Jay Hopkins v ISS Security Pty Ltd

[2012] FWA 10697

[2012] FWA 10697

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jay Hopkins
v
ISS Security Pty Ltd
(U2012/5102)

DEPUTY PRESIDENT MCCARTHY PERTH, 20 DECEMBER 2012

Application for unfair dismissal remedy

Background

[1] Mr Jay Hopkins (the Applicant) was employed from 12 April 2010 as Contract Security Manager by ISS Security Pty Ltd (the Respondent). The Applicant was responsible for the management of security services supplied to Transfield Services (“Transfield”), who in turn had a contract to provide those services to the Department of Defence. The Applicant held a senior role within the Respondent’s organisation, managing one of its largest security contracts in Western Australia. The Applicant was dismissed on 3 February 2012.

[2] During his employment the Applicant came into contact with Ms Eve Darcy who was a compliance auditor with the Department of Defence. Ms Darcy was responsible for identifying any non-conformance in the security services provided and notifying Transfield of the non-conformance, which may result in financial penalties to Transfield and the Respondent. The contract with Ms Darcy was over about the last six months of the Applicant’s employment.

[3] On the morning of 20 January 2012, the Applicant received a text message on his mobile phone, provided by the Respondent, from Ms Darcy asking:

“Are you talking to me yet?”

[4] There were then a series of interchanges between Ms Darcy and the Applicant where the Applicant was abusive and used foul language. Ms Darcy complained to Transfield about the text messages. It was for this conduct that the Applicant was dismissed from his employment.

[5] The Respondent says that the conduct was serious misconduct, that it was wilful and deliberate behaviour and inconsistent with the continuation of the contract of employment. They also assert that it was conduct that caused serious and imminent risk to the reputation, viability or profitability of the Respondent’s business.

[6] The Applicant gave evidence and did not dispute that the conduct occurred. However he contended that the conduct was out of character, was a single and isolated incident and followed other communications, many not work related, from Ms Darcy that the Applicant did not welcome.

[7] The Applicant also asserted that his conduct was consistent with the manner of speech and other general conduct that Ms Darcy had engaged in herself. The Applicant in making these assertions was not suggesting that his conduct was acceptable, rather he recognised it was not. Rather, the Applicant was asserting that the conduct was misconduct but not as serious as the Respondent made it out to be, especially when looked at over the full period of his employment.

[8] The Applicant evidenced that he had never denied that the conduct occurred and was open and honest in his admissions about the conduct, including its unacceptability.

[9] The text message interchanges occurred on the last day of Ms Darcy working at the site in question. Ms Darcy was not called to give evidence and the Respondent explained that they had had no success in being able to contact her. I consider there was a reasonable explanation for Ms Darcy not being called and I make no adverse inferences as a consequence.

Consideration

[10] I have considered the various elements giving rise to the termination, including that the catalyst for the text message interchange was a text message initiated by Ms Darcy, who had a history herself of colourful language in text messages. It was not disputed that the Applicant’s record prior to that time was unblemished.

[11] The conduct must be weighed against the high level of authority and responsibility the Applicant had and the need to conduct himself in a manner that did not jeopardise the relationship with the Respondent’s client, or any of the service providers and contractors to the Department of Defence.

[12] The consideration is made more difficult to assess given that the other party involved Ms Darcy did not give evidence. I have concluded on the basis of the evidence of the Applicant that the level of professionalism and proper lines of communication were not what one would expect from the individuals or organisations involved. For example Ms Darcy regularly communicated directly to the Applicant about operational matters and contract compliance when the appropriate course would have been to communicate through Transfield.

[13] The incident was a one off event, it was not a one sided communication, and the Applicant responded to the initial text message in the way he did was at least partly provoked because the text from Ms Darcy in my view intended to be provocative.
Managers at Transfield also seemed to be of the view that Ms Darcy could have arranged for someone else to deal with it. Furthermore the responses from Ms Darcy in the interchange that followed reinforce my view that her text message was intended to provoke.

[14] The Applicant regretted the action and understood from the outset that the conduct was not acceptable. I consider that the dismissal of the Applicant was out of proportion to the conduct and in particular when one takes into account the full circumstances surrounding his conduct and his unblemished record to that time. The Applicant also had some personal issues and sad news he had recently received about the health of a family member.

[15] I find that there was not a valid reason for dismissal.

[16] The Applicant was notified of the reason and given an opportunity to respond. Indeed, it appears that not only the Respondent but also Transfield conducted an inquiry direct with the Applicant before the Respondent did.

[17] There was no evidence called from Transfield representatives. I am also not aware of what the exact nature of the contractual relationship between Transfield and the Respondent and what obligations Transfield has in respect of employees of contractors. For example can Transfield become involved in inquiries about the conduct of an employee of the Respondent direct with that employee prior to the Respondent conducting their own investigation.

[18] There is no evidence of a support person not being allowed to be present. The size of the Respondent’s enterprise is that of a large employer and the procedures followed, other than for the Transfield direct involvement were reasonable.

[19] Another relevant matter is whether the Respondent considered alternatives to dismissal. The only alternative that appears to have been considered was in the form of serving out of notice during which the notice might have been withdrawn if another position was found. To me that carries little weight as the decision was basically taken at that juncture to dismiss but with a potential for the withdrawal of the dismissal notice.

Conclusion

[20] Taking these matters into account I regard the termination as harsh unjust or unreasonable. I therefore find that the dismissal was unfair.

[21] Reinstatement is not practicable and I consider an order for lost remuneration is appropriate. I have taken into account the likelihood that the employment of the Applicant would have been terminated on 30 June 2012 in any event as the contract with Transfield ended on that date. The Applicant was paid 6 weeks pay on termination and he has earned $1592.50 since his dismissal. After allowing for these payments and earnings, and for a deduction for contingencies, and the fact that the Applicant did engage in inappropriate conduct, although not to the level of creating a valid reason for termination, I consider the Applicant should be paid an additional 8 weeks pay. The parties should draw up an order to that effect with the exact amount identified. In the absence of agreement for an Order I shall proceed to determine that amount.

DEPUTY PRESIDENT

Appearances:

Mr Lynn for the Applicant

Mr Moore for the Respondent

Hearing details:

2012

Perth

December, 18.

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