Douglas Miralles v Epic Security Pty Ltd T/A Epic Security

[2011] FWA 4838

[2011] FWA 4838

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Douglas Miralles
v
Epic Security Pty Ltd T/A Epic Security
(U2011/4578)

COMMISSIONER WILLIAMS PERTH, 5 AUGUST 2011

Application for unfair dismissal remedy.

[1] This matter involves an application lodged by Mr Douglas Miralles under section 394 at the Fair Work Act 2009 alleging he was unfairly dismissed by the Respondent Epic Security Pty Ltd (Epic).

[2] The application was subject to a conference with a Fair Work Australia conciliator however the matter was not resolved and has been referred for determination.

Introduction

[3] Epic is a provider of security services including monitoring, security installations, mobile patrols, static guards, surveillance and investigations and armed guards and escorts.

[4] One of Epic’s contracts is to provide security guards to accompany automated teller machine (ATM) technicians when they are servicing ATMs throughout Perth. Those technicians are engaged by a second and separate employer Integrated Technology Services (ITS) that maintains and repairs automatic teller machines for their clients, being banks and other financial institutions.

[5] Mr Miralles was engaged as an armed security guard by Epic in April 2010. His responsibilities involved accompanying the ATM technicians whilst they moved from ATM to ATM conducting necessary maintenance and repairs.

[6] On 19 January 2011 Epic advised Mr Miralles by letter that his employment was terminated because of an incident that occurred on 16 January 2011. The letter stated that an employee of Epic must not engage in any conduct likely to cause loss or damage to the company’s reputation and standing with the community, general public or to a valued client. Further the letter stated that the implications of the incident in question could have caused the loss of the contractual agreement with ITS and so Epic stated Mr Miralles’s behaviour constituted a grievous offence.

[7] At the hearing of this matter Mr Miralles was self represented and gave evidence on his own behalf. He also tendered a written statement from Michael Whiter a technician employed by ITS. The Respondent did not object to Mr Whiters statement being tendered into evidence even though he was not available to swear to its veracity or be cross examined.

[8] The Respondent was represented by Mr Gerry Carroll, the Supervisor Armed Services for Epic. Mr Carroll also gave evidence for the Respondent as did Ms Emma Wright who works in the Respondent’s office and control room and Mr Luke Passantino, an ATM technician employed by ITS.

The relevant events

[9] Much of the evidence of the witnesses was not controversial although there are some differences between Mr Miralles and Mr Passantino as to the wording of some of their verbal exchanges though nothing turns on these differences.

[10] The evidence is that Mr Miralles had served for 11 years with the Australian defence forces prior to being employed with Epic.

[11] In the weeks leading up to his dismissal there was some friction between Mr Miralles and other Epic security guards, and with Mr Passantino and another ATM technician.

[12] Towards the middle of January but before 16 January 2011 Mr Whiter, whilst he was accompanied by Mr Miralles, telephoned Mr Carroll. Mr Whiter told Mr Carroll that he believed Mr Miralles was an excellent guard but that some other people did not like him and that if Mr Miralles was constantly exposed to such staff that might be out to get him it could pose problems in the future. Mr Whiter suggested the solution to this would be for Mr Miralles to work only with Mr Whiter.

[13] Mr Whiter’s statement says that in reply Mr Carroll said that he did not believe there were any issues and that it would be unfair to the other Epic guards if they did not have the opportunity to work the shifts that Mr Miralles working with Mr Whiter would work. Mr Whiter understood Mr Carroll’s position to be the last word on the matter.

[14] Next on Sunday, 16 December 2011 in the afternoon at Epic’s office car park in Jandakot Mr Miralles approach Mr Passantino who was in an ITS vehicle to ask if he was ready to go. Mr Passantino that he was not going with Mr Miralles but with another Epic security guard, Ross. Ross being a guard that Mr Passantino was good friends with.

[15] Mr Miralles told Mr Passantino that he was scheduled to be his guard for that shift. Mr Mr Passantino repeated that this was not the case and that Ross was going to be his guard and he was going with him.

[16] There is disagreement between Mr Miralles and Mr Passantino as to exactly what words were said between them but both agree that the discussion quickly became heated.

[17] Mr Miralles agrees that he called Mr Passantino a “wanker” and began to walk away from the vehicle. Both agree that Mr Passantino then stepped out of his vehicle and called Mr Miralles “S.A.S Boy” in a derogatory manner. Mr Miralles ignored him and moved into the office building.

[18] Mr Miralles then came in to the control room and Ms Wright, seeing that he was agitated, asked him what was wrong. Mr Miralles told her that Mr Passantino was refusing to take him as his guard and wanted instead to take his friend Ross.

[19] She said to Mr Miralles that that this didn’t seem right and fair and so she telephoned Mr Carroll to ask his opinion. Mr Carroll told her to ask Mr Passantino if there was a real reason why he didn’t want to take Mr Miralles as his guard.

[20] Whilst Ms Wright spoke to Mr Passantino, Mr Miralles picked up the phone and spoke to Mr Carroll.

[21] Ms Wright then overheard Mr Miralles say to Mr Carroll:

“If you put me in the car with him, he might push my buttons and I might just shoot him.”

[22] Mr Carroll told Mr Miralles that what he had said could be construed as a threat and that he should not use such words, whether jokingly or otherwise.

[23] Mr Miralles’s statement to Mr Carroll was also overheard by some ITS technicians and other Epic employees in an adjacent room. Mr Passantino however did not hear Mr Miralles make this statement.

[24] The technicians became angry and said that they were going to call ITS to lodge a formal complaint.

[25] Ms Wright then rang Mr Carroll back and told him that the technicians were going to lodge a complaint. Mr Carroll asked her if she could ask the technicians if they were going to take Mr Miralles as a guard or whether Epic would have to find a replacement.

[26] Up to this point Mr Miralles, because he was due to begin work, had been armed but he then moved to disarm himself and he placed his firearm in the safe.

[27] Mr Carroll on the telephone told Ms Wright that she should send Mr Miralles home which she did.

[28] Mr Miralles was stood down on pay while the incident was investigated.

[29] Mr Carroll then interviewed staff (although it is not clear which ones) and obtained their statements. One of those was from Mr Miralles.

[30] Epic’s Managing Director Mr Norman-Bruce then had discussions with the ITS Contracts Manager.

[31] Next at 8:17 AM Monday, 17 January 2011 Mr Norman-Bruce received an e-mail from their client ITS advising them:

“Further to our conversations yesterday, I would like to advise that ITS requires Epic Security to redeploy Douglas Miralles away from the ITS’s contract. He is no longer appropriate to provide guarding services or duties to ITS. This is a direct result of the conflict which occurred yesterday (16th January) in which it was alleged he threaten our employ (sic) at the beginning of his shift.

Can you please make this effective immediately. I have cancelled his voice code.”

[32] A voice code is an identification code for a guard which is an integral part of the security system.

[33] On the afternoon of 17 January 2011 Mr Miralles rang Mr Carroll and offered his resignation explaining that no matter what occurred from the investigation he would not be able to work at Epic because of the animosity from others. Mr Carroll said he would consider this and get back to Mr Miralles.

[34] On 18 January 2011 Mr Carroll rang Mr Miralles and said that his employment with Epic was terminated and the details would be provided to him in a letter in the mail.

[35] Mr Miralles then received a letter from Epic dated 19 January 2011 terminating his employment.

Submissions of the Applicant

[36] Mr Miralles argues that he has been unfairly dismissed because he had been continuously harassed in the workplace. Further he says he did not receive a copy of the complaints made against him or even told specifically what the nature of the complaints were that Epic were investigating.

[37] With respect to the statement he made on the phone to Mr Carroll, Mr Miralles says the statement was made between two ex-soldiers on the phone and that at the time he made the statement Mr Passantino was in another room. Mr Carroll was previously a serving member of the Armed Forces of the Republic of Singapore.

[38] Mr Miralles says that amongst ex-soldiers comments like these are more considered as a joke and are common in general conversation. Mr Miralles admits he failed to remember that he was talking about a civilian and not an ex-soldier. When he became aware that Mr Passantino had heard about his comments he regretted his statement.

[39] Mr Miralles submits that he was not given the opportunity to defend himself against the complaints. He says he was never offered the opportunity to present himself in person to anybody in the Epic management team and was not given an opportunity to put his side of the story. Therefore he submits his dismissal was unfair.

The Respondent’s submissions

[40] Epic submit that the statement made by Mr Miralles was not a case of a joke between two ex-soldiers. Rather they say the statement made by Mr Miralles was a very serious offence. Their interpretation of the situation was that Mr Miralles was a man with a firearm who was in an unstable mental state and had made a statement threatening to kill someone.

[41] Epic say that decision was made to terminate Mr Miralles in view of the serious nature of the incident and because his voice code had been removed by the client ITS and because of his aggressive nature and his mental state.

[42] He was terminated from his employment on the grounds that he used threatening words directed at a client’s employee. Those words were to the effect that if Mr Miralles is put in the car with that employee and that employee pushes his buttons Mr Miralles will shoot him.

[43] That threat was overheard by other staff members and the nature of Mr Miralles’s mood intimidated those employees of ITS who feared for their life and so refused to go out on shift with him.

The legislation

[44] When the Tribunal is considering whether a dismissal is harsh, unjust or unreasonable the Act requires that certain particular factors are taken into account. These are set out in s.387.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(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); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(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; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) 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; and

(h) any other matters that FWA considers relevant.

Consideration

[45] Considering then the s.387 criteria:

s.387(a)

[46] In this case the Applicant admits that when speaking to Mr Carroll, his supervisor, on the phone he said words to the effect that if he was placed in a vehicle with Mr Passantino and Mr Passantino pushed his buttons Mr Miralles might just shoot Mr Passantino.

[47] Mr Miralles was employed as an armed security guard and at the time of making this statement was carrying a loaded gun.

[48] Mr Passantino was an employee of ITS to whom Epic were contacted to provide guarding services.

[49] The statement made by Mr Miralles self evidently was wrong and unacceptable. As a result of making the statement ITS no longer believed that Mr Miralles could work with its employees. The reason for the Applicant’s dismissal by Epic was that he had made the statement mentioned above and his conduct was likely to cause loss or damage to Epic’s reputation and standing with their client ITS.

[50] In the particular circumstances of this case then I accept that this statement made by Mr Miralles was conduct that amounted to a valid reason for his dismissal.

s.387(b)

[51] The Respondent did notify the Applicant of the reason for the dismissal. The reason was detailed in the termination letter provided by the Respondent to the Applicant.

[52] This notification of the reason for dismissal however was not given to the Applicant prior to Epic making the decision to terminate his employment.

[53] As has previously been held, as a matter of logical procedural fairness an employee must be notified of the reason for the dismissal before any decision is taken to terminate their employment. This is to provide them with an opportunity to respond to the reason the employer is considering dismissing them for 1.

s.387(c)

[54] The Applicant was not given any opportunity to respond to the reason that Epic decided to dismiss him for.

[55] Epic had asked Mr Miralles to provide an incident report or statement regarding the events that occurred on 16 January 2011. That however is not the same as explaining to him what their view was of the incident, including their concern that his conduct had caused loss or damage with their client ITS and that they considered this a valid reason to dismiss him and then allowing him to respond to this.

[56] Epic should have told Mr Miralles the reasons they were considering dismissing him for and Mr Miralles should have been given an opportunity to put forward any facts or arguments in mitigation for Epic to consider before a final decision was made as to whether he would be dismissed or not.

s.387(d)

[57] As mentioned immediately above there were no discussions with Mr Miralles in relation to him being dismissed and so there was no refusal by Epic to allow Mr Miralles to have a support person to assist in any such discussions.

s.387(e)

[58] The reasons for dismissal did not relate to unsatisfactory performance so issues of warnings are not relevant in this instance

s.387(f) and (g)

[59] There was no evidence before the Tribunal as to the size of the employer’s enterprise. The letter of termination dated 19 January 2011 is signed by the Human Resources Manager.

[60] Given the presence of dedicated human resource management specialists within the business there is then no excuse for the deficient procedures followed in effecting the dismissal in this case.

s.387(h)

[61] With respect to other relevant matters the evidence is that the Applicant had been employed for approximately 10 months.

[62] There is also evidence that after the incident on 16 January 2011 Mr Miralles contacted Mr Carroll and proposed that he would resign. He however did not formally tender his resignation and ultimately was instead dismissed on 19 January 2011.

Conclusion

[63] The statement made which is central to this matter by Mr Miralles was not said to Mr Passantino. This statement rather was made to Mr Carroll on the phone and was not intended to be overheard by Mr Passantino.

[64] In fact Mr Passantino himself never heard Mr Miralles make the statement.

[65] Undoubtedly the statement by Mr Miralles to Mr Carroll that if Mr Passantino pushed his buttons he might shoot him was foolish, ill-advised and should not have been made. On its face the statement in context was not in my view a threat to be taken seriously. Mr Carroll’s initial reaction confirms this. He only cautioned Mr Miralles that his words could be construed as a threat.

[66] I do accept that this statement though is to be viewed more seriously in the circumstances here because Mr Miralles carries a firearm as an armed guard and was armed at the time. However clearly Epic did not take the statement as a real threat to anyone at the time because only the most limited immediate action was taken which was to tell Mr Miralles he was stood down and he should go home, which he readily did without protest.

[67] It is also clear that the Respondent’s subsequent actions were in large part a response to ITS the next morning saying they would not allow Mr Miralles to work with their technicians in future. This response from ITS, whilst understandable, failed to take into consideration why Mr Miralles said what he did and seems to take no account of Mr Passantino’s role in antagonising Mr Miralles. ITS had no obligation to investigate the incident in detail but Epic had different responsibilities with respect to Mr Miralles.

[68] The future of Mr Miralles’s employment of course was not for ITS to determine.

[69] Clearly taking into account the criteria set out in section 387 procedurally the dismissal was significantly deficient.

[70] Mr Miralles should have had an opportunity to hear directly from the Respondent why it was considering terminating his employment. He was not given any opportunity to respond and provide an explanation for his behaviour.

[71] It is not clear whether Epic considered the previous reporting to Mr Carroll by Mr Whiter of friction between other employees and technicians and Mr Miralles. This would have been a relevant factor for Epic to consider in, for example, forming a view as to whether Mr Miralles’s statement was an inexcusable overreaction or alternatively whilst inappropriate, his statement was a made in frustration at the ongoing hostility from Mr Passantino.

[72] The facts demonstrate that the incident between Mr Passantino and Mr Miralles’s was triggered by Mr Passantino’s refusal to accept that Mr Miralles was scheduled to be his guard for the shift. The fact that Mr Passantino was wrong to do this is demonstrated by the reaction of both Ms Wright, whom says she thought it was wrong and unfair and Mr Carroll, who sought to enquire as to whether there was any proper basis for Mr Passantino’s refusal to be accompanied by Mr Miralles’s. The fact then that Mr Miralles’s had been upset by Mr Passantino’s behaviour, which the Respondent recognised was improper, should have been, but was not, considered as a mitigating factor in Mr Miralles’s favour.

[73] By his own admission Mr Passantino had been an equal participant in the conflict with Mr Miralles on 16 January 2011. After Mr Miralles had begun to walk away from the vehicle Mr Passantino exited the vehicle and called out after him in a derogatory manner.

[74] None of this seems to have been considered by the Respondent. Clearly the Respondent should have had consideration for the fact that Mr Miralles had just been involved in an angry interaction with Mr Passantino and that Mr Passantino had been antagonistic towards Mr Miralles at the end of their exchange.

[75] Obviously if Epic had met with Mr Miralles before deciding to terminate him this would have provided an opportunity for Mr Miralles to explain the full history of his interactions with other guards and technicians and to put forward his feeling that he was provoked by Mr Passantino’s attitude and actions that day. Whether Epic would have accepted this or not would have been for their managers and Human Resource staff to then consider.

[76] The submission by Epic that the employees of ITS were fearful for their lives is not supported by any evidence at all. The technicians who did overhear Mr Marilles make the statement remained in his vicinity suggesting they were not then fearful. In addition the evidence of Mr Miralles is that after he had made the statement to Mr Carroll on the phone and after the technicians had rung ITS to complain one of those technicians came into the control room and made idle chitchat with him for about five minutes before he then left to go home.

[77] Mr Carroll confirmed that ITS is not the only client Epic has. One option rather than dismissing Mr Miralles may have been for Epic to consider whether it was possible and appropriate to redeploy Mr Miralles in some other area of the business separate from the ITS contract.

[78] In this case while there was a valid reason for the dismissal, the procedural failings by the Respondent, particularly in not providing Mr Miralles an opportunity to respond to the reason for dismissal, were real and serious deficiencies. The evidence is that there were significant matters that Epic should have taken into account before deciding whether or not to dismiss Mr Miralles. However these matters were overlooked or ignored largely because Mr Miralles was not given an opportunity to respond. It may have been that even after a proper process and careful consideration of these matters the employer would have come to the same conclusion; however this is by no means certain. Consequently in my view the dismissal in this case was unreasonable, the dismissal of Mr Miralles was unfair.

Compensation

[79] In this case an order for reinstatement is not appropriate because Epic’s main client has advised they will not allow Mr Miralles to work alongside their employees which is problematic for his ongoing employment.

[80] In the circumstances I do consider that an order for payment of compensation is appropriate.

[81] There is no evidence that would suggest that the issuance of an order for compensation would adversely affect the viability of the employer’s enterprise.

[82] Mr Miralles was employed with Epic for approximately 10 months.

[83] Given the limited capacity for Epic to offer Mr Miralles’s work with them because ITS has refused to allow him to accompany their technicians 2my assessment is that if Mr Miralles had continued with Epic this would have been likely to significantly reduce the length of time he would have remained working there. My assessment is that in all likelihood Mr Miralles would not have worked with Epic for more than another two months.

[84] There is no evidence before the Tribunal with respect to what efforts Mr Miralles has made to mitigate his loss nor as to any amount of remuneration earned by him since his dismissal.

[85] Mr Miralles has admitted to making the statement that led to his dismissal and to that extent had misconducted himself in his employment and I propose that an appropriate consequential deduction in this instance is an amount of one months wages.

[86] My conclusion then is that an order for compensation of one months wages is appropriate in the circumstances here. An order to that effect will issue in conjunction with this decision.

COMMISSIONER

Appearances:

Mr Douglas Miralles on his own behalf.

Mr Gerry Carroll for the respondent.

Hearing details:

2011

Perth

27 June

 1   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, S5897 at pn 73, 11 May 2000

 2   PN 187

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<Price code C, PR512470>