Martin Foley v Melbourne Health

[2015] FWC 4821

[2015] FWC 4821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Martin Foley
v
Melbourne Health
(U2015/1581)

VICE PRESIDENT WATSON SYDNEY, 23 JULY 2015

Application for relief from unfair dismissal – Whether termination of employment harsh, unjust or unreasonable – Whether valid reason for dismissal – Dismissal related to alleged misconduct – Fair Work Act 2009, ss. 387 and 394.

Introduction

[1] This decision concerns an application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). The application was made by Martin Foley who was employed by Melbourne Health as a Security Officer from approximately October 2007 until the termination of his employment on 26 March 2015. Melbourne Health opposes the application. It contends that the termination was not unfair and that Mr Foley was dismissed from his employment as a result of serious misconduct.

[2] The matter was heard by way of a determinative conference on 8 and 9 July 2015. Mr Scott Crawford appeared for Mr Foley and Mr Rohan Millar, of counsel, appeared on behalf of Melbourne Health. Evidence of the following persons was given during the proceedings:

• Mr Martin Foley – former Security Officer



• Mr Ibrahim El-Hamoui – Security Officer, Melbourne Health



• Mr Michael Dunne – Group Managing Director, iDetect Group



• Mr Richard Murrie – Managing Director, Loss Prevention Group of Australia



• Mr Mahbub Bhuiyan – Security and Compliance Manager, Walter and Eliza Hall Institute of Medical Research



• Mr Graham Dolby – Emergency Management Training Officer and Security Manager, Melbourne Health



• Mr Troy Cox – Human Resources Business Manager, Melbourne Health



• Mr Gerard White – Employee Relations Manager, Melbourne Health



• Mr Michael McCambridge – Director of Facilities Management, Melbourne Health



• Ms Christine Fitzherbert – Executive Director Human Resources & Organisational Development, Melbourne Health



• Dr Vincent Corbin – Post-Doctoral fellow Bioinformatics Division, Walter & Eliza Hall Institute of Medical Research

Background

[3] Mr Foley commenced employment as a Security Officer with Melbourne Health in about October 2007. The termination of his employment arose from an investigation by Melbourne Health into an incident involving a physical confrontation between Mr Foley and a research scientist. Evidence was given on the events by the persons present and CCTV footage and other video evidence of the altercations were admitted into evidence. The circumstances were as follows:

• On the evening of 7 December 2014, Mr Foley and Mr El-Hamoui were patrolling the main entry of the Walter & Eliza Hall Institute building;



• They observed a man, now known as Dr Corbin, enter the building without swiping his access pass while another staff member was exiting the building;



• Mr Foley requested that Dr Corbin swipe his pass before re-entering the building and Dr Corbin complied with the request;



• A discussion followed in the foyer of the building which continued through the next set of security doors and into the lift lobby. Mr Foley pushed Dr Corbin twice near the security door and restrained him through physical force in the lift lobby;



• Dr Corbin was released from the restraint and the parties used the lift to separately travel to the sixth floor of the building;



• The confrontation continued when the parties met again on the sixth floor with Dr Corbin continuing to talk with Mr Foley and Mr El-Hamoui as they moved down a stairwell to the fifth floor of the building;



• On the fifth floor, Mr Foley again applied physical force to restrain Dr Corbin and called a code ‘grey’ which is the emergency code used by Melbourne Health security staff.

[4] Shortly after this, contact was made with Mr Bhuiyan. Mr Bhuiyan attended the site later that night to review the CCTV footage that had captured the incident outside the main entrance of the building and on the ground floor. There was no CCTV footage which captured any part of the incident between Mr Foley and Dr Corbin on the fifth and sixth floors. Mr El-Hamoui provided video footage from his security video camera. Dr Corbin later provided Melbourne Heath with video footage from his mobile phone that he had taken on the stairwell between levels 5 and 6 of the building.

[5] On the basis of the CCTV footage available to him on the night of 7 December, Mr Bhuiyan formed the view that the incidents of physical contact that he had seen on the ground floor of the building were unnecessary and disproportionate to the manner in which Dr Corbin was behaving. He telephoned Mr Dolby later that night and informed him of his preliminary assessment in regards to the incident. The matter was regarded by Melbourne Health to be a serious one due to the nature of the allegations that involved a physical altercation between a Security Officer and an employee of the Walter & Eliza Hall Institute and an apparent failure by Mr Foley to take sufficient steps to de-escalate the situation.

[6] An incident report was completed by Mr Bhuiyan and provided to Mr Dolby on 10 December 2014. On the basis of the incident report and the footage provided to them, an investigation was commenced by Melbourne Health into the incident.

Evidence regarding the circumstances leading to the termination

[7] Evidence was given by Mr Dolby and Mr Cox that, upon viewing the available video footage, they were of the opinion that the incident was sufficiently serious to warrant further investigation. Mr Foley was stood down with pay from his duties at Melbourne Health pending the outcome of an investigation into the incident.

[8] A meeting between Mr Foley and Melbourne Health took place on 11 December 2014 to discuss the incident and the related events. Mr Dolby and Mr Cox attended these meetings on behalf of Melbourne Health. The meeting was held so that Mr Foley could watch the available video footage. No response was required by him at this stage of the investigation. However evidence was given that, upon viewing the footage during this meeting, Mr Foley appeared to be proud of his actions and did not seem to understand that his actions could be perceived as being inappropriate. Mr Dolby gave evidence that Mr Foley had said words to the effect of “oh that was a nice move” in reference to the restraints he had used on Dr Corbin. He also expressed further concern that when Mr Foley called him on the night of the incident, he had said words to the effect of “I have made history, the only person to call a code grey at WEHI”. At the conclusion of this meeting, Mr Foley was provided with a copy of the footage to take with him.

[9] A further meeting was held on 15 December 2014 so that Mr Foley could put forward his version of events and respond to the allegations in light of the material he had been provided with. At this meeting, Mr Foley said that there would be additional footage of his interactions with Dr Corbin from different cameras in the building and requested this additional footage. The meeting was adjourned until such time as Mr Foley had been given the opportunity to view any further CCTV footage that was available. At the conclusion of this meeting, Mr Dolby and Mr Cox gave evidence that they still remained concerned about the seriousness and inappropriateness of Mr Foley’s conduct as he had continued to fail to acknowledge that he could have done things differently if confronted with the same set of circumstances again.

[10] Once the additional footage had been provided to Melbourne Health and Mr Foley, a further meeting was arranged which was due to occur on 19 December 2014. The intended purpose of the meeting was to provide Mr Foley with the opportunity to respond to the allegations of serious misconduct having now been provided with the additional CCTV footage that he had requested. This meeting did not occur as Mr Foley did not attend.

[11] Both Mr Dolby and Mr Cox took pre-planned annual leave at the end of 19 December 2014. Mr White had been briefed by Mr Cox on 18 December 2014 regarding the allegations that had been made and that an internal investigation was being conducted by Melbourne Health.

[12] On 19 December 2014, Mr Foley expressed concerns via an email to Mr McCambridge about the internal investigation and asked for the matter to be investigated externally. In light of the concerns raised by Mr Foley, and the regard given to the potentially serious consequences to him, Mr Murrie was engaged by Melbourne Health to conduct a full and external investigation into the incident. On 22 December 2014 correspondence was sent to Mr Foley advising that Melbourne Health agreed to his request for an independent investigation. He was also advised in this correspondence that he could return to work pending the completion of the investigation. Mr Foley’s return to work was subject to restrictions that required that he be reallocated to day shift duties which meant that he was under the supervision of certain members of the security staff and that he would not be permitted to patrol the Walter & Eliza Hall Institute building.

[13] Mr Murrie’s report was provided to Melbourne Health on 16 February 2015. Excerpts of the findings were sent to Mr Foley on 20 February 2015. The findings of the investigation were as follows:

[14] A final meeting with Mr Foley was held on 26 February 2015. This meeting was attended by Mr White and Mr McCambridge on behalf of Melbourne Health. Melbourne Health wanted to provide Mr Foley with the opportunity to respond to the findings made by the independent investigator and provide any further information as to why they ought not to proceed with a recommendation to terminate his employment. Mr Foley provided an eight page written document in which he responded to each of Mr Murrie’s findings. Evidence was given that Mr Foley again put forward his view that the investigation was biased, that he should have been provided with all of the video footage in the first place, that he was not at fault, and that the outcome was not fair.

[15] On 2 March 2015, an internal meeting was held by Melbourne Health. This meeting was attended by Mr Dolby, Mr Cox, Mr White and Mr McCambridge. Evidence was given by each participant that, having regard to all the information that was available, they believed that there were sufficient grounds to terminate Mr Foley’s employment. A recommendation to that effect was made to senior management who accepted that recommendation. The termination took effect at a meeting held on 26 March 2015.

Relevant Legislation

[16] The task of the Commission in this matter is to determine whether the termination is properly described as harsh, unjust or unreasonable. The Commission is required to apply the terms of s.387 of the Act in considering that question. Section 387 states that:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[17] I will consider each of these matters in turn.

Valid Reason

[18] It is appropriate in determining whether there was a valid reason for Mr Foley’s dismissal related to his conduct to consider the precise task the Commission is performing in a matter of this type. The meaning of a valid reason is well established by the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.” 1

[19] The task of the Commission when determining whether alleged misconduct occurred was described by Justice Moore of the Federal Court as follows: 2

“[6] Paragraph (a) speaks of "whether there was a valid reason ... related to the
... conduct of the employee". The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

[7] The reason would be valid because the conduct occurred and justified
termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in pars (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Secondly the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh, unjust or unreasonable on assumed facts and not facts found.”

[20] The relevant events are summarised above. In this case, at the request of Mr Foley, the employer engaged an independent investigator to conduct an external investigation into the events. Mr Murrie’s report concluded that Mr Foley had breached the Melbourne Health Security Service Standards, in particular the excessive and disproportionate use of force, unlawful contact, and undue physical force while restraining customers. The evidence relied on by the employer was adduced before the Commission. Most of the incidents are capture on video footage. There is no audio recording for most of the video footage.

[21] Melbourne Health submits that Dr Corbin did not represent a threat to the security of the premises or to the safety of the Mr Foley, that it was Mr Foley who caused the verbal confrontation to become physical, and that the incident could have, and should have, been avoided through the use of de-escalation skills acquired through Management of Clinical Aggression training which is provided to Melbourne Health security staff every two years. It therefore submits that the Commission should make a finding on the facts in line with the conclusion that was reached in the investigation conducted.

[22] Mr Foley contends that a different conclusion should be reached. He submits that his conduct on the evening of 7 December 2014 did not amount to serious misconduct and that proportionate force was used.

[23] I find on the evidence that Mr Foley failed to follow the Melbourne Health Security Service Standards. The incidents originated from an entirely appropriate request by Mr Foley for Dr Corbin to use his swipe card to enter the building. Dr Corbin’s response to require the security guards to also swipe in was perhaps petulant. The exchange was purely verbal at that stage. It became physical at the next stage. After the verbal altercation Mr Foley had an obligation to attempt to diffuse the situation. Mr Foley and Dr Corbin walked to the next security door together. Due to their apparent agitated state, neither stepped back to allow the other to enter first as would be normal behaviour. Mr Foley was originally walking alongside or slightly behind Dr Corbin. He accelerated to get in front. He then pushed Dr Corbin away with his hands and shoved him further when Dr Corbin approached the door again.

[24] A clear option for Mr Foley while walking towards the door was to slow down and let Dr Corbin move in ahead of him. Not only did he fail to do so, he exacerbated the situation by an unwarranted physical assault. The CCTV footage suggests that Mr Foley initiated physical interaction and any prior brush of the shoulders was very minor. His push and shove were inappropriate and excessive.

[25] At that stage Dr Corbin was more upset and perhaps became more annoying in pursuing the security officers with his phone camera activated and demanding further identification details. The video footage does not show that Dr Corbin was any threat to the security officers in the lift lobby. Mr Foley was the aggressor – taking several steps towards Dr Corbin as Dr Corbin stepped backwards and placing a physical restraint on Dr Corbin. That was further unnecessary and excessive physical force. On the fifth floor, again as Dr Corbin was filming Mr Foley on his phone, Mr Foley was again the aggressor. Physical force was unnecessary in the circumstances.

[26] There is audio evidence of part of the altercation on the fifth floor. The words “get away from me” were spoken repeatedly in an increasingly elevated manner as Mr Foley was imposing a physical restraint on Dr Corbin. Dr Corbin gave evidence that he was saying those words. That appears to me to be the case. However Mr Foley gave evidence that he was saying those words in response to Dr Corbin following him with a camera. The context makes this unlikely, but if it is true, it demonstrates that Mr Foley had completely lost his cool and was speaking in a highly agitated and irrational manner at the time he was applying physical force on Dr Corbin. Accepting Mr Foley’s evidence on this point does not assist him.

[27] My view of these circumstances is consistent with the assessments made by Mr Murrie and the senior Melbourne Health security personnel. Mr Foley’s explanations of the events, both during the investigation and in evidence in the Commission are not consistent with the video footage. I do not regard his evidence as reliable. It was clearly designed to put the most favourable gloss on the events from his perspective, but it lacked all credibility. Mr Dunne’s evidence also lacked objectivity.

[28] Adopting an approach of denial of wrongdoing impacted on Melbourne Health’s assessment of what to do about the situation. If Mr Foley could not accept fault when the video footage showed what it did, serious questions arose about the viability of future employment. I formed a similar view about his evidence before the Commission. He was completely unrepentant as he attempted to defend clear evidence of excessive and unnecessary force. His approach bears upon the proper assessment of the circumstances.

[29] In all of the circumstances, I find that Melbourne Health had a valid reason for the dismissal of Mr Foley as the reasons were sound, defensible and well-founded.

Notification of the Reason

[30] The termination letter dated 26 March 2015 accurately identifies the reasons for termination.

Opportunity to Respond

[31] The decision to terminate Mr Foley’s employment was made after a number of interviews with Mr Foley during which he was given opportunities to explain his part in the matter under investigation and respond to the allegations put to him.

Unreasonable opportunity to allow a support person

[32] There was no such refusal.

Warnings and employer resources

[33] Mr Foley received a warning on 2 December 2014. An allegation of excessive force in an incident that took place in September 2014 was not able to be substantiated. An allegation of unprofessional conduct was substantiated. Mr Foley was warned that further substantiated reports of inappropriate behaviour would result in further disciplinary action. These circumstances demonstrate that previous investigations, training and warnings ensured that Mr Foley knew of the need for care in the use of force and the serious implications of using excessive force. Less than a week later he engaged in three examples of excessive force in dealing with a professional Walter and Eliza Hall Institute employee.

Any other matters

[34] Mr Foley contends that the dismissal was unfair because of Melbourne Health’s non-compliance with its termination of employment policy. He submits that he was not provided with all the materials that were relied upon by Melbourne Health in making its decision and that the investigation did not occur in a timely manner. Melbourne Health submits that it is difficult to see what materials Mr Foley claims an entitlement to have received as the provisions of the Act refer to an opportunity to respond to the allegations and Mr Foley was made aware of these and he provided detailed responses. It submits that the investigations were thorough and took time to pursue in a careful and considered manner. They also noted that the timing of the incident, which took place shortly before Christmas, did not assist in having the matter dealt with more expeditiously. Melbourne Health further noted that detailed internal procedures were necessarily followed before termination of employment was decided upon.

[35] I also have regard to the differential treatment between Mr Foley and Mr El-Hamoui, as well as Mr Foley’s length of service. I note the largely passive role played by Mr El-Hamoui and Mr Foley’s seven years of service with Melbourne Health which suggests knowledge of his employer’s security service standards.

Conclusions

[36] In all of the circumstances I am not persuaded that the termination of Mr Foley’s employment was harsh, unjust or unreasonable. Accordingly, the application is dismissed.

VICE PRESIDENT

Appearances:

Mr S. Crawford, with Mr B. Tanoski and Mr P. Lazarevski, for Mr Martin Foley.

Mr R. Millar of counsel, with Mr C. Mooney, for Melbourne Health.

Hearing details:

2015.

Melbourne.

8 and 9 July.

Final written submissions:

Mr Martin Foley on 1 June 2015.

Melbourne Health on 25 June 2015.

 1 (1995) 62 IR 371.

 2   Edwards v Giudice and Others [1999] FCA 1836.

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