Ellias Najm v Sydney Night Patrol and Inquiry Co Pty Ltd T/A SNP Security

[2014] FWC 5997

[2014] FWC 5997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ellias Najm
v
Sydney Night Patrol and Inquiry Co Pty Ltd T/A SNP Security
(U2014/6281)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 2 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 4 April 2014 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Ellias Najm (the Applicant) against his former employer, Sydney Night Patrol and Inquiry Co Pty Ltd t/as SNP Security (the Respondent).

[2] The application was filed by Turner Freeman lawyers but by the time of the hearing the Applicant was self represented.

[3] The matter was conciliated on 20 May 2014 but no settlement was reached.

[4] I conducted a telephone programming conference on 29 July 2014.

[5] The matter was heard on 8 August 2014.

[6] The Respondent provided some further material on its employment policies after the hearing.

[7] The Respondent was represented by Mr N. Chadwick of Chadwick Workplace Law. I granted Mr Chadwick permission to appear pursuant to s.596 of the Act.

[8] The Applicant relied on oral evidence and submissions and:

● His witness statement dated 15 June 2014 (Exhibit N1).

[9] The Respondent relied on oral evidence and submissions and:

● Witness statements of Paul Tohanean, Security Service Manager, Terminal 1 dated 16 June 2014 (Exhibit C6) and 30 June 2014 (Exhibit C7);

● Witness statements of David Witting, National Operations Manager, People and Culture of the Respondent dated 16 June 2014 (Exhibit C8) and 29 June 2014 (Exhibit C9);

● Written submissions filed on 16 June 2014 and 6 July 2014;

● Further material on SNP policies dated 12 August 2014.

[10] An order requiring production of the CCTV footage of the screening area at Terminal 1 of Sydney Airport on 7 March 2014, was issued by me on 23 July at the request of the Respondent against Sydney Airport Corporation Limited. The footage had not been kept, however.

Background

[11] The Applicant was employed as a security officer by the Respondent at Sydney International Terminal from 15 April 2013 until 17 March 2014. The Applicant was employed in screening passengers and their carry on baggage.

[12] Whether the Applicant was dismissed is in dispute.

[13] In his F2 form the Applicant asserts:

● On 13 March 2014, at the conclusion of his shift, he was told to come to the Respondent’s office. He was shown a video which allegedly showed him, on 7 March, letting 30 people pass before administering the explosives test.

● He denies that he was aware that a disciplinary process had commenced.

● He had not been performance counselled previously. In any event, he says that any lapse on his part can be excused because of the effect on him of his brother’s recent death.

● He was directed to attend a meeting with the Respondent’s senior employees on 17 March. He was accused of letting 42 people pass before selecting the next subject.

● He was told he could resign or be terminated. He claims constructive dismissal.

● He says there was no valid reason, his lack of previous warnings had not been taken into account and he was denied procedural fairness.

● He seeks reinstatement and/or compensation.

[14] It was common ground that the SNP Aviation Security (Sydney Airport) Agreement 2012 [AE899475] (the Agreement) applied to the Applicant’s work and that he was a permanent part-time employee.

[15] The Respondent’s letter of 14 March 2014, attached to the F2 says that:

● The 17 March meeting “was a formal performance counselling session which could lead to dismissal;

● An independent support person could attend.

[16] The Respondent, in its F3, outlines the disciplinary action taken but says that the Applicant resigned entirely of his own volition. The Commission therefore has no jurisdiction to hear the matter. In any event, they submit that he was not treated harshly unjustly or unreasonably in any way.

Protection from Unfair Dismissal

[17] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[18] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“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.”

[19] There is no dispute and I am satisfied that the Applicant had completed the minimum employment period, is below the high income threshold, earning $940 per week, and was covered by an enterprise agreement (the Agreement). Consequently, I am satisfied that the Applicant was protected from unfair dismissal.

Was the dismissal unfair?

[20] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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.”

Was the Applicant dismissed?

[21] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3-2 of the Act. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[22] There is no question that s.385 at sub-sections (c) and (d) do not apply. However, the Respondent denies that the Applicant has been dismissed pursuant to s.386 because he resigned. The Respondent also says that, in any event, the Applicant’s failure to carry out his duties means that the dismissal was not harsh, unjust or unreasonable.

[23] The criteria that I must take into account in deciding this issue are set out in s.387 of the Act:

“387 Criteria for considering harshness etc.

(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 the FWC considers relevant.”

Overview of the Parties’ Cases

[24] The Applicant submits:

● The CCTV footage that he saw on 13 March showed that he had not continuously chosen passengers for the explosives test.

● At the 17 March meeting, he was told by David Witting that if he did not resign he would be terminated. He then wrote out a resignation. (Exhibit N1).

● The “Record of Meeting” form which was attached to Exhibit N1 and signed by the Applicant stated that:

- “I am well aware that I have done the wrong thing by not selecting passengers at a continuous random process.”

- The meeting outcome was “resignation”.

● The termination of his employment was disproportionate to the error and he should be given another chance.

[25] The Respondent submits:

● The Applicant’s duty was to carry out the explosives test on a random and continuous basis. He admitted that he had not done so on 13 March 2014, to such an extent, that 42 passengers had not been tested who should have been.

● At the 17 March meeting, the Applicant requested an opportunity to resign. He then wrote out his resignation letter.

● The Applicant’s resignation came before the Respondent advised him of the result of its investigation and its intent. There was no threat or inducement to resign.

● In addition, the Respondent’s breach of policy was of such seriousness as to provide a valid reason for his dismissal.

● The conduct fell within the definition of serious misconduct in Regulation 1.07 of the Fair Work Regulations 2009.

● Mr Tohanean, in his statements (Exhibits C7 and C6) and his evidence, outlined the way the meeting on 17 March was conducted.

● The Applicant had only screened three passengers over 20 minutes.

● The potential consequences of the breach of the Aviation Transport Security Regulations 2005 were serious.

● The Applicant had been given a letter explaining the purpose of the 17 March meeting. He was well aware of the seriousness of the matter and had not taken up the offer of a support person.

● Mr Witting (Exhibit C8) gave evidence that the Applicant had departed the 17 March meeting “happy with the outcome of the meeting”.

Was the Applicant Dismissed Pursuant to s.386?

[26] Cases such as Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200 (Mohazab) and O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (O’Meara) deal with sub-section (a). A termination is at the employer’s initiative when its action “directly and consequentially” results in the termination of employment, and the employee would have still been employed but for that action. An analysis of all the circumstances is required. The Full Bench states in O’Meara:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[27] Where an Applicant claims they were forced to resign they must show they had no real choice, Mohazab. The onus is on the employee to prove that they did not resign voluntarily and that the employer forced them to do it, Australian Hearing v Peary (2009) 185 IR 359. An employer is generally able to treat a clear and unambiguous resignation as such, Ngo v Link Printing Pty Ltd (1999) 94 IR 375.

[28] Mr Chadwick referred me to a recent decision of Deputy President Wells in Dawes v Presbyterian Care [2014] FWC 4067 in which the Deputy President provides the following useful summaries of the approach to be taken:

“[4] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) said in respect of now s.386(1) that:

“Clause 386 – Meaning of dismissed

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

● where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

● where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

. . .

[59] In order for there to be access to a remedy to unfair dismissal, the employee must have been dismissed in accordance with s.386 of the Act. Accordingly, I am required to determine on the evidence whether Ms Dawes was dismissed at the initiative of PCT or whether she was forced to resign due to the conduct engaged in by PCT.

[60] In order to amount to a termination at the initiative of the employer the applicant must have been forced to resign by a course of conduct engaged in by PCT.”

[29] The Deputy President analysed conflicting accounts and concluded “on an objective analysis” that there was not a course of conduct by the employer which gave the employee no reasonable choice but to resign [80].

[30] In accordance with the approach adopted in these cases, I find that the Applicant resigned of his own volition.

[31] I accept the evidence of Mr Tohanean and Mr Witting as to what occurred during the meeting on 17 March. Even if some discussion took place about the options for the Applicant, nothing has been put to show that he had no option but to resign or that he was under undue pressure. Mr Tohanean said:

“So I just want to clarify that. He did say that if I didn't resign that he was going to terminate me on the spot?---That is totally inaccurate and I disagree with it.

I just want to ask you a question. In regards to writing – just on second. It's just a blank piece of paper that – are you aware that Mr David did tell me to write this on the paper, "I hereby resign my position"?---What I can answer here is that Mr Witting handed you a piece of paper as you requested to resign and, as per standard operating procedures, you have to put it in writing. So he's offered you a piece of paper for you to write your request for the resignation.” Transcript [PN785 - PN786]

[32] Mr Witting said:

“Can you make sure – can you just explain what you told me at that time when you came back into the room? After the meeting with Paul outside when you came back into the room, can you just explain to me what you said?---Okay. So when we came back into the room, you handed over your feedback which is normal procedure. Paul Tohanean read your feedback, then handed it to me to read. At that point Paul answered your feedback which was asking for a second chance on the matter. You understood that what you did was incorrect but you were asking for another chance. Paul at that time responded to you and said, "Well, that wasn't really possible considering the severity of the situation," to which I said, you know, "You shouldn't" - you know, "It's not our fault your mind wasn't in the game that day," you know. You did say that your brother had passed away so I said, you know, "It's not our fault that you weren't, you know, prepared to work that day," and it was at that stage that you volunteered to say – well, you were looking to resign, was that an option, to which we discussed it and we agreed.” [Transcript PN840]

[33] The Applicant admitted his failure and was aware of the seriousness of the matter. For example, under cross examination he said:

“Sir, would you agree that in that 20-minute period on 7 March between 1.40 pm and 2 pm – would you agree for that 20-minute period that when you were stationed on the ETD position, you failed to carry out your duties?---Yes, I did.

You did, and would you also agree that you failed to carry out what you were required to do in accordance with the SOP for ETD?---Yes, I did.

Yes. So when Mr Tohanean invited you to attend the meeting on 17 March, you knew that the meeting was for a very serious purpose, didn't you?---Look, yes, it was a serious matter.” [Transcript PN496 - PN498]

[34] His evidence was that he was “forced” to write out the resignation [PN 626]. However, the surrounding circumstances do not support this. He completed and signed the interview form, which included the resignation description as well. He does not say that Mr Tohanean and Mr Witting told him that he would be dismissed before he signed the resignation letter. He took no action to rescind the resignation letter.

Conclusion

[35] I therefore find that the Applicant was not dismissed in accordance with s.386. He therefore can not be unfairly dismissed in accordance with s.385. Although I am not required to consider the issues pursuant to s.385(b) and s.387 because of my decision on dismissal, I am of the view that the Applicant’s admitted breach of procedures was of such significance as to provide a valid reason for his dismissal. Further, I can not discern a factor that the Commission would consider pursuant to s.387(b) - (h) which would otherwise render the dismissal harsh, unjust or unreasonable.

[36] The application for a remedy for unfair dismissal is therefore dismissed. An order [PR554986] in these terms will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

E. Najm, on his own behalf.

N. Chadwick, solicitor with T Iselt for the respondent.

Hearing details:

2014

Sydney:

July 29 (Teleconference);

August 8.

Final written submissions:

Respondent:

August 12.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR554901>