Craig Beckley v SIS Security International Services

[2014] FWC 6202

[2014] FWC 6202

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Craig Beckley
v
SIS Security International Services
(U2014/6510)

VICE PRESIDENT HATCHER SYDNEY, 9 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] This decision reproduces in edited form the reasons for decision which were stated on transcript at the conclusion of the conference conducted in relation to this matter on 5 September 2014.

[2] Mr Craig Beckley has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 in respect of his former employment with SIS Security International Services (SIS).

[3] SIS employed Mr Beckley as a gate security guard at the OneSteel Waratah site in Newcastle. The employment commenced on 30 August 2012.

[4] On 14 March 2014 OneSteel sent SIS a document entitled “Non-Conformance Report”, which detailed several alleged serious lapses in SIS’s guarding practices at the OneSteel Waratah site. The report specified the dates of the lapses which allowed the identification of the relevant personnel on shift at the time. Mr Beckley was on shift on one of the instances identified in the report.

[5] The report was a serious matter for SIS since it potentially placed its contract with OneSteel at risk. Accordingly, SIS sent a memorandum to its staff on 26 March 2014, which directed them to cease reading or viewing private material whilst on duty. Mr Beckley was one of the persons to whom this memorandum was sent.

[6] SIS also made arrangements to discuss with individual employees the incidents described in the report in order to ascertain the facts and, if necessary, take remedial action.

[7] Mr Beckley was on guard duty at the OneSteel Waratah site on the evening of Saturday 29 March 2014. At about 7.30pm, Mr Ron Razmovski, SIS’s Operations Manager in Newcastle, telephoned Mr Beckley and informed him that he was required to attend a meeting with Mr Greg Lind, SIS’s NSW General Manager, at midday on Monday 31 March 2014 at Mayfield.

[8] At approximately 8.15pm that same evening, whilst he was still on duty, Mr Beckley phoned Mr Razmovski. According to the letter of dismissal sent by SIS to Mr Beckley on 11 April 2014, the following conversation occurred:

“CB said ‘You have ten minutes to get here because I am going home!’

RR said ‘what are you talking about?’

CB said ‘You have ten minutes I am going to throw the keys on the table in the gatehouse, now it going to be your problem and the gatehouse will be unattended.’

RR said ‘Fine’.”

[9] The dismissal letter then stated that Mr Razmovski attended the OneSteel Waratah site to find Mr Beckley had ceased duty, was standing outside of the gatehouse and that the security computer had been shut down. Mr Beckley said “I will be unable to make it on Monday you can ring me on my mobile”. He then apparently left the site.

[10] Mr Razmovski was not called to give evidence, so there was no direct evidence from SIS’s perspective as to the events of 29 March 2014 as described in the dismissal letter.

[11] Mr Beckley, in the material he filed in accordance with the Commission’s directions, did not take issue with the facts about this incident in the dismissal letter. He simply said he suffered a psychological injury on that night. When Mr Beckley gave his evidence at the conference, Mr Lind did not ask any questions of Mr Beckley about the events of 29 March 2014. When I asked Mr Beckley about them, he agreed that he had the conversation with Mr Razmovski as alleged, but added that he told Mr Razmovski, and it was in fact the case, that he felt very unwell at the time and for that reason felt he could not continue on duty.

[12] The meeting on 31 March 2014 did not proceed because Mr Beckley could not attend by reason of family commitments. Mr Lind then arranged for Mr Beckley to be relieved from his shift on Thursday 3 April 2014, in order to attend a meeting with Mr Lind to discuss the issues in the report and Mr Beckley’s conduct on the evening of 29 March 2014. However, this meeting did not go ahead because Mr Beckley sent in a medical certificate certifying illness for the period of 1- 6 April 2014. Mr Beckley’s next rostered working day was on Friday 11 April 2014. Mr Lind arranged for Mr Razmovski to attend the OneSteel Waratah site at 6.00am, when Mr Beckley was due to commence work, in order to direct him to attend a meeting with Mr Lind at SIS’s Mayfield office.

[13] However, Mr Beckley did not attend for work. Mr Razmovski telephoned Mr Beckley three times in the following hour, but each call was unanswered.

[14] SIS then prepared a letter of dismissal of that day’s date, informing Mr Beckley that he was dismissed effective from 7.30am that day. The reason given was “your serious misconducts”, which I take to include both Mr Beckley’s conduct on the evening of 29 March 2014 and his failure to notify SIS of his non-attendance at work on 11 April 2014. This was completed by about 9.30am and posted to Mr Beckley.

[15] At 9.50am and before the dismissal had been communicated to Mr Beckley, Mr Beckley’s partner, Ms Emma Page, sent an email to Mr Razmovski which read as follows:

“Morning Ron

I have left two messages for you this morning.

We would appreciate if you handle this matter appropriately.

See Craig’s workcover medical certificate.

This is really stressful time for Craig given he has put in 5 years of great service.

Craig’s dr has advised him not to speak to you verbally - it is all to go through me - Emma Page.

Regards”

[16] The attached medical certificate was dated 10 April 2014, and asserted that Mr Beckley was unfit for work from 10 April 2014 to 17 April 2014. The certificate was signed by Dr Mathew Jepson, psychologist, and stated that Mr Beckley was diagnosed with an anxiety/adjustment disorder.

[17] Mr Beckley gave evidence that on 10 April 2014, after he had seen his doctor and obtained the medical certificate, he told the SIS employee on duty at the OneSteel Waratah gatehouse, Mr John Sams, of his ongoing illness, and asked that this be passed on to Mr Razmovski. However, Mr Lind’s evidence was that, in his dealings with Mr Razmovski on 10 and 11 April 2014, there was no indication that Mr Razmovski had any prior awareness that Mr Beckley remained ill and would not attend on 11 April.

[18] Mr Beckley said that advance notification of intended non-attendance for work to the employee at the gatehouse was the usual practice. Mr Lind said that the proper procedure was to notify a relevant manager but he could not state that the practice described by Mr Beckley had not existed.

[19] Mr Beckley’s dismissal was a summary one. He said that he has been on workers’ compensation benefits since his dismissal. He has also moved to Queensland.

[20] Section 396 of the Act requires me to decide four preliminary matters before considering the merits of Mr Beckley’s application. It was not in contest, and I find, that:

(a) The application was made within the period required in subsection 394(2).

(b) Mr Beckley was a person protected from unfair dismissal.

(c) The Small Business Fair Dismissal Code does not apply.

(d) The dismissal was not a case of genuine redundancy.

[21] Section 387 of the Act requires me to take into account a number of specified matters in considering whether the dismissal was harsh, unjust or unreasonable.

[22] Paragraph 387(a) concerns whether there was a valid reason for the dismissal based on Mr Beckley’s capacity or conduct.

[23] In this case, the entirely unsatisfactory nature of the evidence makes the determination of this issue difficult. If the facts were as stated in SIS’s dismissal letter of 11 April 2014, I would have no hesitation in finding that there was a valid reason for dismissal. The conduct on 29 March 2014 as described in the letter was particularly serious, since if Mr Beckley had carried out his threat to abandon the gatehouse, it would have placed SIS’s OneSteel contract and the jobs of those who perform the work under that contract in serious jeopardy.

[24] However, as earlier indicated, Mr Beckley gave evidence that he had felt seriously ill when these events occurred, and had told Mr Razmovski this. If so, that puts a rather different complexion on the matter. It is understandable that an employee feeling seriously ill might demand in imperative terms to be relieved from duty. Because Mr Beckley gave no advance notice of this evidence, SIS was not forewarned that it might need to call Mr Razmovski to give evidence if it wished to rebut this. In this respect, Mr Beckley effectively failed to comply with the Commission’s directions concerning the filing and service of evidence, but of course I have to take into account the fact that he is self-represented.

[25] In relation to the events of 11 April 2014, SIS’s complaint was that Mr Beckley failed to notify it in advance that he would be unable to attend. SIS did not contend that Mr Beckley was not genuinely ill on that day, and it did not challenge the medical certificate. However, Mr Beckley’s evidence, as earlier stated, was that he told Mr Sams at the gatehouse on 10 April 2014 about this illness, and asked him to communicate this to Mr Razmovski.

[26] As earlier stated, Mr Razmovski did not give evidence, and neither party called Mr Sams to confirm or deny this. The position therefore remains somewhat unclear. If Mr Beckley did do what he says he did then I do not think that there would be a valid reason in this respect either, although it would undoubtedly have been preferable for him to directly inform a relevant manager.

[27] Because I cannot find that the events described in the dismissal letter are wholly accurate and constitute a complete account of the relevant events, I cannot be positively satisfied that there was a valid reason for the dismissal.

[28] In relation to the remaining matters in s.387 I find as follows:

(b) Mr Beckley was not notified in advance of the reason for dismissal.

(c) Mr Beckley did not have an opportunity to respond.

(d) There were no discussions relating to the dismissal.

(e) There was no evidence of prior warnings concerning unsatisfactory performance.

(f) The size of SIS’s enterprise may have impacted to a degree upon the procedure followed in effecting the dismissal.

(g) There was no evidence to suggest that SIS has dedicated human resource management specialists or expertise and that may have affected to a degree the procedures followed in effecting the dismissal.

(h) There are no other matters which I consider relevant.

[29] My conclusion is that because I cannot find on the evidence that there was a valid reason for the dismissal, the dismissal was therefore harsh, unjust and unreasonable.

[30] It is therefore necessary to consider the question of remedy. I am satisfied that the primary remedy of reinstatement is inappropriate here. Mr Beckley did not seek reinstatement, he has moved to Queensland, and I do not consider in any event that a workable employment relationship could be restored.

[31] That brings me to the alternative remedy of compensation. An award of compensation does not automatically follow a finding that a dismissal is unfair and that reinstatement is inappropriate. It is necessary to be satisfied that the applicant has suffered financial loss as a result of the dismissal for which he or she should be compensated.

[32] There was no evidence of any loss in this case. Indeed, Mr Beckley appeared to disavow having suffered any loss, and referred in that respect to the fact that he has been on workers’ compensation since the dismissal.

[33] Therefore I do not consider that an order for payment of compensation would be appropriate in all the circumstances of the case. For that reason it is not necessary for me to take into account the matters specified in s.392(2).

[34] In conclusion therefore:

1. I find Mr Beckley’s dismissal was harsh, unjust and unreasonable.

2. I decline to order any remedy with respect to his dismissal.

[35] These proceedings are now concluded.

VICE PRESIDENT

Appearances:

C. Beckley on his own behalf.

G. Lind for SIS Security International Services

Hearing details:

2014.

Sydney:

5 September.

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