FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINDLEY v MSS SECURITY PTY LTD | [2017] FCCA 2898 |
| Catchwords: INDUSTRIAL LAW – Adverse action claim – discrimination claim – morbid obesity – whether the respondent took adverse action against applicant by reason of subjecting him to an investigation and sending him a letter of allegations – whether the respondent discriminated against the applicant by reason of his disability – alleged omission of previous relevant work experience from CV – misunderstanding by employer in relation to obligation to refer to entire work experience in application – no adverse action – finding that the prohibited reason alleged was not the substantial or operative reason for acting – no discrimination – application dismissed. |
| Legislation: Disability Discrimination Act 1992, ss.6, 15(2) Fair Work Act 2009, ss.342(1), 343, 344, 351 |
| Applicant: | JOSHUA FINDLEY |
| Respondent: | MSS SECURITY PTY LTD |
| File Number: | MLG 2841 of 2016 |
| Judgment of: | Judge McNab |
| Hearing dates: | 17-18 August 2017 |
| Date of Last Submission: | 18 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 24 November 2017 |
REPRESENTATION
| Mr Findley in person |
| Solicitors for the Respondent: | Mr Levin, Mills Oakley |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2841 of 2016
| JOSHUA FINDLEY |
Applicant
And
| MSS SECURITY PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns the questions of:
a)whether the respondent took adverse action against Mr Findley by reason of the exercise of workplace rights within the meaning of s.341(1) of the Fair Work Act 2009 (Cth) (‘the Act’);
b)whether the respondent discriminated against Mr Findley by reason of his disability in breach of s.351(1) of the Act;
c)whether the respondent exerted undue influence or undue pressure on Mr Findley in breach of s.344 of the Act; and
d)whether the respondent coerced Mr Findley in breach of s.343(1) of the Act.
By an amended Statement of Claim filed 7 February 2017 Mr Findley alleges that:
a)He applied to the Fair Work Commission (‘FWC’) to terminate the MSS Security Victorian Enterprise Agreement 2011 on 30 May 2016;
b)On 1 June 2016, the respondent provided Mr Findley with a letter alleging that he had omitted information from his resume;
c)On 25 July 2016, Mr Findley submitted a statutory declaration of employee representative in relation to the FWC proceedings and subsequently filed an application for the production of documents on 22 August 2016;
d)On 19 October 2016, the day after the FWC hearing, Mr Findley…
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- AGLC
- Findley v MSS Security Pty Ltd [2017] FCCA 2898
- Case
- [2017] FCCA 2898
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mr Luddington, representing MSS Security Pty Ltd, against a decision of the Fair Work Commission. The dispute arose from allegations that Mr Luddington had deliberately made misrepresentations, omissions, or false statements regarding his previous employment with Diamond Protection to secure employment with MSS Security. Specifically, it was alleged that Mr Luddington failed to disclose his role as "Night Manager" at Diamond Protection, which MSS Security considered relevant to the security position he applied for, despite Mr Luddington's assertions that it was unrelated and irrelevant.
The court was required to determine whether Mr Luddington's failure to disclose his employment with Diamond Protection constituted a breach of his employment contract with MSS Security, particularly in relation to the honesty and integrity expected of employees. A key issue was whether his explanation for the omission, that the role was irrelevant and unrelated to security work, was plausible, especially given that the Diamond Protection role required a security licence and was at a university campus. The court also considered whether Mr Luddington's attempts to distance himself from the security nature of his previous role, and his explanations for not disclosing it, were disingenuous.
The court found that Mr Luddington's explanation for not disclosing his employment with Diamond Protection was implausible. It noted that the role required a security licence, was at a university campus, involved another security services company, and was titled "DRS Night Manager (Security)". The court considered it highly unlikely that such experience would be considered irrelevant to a security position. Furthermore, the court found Mr Luddington's claims about confidentiality clauses preventing disclosure to be implausible, especially in light of evidence suggesting he would have received a statement of service or reference from Diamond Protection. The court concluded that Mr Luddington had made every indication that he had not had significant or relevant employment since 2007, which was found to be untrue.
Ultimately, MSS Security determined that while Mr Luddington's conduct was disingenuous, they would not take formal disciplinary action on that occasion, citing extenuating circumstances and the employment contract not specifically referring to lying by omission. However, they reminded him of the importance of honesty and integrity, and warned that future breaches could lead to disciplinary action, including termination. The outcome of the process was to remain confidential.
The court was required to determine whether Mr Luddington's failure to disclose his employment with Diamond Protection constituted a breach of his employment contract with MSS Security, particularly in relation to the honesty and integrity expected of employees. A key issue was whether his explanation for the omission, that the role was irrelevant and unrelated to security work, was plausible, especially given that the Diamond Protection role required a security licence and was at a university campus. The court also considered whether Mr Luddington's attempts to distance himself from the security nature of his previous role, and his explanations for not disclosing it, were disingenuous.
The court found that Mr Luddington's explanation for not disclosing his employment with Diamond Protection was implausible. It noted that the role required a security licence, was at a university campus, involved another security services company, and was titled "DRS Night Manager (Security)". The court considered it highly unlikely that such experience would be considered irrelevant to a security position. Furthermore, the court found Mr Luddington's claims about confidentiality clauses preventing disclosure to be implausible, especially in light of evidence suggesting he would have received a statement of service or reference from Diamond Protection. The court concluded that Mr Luddington had made every indication that he had not had significant or relevant employment since 2007, which was found to be untrue.
Ultimately, MSS Security determined that while Mr Luddington's conduct was disingenuous, they would not take formal disciplinary action on that occasion, citing extenuating circumstances and the employment contract not specifically referring to lying by omission. However, they reminded him of the importance of honesty and integrity, and warned that future breaches could lead to disciplinary action, including termination. The outcome of the process was to remain confidential.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Mr Luddington responded by way of letter dated 9 June 2016. Although the letter is lengthy, because it is of central relevance, the whole of same is reproduced: Dear JoshuaRE: Conclusion of InvestigationWe write further to our letter of allegation, dated 1 June 2016; your response dated 2 June 2016; and our subsequent meeting held at MSS Security office, Port Melbourne on 3 June 2016. Also present was Sam Krikelis, Business Manager and your support person, Ben Joyce. The purpose of the meeting was to discuss the letter of allegation and your response to it.In summary, it was alleged that you had deliberately made misrepresentations, omissions and/or false statements in relation to your previous employment for the purpose of obtaining employment with MSS Security. Specifically, this was in relation to your previous role with Diamond Protection which was not mentioned on your resume or job application.In both your written response and verbally in our meeting, you have stated that the position that you held with Diamond Protection was that of “Night Manager” which was “far from a typical security role”. You stated that your position at Diamond Protection had “absolutely nothing to do with the position you applied for with MSS”.You did acknowledge that you required a security licence for the position and it is uncontroversial that the work you were performing was at La Trobe University. We also understand it to be uncontroversial that the offer of employment letter you were provided with when engaged by Diamond Protection stated that you were covered by the Diamond Protection Security Collective Agreement 2009 and that your job title was DRS Night Manager (Security).Throughout your written and verbal responses, your explanation for not including your role with Diamond Protection on your resume or job application form was that it was “irrelevant” and “nothing to do with the position you applied for with MSS”. You have sought to distance yourself from the notion that your role at Diamond Protection was related to security, despite evidence to the contrary.MSS Security finds it hard to accept that a role that you were working in:- Which required a security licence;- Was on another university campus in Melbourne;- Was with another company that provides security services;- That was titled DRS Night Manager (Security); and- Which you successfully argued that you had been engaged in for at least the minimum employment period and had reasonable expectation of continuing employment on a regular and systematic basis;Would be considered “irrelevant” and “nothing to do with the position you applied for with MSS”. MSS Security sees this experience as entirely relevant and maintains that your failure to inform us of your most recent employment has denied us the opportunity to take relevant reference checks and perform appropriate due diligence before employing you.Furthermore, we take the opportunity to remind you that, the job advert for your current role at Deakin University stated “Previous experience of providing security services in a residential, commercial and/or university environments would be a distinct advantage.” On that basis, we find your response that you did not include your experience with Diamond, working at La Trobe University, because you didn’t think it was relevant, implausible.In relation to your job application and subsequent interviews for employment with MSS Security, you stated that you do not recall being asked about your previous experience or what your last job was, and that you were just asked about what was on your resume. You said that you stated that you had been a student for 8 years.This statement is in contrast to the recollections of the MSS Security employees who conducted phone and face-to-face interviews with you. During the phone interview, it was stated that when asked about your employment history, you responded that it was “as supplied” in your resume. It was put that you also stated that you said you had been “studying for years”; had been in full time study for over a year and needed to work again to earn some money whilst studying part time.During your face-to-face interview, it has been put that you were asked about the gaps in your CV to which, by way of explanation, you responded that you had completed 3 degrees and were currently undertaking your 4th. It was further stated that you were asked why this particular job was of interest to you and you responded with words akin to it being “time to add practical not just educational experience” to your resume. It was added that during your face-to-face interview, you indicated that your parents had agreed to fund you as you went through university, with the implication being that you had not worked for some time.You made reference, both in your written and verbal responses, to various legal and other confidentiality clauses in relation to your employment with Diamond Protection that prevented you from disclosing to us the nature of your employment with Diamond Protection. We find it implausible that any such direction or order would exist that prevented you from identifying Diamond Protection as a previous and recent employer. This seems to align with an excerpt from the redacted deed that you sent to us that indicates that Diamond Protection were going to provide you with a Statement of Service / Written Reference. Such a statement or document would be worthless if you were unable to disclose them as a previous employer.In summary, you made every indication to MSS Security that you had not had any significant or relevant employment since 2007 and continue to maintain this position, which in our view is untrue.We also raised with you during out meeting, the allegation that you had made against Mr Harrie Veerman that he, “arranged a warning to be issued to [you] that prevented [you] from communicating with [your] colleagues about EA negotiations”. When asked what evidence you had to support your allegation, you conceded that the warning had been given to you by the control room supervisor, and that you did not know where the direction to issue you with a warning had come from. Without any evidence whatsoever, your attempts to smear the name of the General Manager are ill-conceived and frankly, wrong. It is of serious concern to us that you would make such allegations without any evidence.You also sought extensively throughout your verbal and written statements to draw us into discussions about your role as employee bargaining representative. We understand you will claim that any course of action MSS engages in against you that could be considered to injure you in your employment, will have been undertaken because of your position as an employee bargaining representative.For the reasons discussed above, MSS Security maintains that this is not the case. Your role as an employee bargaining representative has had no bearing on our investigation. Simply, you have been required to explain an obvious discrepancy between representations that you made to us and information about your employment history that subsequently came to light.MSS Security has serious concerns about your conduct in applying for a position with us and we consider your explanation disingenuous. However, in light of the extenuating circumstances, including that the relevant term in your employment contract does not specifically refer to lying by omission, on this occasion, we will not be taking formal disciplinary action against you.We will take this opportunity to remind you of our expectations of all employees, specifically in relation to honesty and integrity. It is of the upmost importance that you uphold the MSS Security values of Integrity, Teamwork, Attitude, Performance and Passion, and we have concerns that your conduct, as outlined above, is not in keeping with our Company values.You are reminded of your obligations to adhere to the MSS Security Employee Standing Instructions and are advised that any future breaches may result in disciplinary action, up to and including the termination of your employment.You are advised that the outcome of this process is confidential and you are directed not to discuss it with anyone in the workplace, except if they have acted as your support person throughout this process. The confidentiality of this process also extends to your support person and you are required to advise them of this. Any breach of confidentiality by you or your nominated support person may also result in disciplinary action.MSS is committed to ensuring that employees feel supported in the workplace at all times. Our Employee Assistance Program is available for you to use and you can contact them by calling 1300 361 008 should you wish to utilise this support service.Sincerely,Matt LuddingtonHR/IR Manager Vic/TasMSS Security Pty Ltd
Ratio Decidendi
Legal Principle Established
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