Graham Parsonage v Business Risks International (Victoria) Pty Ltd T/A Bri

[2012] FWA 9878

[2012] FWA 9878

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.372—General protections

Graham Parsonage
v
Business Risks International (Victoria) Pty Ltd T/A BRI
(C2012/568)

COMMISSIONER RYAN MELBOURNE, 24 DECEMBER 2012

Application regarding adverse action - private arbitration of alleged misconduct of applicant and investigation.

[1] An application was made by Mr Parsonage under s.372 of the Act alleging that adverse action had been taken by Business Risks International (Victoria) Pty Ltd T/A BRI (BRI) (the Respondent) against Mr Graham Parsonage (Mr Parsonage) because Mr Parsonage exercised a workplace right. BRI strenuously denied the allegation.

[2] At the conference convened by the Tribunal under s.374 it became obvious to the Tribunal that there was a real issue in dispute between the parties and the Tribunal offered to conduct a private arbitration on the real issue in dispute. The parties agreed to that course of conduct and the parties identified the issue to be arbitrated and the powers to be exercised by the Tribunal in the private arbitration.

[3] The issue to be arbitrated was described as follows:

‘1. The alleged conduct of Mr Parsonages, the investigation into the conduct and the disciplinary action taken by BRI including:

• Whether the conduct occurred



• Whether the findings of BRI’s investigation were correct



• Whether there were grounds to discipline and transfer Mr Parsonages



• Whether the behaviour of both Applicants is deemed misconduct under the definition in the Fair Work Act 2009 (the Act)




2. Whether Mr Parsonages were subject to adverse action within the meaning of the Act, as outlined in the Applications.’

[4] The matter was heard by the Tribunal over 2 days and included a night time site inspection of the workplace where Mr Parsonage had been working at the relevant time.

Background

[5] Mr Parsonage had been working as an onsite security officer at the RMIT Bundoora campus for about 7 years. The first 5 years were with a previous employer who had the contract with RMIT and then when BRI was contracted to provide the security service in 2010 Mr Parsonage was employed by BRI/ Mr Parsonage had been employed as a Second-in Charge Security Officer with the previous employer and was employed as a Team Leader with BRI.

[6] The Respondent made a number of allegations against Mr Parsonage in relation to the performance of his duties. The allegations were communicated to Mr Parsonage on 3 April 2012 and were as follows:

‘The purpose of this letter is to formally advise you that you are required to attend the BRI Security State Office for a performance management meeting; the reason for this meeting is to discuss the following:

• Results of a recent audit undertaken on site in relation to employee performance in accordance with BRI’ Policies and Procedures



• Failure to carry out reasonable duties and instructions by the RMIT Security Control Room when alarms have been dispatched via two way radio communications, which is a direct breach of BRI’ Policies and Procedures



• Failure to carry out routine Internal/External Building Patrols



• Falsifying log book entries’

[7] After giving Mr Parsonage an opportunity to respond the Respondent determined that Mr Parsonage had engaged in misconduct. By letter dated 11 May 2012 BRI advised Mr Parsonage that, in relation to the 3 specific allegations of misconduct, it concluded that the allegations had been substantiated by way of an Operational Review Team covertly observing the conduct of Mr Parsonage on the evening of 8 March 2012. BRI identified the observations of the Operational Review Team as follows:

‘The Operational Review Team has observed several concerning incidents, which are listed below:

1. Failure to adhere to OH&S practice, stipulating that patrols after dark should be conducted two up, thus ensuring the safety of all security officers.

2. Failure to patrol the Animal House on the West Campus as stipulated in an email dated 18th November 2010.

3. Detailed analysis of access control report highlights and identifies that building patrols are not being completed to best practice.

4. The Operational Review Team observed yourself stationery in Building 216 (The Control Point) for several hours over the course of a eight (8) hour shift, this evidence has been provided to your United Voice Representative.

5. Failure to respond to multiple alarm activation in two buildings (Building 203 and 224) dispatched by the RMIT City Security Control Room. These alarms were dispatched at 03.10, you responded via two way radio that the alarms were caused by cleaners, the Operational Review Team witnessed at no time during these alarm activations did you leave Building 216 Control Point.’

[8] Finally the letter dated 11 May 2012 advised Mr Parsonage that he was subject to a FINAL WRITTEN WARNING and that he was demoted from his Team Leader position to a Roving position and that he would be transferred from the RMIT Bundoora site to another site in the RMIT Portfolio. Mr Parsonage was subsequently transferred to the RMIT CBD site.

Consideration

[9] I do not intend to repeat each and every piece of evidence and submission given in this matter as the parties have all of the material presented in this matter and the transcript of proceedings. Rather I will examine each of the issues I am required to decide and refer to the evidence and submissions directly relevant to that issue. The determination of each issue which has been identified for arbitration has only been possible because of the volume of evidence and submissions made in this matter. Each of the issues to be determined exists within an holistic picture which has been painted by the totality of the evidence and submissions and the onsite inspection conducted by the Tribunal.

Whether the conduct occurred

[10] Each of the 5 specific conduct issues needs to be examined separately.

1. Failure to adhere to OH&S practice, stipulating that patrols after dark should be conducted two up, thus ensuring the safety of all security officers.

[11] Mr Parsonage clearly admitted that he asked patrol officers working with him if they would work alone in visiting the East Campus for a routine patrol. Mr Parsonage made clear that if a security officer was uncomfortable with working alone then he did not require them to do so. Mr Mahesh Rana gave evidence that Mr Parsonage had required him to work alone when he was uncomfortable in doing so. Mr Parsonage vehemently denied this evidence.

[12] Mr Parsonage gave evidence that working alone was approved by BRI and that all that Mr Parsonage had done was apply a memo or instruction issued by Mr Liam Fradley and which was posted on the wall of Building 216. As Mr Parsonage described it, working alone was OK as long as it was recorded in the Log Book.

[13] Mr Parsonage’s evidence in chief was as follows:

“So you failed to ensure that guards went two-up on patrols?---Yes. What happens is we have a letter actually up on the board that is written by Jeremy Parker, and you can ask Jeremy that when he comes in. If you have to go two-up - sorry, if you go separate ways you just make sure it’s written in the book. Exactly what I’ve done. I’ve done nothing wrong. Gone to the letter.

I see?---So if I have - if - which can happen quite often, an officer can go over to east campus. I can do west campus. You’re more efficient. You get it all done.

Yes?---I just write it in the book and it is written in the book. I think it might even be written in this particular one that we - - -

So the book you’re referring to is the log book?---The log book. Yes. You’re correct.

And why do you have to separate guards in that way?---Well, the whole thing is to be efficient. If you go - are running short of time - the cleaners come in at a particular time and if you can’t foresee getting through all the buildings and you want them to be secure, you don’t want problems to happen, well you just sometimes have to do that.

Okay?---It’s probably most of the time, to be efficient.

So it’s fair enough to say to get the job done you sometimes need to separate?

---Exactly. Exactly right.

And you understood that you were following the direction of - - -?---I’m following it. I am following it. That’s exactly right. Like I said, if Jeremy comes in, ask him the same question. He’ll tell you that he sent that letter out.

So when you received a letter that said that you failed to ensure that guards went two-up on patrols, what was your reaction to that?---We were always two-up unless we needed to be separated.” 1

[14] Under cross examination Mr Parsonage maintained that he was following the instruction or memo. (PN570 and PN883) Neither Mr Parsonage nor BRI could produce any such instruction or memo.

[15] Mr Parsonage conceded that but for the memo or instruction from Mr Liam Fradley there was a requirement from BRI that patrols be done two up.

[16] Mr Fradley was cross examined on this point as follows:

“Paragraph 44 of your statement you say, “Graham failed to adhere to safe work practices by allowing his roving security officers to take the security vehicle over Plenty Road where he controlled the campus individually.” Graham has stated his understanding that going solo is okay under certain circumstances at BRI, what’s your response to that?---I’m unaware of these certain circumstances. The certain circumstances - well, like I said I’m unaware of them. The safety protocols around patrolling two up are quite clear, you’re to patrol two up when the sun’s down.”  2

[17] Mr Mahesh Rana the Roving Security Officer who worked with and under the direction of Mr Parsonage said in his witness statement:

“8. Graham was posted as a Team Leader at RMIT Bundoora; I raised issues with Graham Parsonage regarding patrolling alone as I did not feel safe. I raised these issues after on several occasions conducting routine patrols alone.

9. I had been aware that there had been instructions to patrol two up after hours, this instruction came from the Security Supervisor Rob Brown.

10. I felt uneasy about approaching the team leaders about patrolling two up as per instructions from Rob Brown.” 3

[18] Mr Rani’s oral evidence in chief on this was as follows:

‘Do you know the requirement in relation to patrolling after hours when it gets dark?---It has to be two up for the team leader and the roving guard has to work together when we do the different patrols.

Were you two up on this night with Graham?---Not when I went to do the east campus by myself.

Did you have any concerns about patrolling on your own?---Yes, I did.

Did you raise these with Graham at all?---After a few occasions I did ask Graham that I don’t feel safe patrolling by myself at night time.

What came out of that, what did Graham say?---He said next we’ll team up when we’re doing the patrols. 4

[19] Under cross examination Mr Rani added some further details as follows:

“What are the things that you would say characterise a shift when you were working with Mr Parsonage?---Like I said it depends on the team leader, how they organise their shifts. With Graham we used to do our patrols but he used to ask you will be doing the one side of the campus, I’ll be looking after the other side of the campus, we’ll meet up after that and then (indistinct).

The first time that he said to you that you would be doing one campus and he would be doing the other campus, what was your reaction?---I thought like if the team leader asked I had to follow his instructions, so I went to do the east campus by myself, but when I was walking around the campus I was not like comfortable walking around at that time by myself.

You didn’t say at the time the instruction was given?---No.

Do you remember when if ever you did raise that as a concern?---It was probably after the second or third time. First time I thought if my team leader asked me to do something, so probably I thought because Graham has worked there long so probably he knows how things work or maybe I’m new so I can’t decide on that one, so I did what I was asked to do but when I was not happy about it I told Graham okay, this is the situation, I’m not happy with working alone.” 5

[20] I don’t consider that Mr Parsonage invented his evidence as to a memo from Mr Fradley but, in the absence of producing such a memo, I accept that at the time of the operational review that BRI had a safety protocol in place which required two up patrolling after dark. I also concluded that Mr Parsonage was aware of the general requirement to patrol two up after dark. The fact that Mr Rana felt unsafe when patrolling alone means that even if Mr Parsonage had a memo from Mr Fradley it was nevertheless poor practice to permit, encourage or require a Roving Security Officer to patrol alone when that person was fearful of their safety when doing patrols alone.

2. Failure to patrol the Animal House on the West Campus as stipulated in an email dated 18th November 2010.

[21] The allegation of wrong conduct concerned the failure of Mr Parsonage to visit the animal house on the 11th floor of Building 201 during the patrol of Building 201. BRI asserted that there was directive dated October 2010 which required patrolling officers to visit the animal house.

[22] Mr Parsonage’s evidence in chief was as follows:

“The second allegation is that you failed to patrol the animal house on west campus. What’s your response to that?---I don’t know where they got that from, but that’s your first point of entry going into 201 is the animal house, and the animal house as - is set up in such a way they have animals on the bottom level, level 1. They have them also on level 11. you don’t have to go to level 11, the reason being in level 1 there is a screen and what you do is you type in the code on the screen and all information you need is on that screen such as temperatures and so on and so forth.

Sorry, animal house?---Animal house. Yes.

Is that a numbered building or not?---That’s in 201, the bottom - level 1.

Okay, and so is it true that you failed to patrol animal house?---Absolutely not. As a matter of fact if you have a look at the activity report it says I went into the animal house.

So you’re not quite sure what - - -?---But that’s right - wrong anyway, the activity report. It says I’ve gone in, so.

So you don’t understand that conclusion?---I don’t understand it. If you want I could tell you which one it is, the animal house doors.

It has a particular door?---Yes. If you go on the activity report - where are we? At 0032 hours and 53 seconds you can see, “201 1.47 roller door” and then “58”, all right? That’s how I’ve exited, right? That is the animal house.

Okay, so you believe that’s the animal house?---So I don’t know what they’re talking about.”  6

[23] The cross examination of Mr Parsonage was directed at his failure to visit the 11th floor animal house.

“In relation to the animal house, level 11, where you say, “I don’t have to go up there because I can look at the screen”?---No, you don’t have to. Yes, that’s right. You used to have to go up there because - - -

Is that a directive?---Yes. The engineer there, Alan Hart, showed - took us in there and showed us how it worked so you don’t have to go up there. Any alarms such as what they call a BESS alarm, which is heating and air conditioning, will go off there. It will also go off at his house and he will call me directly on the telephone. You just don’t have to go up there unless there is a problem. If there’s a problem obviously you have to go up there, or alarm - - -

So you’re saying the engineer has told you that you don’t have to?---The engineers - well it’s been fitted for that reason.

Do we report to the engineer?---No. No, you don’t, but it is RMIT’s - - -

So has that directive come through though on paper from RMIT, so we can change the specifications on what we have to do? Have you asked for that in writing?---I’ve never asked for it in writing, no, and I’m not sure - - -

Have you seen it in writing, is what I’m getting at?---I’m not sure if it’s been put in writing or not because I had first-hand - I had good relations with the engineer and I was one of the first ones he actually showed how the system worked, and how to identify the problems, and that’s in level 1 animal house where it is situated.”  7

[24] The very line of cross examination from Mr Portoglou discloses that what Mr Parsonage considered to be proper patrolling in relation to the animal hoses on the ground and 11th floors was not known to the management of BRI.

[25] To the extent that BRI required patrolling to physically occur by going to the 11th floor of Building 201 to swipe the door access to the 11th floor animal house then Mr Parsonage did not comply with such a direction. However to the extent that BRI required patrolling to check the systems operating in the 11th floor animal house then Mr Parsonage did comply by following the process showed to him by the RMIT engineer, Mr Hart.

[26] I note that BRI did not seek to challenge the evidence of Mr Parsonage in relation to either, the ability to monitor the 11th floor animal house from the ground floor animal house, or, that Mr Hart showed Mr Parsonage how to monitor the 11th floor animal house from the ground floor animal house.

3. Detailed analysis of access control report highlights and identifies that building patrols are not being completed to best practice.

[27] This allegation was the subject of cross examination of Mr Parsonage in which he explained how he conducted patrols.

[28] The concept of “best practice” was put to Mr Parsonage as follows:

“Graham, in your letter it said, “Not doing patrols as per best practice”. You said you don’t know what that means?---No I don’t.

You don’t know what best practice of patrols means?---No, I don’t understand why I wasn’t doing my patrols, because I was.

If I said to you the best practice in patrols means actually doing your patrols as per the standard as per the specifications, would that make sense to you?---Yes. Okay. That - yes.” 8

[29] The “standard as per specifications” which Mr Portoglou referred to in his question to Mr Parsonage was not put into evidence before the Tribunal.

[30] Mr Fradley gave evidence that the contract between RMIT and BRI called for unpatterned and constant patrols.

“Were you aware of the sequence they do the buildings and the campuses?---There is no sequence, there shouldn't be a sequence. The contract calls for unpatterned and constant patrols. The officers are aware of that, they should be patrolling unpatterned at all times. So there is no sequence. When people talk of sequences this only serves to frustrate the situation. There's never been any training on sequence patrolling and there shouldn't have been.”  9

[31] Mr Brown who was Mr Parsonage’s Supervisor gave evidence that BRI had never given written instructions that patrols were to be random but that patrols should be random.

“Have you ever been instructed by BRI to have a random patrol pattern rather than a routine patrol pattern?---All patrol patterns should be random and as I said as a variety I also say don’t do one, two, three, four, maybe you should do like three, two and one and four. It can be very hard. As you just said you know you rattle the buildings off because it’s an easier way to go and that’s a routine.

But has BRI instructed you as the supervisor, team leader, as the supervisor to then ensure that the team leaders and the rovers only do randomised patrol and don’t do routine patrols or ones where they’ve got themselves into a routine, have you ever had a specific instruction on that?---No, I don’t recall.” 10

[32] To the extent that part of this alleged misconduct was constituted by Mr Parsonage not performing random patrolling I do not find the allegation made out.

[33] A significant part of the case for BRI in relation to this allegation was that the short time spent by Mr Parsonage in buildings meant that he could not have completed an internal patrol of the building to the required standard. The access point records show that Mr Parsonage completed the internal patrol of the 11 storey Building 201 in very quick time by travelling in the lift and only stopping at each floor long enough to swipe the lift access point. BRI contended that the required standard of patrolling would have required Mr Parsonage to have exited the elevator at each level and walked around the level physically checking the level before moving to the next level. However nothing was put into evidence from BRI which established that employees were told that this was a requirement of their work. Having said this, it appears to be a matter of common sense that a patrol officer patrols and that in any building the patrol officer would do more than enter the level and then leave. Common sense would suggest that a walk around the floor would be a normal and expected thing to do. I note that when the Tribunal inspected the east side of the RMIT Bundoora Campus the Tribunal was shown the internal layout of several buildings. Certainly in the multi storey Building 201 it would appear that the only manner in which a patrol officer could be certain of the security of each floor was to walk down the several corridors on the floor. Mr Parsonage does not appear to have done more than check the lift lobby on each floor.

4. The Operational Review Team observed yourself stationery in Building 216 (The Control Point) for several hours over the course of a eight (8) hour shift, this evidence has been provided to your United Voice Representative.

[34] Mr Parsonage never conceded that he may have spent too much time in Building 216 when it would have been more productive of his time to have been engaged in patrols. Mr Parsonage provided justifications for the time he spent in Building 216.

[35] Much of the substance of this alleged misconduct is merely a corollary of the alleged misconduct described in items 1 and 3 above and item 5 below.

[36] Mr Rani confirmed in his evidence at PN3743 what the review team noted, namely that Mr Parsonage and Mr Rani spent about 2 hours of the shift sitting in Building 216.

5. Failure to respond to multiple alarm activation in two buildings (Building 203 and 224) dispatched by the RMIT City Security Control Room. These alarms were dispatched at 03.10, you responded via two way radio that the alarms were caused by cleaners, the Operational Review Team witnessed at no time during these alarm activations did you leave Building 216 Control Point.”

[37] Mr Parsonage in examination in chief said:

“PN423. So the letter dated 3 April and marked GP1 contains three allegations, “Failure to carry out reasonable duties and instructions by the RMIT security control room when alarms have been despatched via two-way radio communications, which is a direct breach of BRI policies and procedures. Failure to carry out routine internal / external building patrols, falsifying log book entries”. What was your response to those?---Absolutely 100 per cent incorrect.

...

PN427. Is it true that you said, “Graham denies not responding to alarms and states that he always responds to alarms”?---I would never, ever, ever not respond to an alarm and I don’t know many guards that would never, especially in an environment such as that. That is the most ridiculous thing I’ve heard.”

[38] Mr Parsonage explained this further in his examination in chief by stating that once an alarm was received he would prioritize his activities and respond to the alarm in due course.

“The final point is that you failed to respond to multiple alarm activation in two buildings, 203 and 224. Do you know what that is about?---No idea.

Okay, so you just don’t know what that is?---I don’t know what it is, but once again I’ll challenge anyone that says I do not respond to alarms. I might be - I tell you what might happen. They might call a particular alarm that I know there is someone in there and accessed the area such as 203 is the netball centre. There might be someone in there and I’ll explain to them that there is someone in there and that’s why the alarm’s going off, PIRs are going off. But I will still attend to it but I prioritise. Something else might have to be done first.’ 11

‘Okay?---But I still will get to it every single time and I’ll challenge anyone that said I won’t.

And what’s the process for an alarm? Does a person set off an alarm by moving?

---Well it depends which one. It can be just a door alarm.

I see?---Both these buildings have - there’s that word again, PIRs, have PIRs in them so it could be movement. But 203 is a problem anyway. It has got a problem with it. It just goes off for no reason.

So 203 is the netball?---Netball centre.

And why does it just go off?---Your guess is as good as mine. It just goes off. Gremlins in the system.

Right, and so what do you normally do with building 203?---Well, what would happen is you’ve normally got other things which you have to do which quite possibly need to be done first. Then you eventually would go to it, you would turn the alarm off and walk through the building and check it out.

All right. What the outcome letter says is that you failed to respond to multiple alarms activation in building 203 and 204 despatched by the RMIT security control room. These alarms were despatched at 3.10?---3.10? Now I know why they’ve gone off.

Yes?---The cleaners are on site. They have just walked in the building. We would be at 216 having our break. 224 is - you can see it from there. I would see the cleaners from the building and 203 is the first one that’s done by the cleaners.

So - - -?---Their cleaners.

So do the cleaners go into both buildings?---Both - they’re the very first

ones - buildings they do.

203 and 204?---Correct.

And you can see those buildings from 216?---I can - no, 203 I can’t see it. But 203’s the very first one.

Yes?---224 is the second one they do then they start spreading out throughout the whole campus.

And 3.10 is the time where you’re normally having your break?---That’s correct. Yes.

So what is your response to that?---The control room operator should’ve known better. They should know what that is.

Okay. What’s the usual - - -?---They would ask and I’d tell them.

So presumably the cleaners come in at the same time each shift?---Exactly. Yes.

So this happens, what, every?---Every single night, and as a matter of fact the same thing - listening to the radios, it happened just recently again and there’s

no - yes, it’s exactly the same thing. They know the cleaners are there because they’ve already come through and collected their keys and they’ve gone into that building.

Yes, and what’s the usual process when you know that the cleaners are in a building?---Well - and they call the alarm?

Well, if an alarm goes off?---Well, I’d explain what it was and once again prioritise and get to it eventually. No alarm gets ignored even though you know exactly what it is, because we have an SA racing team that stay all night in building 255, 252. We know it’s - know it’s them and we get called on it. We explain to them what it is and 99 times out of a hundred whoever’s on control will - knows exactly and says, “Yes, I just had to let you know” I said, “Yes, of course you do”. Because I have to respond to it.

Okay?---So you go to it eventually but you’re not rushed to go to that particular one first.

So the outcome letter here says you responded via two-way radio that the alarms were caused by cleaners?---Well there you go.

The operational review team witnessed at no time during these alarm activations did you leave the building 216 control point?---They wouldn’t know that because they weren’t there.

Okay, but you radioing in that it’s cleaners, is that different from what you normally do?---No, that’s what I would tell them. I’d tell them exactly the problem and what it’s caused by and then afterwards we’d go there.

Okay, and do you - - -?---But it wouldn’t be straight away for something like that because I - it happens every single night. You know exactly what it is and believe me the cleaners are the best security system in the place. If there’s someone around or something wrong we get a phone call straight away.

Do you see anything wrong with that process?---No, because it’s done correctly.

Okay?---It’s the way it should be done.” 12

[39] Whilst it is clear from Mr Parsonage’s evidence that he has a great familiarity with the RMIT Bundoora Campus and the toings and froings of cleaners, it appears that this familiarity has led him to be overconfident about interpreting alarms and lax in responding to them.

[40] Given the physical proximity of the guardhouse (Building 216) to Building 224 there would appear to be no valid reason why Mr Parsonage could not have walked over to Building 224 to check on any alarm reported to him by the RMIT City Security Control Room, even if Mr Parsonage was on a break within Building 216. Building 203 is quite some distance away from Building 216 and the only way in which it would be possible for a patrol officer to know what is happening in Building 203 is to drive around to that building and physically check it.

[41] Mr Parsonage’s comment that: “believe me the cleaners are the best security system in the place. If there’s someone around or something wrong we get a phone call straight away.” almost suggests that the cleaners are doing a better job of providing security than is Mr Parsonage.

[42] The particular response of Mr Parsonage to the following question is illuminating.

“Okay, but you radioing in that it’s cleaners, is that different from what you normally do?---No, that’s what I would tell them. I’d tell them exactly the problem and what it’s caused by and then afterwards we’d go there.”

[43] It is clear that Mr Parsonage is prepared to respond to the radio call from the City Control Room with an answer even though he has not verified the truth of the answer. As Mr Parsonage made clear: he responds to the radio call first and then later goes to the point of the alarm to ascertain the real cause of the alarm.

Whether the findings of BRI’s investigation were correct

[44] The key findings that BRI made in relation to the conduct of Mr Parsonage were identified in the “Final Written Warning Misconduct” issued to Mr Parsonage on 31 May 2012 in the following terms:

“This letter serves as an official FINAL WRITTEN WARNING in relation to the above conduct at RMIT Bundoora.

Under the Terms & Conditions of your employment (Clause 12 Misconduct) as a result of your actions you have breached the above clause which is listed below:

1. Failure to provide a true and correct account of an event, particularly with intent to divert attention from the identification of any activity adversely affecting the stature of BRI and its clients

2. Failure to carry out any lawful instruction or delay the implementation of any lawful instruction

3. Other similar or related actions that constitute a direct breach of BRI Policies or instructions or Client requirements.

In your conduct you have also breached Clause 13 General Performance of your Terms & Conditions of your employment:

You must not;

1. Refuse to carry out any lawful instruction or direction

2. Delay in carrying out any lawful instruction

...

The Operational Review Team has observed several concerning incidents, which are listed below:

1. Failure to adhere to OH&S practice, stipulating that patrols after dark should be conducted two up, thus ensuring the safety of all security officers.

2. Failure to patrol the Animal House on the West Campus as stipulated in an email dated 18th November 2010.

3. Detailed analysis of access control report highlights and identifies that building patrols are not being completed to best practice

4. The Operational Review Team observed yourself stationary in Building 216 (The Central Point) for several hours over the course of a eight (8) hour shift, this evidence has been provided to your United Voice Representative

5. Failure to respond to multiple alarm activation in two buildings (Building 203 & 224) dispatched by the RMIT City Security Control Room. These alarms were dispatched at 03.10, you responded via two way radio that the alarms were ceased by cleaners, the Operational Review Team witnessed at no time during these alarm activations did you leave the Building 216 Control Point.”

[45] The “above conduct” referred to was set out in the letter as:

“1. Failure to carry out reasonable duties & instructions by the RMIT Security Control Room when alarms have been dispatched via two way radio communications, which is a direct breach of BRI’ Policies & Procedures

2. Failure to carry out routine Internal/External Building Patrols

3. Falsifying log book entries”.

[46] The first two issues specifically raised by the letter are fully canvassed in the range of questions posed by the parties in this matter. However the third specific issue namely: “Falsifying log book entries” was not raised by the Operational Review Team but arose after the Operational Review Team reported on its observations.

[47] During proceedings in this matter considerable attention was given to the apparent discrepancies between the entries in the Log Book maintained by the security guards in Building 216 and the observations of the Operational Review Team and the swipe card access reports. The position taken by BRI was that the swipe card access reports were accurate as were the observations of the Operational Review Team and that the entries in the Log Book entered by Mr Parsonage were inaccurate.

[48] During the inspection of the RMIT Bundoora campus the Tribunal specifically timed the walk between two buildings (Building 204 and Building 203) which had been recorded on the swipe card access reports as having taken Mr Sheard (another security officer) only 32 seconds. The actual walking time between the two buildings was 1 minute 35 secs. 13 The site visit notes prepared by both parties note: “It was unanimously agreed that it would be impossible to walk the distance between the two buildings within 32 seconds as recorded in the swipe access report of Mr Sheard.” Whilst this particular issue did not concern Mr Parsonage it did show that the swipe access reports could not be taken as showing the literal truth of swipe card activity. Thus direct time comparisons between what was entered manually in the Log Book and what appeared on the swipe card access reports could not be relied upon.

[49] A further factor was that the security guards would undertake a patrol and then on their return to Building 216 the Team Leader would fill in the Log Book with the approximate times of the patrol. The Log Book should be indicative of both the activities undertaken and the timing of the activities but it cannot replace the swipe card access reports.

[50] An accusation that Mr Parsonage was “falsifying log book entries” implies deliberate and deceitful conduct by Mr Parsonage in direct contradiction to a specific direction from his employer.

[51] Nothing was put to the Tribunal which would enable such an accusation to be made out. The most that can be said is that the entries by all Team Leaders in the Log Book are indicative of what happened and when it happened but do not purport to be a sequentially or temporally accurate record of the activities of the security guards.

Whether there were grounds to discipline and transfer Mr Parsonage

[52] The issues raised by this heading are threefold:

(1) Firstly, does BRI have the power to discipline Mr Parsonage through demoting him; and

(2) Secondly, does BRI have the power to transfer Mr Parsonage from the RMIT Bundoora Campus site; and

(3)Thirdly, is either or both of the demotion and transfer a reasonable response to the conduct of Mr Parsonage.

Is a Demotion permissible?

[53] Mr Parsonage’s evidence is that he was employed by BRI as a full time Team Leader in January 2010 when BRI was successful in winning the contract to provide security services for RMIT. Mr Parsonage had been employed as a Team Leader with the previous provider of security services at RMIT Bundoora Campus. BRI had, as part of its material in this case, filed with the Tribunal a copy of the Letter of Offer of Mr Parsonage and the “Terms and Conditions of Employment and Contract” 14.

[54] That Letter of Offer does not identify the specific classification of Mr Parsonage however it does contain the following clause:

“You will be paid in accordance with the BRI Employee Collective Agreement (ECA) relevant to the state in which you are employed under your relevant classification. You will be paid in accordance with:

• The type of work you are rostered to do - i.e. employment classification, and



• The type of roster you are required to work - i.e. rotational or non rotational.”

[55] I have had regard to the terms of the Business Risks International (Victoria) Pty Ltd Victoria Employee Collective Agreement 2007 which covers and applies to Mr Parsonage and BRI.

[56] Clause of the Agreement provides as follows:

“19. EMPLOYMENT LEVELS

19.1 Employees under this Agreement will be employed in the role of Security Officers Levels 1 – 5.

19.2 At the time of engagement, BRI will inform each Employee of the Level in which they are being employed.”

[57] I note that while the Agreement does not contain a classification of Team Leader. There are 2 classifications which appear to exercise supervisory roles over security officers and which may equate with the role of Team Leader.

[58] It would be consistent with the principles for the proper construction of industrial instruments to read the Letter of Offer and the Agreement on the basis that the contracted position for Mr Parsonage was that of Team Leader.

[59] There is nothing in the Letter of Offer nor in Exhibit R4 which specifically permits BRI to unilaterally alter the contract by demoting Mr Parsonage in his classification from Team Leader to Roving officer.

[60] I also note that the Agreement contains the following clause:

“62. STAND DOWN

62.1 In circumstances where alleged misconduct or neglect of duty is made against an Employee BRI may elect to stand down the Employee for a period of up to 72 hours, without payment, whilst an investigation into the matter takes place.

62.2 During the investigation a representative of the Employee may be requested to be called upon to represent the interests of the Employee.

62.3 If the alleged misconduct or neglect of duty is not sustained against the Employee, BRI will reinstate the Employee and payment will be made for the period during which the Employee was stood down.”

[61] It appears that the only permitted action that BRI may take, short of termination of employment, in relation to a disciplinary matter is to stand down an employee for up to 72 hours whilst investigating a matter.

[62] There are no provisions within the Agreement which permit BRI to demote an employee as part of a disciplinary procedure.

[63] Having considered all of the Letter of Offer, Exhibit R4 and the Agreement it is clear that BRI does not have a right to demote employees as part of any process or procedure for dealing with disciplinary matters.

Is a Transfer permissible?

[64] The Letter of Offer includes the following:

“Rostered Location

You will be required to start your permanent assignment at RMIT Bundoora Campus. Your employment may be limited by the length of time for which BRI is contacted to this site. BRI reserves the right to alter your rostered location.”

[65] Exhibit R4 contains the following very explicit provision:

“4. TRANSFER TO OTHER SITES

YOU MUST:

• Accept transfers to other sites in the interests of BRI and its clients.”

[66] The Agreement is silent in relation to work location of employees. Thus as the Agreement does not prevent or limit the right of BRI to transfer employees then the right of BRI to transfer employees and the obligation on employees to accept transfer will be determined by the terms of the Letter of Offer and Exhibit R4.

[67] In the present matter the transfer of Mr Parsonage from the RMIT Bundoora Campus to the RMIT City Campus is permitted by the terms of the Letter of Offer and Exhibit R4.

Is the demotion and transfer of Parsonage a reasonable response to Parsonage’s conduct?

[68] Having determined that Mr Parsonage could not be demoted from his position as Team Leader under the terms of the Letter of Offer or the Agreement it would appear that, prima facie, a demotion would never be a reasonable response to a disciplinary issue.

[69] Having said that, the only alternative action available to BRI would be termination of employment in the case of an employee engaging in misconduct.

[70] In the present matter I am of the view that a period of demotion from Team Leader to Roving Patrol Officer is warranted.

[71] Determining whether the punishment fits the crime is always a balancing exercise in which a wide range of factors need to be considered. I have had regard to the fact that Mr Parsonage was an experienced Team Leader who needed to lead by setting a good example to the Roving Officer assigned to his team. To reinstate Mr Parsonage into his Team Leader role as from the date he was demoted would effectively reward Mr Parsonage for not doing the job he was employed to do to the best of his ability. To allow BRI to continue to deny Mr Parsonage the role and remuneration of being Team Leader would be to impose an extremely harsh punishment on Mr Parsonage.

The appropriateness of the transfer of Parsonage from the RMIT Bundoora Campus to the RMIT City Campus.

[72] Whilst the ability for BRI to transfer Mr Parsonage from site to site is clearly permitted under Exhibit R4 it is also clear that since employing Mr Parsonage at the RMIT Bundoora Campus that BRI had never sought to transfer Mr Parsonage from that site as part of its normal operational requirements. The transfer in the present matter was clearly intended to be a punishment. To permit that transfer to remain in place indefinitely would be to endorse the continuation of the punishment upon Mr Parsonage.

[73] I am of the view that Mr Parsonage should be returned to the RMIT Bundoora Campus but with the following very clear qualifications.

[74] Firstly, the return of Mr Parsonage to the RMIT Bundoora Campus is to make clear the period of punishment for his conduct is ended. Secondly, this decision is not intended to give Mr Parsonage any rights to remain at the RMIT Bundoora Campus. Thirdly, this decision is not intended to remove or limit the right of BRI to transfer Mr Parsonage in accordance with the terms of Exhibit R4. Fourthly, this decision does not limit Mr Parsonage’s rights to dispute any future decision that BRI may make to transfer Mr Parsonage from the RMIT Bundoora Campus.

[75] I am not convinced that it would be appropriate to both restore Mr Parsonage to the role of Team Leader and return him to the RMIT Bundoora Campus at the same time. The lesser continuing penalty would be leaving Mr Parsonage at the RMIT City Campus for a further period of time. I am of the view and so decide that the Mr Parsonage should be returned to the RMIT Bundoora Campus one month after Mr Parsonage resumes his role as a Team Leader.

Whether the behaviour of Mr Parsonage is deemed misconduct under the definition in the Fair Work Act 2009

[76] The Fair Work Act does not define the term “misconduct” but does have a definition of the term “serious Misconduct” as follows:

“serious misconduct has the meaning prescribed by the regulations.”.

[77] The Regulation 1.07 of the Fair Work Regulations defines the term “serious misconduct” as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[78] I do not consider that any of the conduct of Mr Parsonage would be “serious misconduct” in that none of it is conduct is conduct which so flouts the essential conditions of the contract of employment that the employee does not intend to be bound by the contract of employment. (Adami v Maison deLuxe Ltd 1924 HCA 45; Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2AllEr 285; North v Television Corporation Ltd 91976) 11ALR 599)

[79] I certainly accept that the conduct of Mr Parsonage does, to the extent discussed previously in this decision, constitute misconduct and in some circumstances the existence of misconduct is relevant: see s.392(3) where the existence of misconduct is a factor which must be considered in determining an amount of compensation as a remedy for an unfair dismissal.

Whether Mr Parsonage was subject to adverse action within the meaning of the Act, as outlined in the Application

[80] The relevant law on adverse action is the recent High Court decision in Board of BRITaFE v Barclay:

“65. In this case the primary judge adopted the correct approach to the relevant provisions. Dr Harvey gave evidence of her reason for taking adverse action against Mr Barclay and also gave positive evidence that this was not for a prohibited reason and that she would have taken the same action against a person circulating a similar email who was not an officer of the AEU. That evidence was accepted by the primary judge and his findings in that regard were not challenged before the Full Court. The appellant discharged the burden cast upon it to show that the reason for the adverse action was not a prohibited reason, and that Mr Barclay’s union position and activities were not operative factors in him being required to show cause. The appeal must be upheld and consequential orders made." 15

“127. In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.” 16

“146. To search for the “reason” for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for “unconscious” elements in the impugned reasoning of persons in Dr Harvey’s position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer’s inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.” 17

[81] In this matter Mr Parsonage alleges that BRI took disciplinary action against him because of his involvement in the bargaining process for an enterprise agreement which began in February 2012. Mr Parsonage opposed the proposed enterprise agreement being sought by BRI and proposed that he and other employees would be better off if they were employed under the terms of the relevant modern award rather than under either the existing enterprise agreement or a new enterprise agreement. Mr Parsonage had also proposed to BRI that the pattern of shift work conducted at the RMIT Bundoora Campus be changed. The enterprise agreement proposed by BRI was agreed to by a majority vote of employees and an application for approval of the enterprise agreement was made to FWA on 22 March 2012. United Voice opposed the approval of the enterprise agreement. FWA issued a decision on 19 June 2012 18 which dismissed the application on the basis that the enterprise agreement, including undertakings offered by the employer, did not pass the Better Off Overall Test.

[82] The timing of the events involving the disciplinary action overlap the timing of the enterprise bargaining process.

[83] Having carefully considered the evidence of both Mr Parsonage and Mr Chris Cornwall I am not able to conclude that BRI took adverse action against Mr Parsonage.

[84] Mr Cornwall gave evidence that the disciplinary process against Mr Parsonage was initiated simultaneously with disciplinary action against 3 other employees engaged at the RMIT Bundoora campus and only after Mr Fradley had raised an issue concerning performance of the security officers at the RMIT Bundoora campus.(PN1979)

[85] The evidence of Mr Fradley and Mr Parker, Mr Ly and Mr Lennon all together paint the following picture:

• RMIT expressed concerns to BRI over the provision of security services at the RMIT Bundoora campus.



• BRI engaged in a covert operation to assess the performance of each of three teams providing security at the RMIT Bundoora campus.



• As a result of the performance review 4 employees, constituting two of the teams at Bundoora were subject to a lengthy disciplinary process in which United Voice provided representation for some of the employees.



• The disciplinary process concluded with disciplinary action being taken against 3 of the employees (the 4th left employment with BRI)

[86] The decision maker in relation to the imposition of disciplinary action against Mr Parsonage was Mr John Portoglou, General Manager Southern Region for BRI. Mr Portoglou did not give evidence in this matter, however, Mr Portoglou had filed a signed but unsworn witness statement in these proceedings. Mr Portoglou was BRI’s advocate and representative in these proceedings.

[87] The unsworn witness statement of Mr Portoglou contains the following rationale for his decision to impose disciplinary action against Mr Parsonage and other employees:

“19. Around the 5th of May 2012 BRI received a response from United Voice with limited responses.

20. At this time I considered the responses and again the evidence, I also consulted with my HR Coordinator Chris Cornwall to ascertain on the action that we may need to take.

21. I approved and warranted the discipline action is as detailed in the warning letters followed.

22. My HR Coordinator Chris Cornwall holds several Human Resource Management qualifications and advises on a National Level on HR matters for the organisation. I have no reason to dispute Chris’s recommendations on performance management matters.”

[88] The search for the reason actually employed by Mr Portoglou and Mr Cornwall leads to the conclusion that:

(1) Mr Cornwall’s reason for recommending disciplinary action against Mr Parsonage was because of the performance review undertaken as a result of complaints from RMIT, and

(2) Mr Portoglou’s reason for approving the disciplinary action against Mr Parsonage was because he had “no reason to dispute Chris’s recommendations on performance management matters”.

[89] To the extent that the disciplinary action against Mr Parsonage was adverse action within the meaning of s.342 of the Act it was not taken for a reason specified in s.340(1) of the Act.

COMMISSIONER

Appearances:

G. Hall, United Voice, for Mr Parsonage

J. Portoglou for the Respondent

Hearing details:

2012

Melbourne

July 24

August 13, 14, 27, 28

 1   Transcript PN570 - PN578

 2   Transcript PN2171

 3   Exhibit R1

 4   Transcript PN3751 - 3755

 5   Transcript PN3764 - 3766

 6   Transcript PN579 - 586

 7   Transcript PN1156 - PN1161

 8   Transcript PN1162 - PN1164

 9   Transcript PN2125

 10   Transcript PN3711 - 3712

 11   Transcript PN600 - PN601

 12   Transcript PN600 - PN628

 13   Exhibit A6

 14   Exhibit R4

 15   [2012]HCA 32 per French CJ and Crennan J

 16  [2012]HCA 32 per Gummow and Hayne JJ

 17  [2012]HCA 32 per Heydon J

 18   [FWA] 2012 4916

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