he was aware and capable”.33
[45] However, while there was a three month period where the Applicant, “elected not to follow process”, Ms Dowd agreed on cross examination that the Applicant “...fully completed his training in exemplary form and has complied with those implemented steps ever since”. 34
[46] There was some dispute in the evidence as to the significance of the failure to conduct the test. The Applicants evidence was that there were might be a dozen, a half a dozen or sometimes just one bag per shift that requires further examination. 35 The evidence of Ms. Dowd was that there are only one or two bags per shift that require “level 4 screening”.36 However, there are 56-60 bags per shift that require “human intervention to make sure that they are safe”.37
[47] The Applicants failure to conduct the tests on the identified baggage requiring testing could have had a significant effect. According to Ms Dowd, the purpose of the procedure “is to ensure the safety and well being of every passenger going onto the flight, the infrastructure of the planes and the airport. So it’s actually about ensuring that there are no [Improvised Exploding Devices] in particular is one of the main focus of that equipment”. 38
[48] While the Applicant characterised the failure as one of “human error”, the evidence of Ms. Dowd on this point differs;
“My opinion on the matter is that whilst [the Applicant] had a full understanding and whilst through the investigation of the underperformance he had implied he actually understood and had just omitted to circle something, the checks that we were able to do on the systems verified that he did not in actual fact conduct an explosive trace detection test which in essence creates a breach so I believe lazy practice or just choosing not to follow protocol.” 39
Did the Applicant fail to conduct ETD’s in breach of the direction?
[49] It is not in dispute that the Applicant failed to conduct the ETD process on a number of occasions over a three month period. The evidence of Ms Dowd also establishes that in doing so he was not undertaking a task that is designed to ensure IEDs do not get onto a plane. In failing to conduct the task it raised the possibility that an IED could have been undetected. This is a very serious matter. I also accept the evidence of Ms Dowd that in not conducting the tests the Applicant did so because of laziness or choosing not to follow protocol rather than lack of awareness of his responsibility. I do not accept the evidence of the Applicant that this issue was about a failure to complete paperwork. It was much more than that; it was a failure to complete a fundamental task. However, there is also no dispute that the Applicant has, since having been given the opportunity to complete the underperformance training, completed the process in the required manner.
[50] A question arises as to whether the failure to conduct the ETD process is serious misconduct. Serious misconduct is defined in s.12 of the Act as having the meaning prescribed by the Fair Work Regulations 2009 (the Regulations). Regulation 1.07 in the Regulations provides as follows;
“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.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[51] The failure to conduct tests whose sole aim is to detect the possible existence of explosive devices in order that they not be loaded onto an airplane is most certainly conduct that causes serious and imminent risk to the health and safety of a person. As the Applicant was aware of his responsibilities and failed to conduct the ETD process, through either laziness or choosing not do so, his action was wilful. In failing to conduct the ETD process, the Applicant was in my opinion guilty of serious misconduct. The fact that his employment was not terminated at that time is fortunate for the Applicant. In fact, the Respondent afforded the opportunity to the Applicant to undergo remedial training which he completed satisfactorily. The fact that he did so is most certainly a consideration as to whether this conduct constitutes a valid reason for the dismissal. Indeed, if it was the only matter under consideration, it would not constitute a valid reason given that he had been given the second chance and improved his conduct. To do so at that point would not be sound and defensible. However, the fact that the Applicant completed the training successfully does not change the fact that the misconduct occurred. It remains relevant to a consideration as to whether there is a valid reason for the dismissal.
Conduct Reason 3 - The Jan Swiggs incident.
[52] This incident occurred on 21 November 2013. Ms Jan Swiggs held the position of Manager Terminal Services Launceston. The Applicant admits that he did say to Ms Swiggs words to the effect;
● That he was going to be very "polite" in advising her of some facts
● That he stated that he knew it was Jan who dobbed him in last week
● That he had spoken to his lawyer who advised that "it is work place harassment" and that Jan needs to be very careful”.
[53] The reference to being “dobbed in” related to Ms. Swiggs reporting the Applicant for being absent from his post to go to the toilet. The Respondent held that for the Applicant to approach Ms Swiggs and speak to her in this manner was a breach of the following Employee Standing Instructions, “1.6 Attitude and Conduct” and “1.31 Employee Complaints”.
[54] It was argued that there is some CCTV footage of the incident involving Ms. Swiggs. However it was not presented to the Commission. The Applicant has seen the footage. Ms Dowd had not viewed the footage as she felt there was no need to as the Applicant had “...already confirmed that he did it.” 40
[55] The alleged demeanour of the Applicant in the conversation is important to the consideration as to whether he is guilty of misconduct, as the content of the conversation is, with some minor variations, not in dispute. According to Ms Dowd, Ms Swiggs found the exchange with the Applicant, “...quite threatening” 41 and that she was “...upset by the manner in which she was approached and the comments that were made”.42 I have already noted that Ms Swiggs was not present to attest to her statement about the incident.
[56] In this matter I have the direct evidence of the Applicant as to what occurred during the exchange with Ms Swiggs. 43. He claims there was no anger in the way he spoke to Ms Swiggs, that there was no finger pointing and that he did not threaten or intimidate her.
[57] He does admit that he said to Ms Swiggs that he was tired of her dobbing him in, that he has spoken to his lawyer and he had been told that her dobbing him in could be “workplace harassment”.
[58] This conduct was found by the Respondent to be in breach of the Employee Standing Instructions at “1.6 Attitude and Conduct”” and a breach of “1.31 Employee Complaints”.
[59] The Employee Standing Instruction “1.6 Attitude and Conduct” reads as follows;
“1.6 Attitude and Conduct
When on duty or in uniform, the employee is required to be courteous and conduct themselves in a professional and dignified manner. They must reply to enquiries in a suitable manner, and, if unable to supply the information requested, refer to the person from whom the information may be obtained.
Conduct unbecoming of an employee will generally result in disciplinary action which may include termination of employment. Some examples of unbecoming conduct include but are not limited to:
a) Being discourteous to the client or a colleague or the general public;
b) Insolence;
c) Use of coarse, profane or threatening language;
d) Immoral conduct;
e) Violation of any criminal law;
f) Consuming or possessing alcohol or other intoxicants or illicit drugs, taking non prescribed drugs whilst on duty or being under the influence of alcohol or drugs whilst on or reporting for duty; and
g) Any action, at any time which would serve to bring discredit to MSS Security or its clients;
h) Disclosing sensitive company or client information to the media or others;
i) Acts or omissions that may place themselves or others health, safety or welfare in jeopardy.”
[60] The Respondent has determined that the Applicant has breached this provision. Whether there is a breach of this provision turns on whether the Applicant was discourteous, insolent or used coarse, profane or threatening language. As I only have the evidence of the Applicant as to the manner in which he engaged with Ms Swiggs, it is not evident that the Applicant breached the provision insofar as it relates to using coarse, profane or threatening language.
[61] However the Applicants suggestion to Ms Swiggs that her conduct could be workplace harassment is a different matter. The conduct of Ms Swiggs in reporting the Applicant for abandoning his post could hardly be said to be workplace harassment. Ms. Dowd’s evidence was that it was expected that Ms Swiggs would report to the supervisor if she had a concern about one of the Respondent’s employees.
[62] In suggesting to Ms Swiggs that she was engaging in workplace harassment, the Applicant was not only wrong, he was being discourteous to a client of the Respondent. Such conduct is not consistent with conduct of a professional and dignified manner, and in that respect, I find the Applicant breached Employee Standing Instruction “1.6 Attitude and Conduct”.
[63] The Employee Standing Instruction “1.31 Employee Complaints” reads as follows:
“1.31 Employee Complaints
Under no circumstances are work-related matters or grievances to be discussed with the client. All such grievances must be raised by following the grievance procedure and be referred to MSS Security management. Disciplinary action may be taken against employees who air their grievances to our clients.”
[64] Ms Swiggs was the Manager Terminal Services Launceston. It is apparent she was a client of the Respondent. In raising his grievance with Ms Swiggs the Applicant breached 1.31 of the Employee Standing Instructions. The Applicant was aware of the Employee Standing Instructions. 44 He should not have approached Ms Swiggs at all to complain about being “dobbed in”.
[65] I note that the Applicant did not appear at all contrite about his conduct in speaking to Ms Swiggs about her reporting him. This attitude was evident when he gave his evidence before me. He claimed that Ms Swiggs works for Jetstar and had “no authority over [him]whatsoever” but also stated that she was the “manager/manageress, whatever”. The evidence of Ms Dowd was that Ms Swiggs was a supervisor with Australian Ground Services. 45 The evidence of Ms Dowd was far more reliable on this point and I accept it. It was evident that the Applicant continued to feel justified in no longer speaking to Ms Swiggs after she took the action that she did.46
Conduct Reason 4 - Failure to follow a lawful instruction.
[66] The Applicant during a shift in early November 2013 left his post to go to the toilet. In doing so the Respondent alleges that he breached the Employee Standing Instructions “1.13 Leaving Guard Post or Place of Duty” as he was not expressly permitted to leave his post. In failing to follow the instruction the Respondent asserts the Applicant failed to follow a lawful direction.
[67] Employee Standing Instruction “1.13 Leaving Guard Post of Place of Duty” reads as follows:
“1.13 Leaving Guard Post or Place of Duty
Employees are not to leave their posts or place of duty unless permitted as part of the normal course of business as provided in the Standing Orders, properly relieved, upon instructions or permission of a superior, client or their representative. The employee may leave if there is a requirement to act on a complaint, assist another MSS Security employee or an injured person, or in the case of fire or other similar emergency or extenuating circumstance.
Prior to leaving a post under such circumstances, the employee should immediately notify MSS Security Operations Centre, another MSS Security officer, or make an entry in their log book/note book and take the appropriate precaution necessary for the protection of their post during their absence. Employees should not be overly or unduly involved in such situations, i.e.: they should resume duties as soon as sufficient emergency assistance has been provided. Abandonment of your post without authority will result in summary dismissal.”
[68] The evidence of the Applicant was that his general practice, at least up until November 2013, was that he would take a toilet break when he needed to go. 47 He made his own judgements as to when it would be ok to take a toilet break.48 The Applicant gave evidence that he would tell Mr Willcox, who worked for BCS, a contractor involved in managing the baggage belt system at the Launceston Airport, that he was going to the toilet.49 This is in fact what the Applicant did during his shift in early November 2013. The Applicant’s view was that advising BCS he was going to the toilet was “the right thing to do because they took care of the belt”’.50
[69] The Applicant’s evidence was that when he was questioned by Mr Luddington and Ms Dowd about not getting permission to get a toilet break he stated “Well, I’ve been down there for three and a half years and I’ve always had toilet breaks and nobody’s ever relieved me... Not once did anyone bother about me or my other work colleagues who worked down there on different shifts going to the toilet...”. 51 The Applicant claimed that the procedure to ring the leading hand if he wanted to go to the toilet was only brought in after 14 November 2013.
[70] Under cross examination, the evidence of Ms. Dowd as to what the system was for going to the toilet was as follows:
“Yes. Now, in terms of the Jan Swiggs incident, when we come to that – in terms of the toilet breaks that staff have, is it fair to say that for the full period of time before November 2013 there was no system that was implemented about staff taking toilet breaks in Mr Sparkes's role?---There was no formal system as there was no identified anomalies.” 52
[71] Ms Dowd had no knowledge of the informal process alluded to by the Applicant of informing BCS when they go to the toilet. 53
[72] Ms Dowd was very clear about the directive to staff about toilet breaks after the Jan Swiggs incident but less clear as to what the state of awareness of the required procedure of the Applicant was prior to the incident in November. She referred to folders of unspecified memos or directives in the workplace for staff to view but suggested that they had “disappeared” subsequently. 54 The memos to which Ms Dowd was referring were not in evidence.55 However, Ms Dowd was clear that the Applicant acknowledged to her during the meeting she had with him that he had been given those directions but that he commented;
““I'll do what I've always done. I'm not doing that. It's private," words to that effect, basically acknowledging he had full awareness of the requirement.” 56
[73] The Applicant in his concluding evidence on this incident stated, “I know that in the MSS Book there is talk of going on toilet breaks and things like that, but after being there for three and a half years downstairs and never once having to report to go to the toilet, only off my own back for BCS because I thought it was the right thing to do, I cannot understand how anybody could propose that somebody lose their job over a toilet break.” 57
[74] Ms Dowd was of the view that the Applicant was not dismissed for taking a toilet break in breach of the standing instructions. Her view was that it was “...about behaviour”. 58
[75] The Applicant clearly still holds the view, and held it at the time, that he should be able to go to the toilet when he needs to. He made reference to a trade union document from the United Kingdom that referred to the need for workers to be able to go to the toilet when they need to and that not allowing reasonable timely access to toilets puts their health at risk. 59 The Applicant stated that he didn’t “…believe anyone has to wait to go to the toilet”.60 His own evidence is that he was aware of a memo stating that he was to contact his leading hand to go to the toilet, but that he refused to sign the memo as he does not accept that he should report to go to the toilet.61 He told his supervisor he had done nothing wrong and said, “MSS security needs to grow some balls and stand up for their workers” and “Really I can’t see that I’d done anything wrong to this day. I went for a toilet break which is a human thing which you have to do”.62
[76] The Applicant claimed that it was not right that there would be a record of when he went to the toilet and that a colleague of his had to wait 7 minutes for relief to go to the toilet and so he went to the toilet without being relieved. 63 The Applicant also complained about finding it hard to wait “too long” to go to the toilet.64
[77] The Applicant claimed there was little if any consequence of him going to the toilet without being relieved, other than the belts automatically shutting down eventually. 65
[78] The Applicant gave evidence that he was familiar with Employee Standing Instruction 1.13. 66 However, he was of the view that notifying someone at BCS was complying with the instruction.67 However, the Applicant agreed he was not employed by BCS and did not know if BCS was responsible to the screening authority.68 Ms Dowd’s evidence was that it was not appropriate for the Applicant to be absent from his post by reporting to a BCS employee.69
[79] Ms Dowd’s evidence was that the Applicant being absent from his post was unacceptable for security compliance. 70
Did the Applicant breach Employee Standing Instruction 1.13 and/or disobey a lawful and reasonable direction?
[80] There is no doubt that the Applicant was aware of Employee Standing Instruction 1.13. He admitted that he was. 71 The instruction is clear that staff can only leave when “permitted” and “properly relieved”. Therefore, in leaving his post to go to the toilet and not getting permission from a superior, client or their representative or through being relieved, the Applicant was in breach of this instruction. However, it seems clear on the evidence that the Applicant had been for some time, notwithstanding this instruction, engaging in a practice of advising a BCS employee that he was leaving his station to go to the toilet and had been doing so for a number of years. It was not until November 2013, the time that Jan Swiggs reported the Applicant’s absence from his work station that the more detailed protocol for going to the toilet, that is notifying the leading hand and waiting for relief to arrive before leaving, was put in place.
[81] It is also clear on the evidence that, subsequent to the toilet protocol being put in place in November 2013, that the Applicant had made clear that he had no intention of complying with the protocol and that he was clear in his view that he should be able to go to the toilet whenever he desired. This is founded on the Applicant’s view that the direction to advise the leading hand of the need to go to the toilet and wait for relief is not a reasonable one for the various reasons given including that going to the toilet is private, that one has a right to go to the toilet when necessary and that he is unable to “hold on” for long to go to the toilet.
[82] In my view these claims are spurious. There are many occupations where an employee cannot simply abandon their post and go to the toilet without first being relieved. The evidence that one may have to wait for up to 7 minutes is not in my view unreasonable. There was no particular medical condition in evidence that the Applicant has which would cause him to have a need to immediately attend the toilet. While the act of going to the toilet is private, every day in many workplaces, employees need to advise a superior that are leaving their station to attend the toilet. In this case, the Applicant is a security officer with the important responsibility of checking bags that are being screened for, among other things, explosive devices. The Respondent was entitled to insist that an officer be present at all times for such an important role. It is a requirement for them to comply with the obligations required of them by the screening authority. In my view the direction to ring the leading hand before going to the toilet and wait for relief is an entirely reasonable direction. There is no doubt that it is lawful.
[83] It is not disputed that the Applicant went to the toilet on one day in November 2013 without following procedure. Against the background of his long running practice of informing a staff member of BCS that he is going to the toilet, effecting a termination for that reason alone would be unreasonable. However, despite the procedure having been made crystal clear after the incident, the Applicant was equally clear that he did not intend to comply with it.
[84] The Applicant has clearly indicated his refusal to follow a lawful and reasonable direction from the Respondent and that he intended to continue to refuse to follow the direction. In doing so, I find the Applicant guilty of serious misconduct.
Other evidence.
[85] Ms Davis, the partner of the Applicant gave evidence that she overheard Ms Dowd say in a conversation with Mr Luddington, “[w]e want him gone”. Ms Davis believed that this related to her partner (the Applicant). 72 Ms Dowd denied she made the statement alleged. If Ms Dowd did make this statement, there is no basis to presume that it was directed at the Applicant. In any case, I prefer the evidence of Ms Dowd on the point. Her evidence was consistent and credible throughout. I do not accept the statement was made.
[86] The Applicant is 53 years of age and had not found a job at the time of the hearing since he was terminated; he has been living off the pay-out of his accrued entitlements. He has three children including twin teenage boys who came into his full time care soon after he was dismissed. He does not have a mortgage. However, his evidence was that the dismissal and its effects had caused him a lot of stress. 73 He was employed for 6 years and 3 months for the Respondent and its predecessor.74
Section 387(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)
[87] As disclosed above, I am not satisfied on the balance of probabilities that the alleged conduct related to the note incident occurred and therefore this cannot constitute a valid reason or part of a valid reason for the Applicant’s termination.
[88] There is no dispute that in respect to the second reason, the Applicant failed to conduct the ETD process on a number of occasions. I have determined that his failure to do so was serious misconduct. There is also no dispute that the Applicant has, since having completed the remedial training, completed the ETD process in the required manner and has seemingly done so without incident since that time. However, the fact that the Applicant remedied the past conduct does not mean the fact that the conduct occurred cannot be considered in determining whether there is a valid reason for the dismissal. In my view it should be. However, it would not be sound and defensible to rely on this reason alone as the basis for a dismissal.
[89] The third reason relates to the discussion with Ms Swiggs. I have determined that in doing so the Applicant breached Employee Standing Instruction 1.31. His reason for approaching Ms Swiggs was clearly to express his displeasure at being “dobbed in” and to indicate to her that he would consider taking action against her if she did so again. I have also determined that he breached Employee Standing Instruction 1.6 Attitude and Conduct in approaching her and threatening legal action against her. He had no reason to do so and continues to hold the view that he was justified in doing so. The Applicant is guilty of misconduct in speaking to Ms Swiggs. This constitutes a valid reason for the dismissal.
[90] With respect to the fourth reason, the toilet break issue, I have found above that the Applicant had indicated a refusal to abide by the lawful and reasonable instruction to notify a leading hand and seek relief before going go to the toilet. He was aware of Employee Standing Instruction 1.13 that requires him to not leave his post. When the procedure for going to the toilet was clarified in November 2013, he clearly indicated he had no intention of complying with this direction. The Applicant is involved in an important security operation. The Respondent is entitled to insist that an officer be present to ensure that baggage is security checked in accordance with regulations. The Applicant’s refusal to abide by this direction is serious misconduct. This is a valid reason for the dismissal.
[91] Considering the totality of the conduct of the Applicant and taking into account the mitigating circumstances as I have done above, I consider there to be a valid reason for the termination of the applicant. 75
387(b) whether the person was notified of that reason
[92] The Applicant was notified of the termination verbally on 6 January 2014 and in writing on the 8 January 2014.
387 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[93] Attachments A13 and A16 of the Respondent’s materials demonstrate that there were a number of opportunities given to the Applicant to respond to the allegations of misconduct. The Applicant did in fact respond in writing and a meeting was held to discuss his response. I am satisfied an opportunity was given to the Applicant to respond to the allegations of misconduct. I am also satisfied that this was given before the decision to terminate was made. 76
[94] I have also considered that the Applicant would have been aware his employment was in jeopardy. 77 All of the letters contained in attachments A13 to A15 indicate that the allegations are serious and may result in disciplinary action including termination.
387 (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
[95] There was no refusal to allow a support person.
387(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[96] This factor is not relevant as I have found the reasons for the termination were for misconduct, including serious misconduct.
387 (f) and (g) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal; and 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
[97] The Respondent is a large organisation. There is no suggestion that the factors in (f) and (g) would have had an impact on the procedures followed in effecting the dismissal.
387(h) any other matters that FWA considers relevant
[98] I have considered the evidence of the Applicant that the dismissal has been hard on him in financial and other respects. I note that he had been employed by them for a little over 6 years.
CONCLUSION
[99] Considering all of the above, I have found that there is a valid reason for the dismissal. The Applicant was notified of the reason and given an opportunity to respond to the reason and adequate time to respond. There was no refusal to allow a support person. While I accept that the termination has been hard on the Applicant, this has to be considered against my other findings above. The harshness of the impact when considered against all of the other factors is not of such magnitude as to allow a finding that the termination was harsh.
[100] In all of the circumstances I find that the termination of the Applicant’s employment was not harsh, unjust or unreasonable. The application is dismissed. An Order [PR553906] will issue accordingly.
COMMISSIONER
Appearances:
J Kitto for the Applicant
M Luddington from the Respondent
Hearing details:
2014.
Launceston:
May 7.
1 Exhibit B4
2 Respondent’s Outline of Submissions, [37]
3 Exhibit B4
4 PN880-881
5 Witness Statement of Ms Lynette Dowd, [2] - [7]
6 PN408-409
7 PN410
8 PN418
9 PN421
10 PN433
11 PN436-437
12 PN442
13 PN443-445
14 PN446-454
15 PN459
16 Witness Statement of Keith Dunham, [3] - [9]
17 PN300-302
18 PN319
19 PN321
20 PN322
21 PN324
22 PN328
23 PN346
24 PN62
25 PN68
26 PN68
27 PN67
28 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
29 PN607-608
30 PN442
31 PN99
32 PN475
33 Witness Statement of Ms Dowd, [11]
34 PN482
35 PN224
36 PN378
37 PN381-382
38 PN385
39 PN391
40 PN503
41 PN505
42 PN513
43 PN154
44 Applicant submissions [2.4]
45 PN398
46 PN163-165
47 PN121
48 PN121
49 PN121
50 PN152
51 PN142
52 PN485
53 PN486-487
54 PN534
55 PN541
56 PN548
57 PN180
58 PN521-522
59 PN150
60 PN152
61 PN150
62 PN214
63 PN150
64 PN150
65 PN153
66 PN216
67 PN217
68 PN219-220
69 PN395
70 Witness Statement of Lynette Dowd, [27]
71 PN216
72 PN258
73 PN185
74 PN61
75 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
76 Crozier v Palazzo Corporation Pty Limited (2000) 98 IR 137 [73].
77 National Jet Systems Pty Ltd v Mollinger, Print R3130, 18 March 1999, Giudice J, Polites SDP, Gregor C
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