Joel Harris v Securecorp NSW Pty Ltd
[2022] FWC 2781
•19 OCTOBER 2022
| [2022] FWC 2781 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joel Harris
v
Securecorp NSW Pty Ltd
(U2022/3869)
| COMMISSIONER MCKINNON | SYDNEY, 19 OCTOBER 2022 |
Application for an unfair dismissal remedy
Mr Joel Harris was employed as a Security Officer by Securecorp NSW Pty Ltd (Securecorp) from on or about 10 September 2018. On 11 March 2022, his employment was terminated for an alleged pattern of inappropriate conduct and behaviour in the workplace, following earlier warnings given in July 2019, January 2020 and June 2020.
On 1 April 2022, Mr Harris applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act). Mr Harris submits that dismissal was a disproportionate response to relatively minor incidents, none of which were valid reasons for dismissal. He also submits that Securecorp failed to have regard to his psychological conditions and the difficult relationship he had with his supervisor (about whom he had made bullying complaints) when deciding to dismiss him.
Securecorp denies that the dismissal was unfair. It relies on an alleged history of non‑compliance with company policies and procedures, valid reasons for dismissal arising from the conduct of Mr Harris between 22 and 25 February 2022, a process leading to dismissal that it says was procedurally fair as well as payment to Mr Harris in lieu of notice of termination despite alleged serious misconduct.
I have decided that Mr Harris was not unfairly dismissed. These are my reasons.
Preliminary matters
Under section 382 of the Act, a person is protected from unfair dismissal if, at that time:
a) they have completed at least the minimum employment period; and
b)they are either covered by a modern award; or an enterprise agreement applies to them in relation to their employment; or their annual earnings are less than the “high income threshold”[1].
Mr Harris was employed by Securecorp for more than 12 months. While employed by Securecorp, he was covered by the Security Services Industry Award 2020. Mr Harris is protected from unfair dismissal.
A person has been unfairly dismissed under the Act if the Commission is satisfied that:
(a) the person has been dismissed,
(b) the dismissal was harsh, unjust or unreasonable,
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code, and
(d) the dismissal was not a case of genuine redundancy.[2]
There is no dispute that Mr Harris was dismissed from his employment on 11 March 2022. His application was filed on 1 April 2022, within the prescribed 21‑day period.
Securecorp employs approximately 35 employees.[3] The dismissal could not have been consistent with the Small Business Fair Dismissal Code[4] because Securecorp was not a small business employer at the time of dismissal.[5]
The dismissal was not a case of genuine redundancy.
The question is whether the dismissal was harsh, unjust or unreasonable.
Chronology
On 4 July 2019, Mr Harris was given a “letter of warning” for removing and not returning a grand master key (on 27 May 2019) and for saying to his doctor, while on the phone at work, words to the effect of “if anyone arks up at me when I’m pissed off, I will get the knife from my bag and stab them” (on 9 June 2019). Mr Harris accepts that he may have been responsible for the lost key, although says it was never proven. He neither admits nor denies saying words to the above effect to his doctor but says he did not threaten anyone.
On 23 December 2019, Mr Harris’s supervisor, Mr Daniel Pethyon, asked him if he had been talking to head office against him. Later in the day, Mr Harris sent a message to Ms Samantha Sissi, State Operations Manager NSW/ACT about Mr Pethyon. The message said:
“Hi Sam, Can you please tell Daniel, Pethyon that I am not telling you information against him! As yesterday Daniel asked me directly if I was the one telling Securecorp office bad information against him and that he (and I presume us) may not have a job tomorrow. This is at least the third or more time he has questioned my loyalty to my face and thinks we are plotting against him. I’m repeatedly trying to reassure him that I have nothing to do with anything said and that he is valued and respected by everyone here (to my knowledge) and I don’t know why he keeps doubting himself which is making me feel very unsettled especially when I have no idea what he is talking about. I think he does a pretty good job all things considered and I dread having anyone else (devil you know) and I just want an end”.
The message was sent following Securecorp’s apparent discovery of alleged discrepancies between the working hours of Mr Pethyon and his hours as recorded on the timesheets.
On 2 January 2020, one of Mr Harris’s peers left a note in the changeover sheet for Mr Harris saying “Please empty the paper disposable bin in the distructable [sic] orange bin in TechOps room (use key 29A).” Mr Harris thought the instruction was strange because it was given by someone other than Mr Pethyon. He also thought it might be intended to get him into trouble because it required the use of contractor’s equipment – something he had been told not to do following the grand master key incident. He decided not to empty the bin.
On 8 January 2020, there was a meeting about his failure to empty the bin between Mr Harris, Mr Pethyon and Ms Sissi. Mr Harris was taken aback by the meeting, which he felt was really intense and ferocious. On 14 January 2020, he sent an email to Mr Turgut Ercan, General Manager NSW/ACT and Ms Sissi asking for approval to take leave. He complained about being singled out for disciplinary action for not completing the bin task, as well as about the conduct of Mr Pethyon. Ms Sissi responded to Mr Harris’ email explaining her different perspective on the meeting. Attached to her response was a “letter of expectation” for Mr Harris about not completing the task, not being honest about it, and speaking over Mr Pethyon.
On 21 February 2020, Mr Harris was still troubled by how he had been treated in relation to the bin incident. He sent an email headed “Formal Bullying & Harassment Notice Against Daniel, Pethyon – Securecorp Failure to Provide Employee Support” to Mr Ercan asserting his right to work without fear of bullying, harassment or victimisation. He advised Mr Ercan that Mr Pethyon blamed him for getting caught out and suspended in relation to the timesheet incident, and asked Mr Ercan to tell Mr Pethyon that it had nothing to do with him. He referred to suffering from “anxiety health issues”. Mr Ercan responded with some questions seeking more information and copied in Maria, the HR Manager, so that his concerns could be investigated and addressed. Mr Harris provided more information to Mr Ercan that same day, including questions about his different treatment by Mr Pethyon compared to other employees and whether his “mental health” had been “taken into account”.
On 3 March 2020, presumably after he had been alerted to the concerns raised by Mr Harris on 21 February 2020, Mr Pethyon said to Mr Harris, in words to the effect:
“I’ll tell you two things (1) The people here that you think are your friends are not your friends (2)Your [sic] only digging your own grave and Turgut will always back up Samantha.”
It is not clear what came of the bullying complaint made by Mr Harris about Mr Pethyon on 21 February 2020.
On 9 May 2020, Mr Harris was on site. He received a text message saying “Hi team, just remember wearing the face mask at all times is compulsory during your shift day or night please. Please confirm all.” Mr Harris did not have a mask and could not find one. He spoke to Mr Pethyon, pushing back on the requirement and seeking more information, while also advising that this was the first time he had been told about wearing a mask. It appears that the mask wearing instruction had been given through a company Whatsapp communication channel that Mr Harris did not use. Mr Pethyon said he would call the client manager to clarify.
On 20 May 2020, Mr Harris was given a letter of allegation about four matters:
On 9 May 2020, failing to wear a mask on site at all times per client’s emailed instructions.
On 9 May 2020, saying to Mr Pethyon “if you have integrity at your work, you should have told me about this issue before”.
On 10 May 2020, saying to a colleague “I would not be following Daniel’s instructions of wearing a mask onsite unless I receive this directive in writing.”
On 12 May 2020, not acting on a request from Mr Pethyon to download the Whatsapp team communication forum so that he could be added to team communications.
On 20 May 2020, Mr Harris provided an initial response to the letter of allegation, complaining that he was “again defending myself to Securecorp and my workplace ethics are in question but I will assist and address each point as best I can”, and insisting on “actual proof to these claims and not just rumors [sic] or heresay [sic] as I am sick of being accused for things without my recolection [sic] of ever doing it, nor any proof.” He provided a more detailed response to the allegations to Ms Sissi on 22 May 2020.
On 2 June 2020, Mr Harris was given a “letter of final warning” in relation to the allegations of 20 May 2020. In summary, he was warned about his approach to communication with Mr Pethyon, for not wearing a mask on site at all times and for inaccurate handover sheets.
On 5 February 2021, Mr Pethyon sat Mr Harris down ‘for a chat’. He advised Mr Harris about works at a new site up the road that Securecorp may not get the contract for. He said to Mr Harris that this would mean great opportunities for him to gain employment with another company. The following exchange occurred, in words to the effect:
Mr Harris: “What does this have to do with me? I’m employed with Securecorp.”
Mr Pethyon: “I’m just saying there will be opportunities for future employment, that
may interest you.”
Mr Harris:“I don’t concern myself with matters in 6 months’ time for what may or
may not happen. I only want to do my work each shift and keep to myself, as long as I’m getting paid for my work I’m happy, everything else outside that does not concern me. As I tried to convey with a positive new year email.”Mr Pethyon: “That email got me in a lot of shit, they were laughing at me. I am so busy with work for David Cham who has to manage SYD10 site, SYD11 site and the new site getting built up the road I mentioned earlier, do you think he has time for this stupid email about wanting to perform your work better! David Cham has just had an operation and is not well and what do you do, send him this crap, where David has to ask me why is your guard sending me this.”
Mr Harris:“I thought we were a team place here and I was trying to say encouragement and any requests and/or task put before me and show I have…” (record incomplete).
On 13 February 2021, Mr Harris sent an email to Ms Sissi alerting her to his conversation with Mr Pethyon the week before. He advised Ms Sissi of his assumption that Mr Pethyon “just needed to vent a bit, so [he] didn’t read much more into it”, although the fact that he raised the matter with Ms Sissi a week later suggests that he was indeed troubled by what Mr Pethyon had said. On 5 April 2021, the matter was raised again in correspondence with Ms Sissi.
On 9 September 2021, an ‘all site’ memo was issued to staff by Ms Sissi about the management of COVID-19 on site. The memo raised concerns about non-compliance with Securecorp’s COVID management and risk minimisation process. It reminded staff of the following key guidelines:
Incoming shift must not enter security offices/control rooms until outgoing shift has left.
On 24/7 shifts working 6am-6pm or 6pm-6am, officers are to undertake specified duties 15 minutes before the end of shift, including:
oEnsuring all shift tasks/reports are finalised
oReturning all equipment to the control room/office
oIf cleaners are available to clean at shift changeover, leaving the control room/office at 5.45 (but not leaving site) to allow for cleaning to occur - continuing to be available operationally for any end of shift issues.
Incoming shift are not to enter control room/start shift until cleaning has been completed.
Incoming shift are to call outgoing shift for an over the phone handover. Outgoing shift are not to leave site until handover is completed.
Control rooms are only to be used by 1 person on shift at all times unless operationally critical and unavoidable (including cleaners conducting touch cleans and control room operators).
If control rooms have reception windows, they are to be used and 1 person is to remain inside with the rest of the team outside.
Where possible and operationally practical, guards are to remain at all times in their allocated zones and areas only. Staff are not to enter tenancies or client offices on site unless operationally unavoidable.
Staff are to wear face masks and hand sanitiser as a “must”.
On 22 February 2022, Mr Harris was at his post in the security office/control room, wearing sunglasses with his back away from the wall. “John” the cleaner came into the lobby. He walked past the front window but did not stop for a temperature check. Mr Harris did not move from his position. John thought Mr Harris was unwell or sleeping at his desk. He went to the storeroom but turned back twice, peering at Mr Harris through a side window. He then called Mr Pethyon to say Mr Harris seemed unresponsive. Mr Harris saw John through the side window and waved to him, about one minute after John had entered the lobby.
Mr Pethyon arrived a few minutes later. Mr Harris took his temperature and they both sat down. Mr Pethyon asked Mr Harris how he was feeling and said that a complaint had been made against him for sleeping at the desk. Mr Harris denied being asleep. He also said he didn’t understand as he had seen everyone coming and going through the lobby that morning. He assured Mr Pethyon that he would only ever close his eyes at work for a few minutes when putting prescription eye drops in. Mr Pethyon responded in words to the effect “OK Joel, if you need anything just give me a call.” That should have been the end of the matter.
Instead, on 23 February 2022, Mr Harris asked John to come into the control room and then asked why he had called Mr Pethyon the day before. John explained that he saw Mr Harris not looking well in the chair, not moving, and because he was worried, he called Mr Pethyon to help. Mr Harris showed John the CCTV footage of the day before and asked if it looked like he needed medical attention. There was a brief discussion about whether John had made a complaint about Mr Harris. John then asked Mr Harris to help with moving some bins and the conversation ended.
About 90 minutes later, Mr Pethyon and John walked into the lobby. Mr Pethyon started yelling and pointing at Mr Harris, saying words to the effect “Who do you think you are, talking to John like that? How dare you question John over anything?” Mr Harris responded, asking why Mr Pethyon was yelling at him and explaining that he had asked John about why he did something that was bad for his reputation, and “for what?” Mr Pethyon then said, in words to the effect, “Where is your fuckin’ respect?”
Mr Harris reiterated the events of the day before, including that he had not been asleep at his desk. Mr Pethyon responded, in words to the effect “I don’t fuckin’ care what you think you see or not see. Do you know how much shit you fuckin’ put me through?” This prompted Mr Harris to respond, in words to the effect:
“Daniel, you have treated me with the least amount of respect than anyone I have ever met in my life. You told me twice in the same day that I should find another employer but when I ask what have I done wrong you say nothing but again repeat you should find another employer and you were smiling/chuckling while you said it and this is just one of many many truly hurtful disrespect you have shown me. After I tell you my mental health issues and suicidal thoughts in earlier years. Daniel, I have never been treated worse by another human being in my entire life.”
As the conversation ended, Mr Pethyon got up to leave. He then turned around and said to Mr Harris, in words to the effect:
“You won’t have a job by the end of the week.”
In the early hours of his shift on 25 February 2022, Mr Harris had a severe migraine. He did not have his medication with him and by 5.00am (one hour before the end of shift) his symptoms were debilitating. He completed his shift end tasks and the handover report early as he wanted to get home. He then left the control room and went to wait in his car close to the exit gate for the arrival of the changeover guard.
The changeover guard arrived at 5.49am. The two spoke at the entry/exit gate and Mr Harris provided a brief (less than 30 seconds) oral handover. He then swiped out of the carpark and went home.
On 1 March 2022, Mr Harris was given a “letter of allegation” and stood down with pay while an investigation into his conduct was undertaken. The allegations made against Mr Harris were these:
On 22 February 2022:
a.Sleeping on duty at approximately 9.55am.
b.Advising his supervisor that he was ‘ok’ when the supervisor called to perform a welfare check.
c.Blocking the supervisor’s phone number on the “SYD11” work phone.
On 23 February 2022:
a.approaching the cleaner about reporting his alleged sleeping at the desk at approximately 11.10am and asking why he had escalated the issue.
b.Inviting the cleaner into the control room and showing him CCTV footage of the incident, accusing him of calling the supervisor to report him.
c.Allowing the cleaner to view the CCTV footage without client approval.
d.Intimidating the cleaner by closing the door shut on him.
e.Telling his supervisor “you do not deserve to be respected” when the supervisor followed up with him about it, and instructed him to show respect to everyone.
On 25 February 2022, abandoning his post and failing to complete handover before leaving site at 5.49am (11 minutes early).
Not advising colleagues or his supervisor before blocking their number, causing operational issues.
On 10 March 2022, Mr Harris and his lawyer met with Ms Megan Blair (Human Resources Manager) and Ms Marina Talevska (Business Manager) to discuss the allegations of 1 March 2022.
After the meeting, Ms Blair and Ms Talevska discussed the matter with Mr Ercan. They were concerned about the CCTV breach because it involved access by Mr Harris for personal use (to defend the allegations against him) and by a third party (John) without client authorisation. A decision was made to dismiss Mr Harris for serious misconduct in relation to the CCTV breach on 23 February 2022 and for leaving the site without authorisation at 5.49am on 25 February 2022 despite stating on the timesheet that he had left at 6.00am. In making the decision, the previous performance history of Mr Harris was taken into account.
On 11 March 2022, Securecorp met with Mr Harris. The findings of the investigation process were discussed and Mr Harris was dismissed with immediate effect, but on the basis that he would be paid 3 weeks’ wages in lieu of notice. A letter of termination was then sent to Mr Harris on 18 March 2022. The letter of termination summarised Securecorp’s findings in relation to the allegations of 1 March 2022 as follows:
On 22 February 2022:
a.Sleeping on duty at approximately 9.55am – Not substantiated.
b.Advising his supervisor that he was ‘ok’ when the supervisor called to perform a welfare check – Partially substantiated (conversation took place).
c.Blocking the supervisor’s phone number on the “SYD11” work phone – Substantiated (phone only accessible to Mr Harris at times when number was blocked).
On 23 February 2022:
a.approaching the cleaner about the issue at approximately 11.10am and asking him why he escalated the issue – Substantiated (admitted).
b.Inviting the cleaner into the control room and showing him CCTV footage of the incident and accusing him of calling the supervisor to report him – Substantiated (admitted).
c.Allowing the cleaner to view the CCTV footage without client approval – Substantiated (admitted).
d.Intimidating the cleaner by closing the door shut on him – Not substantiated.
e.Telling his supervisor “you do not deserve to be respected” when the supervisor followed up with him about it, and instructed him to show respect to everyone – Partially substantiated (admitted).
On 25 February 2022, abandoning his post and failing to complete handover before leaving site at 5.49am (11 minutes early) – Substantiated (admitted leaving early and not advising Securecorp of medical reason for leaving).
Not advising colleagues or his supervisor before blocking their number, causing operational issues – Substantiated (phone only accessible to Mr Harris at times when number was blocked).
Mr Harris was notified that the substantiated allegations were considered misconduct and serious misconduct in breach of his employee obligations and Securecorp’s Code of Ethics. They were also considered to demonstrate a pattern of inappropriate conduct and behaviour in the workplace, causing lost confidence and trust in the ability of Mr Harris to respectively: comply with policies and procedures, follow reasonable and lawful directions, and behave appropriately in the workplace.
Was the dismissal harsh, unjust or unreasonable?
Was there a valid reason for the dismissal related to Mr Harris’s capacity or conduct?
I deal first with the reasons notified to Mr Harris as reasons for his dismissal.
Advising his supervisor on 22 February 2022 that he was ‘ok’ during a welfare check
Plainly, this matter would not form any sound basis for the dismissal of Mr Harris. It was no more than a response to a question asked about how Mr Harris was feeling at the time.
Blocking Mr Pethyon’s phone number on the “SYD11” work phone
Securecorp did not lead any evidence to demonstrate conduct of this kind and Mr Harris denies it. I am not able to conclude that either such conduct occurred or that it was a valid reason for dismissal.
Approaching John about the ‘asleep at the desk’ issue at approximately 11.10am on 23 February 2022 and asking him why he escalated the issue
Mr Harris admits to approaching John about why he had reported him to Mr Pethyon the previous day. It is not however, without more, a valid reason for dismissal.
Inviting John into the control room and showing him CCTV footage of the incident (including without client approval) and accusing him of calling the supervisor to report him
Mr Harris admits to this conduct. I accept that Mr Harris was not authorised to invite John into the control room or to show him client CCTV footage without first obtaining approval from the client or from Securecorp. As well as being outside his scope of authority, allowing John into the control room at the same time as Mr Harris was contrary to directions given in relation to the management of risks associated with COVID-19.
It was inconsistent with his duty to Securecorp for Mr Harris to access the CCTV footage for his own reasons, separate to any access for operational reasons. Mr Harris effectively took it upon himself to conduct an investigation into the allegations that had been made against him the day before. This was unnecessary in circumstances where the matter had been finalised when after making inquiries, Mr Pethyon had simply said “OK Joel, if you need anything just give me a call.” It was also unwise, because it led to the events of 23 February 2022 including the threat to Mr Harris that he would not “have a job by the end of the week”.
I find that Mr Harris’s conduct on 23 February 2022 in allowing John to join him in the control room for reasons other than cleaning, and showing him the CCTV footage without authorisation, was a valid reason for his dismissal.
On 23 February 2022, telling Mr Pethyon “You do not deserve to be respected”
Mr Harris’s conduct in this regard is not established. Mr Harris did not say that Mr Pethyon did not deserve to be respected – he said (in words to the effect) that Mr Pethyon had not respected him. This was fair comment in circumstances where Mr Pethyon was acting angrily and aggressively towards him, using inappropriate language and hand gestures.
On 25 February 2022, abandoning his post and failing to complete handover before leaving site early
I find that Mr Harris left work 11 minutes earlier than the end of his shift without letting Securecorp know about the difficulties he had experienced that morning or seeking approval to leave early. I accept that Mr Harris had medical reasons for acting in the way that he did. In my view, this makes the conduct more serious. Mr Harris was in a debilitated state for a not insignificant portion of his shift before deciding to leave work and go home.
Knowing his own condition, it was incumbent on Mr Harris to report the need to take leave from his post as soon as his ability to perform work safely was in doubt. Failing to do so deprived Securecorp of the opportunity to ensure that the premises was adequately guarded for the duration of Mr Harris’s shift.
It is no answer to say that the changeover guard had arrived on site by the time Mr Harris left. The changeover guard could not have been ready to commence work immediately upon driving through the gate. Further, as recently as September 2021, Mr Harris and his colleagues had been given express instructions about not leaving site before the end of their shift.
In the context of Mr Harris’s role in ensuring the security of the premises to which he was assigned (mostly alone), I find that his failure to report his inability to work in the early hours of shift on 25 February 2022 and his subsequent conduct in leaving early without authorisation were valid reasons for dismissal.
Not advising colleagues or his supervisor before blocking their number, causing operational issues
Securecorp did not lead any evidence to prove the conduct of Mr Harris in this regard, and Mr Harris denies it. I am unable to conclude that it was a valid reason for dismissal.
Failure to disclose pre-existing medical conditions
It became apparent during the hearing of this matter that Mr Harris did not make appropriate disclosures to Securecorp about his pre-existing medical conditions, despite this being a condition precedent to his employment. This was no accident. It was a choice made by Mr Harris about disclosing only what he thought would affect his daily work duties. Mr Harris did make general comments about his mental health to Mr Pethyon upon commencement, but this was insufficient to meet his contractual obligations. In my view, this was also a valid reason for dismissal, even though it only became apparent after the fact. It denied Securecorp the opportunity to properly assess his suitability for employment as well as the ability to ensure that it had adequate plans in place to ensure both the safety of Mr Harris and those around him.
Was there a valid reason for Mr Harris’s dismissal?
In summary, I find that Securecorp had valid reasons for the dismissal of Mr Harris. I also find that it was appropriate in the circumstances for Securecorp to have regard to Mr Harris’s prior warnings when making the decision to dismiss. The history of the employment relationship demonstrates a pattern of Mr Harris doing, or trying to do, his best - in sometimes difficult circumstances because of his medical conditions. But it also shows that there were times when Mr Harris decided to follow the path he preferred over the path he had been instructed to follow, and that sometimes he was less than careful with the truth. This made it necessary for Securecorp to engage with him about his conduct on repeated occasions. While some of the conduct of concern was trivial, such as the failure to empty a bin, some might have had serious consequences for Securecorp or its client, including the failure to secure the control room on 23 February 2022 and leaving his post inadequately protected on 25 February 2022.
That is not to say that Mr Harris bears sole responsibility for the actions for which he was subject to disciplinary action. Over the period from late 2019 until Mr Harris’s dismissal, Mr Pethyon regularly behaved inappropriately toward Mr Harris. This was made worse by the fact that Mr Pethyon’s was a supervisory role, which came with the responsibility to appropriately manage his team. Rather than acting calmly and professionally in dealing with concerns he may have had about Mr Harris’s behaviour, he sometimes swore at him, gestured aggressively, blamed him for getting Mr Pethyon into trouble over his timesheets and admitted to treating him differently to other security guards.
The state of the evidence is such that I cannot find that Securecorp took sufficient action to address the concerns about Mr Pethyon that Mr Harris had repeatedly raised since late 2019. This failure allowed a sometimes difficult relationship to deteriorate to the point that it reached on 23 February 2022. If it is the case that the conduct of Mr Harris on that day was in conflict with Securecorp’s Code of Ethics, the same is likely true in relation to the conduct of Mr Pethyon. No positive finding can be made in this respect because the Code is not in evidence.
Was Mr Harris notified of the reason for dismissal?
Mr Harris was notified that Securecorp was proposing to terminate his employment, both in the letter of 1 March 2022 and in meetings on 10 and 11 March 2022. Written advice of the reasons for dismissal was provided to Mr Harris after the dismissal took effect, on 18 March 2022. This included advice of the reasons that I have found to be valid reasons for dismissal.
Was Mr Harris given an opportunity to respond?
Mr Harris was given an opportunity to respond to the reasons for his dismissal and did so. He sought legal assistance, provided written responses and participated in meetings scheduled to discuss the concerns of Securecorp that it ultimately relied upon as reasons for dismissal.
Did Securecorp unreasonably refuse to allow Mr Harris to have a support person present to assist him with discussions relating to his dismissal?
There was no unreasonable refusal by Securecorp to allow Mr Harris to have a support person present to assist him in discussions about the dismissal.
Was Mr Harris warned about unsatisfactory performance?
As noted above, Mr Harris had been warned about his behaviour in the workplace on three previous occasions, including the final warning issued on 2 June 2020. These warnings were historical in the sense that they were given in 2019 and 2020. However, as I have already noted, some of the issues raised in those warnings were relevant to the decision to dismiss Mr Harris because they were about concerns with Mr Harris not providing accurate information to Securecorp and not following instructions that he had been given.
The size of the employer’s business and access to dedicated human resources management specialists or expertise
Securecorp employs approximately 35 employees. It is of sufficient size to ensure procedural fairness in connection with disciplinary action and termination of employment, and to this end it employs Ms Blair as its dedicated Human Resources Manager. The process followed by Securecorp in giving effect to the dismissal was mostly fair although the content of the letter of allegations against Mr Harris lacked adequate particulars and included at least one ‘allegation’ that was no such thing.
Other relevant matters
Mr Harris says the dismissal was unfair because Securecorp did not take his medical condition(s) into account when deciding to dismiss him. Securecorp effectively admits as much but says that this is because none were disclosed by Mr Harris. I accept these submissions in part.
It is clear from the evidence that on several occasions, Mr Harris disclosed to Securecorp in a general way that he suffered from anxiety and mental health issues, usually in the context of complaints about his treatment at the hands of Mr Pethyon or in response to disciplinary action. However, as noted above, Mr Harris did not disclose his pre-existing medical conditions to Securecorp before commencing employment. He cannot now rely on Securecorp’s failure to properly take those matters into account. Because of the non-disclosure, Securecorp did not know that more was required to support Mr Harris in the workplace than what would ordinarily be required.
Conclusion on the merits
I accept that from late 2019, Securecorp failed to properly apprehend and manage challenges in the relationship between Mr Harris and Mr Pethyon. Over the course of Mr Harris’s employment, Mr Pethyon did not always treat Mr Harris fairly and with respect. He did not rise above his grievance with Mr Harris in relation to the timesheet issues in late 2019, and this caused Mr Harris unnecessary distress. These are matters that should be addressed directly by Securecorp with Mr Pethyon.
On balance, however, I find that Mr Harris’s dismissal was not harsh, unjust or unreasonable. There were valid reasons for the dismissal of Mr Harris relating to his conduct. He had previously been warned over conduct of a similar nature. The process adopted to give effect to the dismissal was not perfect, but nor was it entirely lacking. Adequate support was provided to Mr Harris in connection with the process to ensure that he was not put at a disadvantage by procedural deficiencies. Mr Harris was paid an amount in lieu of notice of termination.
For these reasons, I find that Mr Harris was not unfairly dismissed. The application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
M Pruscino of Counsel for the Applicant.
M Blair for the respondent.
Hearing details:
2022.
Sydney (by video):
July 28.
Final written submissions:
August 22.
[1] See s. 382(b)(iii) and Reg. 3.05 of the Fair Work Regulations 2009.
[2] Fair Work Act 2009 (Cth), s.385.
[3] Form F3.
[4] Fair Work Act 2009 (Cth), s.388.
[5] Fair Work Act 2009 (Cth), s.23.
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