Mr Bruce Anderson v Linfox Armaguard Pty Ltd
[2012] FWA 5610
•3 JULY 2012
[2012] FWA 5610 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Bruce Anderson
v
Linfox Armaguard Pty Ltd
(U2011/15016)
DEPUTY PRESIDENT HARRISON | NEWCASTLE, 3 JULY 2012 |
Termination of employment - Arbitration.
[1] Mr Bruce Anderson (the Applicant) was employed by Linfox Armaguard Pty Ltd (the Respondent) as a Cash In Transit (CIT) Officer at the Respondent’s Newcastle depot. Mr Anderson was employed firstly as a casual employee from 2002, and as a permanent, full time employee from 2005.
[2] Mr Anderson was dismissed from employment on 13 December 2011 as a consequence of “dry firing” a firearm.
[3] In his Statement of Evidence (exhibit 1) Mr Anderson described the relevant events in the following terms:
34. I received my fire arm which was a Smith and Wesson 38 model 10 double action revolver. It was unloaded. I checked to see whether it was unloaded. I received the gun with an open cylinder. I could see clearly that it was not loaded. If the cylinder is open it is readily apparent whether there is ammunition in the gun. I then sought to check the functionality of the weapon by closing the cylinder and dry firing the weapon. I held the gun in my right hand, I pointed it into a sand trap in the safe loading area and pulled the trigger of the gun six times to make sure all six chambers were working. ... I believed that it was proper to dry fire my gun in the safe loading area to check that it was working. I then loaded my gun with ammunition. 1
[4] Mr Anderson deposed that the following exchange took place between himself and a Mr Bob Simpson:
“As I was leaving, Bob Simpson asked: ‘Are you aware of whether you dry fired in the bay?’
I said: ‘Yes’
He said: ‘Are you aware that there is a policy against dry firing?’
I said: ‘No and I will never do it again now that I have been advised that it is a company policy.’” 2
[5] Following resolution of an issue concerning the correct load on the armoured vehicle, Mr Anderson and his partner for the day, Barbara Hawthorn, commenced the designated run.
[6] Mr Anderson was recalled to the depot around 9.30am on that day and informed he was stood down as a result of dry firing his firearm.
[7] Mr Anderson was called to a meeting at the depot the next day with Mr Bowden, the Branch Manager; Ms Debra Easton, the Respondent’s NSW Regional Operations Manager; and the TWU delegate, Mr M Wallicker.
[8] Mr Anderson confirmed that he had dry fired the gun. He contended that others had done it but could not identify any other employees, putting that none would now volunteer that they had “dry fired” due to the trouble he was in.
[9] Mr Anderson was given the opportunity to put any further information to management in consideration of his employment, to which he responded:
“I have nothing to add; where I am I supposed to get evidence from [sic]? I think that it would be harsh and unjust for me to be terminated for something that was common practice in the workplace. I believe there is a targeted campaign to have me dismissed in the workplace.” 3
[10] Mr Anderson deposed that he had been pedantic about safety and operational issues to the point where he believed he had annoyed management sufficiently for them to want him gone.
[11] Mr Anderson deposed that he regretted some of his actions and if re-instated would ensure that he observed proper processes.
[12] Mr Anderson deposed that he retains his security class 1A1F licence and his firearms accreditation; is up to date with all necessary training; and he has been able to find some casual work as a CIT Officer but prefers reinstatement. Mr Anderson does not seek payment for the time from termination to reinstatement.
REFRESHER TRAINING FOR ROAD CREW
[13] The Respondent requires all road crew to undertake refresher training every 12 months.
[14] Mr Anderson undertook this training over recent years, in particular, 2008, 2009, 2010 and 2011.
[15] During the course of this training each employee is provided with an employee handbook. A copy of the 2008 handbook states at page 19:
- Employees found involved in theft, or any other dishonest or fraudulent practice.
- Breaches of State Firearms Legislation and Armaguard Firearms Policy Guideline.
“Unacceptable Behaviour
Employees who breach any of the points herein will face disciplinary action up to and including dismissal.
For example misplacing or leaving a firearm insecure, handling a firearm in a dangerous manner, including an unauthorised discharge or dry fire of a firearm.” 4
[16] The same wording is found in the 2009, 2010 and 2011 Employee Handbooks. 5.
EVIDENCE FOR MR ANDERSON
[17] Mr Bull brought evidence from CIT Officers employed by the Respondent: Mr Michael Wallicker; Mr Andrew Rich; Mr Fred Messemaker; Mr Kenneth Thompson; Mr Todd Chapman; and Mr David Jones, formerly engaged by the Respondent as a Security Consultant.
Michael Wallicker
[18] Mr Michael Wallicker, TWU delegate, deposed that he was instructed in the dry fire of a gun during training. Mr Wallicker’s evidence is that he had never dry fired in the workplace as he did not regard it as necessary and delayed the start of shift. Mr Wallicker’s evidence is that he was not aware that dry firing in the workplace was prohibited; however, he was aware that some workers dry fired as part of their pre-shift preparations. Mr Wallicker’s evidence is that he had the following conversation with management on the morning of 13 December 2011, following Mr Anderson dry firing his gun:
16. On 13 December 2011, after the incident when Bruce Anderson dry fired his gun around 8.30am, I was in dispatch. Lisa Montgomery came up to me:
She asked: ‘What is the policy on dry firing?
I said: ‘Why?’
She said: ‘I just witnesses [sic] Bruce Anderson dry firing a gun in the loading bay.’
I said: ‘I am not sure; I don’t know what the policy is.’
I then saw Lisa Montgomery walk away.
17. About thirty minutes later, Bob Simpson came up to me as I was leaving the yard to go on the road.
He said: ‘I have spoken to Bruce about dry firing and told him not to do it again. Dry firing is prohibited and something you should not do.’” 6
Andrew Rich
[19] Mr Rich deposed that he is a long term employee and as such is familiar with what is, and what is not, normal practice in the workplace in Newcastle.
[20] Mr Rich put that until about 12 months ago he dry fired his gun at work as part of his pre-inspection check every three months. Mr Rich put that he ceased this practice as he did not have time.
[21] Mr Rich deposed that about five years ago he was observed dry firing at work by a supervisor who accepted that it was part of his pre-shift inspection and took no action.
[22] Mr Rich was the occupational health and safety officer for the workplace between 2009 and 2010. He deposed that he was never given an instruction about dry firing and did not know that it was a prohibited practice in the workplace until it became common knowledge after Mr Anderson was dismissed as a consequence.
[23] Mr Rich put that he has all the Respondent’s manuals and has not seen an explicit provision concerning dry firing.
Frederick Messemaker
[24] The evidence of Mr Messemaker is that he has been employed as a CIT Officer by Armaguard from November 2001 as a casual, then from 2006 in a permanent part time position.
[25] Mr Messemaker deposed that he worked in the dispatch area and as road crew. He has a security and firearms licence and remains fully accredited.
[26] Mr Messemaker deposed that he regarded himself as a long term employee, familiar with what is and what is not normal practice at the Newcastle depot; and that he considers himself to be careful and attentive in respect to safety.
[27] Mr Messemaker said:
“I am well aware that a significant safety breach in relation to a firearm is something that you will get sacked for. Until Bruce Anderson was terminated in December 2011, I was unaware that there was a prohibition on dry firing. I have all the Company Manuals and have never seen an explicit provision concerning dry firing in the section on fire arm policy guidelines” 7
Kenneth Thompson
[28] Mr Kenneth Thompson has been employed as a CIT Officer from June 1998 as a casual and from 2002 as a permanent part time employee, both in dispatch and as road crew.
[29] Mr Thompson holds a security and firearms licence and is fully accredited. He regards himself as a long term employee, familiar with what is and is not normal practice at the Newcastle depot.
[30] Mr Thompson deposed:
“Approximately eighteen months ago I learned that dry firing were not an acceptable practice and were against company policy, I am not certain how I gained this knowledge, I may have read it somewhere, perhaps in the policy booklet, I cannot recall any trainer stating that dry firing were no longer an acceptable practice during our yearly training.
I consider myself to be confident and competent regarding the safe use of firearms, I have successful [sic] instructed many people in my roll as a registered long arms safety instructor, and also as an instructor 3-4 years, in the pistol club for hand guns, I personal recommend [sic] the practice of dry firing in order to ensure the firearm is operating correctly.” 8
Todd Chapman
[31] Mr Todd Chapman has been employed as a CIT Officer from July 2000 as a casual and from 2004 as a permanent part time employee.
[32] Mr Chapman deposed that he has worked in dispatch and road crew at Gosford and from September 2002 in Newcastle.
[33] Mr Chapman described the training and accreditation record and his understanding of the method and purpose of dry firing. He deposed that he was not aware that the practice of dry firing was against the Respondent’s policy until Mr Anderson’s employment was terminated for utilising this practice.
[34] Mr Chapman deposed that the first time he was formally notified that dry firing was not allowed was by memo issued by the Respondent after the termination of Mr Anderson’s employment; and then in the first training session of 2012 with instructor Mr Wayne Riley who instructed him for the first time on 29 February 2012.
David Jones
[35] Mr Jones deposed that he was employed by Armaguard from April 1983 to November 1985 as a CIT Officer working as road crew. From November 1985 to his retirement in August 2009 Mr Jones was engaged by Armaguard as the Security Consultant, Firearm Instructor, Road Crew Trainer and Security Supervisor stationed at Newcastle. He was responsible for firearms auditing, servicing, branch security and road crew training for Newcastle, Port Macquarie, Grafton and, when required, Sydney.
[36] Mr Jones deposed:
“I teach students to ‘dry fire’ their gun in order to check that the mechanism works on accreditation course. I have accredited CIT officers employed by Armaguard and told them that ‘dry firing’ is the only way to physically check whether the firearm is working.” 9
[37] Mr Jones deposed that he was informed that since he retired in 2009 Armaguard had written a prohibition on dry firing into their national manual. Mr Jones put that the policy was not widely published; the manual he referred to was held by the training section and not used by the firearms trainer who would discourage dry firing if it was brought up.
[38] Mr Jones deposed that he was aware of unwritten policies which prohibited dry firing, adding that:
“I did not teach Bruce Anderson to ‘dry fire’ his firearm. I did not conduct his accreditation and did not during my time at Armaguard recall suggesting that he conduct ‘dry firing’ but I would have encouraged it and not told him it was forbidden.”
[39] Mr Jones deposed that in his time of employment with Armaguard he was unaware that it was the Respondent’s policy not to dry fire.
EVIDENCE FOR THE RESPONDENT
Lawson Berridge
[40] Mr Berridge has been employed by the respondent from 2010, first as a CIT Officer and for the past eight and a half years as a supervisor at the Newcastle depot.
[41] Mr Berridge issued Mr Anderson with his gun that morning and deposed that he did not see Mr Anderson dry fire his gun but heard it, adding that he had never before heard the distinctive sound of a gun being dry fired in the whole time he had been employed by the respondent.
[42] Mr Berridge confirmed that the Respondent’s policy prohibited dry fire, and that it is not a necessary action to ensure the functionality of a weapon.
[43] Mr Berridge put that if he had been instructed to dry fire his weapon, he would have done it every day; however, he was not so instructed, and he knew that it was against the Respondent’s policy to do so.
[44] Mr Anderson was described by Mr Berridge as an adequate employee who met his work obligations in a satisfactory manner. Mr Anderson had received one warning in respect to timekeeping and another in respect to proper completion of documentation in the nine years of his employment. Mr Berridge acknowledged that Mr Anderson responded positively.
Deborah Easton
[45] Ms Easton is the NSW Regional Operations Manager for Linfox Armaguard, located at Camellia, an inner western suburb of Sydney.
[46] Ms Easton has been employed by Armaguard for some 21 years, firstly in cash processing and subsequently in supervisory and managerial roles. She is qualified and accredited to carry a gun in accordance with State firearms legislation.
[47] Ms Easton deposed that she had never observed an employee dry fire or had an incident of dry firing reported to her in her career.
[48] Ms Easton’s evidence details the refresher training provided to Mr Anderson and all other CIT officers. Copies of the Road Crew Handbooks from 2008, 2009, 2010 and the version used in 2011 are attached to her witness statement (exhibit 15).
[49] At para 7 of exhibit 15 Ms Easton deposes:
“I understood that if an employee was to dry fire a firearm they would be subject to disciplinary action up to and including dismissal. I knew this because I have held a firearms license for 15 years and have completed annual firearms training as a condition of holding this license, along with annual Road Crew refresher training, where I received a copy of the Road Crew Employee Handbook, which is specific in relation to dry fire. In all of this training it is made clear that weapons are to be treated as loaded at all times, and the training covers this by referring to it as “treat all firearms as loaded”, “off target/off trigger”. 10
[50] Ms Easton’s evidence is that she conducted the disciplinary meeting with Mr Anderson on 14 December 2011 at which she says she informed Mr Anderson that she was considering the termination of his employment. The meeting was adjourned to allow him to consider his response and later for Ms Easton to consider the matter.
[51] Ms Easton deposed that she considered whether the outcome should be a first and final warning or termination; concluding that given the seriousness of the breach of procedure and lack of mitigating circumstances, she decided that termination was the appropriate course.
[52] During cross examination Ms Easton put that the primary defence proffered, that dry firing was a common practice, was not substantiated in any way. She further deposed that she did not accept that dry firing of a weapon is part of the pre-start check for loading and unloading a gun, putting that if it were all employees would undertake this process on a daily basis. They do not.
[53] Ms Eason put that this is confirmed by Mr Anderson’s acknowledgement that he did not dry fire every day, and the most recent incident of dry fire at the Newcastle depot that he could recall was approximately three years ago.
[54] During the course of cross examination Mr Bull sought Ms Easton’s response to warnings for breaches of firearms procedures given to Mr Berridge on two occasions, detailed in Discussion Records dated 25 October 2011 11 and 1 February 201212.
[55] Ms Easton responded that she was not involved in those matters, however, each appeared to be an administrative or clerical error compared to the actions of Mr Anderson which amounted to the improper and prohibited use of a firearm.
SUBMISSIONS
[56] Mr Bull put that the incident of dry firing was not denied, however, there was sufficient ambiguity and uncertainty in the Respondent’s instruction and advice as demonstrated by the evidence to disallow the action as a valid reason for termination of employment.
[57] Mr Bull referred me to the decision of Justice Northrop in Selvachandran v Petersen Plastic Pty Ltd 13 wherein his Honour noted in relation to what constitutes a valid reason that:
... the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason ... 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 the employee are each treated fairly. 14
[58] Mr Bull put a secondary submission that should a valid reason be found, then consideration of reinstatement is not precluded having regard to the Decision of the Full Federal Court in Coal and Allied Mining Services Pty Ltd v Lawler 15 which held that a valid reason is not a “trump card”.
[59] Mr Bull submitted that there was no practical barrier to Mr Anderson returning to the workplace as he is well liked and supported by his colleagues; he has expressed appropriate remorse and contrition in respect to the dry firing incident and undertaken to ensure his diligence and application to duty.
[60] Mr Bull argued that termination of employment was harsh in that Mr Anderson stood to lose accumulation of service for long service leave and other purposes.
[61] Mr Bull submitted that all things considered, the punishment was disproportionate and excessive and did not meet the principle of a fair go all round, particularly when regard was had to the warning to Mr Berridge.
[62] Mr Bull submitted that: “in light of the objective seriousness of the conduct a warning would be appropriate”.
[63] Ms Brown submitted that the termination of Mr Anderson’s employment was neither harsh nor unjust, and met all of the conditions of section 387 of the Fair Work Act.
[64] Ms Brown referred me to the Decision of the Full Bench of the Australian Industrial Relations Commission (AIRC) in Woolworths Limited (t/as Safeway) and Cameron Brown 16 as authority for the proposition that where a breach of policy involves a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law, that constitutes a valid reason for termination of employment. In particular, Ms Brown relied upon the Full Bench’s observation:
[32] It is possible to discern in decisions of the Commission involving a breach of an employer’s policy a conceptual tension as to whether mitigating factors ought be treated as going to the existence of a valid reason for termination within the meaning of s.170CG(3)(a) or only as relevant to the overall determination of whether the termination was harsh, unjust or unreasonable in accordance with s.170CG(3). In our opinion, the better view is that where a breach of policy involves a breach of the implied term requiring an employee to obey lawful directions sufficient to justify dismissal at common law then the breach will be a valid reason for termination of employment in the sense of a reason that is “sound, defensible or well-founded.”[25] Mitigating circumstances are then relevant (pursuant to s.170CG(3)(b) to (e)) to a determination of whether the termination of employment is harsh, unjust or unreasonable notwithstanding the existence of that valid reason. 17
[65] Ms Brown further referred me to:
- the employer may establish ignorance of the policy;
- termination of employment may be a disproportionate response to the breach having regard to its nature and the employee’s length of service and prior history;
- the employee may demonstrate prior non-enforcement or inconsistent application of the policy which, in the particular circumstances, render termination for breach of the policy harsh, unjust or unreasonable (although it should be noted that “...merely because in the past, another employee in breach of policy may have been dealt with in a particular way other than dismissal is not, of itself, a reason why subsequent dismissals in similar circumstances might be said to be harsh.” 19);
“[34] ...A failure to comply with a direction to do or refrain from doing something in compliance with a employer’s policy will not provide a valid reason for termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the wok of the employer; or
(c) the policy, or a direction to comply with the policy, is unreasonable.
[35] ... A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. ...it is not the role of the Commission “...to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. 18
[36] ...it is well established that the termination may nevertheless be harsh, unjust or unreasonable. For example:
[66] Ms Brown submitted that the policy was reasonable, not illegal, had not been permitted of other employees, and that Mr Anderson could not claim ignorance of it.
[67] Ms Brown also referred me to a Decision of Commissioner Laing of the AIRC in Jovan Gordich and Mayne Nickless Pty Ltd t/as Armaguard 20; in which it was held that there was sufficient reason for the employer to discontinue the employment and reinstatement was not an appropriate outcome, to ground a secondary submission that if the tribunal was of the view that Mr Anderson’s behaviour did not constitute serious and wilful misconduct so that the respondent’s trust and confidence in the applicant was so eroded in respect to the essential element of his position that reinstatement is not appropriate.
[68] The Gordich matter concerned the termination of employment of Mr Gordich from the position of CIT Officer by Mayne Nickless trading as Armaguard for dry firing his weapon in the loading area.
[69] In his Decision Commissioner Laing noted:
“It is also common to the parties that dry firing did not take place in the loading bay. Mr Gordich submitted that was because crew did not generally bother checking their weapons in such detail while the employer and other witnesses argued it was accepted as unsafe to do so. 21
... ...
It is of note that the employees who were witnesses did not consider dry firing as safe anywhere other than on the firing range. 22
... ...
In considering the issue in the light of the foregoing and the other evidence, it is apparent that Mr Gordich breached a significant safety requirement but that he did not do so deliberately or in a reckless, casual or deliberately unsafe manner. He was acting conscientiously and breached the rule because he was not aware of it or had forgotten earlier instruction in relation to dry firing. In either event it is also plain that the company, while providing training to the employees had not regularly reminded or emphasised that dry firing anywhere other than the range was forbidden and/or that it was of itself a dismissible misconduct. With employees experienced in weaponry that would not necessarily matter as they would be familiar enough to know the risk. The question arising here is whether Mr Gordich or any lesser experienced employee could reasonably have been expected to know or to have concluded from the employer’s instructions that they were taking unacceptable risks.” 23
[71] The Commissioner held in this case that while summary termination was harsh, termination on notice was the appropriate sanction. 24
[72] Ms Brown further referred me to a Decision of the Full Bench of Fair Work Australia in Parmalat Food Products Pty Ltd v Mr Kasian Wililo 25as authorityfor the proposition that where a valid reason is found it is only where there are significant mitigating factors, that a conclusion of harshness is open.
[73] The Full Bench said:
“...Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in this matter amount to such factors.” 26
CONSIDERATION
[74] Mr Anderson’s assertion that his general behaviour contributed to the decision to terminate his employment is refuted by the Respondent. The evidence of Mr Berridge and Ms Easton is firm on the point that the dry firing incident was the only consideration in the termination of Mr Anderson’s employment.
[75] I accept that the dry firing incident, its gravity and substance, are the only considerations in this matter.
[76] There can be no doubt on the evidence that dry firing a weapon as a pre-start check is prohibited by the Respondent’s policy.
[77] The evidence does not support the contention that, notwithstanding the Respondent’s policy, it was a practice engaged in by employees even on a sporadic or isolated basis.
[78] The best Mr Anderson can say is that he did not notice the policy in the manual at four separate refresher training courses; and that he was aware someone had dry fired their weapon in the dispatch area at Newcastle approximately three years ago.
[79] The direct prohibition to the practice of dry firing a weapon found in the training manuals is both explicit and properly communicated to employees.
[80] I am not satisfied that the communication of the Respondent’s policy led to sufficient uncertainty or ambiguity to allow ignorance of it or excuse from compliance.
[81] The evidence does not reveal any rational basis for Mr Anderson to dry fire his gun on 13 December 2011, which he put was the first and only occasion he had done so.
[82] It is incongruous that Mr Anderson informed himself of safety issues and pressed such matters with management in what he now concedes was an inappropriate manner (up to and including the loading of the truck that morning), yet ignored a paramount safety obligation in the handling of firearms.
[83] Mr Anderson was instructed and certified in the handling of a firearm. There is nothing in the evidence to support a view that he was ever told to test his gun by dry firing in the workplace periodically or on any other basis.
[84] The correct handling of firearms is a most serious matter which requires an exact compliance with policy and procedure in a diligent manner.
[85] I find that the Respondent had a valid reason to terminate Mr Anderson’s employment and did so without offending s387 of the Fair Work Act. The Respondent acted properly, affording Mr Anderson due procedural fairness including representation and opportunity to explain himself.
[86] Considering length of service, contrition and undertaking to observe policy in the future against the gravity of the offence, I conclude that mitigating circumstances do not support intervention in the decision to terminate Mr Anderson’s employment and I decline to do so.
DEPUTY PRESIDENT
Appearances:
Mr Stephen Bull
Senior Legal Officer
Transport Workers Union of NSW
Ms Claire Brown
National Employee Relations Manager
Armaguard
Hearing details:
2012
Newcastle
May 24
June 12
1 Exhibit 1 at p5 para 34
2 at p6 para 36
3 at p7 para 41
4 Exhibit 15 Attach. DE2
5 Exhibit 15 Attach. DE3, DE4 and DE5
6 Exhibit 6 p3
7 Exhibit 8 p2
8 Exhibit 9 p2
9 Exhibit 11 p3,4
10 Exhibit 15 p2,3
11 Exhibit 17
12 Exhibit 18
13 (1995) 62 IR 371
14 at 373
15 [2011] FCAFC 53
16 PR963023
17 at [32]
18 (1984) 295 CAR 188 at 191
19 Agnew v Nationwide News Ltd (2003) 126 IR 461 at [25]
20 Dec 1058/00 P Print S9633
21 at para 7
22 at para 20
23 at para 23
24 see para 33
25 [2011] FWAFB 1166
26 at para 24
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