Commissioner for Fair Trading v Walton
[2014] ACAT 49
•18 July 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR FAIR TRADING v WALTON
(Occupational Discipline) [2014] ACAT 49
OR 14/28
Catchwords: OCCUPATIONAL DISCIPLINE – static security guard – conviction for assault occasioning actual bodily harm – fine of $300 and good behaviour bond imposed – application to suspend and then cancel licence – discretion to issue licence if in the public interest – evidence that respondent was a good employee, of excellent character - no history of aggressive behaviour - tribunal satisfied that unlikely to re-offend – in the public interest for respondent to have licence but with conditions imposed
Legislation:Security Industry Act 2003 s 21
Tribunal: Mr W.G. Stefaniak AM – Appeal President
Date of Orders: 18 July 2014
Date of published Reasons for Decision: 29 July 2014
AUSTRALIAN CAPITAL TERRITORY
CIVIL AND ADMINISTRATIVE TRIBUNAL NO: OR 14/28
BETWEEN: COMMISSIONER FOR FAIR TRADING
Applicant
AND:SAMUEL WALTON
Respondent
ORDERS
Tribunal:W.G Stefaniak AM – Presidential Member
Date of Order: 18 July 2014
The Tribunal Orders by consent that:
Order 2 made on 4 July 2014 is revoked.
Pursuant to section 66(2)(g) of the ACT Civil and Administrative Tribunal Act 2008 the following conditions are imposed on the respondent’s security licence:
a) that he advise the applicant of the name and contact details of his employer and any change of employer within 7 days of that change;
b) that he not work as a static guard prior to providing the applicant with a letter from his employer advising that it is aware of the circumstances of the assault occasioning actual bodily harm in February 2014 that resulted in the respondent’s conviction in April 2014;
c) the respondent is to advise the applicant in writing within 7 days of being charged with or convicted of an offence.
Signed........................................
Ms L. Crebbin – General President
for and on behalf of
W.G Stefaniak – Presidential Member
REASONS FOR DECISION
The respondent (age 29), a static security guard, was convicted by the ACT Magistrates Court in April 2014 of the offence of Assault Occasioning Actual Bodily Harm (AOABH). He was placed on an 18 month good behaviour bond and fined $300. The offence occurred in February 2014 and involved him pushing his partner of some 10 years over a low table and punching her in the shoulder, causing a bruise. The respondent and his partner were at the end of a relationship that was said to have involved many verbal arguments and some pushing and shoving over the years. It was said that this was the only occasion the problems escalated to the extent that police were called.
The respondent brought the conviction to the attention of his employer and the regulatory authority and this led to him resigning from his job as a security guard and the applicant seeking a suspension of his security licence pending the hearing of an application to cancel the licence.
The matter first came before me on 4 July 2104. The respondent had been out of work as a security guard for one week at this time. He had worked as a security guard for some nine years and at the time of the offence worked at the entrance desk of a government department. As soon as the respondent was charged, he took steps to enrol in courses for anger management and relationship training.
The references placed before me all attributed to the respondent’s excellent character and his efforts to overcome his problems. His father and a counsellor from the Canberra Men’s Centre gave detailed evidence about his prior relationship and his attempts to ensure that a similar situation did not arise again. The evidence indicated that this offence was a one off. He had, for many years, lived in a tempestuous relationship and had always managed to control himself. What is more, he never took his personal problems to work. His work was exemplary. He had, on the evidence before me, never been in a fight before (despite having played two codes of football), and he struck me as being a quiet, serious and somewhat reserved man. I quizzed him at some length about his past with special reference to any incidents of previous outbursts of temper or violence. He had not even got into fights as a child.
At the end of the hearing on 4 July, I indicated to the parties that in my view, the respondent should retain his licence, with some safeguards attached as conditions. The applicant requested a two week adjournment so that the parties could discuss a range of appropriate conditions. I suspended the respondent’s licence in the meantime because he had already resigned his job and to indicate that these matters are serious and that serious consequences flow from breaches of the criminal law.
On 18 July 2014, the matter returned to the tribunal. The applicant indicated that an agreed position had been reached and asked me to make final orders in the terms of those set out above. After considering all the evidence, I agreed to do so.
In some circumstances, a conviction can lead to mandatory cancellation or refusal of a security licence. Section 21 of the Security Industry Act 2003 gives the Commissioner and ACAT the discretion to decide that a person should be issued with a security licence where there has been a conviction, but where the penalty imposed does not involve a term of imprisonment or a fine of $500 or more. The discretion can be exercised in favour of the person if the Tribunal is satisfied that it is in the public interest for the person to be granted a security licence.
The offence of AOABH is a serious offence. In this case, the Magistrate imposed a penalty that did not result in the automatic cancellation of the respondent’s security licence. It appears from reading the transcript of the Magistrate’s sentence, that this was probably deliberate. At any rate, the respondent had no prior convictions of any kind, had recently ended a tempestuous relationship where it was said, he had been assaulted on occasions and further where, despite his problems at home, his employer said that he never let those problems intrude into the work place.
I formed the view that it is unlikely that this man will reoffend and that the conditions proposed for his security licence would give the community ample protection.
It is very much in the public interest for people to be in full time employment. The fact that the respondent conducted himself well in his job despite the problems he had at home, his excellent character and the lack of any aggressive history except for this offence and finally, my own assessment of the respondent, led me to the view that it is in everyone’s interest, including the public, that the suspension lapse and that the respondent be able to keep his licence on the conditions that appear at the front of this decision.
There is a heavy onus placed on security officers, and for good reason. The position they hold, is, in many instances akin to police officers. The public has a right to expect there to be strong and rigorous tests applied to the suitability of a person to be a security guard. It was apparent in this case that the respondent, who had in all other respects been an exemplary static security guard for nine years, deserved a chance to continue as such after serving a short suspension of three weeks to reflect the serious, but out of character offending behaviour for which he had been convicted.
………………………………..
W.G Stefaniak AM – Presidential Member
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