Mr Craig Symes v Linfox Armaguard Pty Ltd T/A Linfox Armaguard
[2018] FWC 7142
•13 DECEMBER 2018
| [2018] FWC 7142 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Craig Symes
v
Linfox Armaguard Pty Ltd T/A Linfox Armaguard
(U2018/4510)
DEPUTY PRESIDENT ASBURY | BRISBANE, 13 DECEMBER 2018 |
Application for an unfair dismissal remedy.
OVERVIEW
[1] Mr Craig Symes applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to the termination of his employment by Linfox Armaguard (Armaguard). Mr Symes was employed as an Armoured Vehicle Operator (AVO) and was also a qualified Crew Leader, fulfilling that role as required. Mr Symes was employed by Armaguard from December 2000 until his dismissal on 13 April 2018. Mr Symes was dismissed for his part in a series of events commencing on 1 March 2018, which resulted in a cash consignment of client money in the amount of $58,710.00 going missing. Mr Symes was working on 1 March 2018 with another AVO Ms Kelly Bedford, who was performing the role of Crew Leader on that date and who was also dismissed.
[2] In summary, on 1 March 2018, Mr Symes and Ms Bedford were operating an Armoured Vehicle (AV) and attended at the premises of a client to collect a cash consignment. When they exited the AV they did not note that the outer door of the AV failed to close. When they returned to the AV and noted the open door, Mr Symes entered the vehicle and Ms Bedford placed the consignment into a transfer safe accessible from outside the AV. The money was not removed from the transfer safe before they returned the vehicle to the Company’s Depot. Armaguard’s policy is that cash or valuables are not to be transported in transfer safes. When the AV was unloaded at the Depot the consignment was left in the transfer safe. The consignment was incorrectly recorded by a Despatch Clerk as having been received and its absence was not noted in a global count undertaken by Armaguard. A receipt for the consignment was later mislaid and it was assumed that the consignment had not been collected. The fact that the consignment was missing was not discovered until mid-March 2018.
[3] On or around 4 March 2018, the AV was sent to an external company for maintenance and the presence of the consignment in the transfer safe was not noted before it left Armaguard’s premises. While the AV was at the premises of an external maintenance company the consignment was stolen by an employee of that company. The consignment was subsequently recovered. Mr Symes was dismissed for a number of reasons including that Armaguard concluded that his failure to follow proper procedures resulted in the consignment going missing and subsequently being stolen. Ms Bedford was also dismissed for substantially the same reasons.
[4] It is not in dispute that Mr Symes’ application was made within the time required in s.394(2) of the Act. Mr Symes is a person protected from unfair dismissal as defined in s.382 of the Act. Armaguard is not a small business and the dismissal was not a case of redundancy. The matter was dealt with by way of a hearing. Mr Symes and Ms Bedford, represented by Mr Lee Norris of the Transport Workers’ Union of Australia (TWU) sought separate hearings of their applications. Armaguard opposed this course and contended that the significant degree of commonality in the evidence, and the factual and legal issues in dispute warranted that the applications be heard together. Armaguard also requested that confidentiality orders be made under ss. 593 and 594 of the Act in respect of certain parts of the evidence related to cash handling procedures and security related matters.
[5] At a preliminary hearing to deal with these issues I decided, on the grounds of efficiency and fairness, that the two applications would be heard in a manner whereby the evidentiary cases for Mr Symes and Ms Bedford were presented consecutively and the evidence of witnesses for Armaguard was given concurrently in respect of both applications I also decided that I would make confidentiality orders in relation to evidence dealing with cash handling procedures and security related matters on the basis that I was satisfied that security and safety considerations in relation to details of these matters outweighed the principles of open justice.
[6] Further, I indicated to the parties that I would issue a confidentiality order in relation to the Armaguard Road Crew Team Member Handbook 1 (the Handbook) tendered by Armaguard as evidence in the case and which prescribes the manner in which AVOs carry out their duties. I also stated to the parties that I would endeavour to keep the discussion of the contents of the Handbook to a minimum in my decisions. Armaguard provided written submissions in relation to matters it sought to have suppressed. I have generally acceded to those requests with the exception that I decided not to suppress the value of the consignment as in my view this is a significant factor of relevance and in the absence of the identity of the client I do not accept that this matter is a security risk to the extent that suppression of this information is warranted. Further, there are certain procedures that it has been necessary to include in the Decision and in my view the information I have set out about these procedures is so obvious that it could not be described as confidential in nature.
[7] Permission was given for Armaguard Respondent to be represented by Mr Mitch Rawlings of Counsel on the basis that I was satisfied that this would enable the hearing to be conducted more efficiently given its complexity. Neither Mr Symes nor Ms Bedford gave evidence for each other. Consistent with the views of the TWU I have considered the applications of Mr Symes and Ms Bedford separately although there is some overlap in the evidence. It has also been necessary to consider some of the evidence given by Ms Bedford to deal properly with the application by Mr Symes and vice versa. Mr Symes gave evidence on his own behalf. Evidence in Mr Symes’ application was also given by:
• Mr David Grant McSween, Crew Leader/AVO; 2
• Mr Stephen Ray Hurndell, AVO and TWU Delegate; 3
• Mr Russell Michael Humphreys, AVO and TWU Delegate; 4 and
• Mr Nathan Iago Smythe, AVO and TWU Delegate. 5
[8] Evidence on behalf of Armaguard was given by:
• Mr Paul Kenneth Lorensini, Logistics Co-ordinator; 6
• Mr Michael George Morris; 7
• Mr Brian Poole, Transport Manager, Murrarie; 8 and
• Mr Chris Thomas Miller, Branch Operations Manager, Murrarie. 9
[9] During the hearing CCTV footage taken from cameras in the AV and in the Depot was viewed. It was agreed that the footage would be viewed simultaneously by Mr Symes, Ms Bedford, Mr Poole and Mr Miller (who were all under oath at the relevant time) and the representatives of the parties. All parties were given an opportunity to comment on the footage and to give evidence in relation to what it showed. I have had regard to statements made by the witnesses during the viewing of the footage.
EVIDENCE
Background
[10] Armaguard is a currency management company which provides customers with a variety of cash delivery and collection services. To provide those services Armaguard employs a range of employees including AVOs. Mr Symes holds a Certificate III in Security Operation and a Handgun Licence. Mr Symes was initially employed as an AVO and subsequently qualified as a Crew Leader. AVOs operate AVs for purposes including delivering and collecting money from clients of Armaguard. AVOs work in crews with a suitably qualified AVO taking the role of crew leader as required and receiving a higher rate of pay while performing that role.
[11] The AV operated by Ms Bedford and Mr Symes on 1 March 2018 has certain features relevant to the incident that led to their dismissal which it is necessary to discuss. The AV has an inner and an outer door separated by an area referred to as the man trap. When the AV is operating correctly, the outer door and the inner door are not able to open at the same time. According to the evidence of Mr Miller, if both doors of the AV open at the same time, there has been a security breach that could result in unauthorised people gaining access to the AV.
[12] Relevantly, the Handbook provides roles for the Crew Leader and the Escort, including that the Escort guards the Crew Leader. In relation to the guarding position, the Handbook states that the primary responsibilities of the Escort include: “Remain alert at all times. Maintain a suitable distance from the Crew Leader.” The Handbook also states that on exiting the vehicle Road Crew should ensure that the door is secured. There are two alarms which are activated if the vehicle is breached through a person or persons attempting to force entry. The Handbook states that if an alarm is activated when an AVO returns to the vehicle, the AVO should not attempt to re-enter the vehicle and should:
• Immediately return to the Client’s premises.
• Secure any cash that the AVO is carrying.
• Contact the AVO’s Branch Manager or Supervisor and await further instructions.”
[13] AV’s have exterior transfer safes. The transfer safe is the primary method for delivering a cash consignment bag to the interior of the AV. Standard procedure within Armaguard for passing a consignment through the transfer safe into the interior of the AV is for the road crew member carrying the consignment from the client’s premises (generally the Crew Leader) to open the transfer safe from outside the AV, place the consignment inside and close the door of the transfer safe. The consignment is then required to be removed from the transfer safe by accessing it from inside the AV and storing it in an appropriate place. There is a strict procedure set out in the Handbook that cash or valuables are not transported in the transfer safe and a sign to this effect is prominently displayed inside the AV in proximity to the transfer safe. There are other insurance related reasons for this policy.
Events of 1 March 2018
[14] Mr Symes and Ms Bedford commenced their run on the morning of 1 March 2018. At or around midday (half way through the run) while they were undertaking a collection at the premises of a client, both doors to the AV opened at the same time. This occurred while Mr Symes and Ms Bedford were attempting to exit the vehicle. Mr Symes said in his witness statement that he closed the outer door a few times and asked Ms Bedford to try pushing the button to open the inner door a few times, but the problem persisted. Mr Symes considered that this was a major security issue on the basis that the procedure with two doors opening separately was a security measure to ensure that the AV could not be entered by people other than the AV crew. Mr Symes states that he informed Ms Bedford that the AV should be taken back to the Depot because of the seriousness of the situation. Ms Bedford made a call to the Depot and informed Mr Symes that she had been instructed by a Supervisor – Mr Lorensini – to continue the run and if the doors malfunctioned again, to report it as the AV would have to be brought back to the Depot.
[15] Mr Lorensini gave evidence of the conversation he had with Ms Bedford. Mr Lorensini confirmed that he told Ms Bedford that the same issue had happened with the AV doors the week before and also said that he confirmed that the doors were operating correctly while he was speaking to Ms Bedford. Mr Lorensini said that he told Ms Bedford that if the issue happened again she should call straight back as it would be a security breach and the run would have to be stopped while a report was made to Armaguard Technical Services (ATS). According to Mr Lorensini, Ms Bedford told him that she was happy to finish the run if Mr Lorensini could get her another AVO as Mr Symes wanted to go home. Mr Lorensini said that in his experience it is not unusual for Road Crew to contact logistics towards the end of a run and ask whether there is anyone available to replace one of the crew members for the rest of the run. Mr Lorensini said that he told Ms Bedford that no other AVOs were available.
[16] The evidence given by Ms Bedford in her application was she felt pressured by Mr Lorensini to continue the run and considered that Mr Lorensini had directed her to do so. I therefore consider that it is probable that Ms Bedford relayed her view in this regard to Mr Symes. It was also Ms Bedford’s evidence that if the AV is returned to base and there is a delay in a replacement AV being available, the length of the shift will be extended in contrast to circumstances where there is an AV that they can immediately take out to continue with the run. Ms Bedford also maintained that Mr Lorensini told her that there were no spare AVs or Road Crew to replace Mr Symes. For reasons set out in my Decision in relation to Ms Bedford’s unfair dismissal application 10, I prefer her evidence on this point to that of Mr Lorensini.
[17] Mr Symes said that he was unhappy with the direction to continue with the run and was unsure whether it was lawful or reasonable but was in a subordinate position to Ms Bedford. Mr Symes also disputed that he wanted to go home and that he did not want to work overtime. However during the viewing of the CCTV footage Mr Symes said in response to a question from me that at a point when Ms Bedford was outside the AV talking to managers at the Depot, he was checking his mobile telephone because he had to work that night. 11 Mr Symes also gave evidence that he has a second job. Given that Mr Symes would have worked a full shift for Armaguard on 1 March 2018, it is probable that he was planning to work that night in his second job and that he did not want to work for a significant period beyond the end of his rostered shift which would have been required if Mr Symes had to wait around the Depot for another AV to be found so that the run could be completed.
[18] After the discussion with Mr Lorensini, Mr Symes and Ms Bedford then continued to the next job. Mr Symes states that he exited the vehicle first to guard Ms Bedford as she exited. According to Mr Symes, the AV doors did not appear to malfunction. Mr Symes also states that he maintained a suitable distance from Ms Bedford for the purpose of guarding her. Mr Symes further states that he recalls Ms Bedford giving the outer door a good swing to lock it as they made their way towards the client’s premises and that he heard a sound like the door engaging with the lock. As a result, Mr Symes did not look back.
[19] After collecting the consignment Mr Symes and Ms Bedford returned to the AV. Mr Symes states that upon approach they saw that the outer door was open. Mr Symes said the alarms were not activated and he concluded that the outer door being open was a continuation of the malfunction that had occurred at the earlier job. Mr Symes also considered that this was not a situation covered by the Company’s procedure in relation to a breach of an AV.
[20] Mr Symes stated that he moved cautiously towards the open door of the AV after Ms Bedford had taken a look and could see that the inner door was locked and clear of any threats. Mr Symes stated that he then cautiously entered the AV checking to the left and right and inside the vehicle. While Mr Symes was conducting the inspection, Ms Bedford was close beside him but outside the vehicle. Mr Symes further stated that he had one hand on the outer door keeping it open so that Ms Bedford would not become isolated. Ms Bedford went to the rear of the truck and put the money into the transfer safe before telephoning the Depot to report that the AV doors were still malfunctioning. Ms Bedford then returned to the AV and informed Mr Symes that Mr Glenn Kesting a Technician with ATS was going to contact them by telephone in relation to the doors of the AV.
[21] Mr Symes proceeded to drive away from the Client’s premises and had gone no further than the driveway, when Ms Bedford received a telephone call from Mr Kesting. Ms Bedford informed Mr Symes that Mr Kesting wanted them to try a few things with the doors and Mr Symes pulled over at the next safe place to do so. After performing a few exercises on the doors the double openings continued and Ms Bedford informed Mr Symes that Mr Kesting had instructed them to bring the AV back to the Depot. Mr Symes also stated that Ms Bedford informed Mr Kesting that Mr Lorensini had earlier advised her that the same issues had been experienced with that AV in the previous week.
[22] Mr Symes and Ms Bedford proceeded back to the Depot and unloaded the vehicle. Mr Symes said that it was a change in normal circumstances because there were completed and uncompleted jobs. Mr Symes assisted with the unloading consistent with his role as set out in the Handbook. Mr Symes said that he is not responsible for reconciling all the collections as that is the role of the Crew Leader and the Despatch Clerk. According to Mr Symes the Despatch Clerk searched the inside of the AV after it was unloaded, including checking the transfer safe. Mr Symes also said that the Despatch Clerk marked the missing consignment on the sheet used for recording purposes as having been received. Further, Mr Symes pointed to the fact that the global account taken of all receipts included the missing amount and it went unaccounted for even in this section of Armaguard’s business.
[23] Armaguard did not place evidence before the Commission about the events which occurred in relation to the AV operated by Mr Symes and Ms Bedford on 1 March 2018, after it was unloaded. In response to questions from me directed to witnesses for Armaguard, the following facts emerged. The vehicle was grounded for a period of three days on the basis that it was already booked in for maintenance/servicing prior to the events of 1 March 2018 occurring. Mr Poole’s evidence was that there is no procedure for searching vehicles to establish whether the vehicle has been cleared before they are sent to an external company for repairs. The process which Mr Poole referred to as a “safety net” 12 is that an Armaguard manager accesses a vehicle which is to be sent out for repairs to ensure that the vehicle is rendered safe to be handed over. This includes isolating the vehicle so that it does not go into duress mode while it is being accessed for the purpose of repairs. The process is not undertaken for the purposes of searching the vehicle to establish whether there are any consignments or other valuables left in the vehicle.
[24] The safety net process in relation to the vehicle operated by Mr Symes and Ms Bedford on 1 March 2018 was undertaken by Mr Lorensini. Mr Lorensini confirmed in his evidence that the AV in question had been grounded prior to 1 March 2018 and said that he had been informed of this fact by Mr Kesting. Mr Lorensini further confirmed that when Ms Bedford told him that the vehicle was malfunctioning he said: “Oh no, not again, that happened last week.” 13
[25] During the course of the hearing, Mr Morris obtained information about the vehicle in question and confirmed that on 1 March 2018 it was overdue for service and needed to be sent for service as soon as practical. Mr Morris confirmed that it was not the practice at the relevant time for vehicles to be searched prior to being sent out to be serviced. In response to a question about whether a practice of searching vehicles prior to them being sent out for service had been implanted since the events of 1 March 2018, Mr Morris said: “It certainly has.” 14 Mr Morris agreed that as soon as he referred the vehicle to ATS he was told to tag it out as it would need to be looked at.
[26] Mr Miller’s evidence was that the money went missing because it was left in the transfer safe when the AV was collected by a mechanic from the Company responsible for servicing vehicles. The AV went to that Company’s workshop and was parked outside that workshop for a period and later moved inside the workshop. An employee of the servicing company then allegedly stole the consignment. Armaguard became aware that the consignment was missing on or around 19 March 2018 and began an investigation.
[27] Mr Miller agreed that after the consignment was left in the transfer safe, there were more errors. Firstly the Despatch Clerk circled the run sheet indicating that the consignment had been taken off the AV when in fact it had not. The consignment was then accounted for in a global count undertaken by Armaguard. There was a further error when the receipt for the consignment did not “find its way across the cash floor” 15 and it was deemed to be a missed consignment that had not been collected. Mr Miller also agreed that there was a procedure whereby someone should have checked the AV before it went for service.
Investigation in relation to missing consignment
[28] Mr Miller said in his evidence that he became aware in mid-March 2018 that a consignment totalling $58,710 that had been collected from a client on 1 March 2018 was missing. Mr Miller did not become involved in the investigation until 12 April 2018 when the Branch Manager who had been involved went on leave. Mr Miller also said that as is the practice within Armaguard in cases where consignments go missing, separate investigations were carried out by the Company’s Operations and Security teams. It also appeared from the evidence that the consignment was identified as missing after the client raised questions with Armaguard because it had not been credited to the client.
[29] Mr Poole arranged a meeting with Mr Symes on 3 April 2018 to discuss the missing consignment. Mr Poole said that as Mr Symes’ Manager, he wanted to hear from Mr Symes about what had occurred on 1 March 2018 in the hope that it might shed some light on what happened to the consignment. According to Mr Poole, the meeting on 3 April was simply “a fact finding exercise”. Mr Symes attended the meeting with Mr McSween. Mr Symes’ and Mr McSween’s evidence about the meeting is that Mr Poole advised that the meeting was an informal discussion and would not allow Mr Symes or Mr McSween to record the meeting. Further, Mr Symes stated that Mr Poole responded to a request from Mr McSween for a pen and paper to take notes, by stating that there was no need and that Mr Poole’s notes were only for him to assist him to understand the situation and that it was not an investigation. Mr Symes also stated that his requests to be shown CCTV footage from cameras in the AV and for a copy of Mr Poole’s notes of the meeting were refused.
[30] In response to questions from Mr Poole about what had occurred on 1 March 2018, Mr Symes stated that it was 34 days ago and he would only be guessing. Under cross-examination, Mr Symes agreed that at the first meeting on 3 April 2018, he was questioned about the missing money and that this was a serious matter for Armaguard. In response to the proposition that he knew that the meeting was serious, Mr Symes said that Mr Poole told him that he was just trying to get his head around what had happened on the day because they could not account for the consignment. Mr Symes also agreed that he was asked what had happened on 1 March 2018 and given an opportunity to answer that question.
[31] Mr Poole took handwritten notes of the meeting on 3 April 2018 which he later typed up using a template provided to Armaguard managers by the Company’s Human Resources team. Mr Poole confirmed that he refused to allow the meeting to be recorded as this is contrary to Armaguard policy, particularly when sensitive operational and security matters are being discussed. Mr Poole also agreed that he did not show Mr Symes the CCTV footage and said he had not been given access to the footage by the Company’s Security team at that point. Mr Poole said that he did not deny either Mr Symes or Mr McSween the opportunity to take notes of the meeting. Further, Mr Poole agreed that he refused a request from Mr Symes for a copy of his handwritten notes and said that it is not his practice to provide such notes to employees.
[32] Mr Poole’s typed notes of the interview indicate that in response to a question about the role of an AVO, the first duty Mr Symes mentioned was loading and unloading the transfer safe, and that Mr Symes also said that the role involved liaising with and helping the Crew Leader. Mr Poole’s notes also indicate that Mr Symes stated that he is normally a Crew Leader on runs and that Ms Bedford lacks confidence. The notes further record that Mr Symes said that when they returned to the truck the door was open and that they could not see anyone near the truck or the mantrap area and that he told Ms Bedford to get into the truck and “let’s go”. Mr Symes is recorded as stating that he did not know whether Ms Bedford had the bag and that the same issue with the truck had been encountered earlier on the shift when Ms Bedford pressed the inner door button and the outer door opened at the same time.
[33] The notes also record that Mr Symes said that he did not see Ms Bedford use the transfer safe as she got into the truck first and he was standing guard looking at the surroundings, as there was an issue with the truck. Further, the notes record that Mr Symes stated that Ms Bedford told him later that she placed the consignment bag into the dump safe. Mr Symes is also recorded as having stated that he drove the AV back to the Depot and that Despatch Clerk checked the truck and no-one else had checked it.
[34] After preparing his typed notes, Mr Poole was informed that the version of events from Mr Symes (and Ms Bedford) was inconsistent with the CCTV footage taken from the AV on 1 March 2018. Mr Poole watched that CCTV footage and noted:
• On exiting the AV at the client’s premises Mr Symes did not adopt a guarding position where he could see Ms Bedford exiting the AV;
• Neither Mr Symes nor Ms Bedford noticed that the outer door of the AV had failed to latch closed when Ms Bedford swung it while exiting the AV and they left the AV with the outer door open;
• Upon returning to the AV with the consignment both Mr Symes and Ms Bedford approached the AV despite the outer door being open;
• Mr Symes entered the inner door of the AV while Ms Bedford was still outside and remained in the AV whilst Ms Bedford placed the consignment in the transfer safe;
• Neither Mr Symes nor Ms Bedford removed the consignment from the transfer safe and placed it in the dump safe before leaving the carpark at the client’s premises; and
• Mr Symes and Ms Bedford began driving back to the Depot before they had been contacted by Mr Kestling to assess whether the AV was safe to drive back to the Depot.
[35] Mr Poole also reviewed the CCTV footage from cameras in the Depot and noted that neither Mr Symes nor Ms Bedford cleared the consignment out of the transfer safe before parking the AV for the night. Mr Poole formed a view that Mr Symes may not have been truthful in the meeting on 3 April 2018 with respect to his account of how he and Ms Bedford completed the collection of the missing consignment and cleared the vehicle on return to the Depot. Mr Poole decided that he would hold a further meeting with Mr Symes to give him an opportunity to raise any mitigating circumstances that might have explained his conduct on 1 March 2018 and how the consignment came to be missing. That meeting was held on 6 April 2018 and was attended by Mr Poole, Mr Michael Eva, the Company’s Operations Manager and Ms Nikki Ward, Human Resources Advisor (by telephone). Mr Symes was again accompanied by Mr McSween and Mr Steve Hurndell, a TWU Delegate.
[36] Mr Poole again took handwritten notes of the meeting and tendered a copy of a typed version of those notes. 16 The subject of the meeting is stated as being “Re mitigating circumstances”. The notes indicate that Mr Symes was asked to provide mitigating circumstances in relation to why the event occurred and his recollection of what happened on 1 March 2018. Mr Symes is recorded as stating that the door malfunctioned and the Crew Leader called Mr Lorensini who stated that the problem had been previously experienced and that the crew should carry on. The truck malfunctioned again and they returned to the Depot. The notes also record that Mr Symes stated that they cleared the dump safe, checked the racking and got everything off the truck. Mr Symes is also recorded as stating that if something was missing, despatch would have noted that this was the case.
[37] Mr Symes agreed that he was given notice of the meeting of 6 April 2018 the day before and brought a Union Delegate. Mr Symes also agreed that the meeting was held in the Board Room and that he was again asked what he could remember about 1 March 2018. Mr Symes further agreed that a run that he was to carry out on 6 April 2018 was cancelled so that he could attend the meeting and that the meeting was about a serious matter.
[38] Mr Hurndell’s evidence about the meeting on 6 April 2018 is that at no time was stated that disciplinary action may result from the meeting. Mr Hurndell also recalled that Mr Symes stated that his memory of events was not clear because it had been 35 days since the relevant events had occurred. Mr MacSween said in his evidence about the meeting on 6 April 2018 that Mr Symes was struggling to recall events.
[39] After further discussion with Ms Ward and Mr Eva following the meeting, Mr Poole determined that neither Mr Symes nor Ms Bedford should be performing AVO duties based on his view about the CCTV footage and inconsistent accounts they had given in relation to the events of 1 March 2018, and in light of the fact that a disciplinary process was being considered. Mr Symes was informed that his duties as an AVO and a Crew Leader would be removed in the short term.
[40] There were further discussions with Mr Symes on 13 April 2018. There is a dispute which it is not necessary to resolve, as to whether these discussions occurred at one meeting or whether there were several meetings with Mr Symes on that date. It may be that there was a series of discussions with breaks between them which could be described as one or more meetings. In any event, the attendees were Mr Poole and Mr Miller for the Company and Mr Symes with Mr Nathan Smythe and Mr Russell Humphries, TWU Delegates. Mr Poole’s notes 17 indicate that the first discussion went from 8.30 am to 9.00 am. During that discussion there was a debate about whether the TWU Delegates were representatives or support persons, as well as in relation to the involvement of Mr Poole. The notes indicate that the CCTV footage from the AV was played in the presence of all participants and that Mr Miller asked Mr Symes a number of questions in relation to why he had entered the AV when the door was open. Mr Symes is recorded as stating that they had trouble with the door on that day and both doors were opening and that they had been told to continue with the run when they reported these issues. Mr Symes also said that after leaving the client’s premises they had again tested the doors and both opened together so the AV had been returned to the Depot. The notes also record that Mr Miller stated that he would ask Mr Kesting for further information about the doors.
[41] Mr Poole’s notes 18 indicate that there was a further discussion commencing at 10.32 am and concluding at 10.55 am. Mr Miller is recorded as asking Mr Symes about the separation between himself and Ms Bedford when walking to and from the client premises and Mr Symes is recorded as having responded that on the way into the premises there was no cash in the bag and on the way back to the AV they noticed the open door and wanted to get into the vehicle and get away from the client premises. In response to Mr Miller’s observation that Ms Bedford was at the transfer safe when he entered the outer door, the notes taken by Mr Poole indicate that Mr Symes stated that they made sure that it was safe to enter the vehicle. Mr Symes also stated that both doors were open and that this was surprising, and then went on to say that this happens all the time. Mr Miller said that notwithstanding Mr Poole’s notes, he did not recall Mr Symes stating that both doors of the AV were open when he walked out of the client premises with Ms Bedford and the missing consignment was placed in the transfer safe. In response to a question from Mr Miller about why appropriate guarding principles were not applied at the time, Mr Symes is recorded as stating that he is not sure and that he was confused about what was going on when he made his first statement and was surprised now that he had seen the CCTV footage.
[42] Mr Poole and Mr Miller conducted a third discussion with Mr Symes at 2.50 pm in the on 13 April 2018. At the conclusion of the discussion Mr Miller informed Mr Symes that a decision had been made to summarily terminate his employment as a result of his involvement in the incident. Mr Smythe and Mr Humphries were also present at that meeting. Mr Miller said that at no time during the meetings on 13 April 2018 did he place any pressure on Mr Symes to answer questions without allowing Mr Symes time to think and that he gave Mr Symes several opportunities to explain why he and Ms Bedford had behaved in the way they did and to raise any mitigating circumstances.
[43] Mr Miller was also cross-examined about the contents of Mr Poole’s notes of the discussions on 13 April 2018 which record that when informed by Mr Symes that the door of the AV had malfunctioned, Mr Miller stated that he would check this with Mr Kesting. Mr Miller said that he did not get a report about the doors on the AV or investigate it himself or obtain information from Mr Kesting before deciding to dismiss Mr Symes and Ms Bedford. Mr Miller also said that Mr Kesting tested the vehicle on the night of 1 March 2018 and did not find any issue with the doors. Further, Mr Miller agreed that to close the outer door of an AV can require several attempts because of the vacuum that is created in the man trap and said that sometimes it takes “an extra bit of gusto” to close the door from outside. 19
[44] Mr Symes was cross-examined about the meeting on 13 April 2018 and agreed that he brought two Union Delegates to that meeting. In response to the proposition that it was a serious meeting about a serious matter, Mr Symes said that he was told that the meeting was for the purpose of gathering information. Mr Symes agreed that he had been removed from operational duties in the lead up to the meeting. Mr Symes also agreed that he was shown CCTV footage at that meeting and was asked questions about why he had entered the AV when the door was open; the appropriate procedure to follow in the event of an AV being breached; his guarding position and why he had been so close to Ms Bedford; why there had been no separation between him and Ms Bedford on entering and exiting the client’s premises; and to provide any other explanation for his actions on 1 March 2018. Mr Symes agreed that he was given an opportunity to answer those questions.
[45] Mr Smythe said that at no time during the meetings on 13 April 2018 did Mr Miller or Mr Poole say that the meetings were disciplinary meetings and that Mr Symes could be disciplined over the matters being investigated. Mr Humphreys recalls that Mr Smythe asked whether the Company had a practice of searching trucks before they left the yard for repairs and Mr Poole responded by stating that this was part of the procedure. Mr Smythe also said in his evidence that he attended a disciplinary meeting with the Despatch Clerk who assisted with the unloading of the AV operated by Mr Symes and Ms Bedford on 1 March 2018 and that the Despatch Clerk admitted that he had circled the entry for the missing consignment on the load sheet indicating that it had been received. According to Mr Smythe, the Despatch Clerk also said at the meeting that he had used a red pen and circled the entry multiple times, to show that this was the point where Mr Symes and Ms Bedford stopped their run and returned to the Depot.
[46] Mr Miller said that to the best of his knowledge Mr Symes was not told that the meeting on 13 April 2018 was disciplinary in nature before he attended but maintained that it should have been reasonably apparent that the meeting related to a serious matter given the loss of a consignment of $58,710 for a five week period and the potential reputational damage to the Company. The seriousness of the matter should also have been reinforced by the decision on 6 April 2018 to remove Mr Symes and Ms Bedford from road duties. Mr Miller agreed in cross-examination that Mr Symes was not informed that a potential outcome of the meeting was that his employment could be terminated.
Decision to dismiss Mr Symes
[47] Mr Miller gave evidence about the views that he formed after viewing CCTV footage taken from the AV and the Depot cameras and the reasons for his decision to dismiss Mr Symes. According to Mr Miller, while correctly exiting the AV first at the client’s premises, Mr Symes did not take up a guarding position when he was outside waiting for Ms Bedford and was looking away from her in the direction of the client’s premises. An appropriate guarding position would have been towards the rear of the AV to one side facing towards the outer door to observe Ms Bedford exiting while surveying the surrounding area. Neither Mr Symes nor Ms Bedford looked back to ensure that the door of the AV had closed. The CCTV footage showed that the door swung out immediately after Ms Bedford attempted to close the “malfunctioning outer door” due to what Mr Miller described in his statement as “a failure of the locking system.” 20 Mr Miller also said that this failure would have been noted if Mr Symes had taken up an effective guarding position or Ms Bedford had stopped to check whether the outer door was secure.
[48] Of greater concern to Mr Miller was the conduct of Mr Symes and Ms Bedford when they returned to the vehicle. Both AVOs could clearly see that the door of the vehicle was open and it is Mr Miller’s firm view that they should have followed the procedure set out in the Armaguard handbook in relation to a breached vehicle by returning to the client’s premises, securing the consignment and contacting the Depot to alert them to the situation. In relation to Mr Symes’ evidence that because the alarm systems were not activated he was confident that it was just another occurrence of the earlier malfunction, Mr Miller maintained that this was not a well-founded assumption. In this regard, Mr Miller said that the alarm is triggered when an entry way to the AV has been tampered with, and as both doors of the vehicle had been opening when it malfunctioned earlier that day, it was possible that the doors had malfunctioned again and an armed offender had gained access to the interior of the AV.
[49] Mr Miller said that by continuing to approach the vehicle while the door was open, Mr Symes and Ms Bedford exposed themselves to lethal harm. Mr Miller disputed Mr Symes’ evidence that he and Ms Bedford approached the AV in a cautious manner and said that they walked side by side to the vehicle with Ms Bedford carrying the consignment. Mr Miller also said that Ms Bedford put the consignment into the transfer safe while Mr Symes was in the AV, which was a breach of Armaguard procedure. A further breach occurred when Mr Symes failed to collect the consignment from the transfer safe from inside the vehicle and place it in a secure area of the AV. While Ms Bedford correctly called the Depot immediately after placing the consignment in the transfer safe, the vehicle was driven by Mr Symes before Mr Kesting contacted them and authorised the movement of the AV, which was another serious breach of Armaguard practice.
[50] Mr Miller also said that he was concerned at what he saw in the Depot footage. It showed that both Mr Symes and Mr Bedford failed to clear the AV, including the transfer safe, before leaving the despatch area. The Handbook states that this is the responsibility of the road crew. Whilst there is a practice in place at the Depot for the Despatch Clerk to also inspect the vehicle as part of the unloading process, this is not a formal Armaguard procedure and is intended as a back-up to ensure consignments are not missed. The Depot footage showed the Despatch Clerk inspecting the transfer safe but also showed that that he did not see the consignment.
[51] After the discussions with Mr Symes on 13 April 2018, Mr Miller determined to summarily dismiss Mr Symes. Mr Miller said that he took several hours to consider his decision. In Mr Miller’s view, the most serious breaches were the decision of Mr Symes and Ms Bedford to approach the AV with the outer door open which exposed them to potentially lethal risk to their health and safety, and their failure to clear the consignment from the transfer safe. Mr Miller said that clearing the transfer safe was the responsibility of Mr Symes and Ms Bedford and not the Despatch Clerk, and Mr Miller considered this to be the biggest single contributing factor to the loss of the consignment which endangered Armaguard’s relationship with a major client. Further, Mr Miller considered that the incident was the latest, though by far the most serious, in a series of recent events to have had a negative impact on Armaguard’s relationship with that client. It is Mr Miller’s understanding that significant efforts were required by senior management within Armaguard to maintain the commercial relationship with that client.
[52] Mr Miller considered the potentially serious negative impact on the Company’s reputation within the cash-in-transit industry, in the event that details of the incident became known or were published in the media. Mr Miller also considered that the fact that the missing money was recovered did not lessen the severity of Mr Symes’ breaches of Company policy. Mr Miller said that Mr Symes’ conduct during the incident directly contributed to an unacceptable level of service and professionalism to a client. In the absence of any mitigating circumstances, Mr Miller said that he had lost confidence in Mr Symes necessary to allow him to continue in a very demanding and dangerous role.
[53] Mr Miller also gave evidence about disciplinary action taken against the Despatch Clerk who assisted with the unloading of the AV operated by Mr Symes and Ms Bedford on 1 March 2018. A meeting was conducted with the Despatch Clerk to discuss his part in the events. It was considered that he was consistent with his answers and admitted to failing to see the consignment in the transfer safe when inspecting the AV. Mr Miller considered that the Despatch Clerk had done the job required of him but had simply done it poorly while Mr Symes and Ms Bedford had failed to perform their jobs in a manner that was consistent with Armaguard procedures and practice. Mr Miller also took into account that the Despatch Clerk inspecting an AV at the end of a shift is not normal procedure but a back-up and failure on the part of the Despatch Clerk to perform this function effectively was less serious than Mr Symes’ failure to clear the vehicle which is his express responsibility as a road crew member.
[54] In cross-examination, Mr Miller was asked whether he had investigated any history of door problems with the vehicle that Mr Symes and Ms Bedford were operating on 1 March 2018 and said: “Not personally, no.” 21 Mr Miller agreed that if the interior and exterior doors were opening at the same time, it would provide an opportunity for a raid on the AV to be conducted and that people could enter the rear of the vehicle possibly using lethal force. In response to a question about why the AV was not immediately grounded when Ms Bedford reported this issue, Mr Miller said that it was not reported to him and that he was not aware of any door failure at the premises of the previous client, before the issues which led to Mr Symes’ and Ms Bedford’s dismissals occurred.22 Mr Miller also said that he would not expect that a supervisor would immediately ground the vehicle upon receiving such a report but he would expect that a supervisor would act on information provided by a technical expert. In response to the proposition that if the vehicle had been grounded when the problem with the doors first emerged the situation which led to the dismissals would not have occurred, Mr Miller said that the door failure at the previous client had not been verified and if the doors were faulty it did not “surface” to him.
[55] In relation to guarding positions Mr Miller agreed under cross-examination that the Handbook simply states that a suitable distance should be maintained and that what is suitable depends on the circumstances and location. Mr Miller agreed that there are no specific procedures in the handbook in relation to adopting a suitable guarding position. Mr Miller did not know whether Mr Symes and Ms Bedford had received Refresher training in relation to the Handbook but maintained that the Handbook was relatively new and Mr Symes and Ms Bedford should have been familiar with it. Mr Miller also said that refresher training in firearms should have been sufficient for Mr Symes and Ms Bedford. In re-examination Mr Miller said that based on the length of his service, Mr Symes should have an extensive understanding of guarding techniques.
[56] With regard to the events of 1 March 2018, Mr Miller agreed in cross-examination that the AV did not register as being under duress and that the alarms were not activated. Mr Miller also agreed that the Handbook did not indicate what a road crew should do in a situation where a door on an AV is open but alarm systems are not activated. Mr Miller later said that in that particular instance where the outer door of the vehicle was open, Mr Symes and Ms Bedford should have retreated. Mr Miller was asked whether there is a practice of searching AVs before they are sent out for service and whether it would have been in place prior to the events that led to the dismissal of Mr Symes and Ms Bedford. Mr Miller said: “I would think, yes”. 23Mr Miller also said that Mr Lorensini had searched the AV before it was sent out for repair.
[57] In relation to Mr Smythe’s evidence that the Despatch Clerk had admitted to heavily circling the missing consignment using a red pen, indicating that it had been unloaded from the AV, Mr Miller agreed that this could have been said and that he would have to refer to his notes from the meeting to confirm whether this was the case. Mr Miller agreed that it was appropriate for Ms Bedford to use the transfer safe in the first instance but did not accept that with everything happening around Mr Symes and Ms Bedford – including a malfunctioning door, the need to make multiple phone calls and a half finished run – that it might have slipped their minds that the consignment was still in the transfer safe when the vehicle left the client’s premises. Mr Miller did not accept that there were a lot more distractions than would normally be encountered, maintaining that there was an additional distraction of one or two events. Mr Miller maintained that he had taken this into account in deciding to dismiss Mr Symes.
[58] The termination letter given to Mr Symes on 13 April 2018 states the reasons for dismissal as being that Mr Symes:
• Failed to follow a number of cash collection and delivery procedural breaches including:
o Failing to stand back and guard his Crew Leader when entering and exiting the armoured vehicle;
o Failing to adequately secure the consignment in the drop safe after collection;
o Not adequately searching the truck during the unloading process prior to leaving the branch;
• Entered a potentially breached armoured vehicle which had the external door open which is a serious security breach compromising Mr Symes’ safety in the event that armed robbers were inside;
• The significant financial amount of $58,000 was not accounted for and was subsequently stolen;
• An unacceptable level of service and professionalism had been provided to the client;
• There was potentially significant damage to the Company’s image and reputation;
• The Company has lost trust and confidence in Mr Symes to perform the duties required of him in a safe manner.
[59] Mr Miller also stated that he had taken Mr Symes’ 18 years of service into account in deciding whether to dismiss him and agreed that he had trust and confidence in Mr Symes during the period of his employment and prior to the incidents of 1 March 2018. Further, Mr Miller said that he had lost trust and confidence in Mr Symes because if a consignment had been lost once it could happen again and a misplaced consignment can re-define the relationship between a multi-national business like Armaguard and a multi-national client and put that relationship into jeopardy. As a result, these types of errors cannot be overlooked. Ms Miller also said that Mr Symes’ role in this matter is likely to have a negative impact on the levels of trust and confidence that his fellow Road Crew members will have in Mr Symes and could lead to ongoing difficulties finding other Road Crew members who are willing to work with Mr Symes.
[60] Mr Symes’ evidence to the Commission in relation to each of the reasons given in the termination letter for his dismissal, as set out in his witness statement was as follows. In relation to failing to adopt a guarding position, Mr Symes said that he had never received training or direction about what the appropriate distance or position is to be in when guarding a crew leader and the Handbook simply says that it must be a “suitable distance”. Mr Symes said he always thought that this was very vague and no specific position such as standing back is given. How guarding is carried out depends on the job that is being done at the relevant time – eg. an ATM – and the location. Mr Symes said although it was not his responsibility to empty the transfer safe he could certainly understand why someone would become distracted due to the malfunctioning doors.
[61] According to Mr Symes, searching the truck is the Crew Leader’s responsibility together with the Despatch Clerk and the task was not made easier by the fact that the run had not been completed and there were uncompleted jobs. Mr Symes also said that he observed the Despatch Clerk searching the AV on 1 March 2018 and he did not pick up the missing consignment in the transfer safe. When Mr Symes later saw the run sheet, he noted that the Despatch Clerk had marked the consignment as having been received, by circling it using a red pen, which is the standard practice. The Despatch Clerk only received a warning in relation to this matter.
[62] In response to the assertion that he (with Ms Bedford) entered a breached vehicle compromising his safety, Mr Symes said that the alarms did not activate. Futher, the door had recently malfunctioned. Mr Symes also said that he had received no training or direction about what to do in such circumstances, unlike a situation where the alarms had activated and there is a real rather than a potential threat. Further, Mr Symes said that if entering the vehicle was a security breach, he does not understand why they were told to continue the run when they reported that both doors were opening while at the premises of the previous client.
[63] In response to the fact that a significant amount of money was lost and stolen, Mr Symes said that he is not responsible for accounting for consignments. In the first instance it is the Crew Leader and Despatch Clerk’s role to receipt them in the loading dock. All consignments then go inside and it is Mr Symes’ understanding that a second “global” count is taken of all the receipts which failed to account for the missing consignment. The consignment was also missed when the vehicle left the yard for repairs and to the best of Mr Symes’ knowledge no-one in these areas was dismissed over the events even though the same claim could be made against them. Mr Symes also said that if they had not been directed to continue with malfunctioning doors on the AV, none of the dramas that occurred with respect to the missing consignment would have unfolded. It is Mr Symes’ understanding that the missing amount was recovered in any event. In relation to the assertion that he had displayed an unacceptable level of customer service and professionalism, Mr Symes said that the results were reflective of operating with a “highly defective” AV that he had been told to continue using after a door malfunction was reported. Mr Symes also repeated that as an AVO he is not responsible for moving goods from the transfer safe to another secured area inside the AV.
[64] In relation to the assertion that his actions had caused potential significant damage to Armaguard, Mr Symes stated that he was not aware of any actual damage and could not comment. In response to the assertion that the Company had lost trust and confidence in him, Mr Symes said that he seeks reinstatement and his request at the premises of the first client when the AV doors malfunctioned – that the AV return immediately to the Depot – should have been taken as good judgment and the events that followed would not have occurred. Mr Symes maintained that he had acted in a safe and secure manner at all times.
[65] Under cross-examination, Mr Symes maintained that it is not the role of an AVO to indicate to a crew leader if a particular task needs to be done and that the crew leader is in control of what happens during a work day and responsible for safety from the point of collection. Mr Symes also agreed that his Certificate III in security operations covered competencies in the security environment but said that the course was general and the content did not marry up with the policies and procedures of Armaguard. Mr Symes subsequently agreed that the course covered problem solving, determining appropriate responses to risk situations and adapting security responses to changing circumstances and that this content represented what he was taught in the course. Mr Symes further agreed that the courses he took as part of attaining a Certificate III in Security Operations included one entitled “Maintaining Security of Environment”.
[66] In relation to the Handbook, Mr Symes agreed that part of its purpose is to ensure the safety of Road Crew, including that money or their firearms are not taken by someone and to alleviate risk in this regard. Mr Symes was also cross-examined about the appropriateness of the guarding position he adopted when Ms Bedford exited the AV at the premises of the relevant client. In response to the proposition that he did not have visual contact with the door of the AV, Mr Symes said that he saw Ms Bedford shut the outer door of the AV and heard it shut. 24 Further Mr Symes maintained that he saw and heard the door shut and that when he looked back the door was shut.25 Later Mr Symes said that he heard the door shut but did not see that it had not engaged because he was not looking at the door as evidenced by the CCTV footage.26
[67] Mr Symes also said that he maintained a two metre separation with Ms Bedford when they walked from the AV to the client’s premises and that the separation closed when they reached the vehicle. Mr Symes contended that the distance was appropriate. In relation to the open door, Mr Symes said that he could see that the exterior door of the AV was ajar but could not see the inner door. Mr Symes accepted that if an AV is breached then Armaguard procedure requires that the AVOs return to the client’s premises, but maintained that the AV was not breached on 1 March 2018 on the basis that the alarm systems had not activated. Mr Symes also accepted that earlier in the day both doors had opened at the same time, and that when he approached the truck later in the day and saw the outer door open, the inner door could also have been open.
[68] In response to the proposition that when he saw the outer door open he entered the truck, Mr Symes said that he stood on the step to have a look inside to ensure that the inner door was closed. Mr Symes also said that Ms Bedford went to the front of the truck before she placed the client’s money into the transfer safe, and had a look first to make sure the inner door was shut, and that he also looked into the vehicle and gave her the all clear before she did this. 27 Mr Symes later said that the interior of the AV is not visible through the windscreen due to the height of the vehicle and that Ms Bedford approached the AV carrying the client’s money and looked into the vehicle through the outer door to check that the inner door was not open. Mr Symes said that he also climbed onto the step leading into the man trap and looked through a window to see if there was anyone in the truck.28 Mr Symes denied that Ms Bedford placed the money in the transfer safe before the inside of the vehicle was checked. In response to the proposition that he had not emptied the transfer safe, Mr Symes said that this was not his responsibility but that he had not reminded Ms Bedford that the consignment was in the transfer safe. Mr Symes also said that Ms Bedford telephoned Mr Lorensini and did not tell him that she had been instructed not to move the vehicle but rather told him to drive the AV back to the Depot.
[69] In relation to his part in unloading the AV on return to the Depot, Mr Symes said that he unloaded the contents of the AV and handed them to the Despatch Clerk. There was an issue that day because Mr Symes and Ms Bedford had not completed their run and there were receipts for pickups that had to be done by another truck being taken out to complete the run. Mr Symes also cleared consignments that had not been dropped off on that day from the AV. Mr Symes agreed that neither he nor Ms Bedford emptied the transfer safe, notwithstanding that he knew that Ms Bedford placed a consignment in it at the last client’s premises. Mr Symes later agreed that in the normal course of events it is the role of the AVO to clear the contents of the AV including the contents of the transfer safe.
[70] Mr Symes also said that he is 47 years of age and has been employed by Armaguard for 18 years. It is the only real trade or vocation in which Mr Symes has experience and with summary dismissal on his record, his prospects of gaining other employment in the industry are bleak. Mr Symes is married with one child and his wife has a part-time job in which she earns $32,000 per annum. Mr Symes has a part-time weekend job from which he earns $12,000 per annum. Mr Symes has been searching for further employment without success. Mr Symes also tendered a payslip for the period from 23 to 29 April 2018 showing an hourly rate of $32.3214 and indicating that his earnings for the year to date were an average of $2,041.54 per week or $53,080.04. Mr Symes emphasised that he seeks reinstatement to his former position.
CCTV footage
[71] The footage shows that when Ms Bedford exited the vehicle and closed the door, it did not engage and swung open almost immediately. Mr Symes is shown to be facing away from the door and in the direction of the client’s premises and does not turn to look in the direction of the AV door. 29 The footage of their return to the vehicle shows Mr Symes and Ms Bedford walking approximately one foot apart.30 The footage also shows Mr Symes looking into the vehicle though the outer door before giving Ms Bedford a nod to indicate that she can place the consignment in the transfer safe.31 When Ms Bedford enters the vehicle the footage shows that it took a number of attempts to close the outer door.32
[72] The footage also indicates that after exiting the client’s premises, Mr Symes stopped the AV as instructed by Mr Kesting via Ms Bedford to test the doors. The doors did not close together as they are supposed to do until a third attempt. 33 On one occasion Mr Symes exited the vehicle and stood in the man trap and on the footpath while the doors were open together.34 Ms Bedford also said (during the viewing of the video footage) that Mr Kesting was asking them to test the button, the doors and also asked whether the door strap was getting caught in the door so that it was preventing the door from closing.35 In footage of the vehicle being unloaded at the Depot, Mr Symes pointed out the Despatch Clerk looking into the transfer safe.
[73] Mr Poole was cross-examined about the basis of his belief that Mr Symes’ account of events was dishonest on the basis of an inconsistency between that account and the CCTV footage and said that in response to the questions he initially asked, Mr Symes recounted the procedure for dealing with consignments but what was recounted did not match up with the CCTV footage. When requested to elaborate in relation to his views about Mr Symes’ dishonesty, Mr Poole said that in Mr Symes’ version he was standing off and Ms Bedford entered the man trap first. Mr Poole did not elaborate further in relation to his view or the basis upon which he formed that view.
LEGISLATION
[74] By virtue of s. 385 of the Act, a person has been unfairly dismissed if among other matters, the dismissal was harsh, unjust or unreasonable. Section 387 of the Act provides that in considering whether a dismissal is harsh, unjust or unreasonable, the Commission 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.
[75] The employer bears an onus of establishing that there was a valid reason for dismissal.36 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”37 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,38 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.39 While the employer bears the onus of establishing the validity of the reason for dismissal, the dismissed employee bears the onus of establishing that the dismissal was unfair.
[76] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry that the employee was guilty of the conduct. To constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct. 40 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.
[77] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 41
CONSIDERATION
Whether there was a valid reason for Mr Symes’ dismissal – s. 387(a)
[78] The reasons for Mr Symes dismissal centre on a finding by Mr Miller – as set out in his witness statement – that Mr Symes engaged in serious breaches of Armaguard policy, including by approaching the AV when the door was open putting his life at risk and failing to clear the transfer safe, and that this was the single contributing factor to the loss of the consignment.
[79] In my view the evidence establishes that at worst, Mr Symes’ conduct was negligent and in some cases careless, and that it contributed to a string of failures in Armaguard’s systems and processes so that Mr Symes was only partially responsible for the series of events involving the consignment going missing and being stolen. On balance, I do not consider that the conduct of Mr Symes which constituted the reasons for his dismissal – considered individually or in combination – was of such gravity that it provided a valid reason for dismissal. I am also of the view that Mr Miller failed to give consideration to a number of mitigating factors relevant to Mr Symes’ conduct and that proper consideration of those factors, would have resulted in a conclusion that dismissal was not a valid, sound or well-founded response to that conduct. In reaching this conclusion I have considered the following matters.
[80] The Handbook makes no reference to “standing back” when guarding a Crew Leader. Further, it is not specific about what a “suitable” guarding position is. It is clear from the evidence that suitability depends on the particular circumstances. I accept that Mr Symes did not adopt a position that allowed him to view Ms Bedford exiting the AV and that had he done so, he would have noted that the door had failed to close when Ms Bedford pushed it. I also accept that regardless of the lack of definition of “suitable separation” Mr Symes was not a sufficient distance from Ms Bedford to properly guard her when she was carrying a consignment, particularly in circumstances where Mr Symes could see that the outer door of the AV was open.
[81] However, it was relevant to the guarding position that Mr Symes adopted that Ms Bedford was not carrying any valuables on her person when she alighted from the vehicle. They were simply entering the client’s premises to collect a consignment. There is no reference in the Handbook to a guarding position being relevant to protecting a firearm as well as a consignment, and if this is a factor of such significance that failure to adopt what is considered to be a suitable position when a consignment is not being carried can lead to events which could result in dismissal, then it should be clearly stated in the Handbook or in refresher training. There was also no evidence that this consideration had been conveyed to AVOs during training much less that the training dealt with what were considered to be appropriate distances between guards or for standing off while performing guarding duties.
[82] It is also relevant that there is evidence that occurrences where outer doors on vehicles do not close properly are not uncommon. The evidence of this in the present proceedings includes that there is a vacuum created in the man trap when the inner door closes which hinders the closing of the outer door. In the circumstances which applied on 1 March 2018, the strap preventing the outer door from opening to the maximum extent had been identified as an issue prior to that date, to the extent that when the door was being tested while Mr Symes and Ms Bedford were on their way back to the Depot, Mr Kesting asked them whether the strap was impeding the door.
[83] The CCTV footage establishes that there were problems closing the outer door when Ms Bedford entered the AV after placing the consignment in the transfer safe and that the inner and outer doors continued to malfunction when they were tested on the way back to the Depot. The CCTV footage also indicated that the outer door failed to latch when it was slammed but worked when it was closed slowly. Mr Symes and Ms Bedford both gave evidence to the effect that Ms Bedford closed the door in the usual manner when they first exited the AV and that it made a sound familiar to them which they believed indicated it had closed. The problems with the closing of the outer door only emerged after they returned to the vehicle with the consignment. If there is a real potential for an outer door to fail to close, the Handbook or refresher training should identify this matter and make clear that a guarding position when a Crew Leader exits a vehicle is also intended to ascertain that the vehicle is secured by virtue of the outer door being shut before the AVOs approach the client’s premises.
[84] Further, it is relevant that there had been no refresher training for Mr Symes or Ms Bedford since 2014. The matters I have identified above are good examples of subject matter that could be addressed in refresher training as case studies about the importance of a guarding position for purposes other than specifically guarding a colleague who is carrying a consignment. In all of the circumstances I have concluded that the failure on the part of Mr Symes to adopt a guarding position enabling him to ascertain whether the rear door of the AV closed when Ms Bedford alighted, and to maintain a position to protect both himself and Ms Bedford while they approached the client’s premises was at best careless and at worst negligent, rather than misconduct of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response.
[85] The failure of Mr Symes to maintain separation with Ms Bedford on return to the vehicle was also a case of negligence and Mr Symes was not two metres from Ms Bedford as he stated. However, in circumstances where the doors of the AV had malfunctioned earlier and Mr Lorensini had not seen fit to determine that this was a security breach, Mr Symes’ negligence is mitigated so that it was not a valid reason for dismissal. It is understandable in light of the previous malfunction of the doors that Mr Symes wanted to get into the AV and get it back to the Depot as he believed (with some justification) should have occurred when the door issues were first reported. In relation to Mr Symes moving the AV from the client’s premises, given Ms Bedford’s evidence in her case, which I accepted 42, that she did not understand that Mr Morris gave a direction not to move the AV, it was also not inappropriate for Mr Symes to commence driving the AV back to the Depot.
[86] I also do not consider that the fact that Mr Symes approached the vehicle when the outer door was open to be misconduct of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response. The Handbook does not cover situations where the outer door of an AV is open and the other alarm systems are not activated. The Manual clearly indicates that the process of retreating to the client’s premises with any consignment is to be implemented when the alarms are activated. The Handbook is silent in relation to the circumstances that confronted Mr Symes and Ms Bedford on 1 March 2018. I do not accept that their failure to follow a procedure that did not apply in the circumstances they were facing is a valid reason for dismissal.
[87] It may well have been prudent for Mr Symes and Ms Bedford to retreat to the client’s premises and to take the consignment with them. I accept that even if the vehicle was not breached a person intent on stealing money may have taken advantage of the open door to hide in the man trap or to attempt to access the inner door. I also accept that Mr Symes and Ms Bedford should have considered the possibility (given the malfunction they had encountered at the premises of the previous client) that both doors of the AV may have been open and an intruder may have been hiding inside the AV.
[88] However in circumstances where the process for a breached vehicle did not apply and where they had encountered issues with the doors of the AV malfunctioning at the premises of the previous client, there was some basis for them to have considered that this was just another malfunction. While their failure to consider that there were more serious possibilities was careless, it was not a failure that provided a valid reason for Mr Symes’ dismissal.
[89] In reaching this conclusion, I have also had regard to the fact that the CCTV footage evidences that Mr Symes and Ms Bedford took some precautions before placing the consignment into the transfer safe. Mr Symes looked into the man trap area through the outer door and nodded to Ms Bedford to indicate to her that it was safe to put the consignment into the transfer safe before she did so. For reasons previously stated, a similar malfunction of the doors was not treated as a serious or even potentially serious breach by Mr Lorensini when Ms Bedford earlier reported it and it is unsurprising that Mr Symes viewed the open outer door in the same way and took the action that he did in approaching the vehicle and entering it.
[90] Mr Symes was also negligent in not removing the consignment from the transfer safe. Mr Symes knew at the relevant time that Ms Bedford had placed the money in the transfer safe and watched Ms Beford do this. Mr Symes also knew that Ms Bedford was outside the AV speaking on the phone to a manager at the Depot in relation to a further malfunction of the vehicle. Mr Symes does not appear to have done anything other than sit in the vehicle while Ms Bedford spoke to various managers about the issues with the doors and there is no good reason why he did not clear the transfer safe particularly given that there is no evidence about what work related activity Mr Symes was undertaking at the time.
[91] However there were some mitigating circumstances whereby Mr Symes was also concerned about the malfunctioning doors on the AV and waiting for instructions from Ms Bedford about returning to the Depot, which might have explained why Mr Symes was distracted. Mr Miller did not consider any evidence about the doors malfunctioning or receive a report on this matter before deciding to dismiss Mr Symes. This is despite the fact that Mr Miller told Mr Symes during interviews about the events of 1 March 2018 that he would speak to Mr Kesting about the door malfunction.
[92] This issue and its effect on Mr Symes and Ms Bedford and their conduct on 1 March 2018 was not given appropriate weight in Mr Miller’s consideration of whether Mr Symes should be dismissed. Clearly the malfunctioning doors were considered by Mr Kesting to be a significant security breach given that Mr Kesting grounded the vehicle when he became involved. Mr Kesting should have been involved at an earlier point, and Mr Lorensini’s failure to advise Mr Kesting of the report made by Ms Bedford when the vehicle first malfunctioned also contributed to the situation which later unfolded. Given the serious security implications of the malfunction and his knowledge that the same issue with that vehicle had occurred in the previous week, Mr Lorensini should have caused the vehicle to be tested under the supervision of Mr Kesting when the first malfunction on 1 March 2018 was reported to him by Ms Bedford. Mr Symes and Ms Bedford can hardly be blamed for not viewing the door malfunction as a potential risk to their safety when they reported the malfunction immediately and were encouraged if not directed by Mr Lorensini to continue the run notwithstanding Mr Lorensini’s knowledge – which he imparted to Ms Bedford – that the same issue had occurred with that vehicle in the previous week. In all of the circumstances I do not accept that dismissing Mr Symes was a sound, defensible or well-founded response to his negligence in failing to clear the transfer safe while at the client’s premises.
[93] In relation to the failure of Mr Symes to clear the transfer safe when he was unloading the AV at the Depot, I accept that this was also negligence on his part. As an AVO Mr Symes was responsible for helping to clear the AV and should have checked the transfer safe. However, it is also the case that Ms Bedford did not recall that the consignment was in the transfer safe and that it was overlooked by the Despatch Clerk when he looked into the transfer safe. Further, I am of the view that it is more probable than not that the fact that the Despatch Clerk circled the consignment as having been received, and thereby failed to alert Mr Symes or Ms Bedford to the fact that it was missing, contributed significantly to their failure to clear the consignment out of the transfer safe when they were unloading the vehicle. It is likely that had the Despatch Clerk correctly recorded that the consignment had not been removed from the AV and alerted Mr Symes or Ms Bedford to this fact at the time, they would have recalled that it was in the transfer safe. Furthermore I accept that the unloading of the AV on that night was complicated by the fact that the run had been stopped half way and there were uncompleted jobs which had to be separated from the completed jobs.
[94] The failure to account for the consignment once the AV returned to the Depot was equally a failure of the Despatch Clerk. The Despatch Clerk should have had either a completed receipt which had not been given to the client for the consignment or the consignment itself, before marking the load sheet. The Despatch Clerk had neither and the error occurred because he marked the consignment as having been received without questioning the absence of the consignment or the receipt. I do not accept that the majority of the blame for this error can be laid at the feet of Mr Symes and Ms Bedford. I am also of the view that insufficient weight was placed on the fact that the global count did not identify that the consignment was missing and that it was accounted for notwithstanding the lack of a receipt or the consignment itself. There was a further error when the receipt was overlooked or misplaced and the consignment was treated as a missed consignment that had not been collected from the client. There was also a significant delay in Armaguard even noticing that the consignment was missing and this was due to errors on the part of the Despatch Clerk and staff undertaking the handling of the receipt for the consignment and the global count for 1 March 2018. That delay also contributed significantly to the loss of the consignment. It was also the case that the Company had no procedure for checking an AV before it was sent out for repairs. The fact that such a procedure has now been implemented, is telling.
[95] On balance, a series of errors which ensued after the money was left in the transfer safe by Mr Symes and Ms Bedford contributed significantly to the money being stolen. If service and professionalism was lacking in this unfortunate series of events, it was not only due to the conduct of Mr Symes and Ms Bedford and at best they played an equal part in the series of events when considered against the parts played by other managers and employees of Armaguard and the systems failures which occurred.
[96] There is no evidence of actual damage to the reputation of Armaguard although I accept that this could have occurred. There is evidence that Armaguard’s relationship with the client in question was already in difficulty with respect to matters not involving Mr Symes or Ms Bedford and that the latest incident was one in a series, albeit the most significant incident. The entire blame for damage to the relationship with the particular client should not be visited on Mr Symes and Ms Bedford. This is particularly so when the part played by them is considered in the overall chain of events which resulted in the consignment going missing and subsequently being stolen. There were many fingers in the pie and Mr Symes’ part should not be weighed more heavily than those of other employees of Armaguard.
[97] Mr Poole’s evidence indicates that he formed a view that Mr Symes had been not been truthful in his responses to questions at the first interview with Mr Symes conducted on 3 April 2018, on the basis that his account of events did not align with the CCTV footage. Mr Poole formed this view after viewing CCTV footage and before he attended the second meeting with Mr Symes on 6 April 2018. Mr Miller met with Mr Poole before the final meeting with Mr Symes on 13 April 2018 and states that at this meeting he received a briefing from Mr Poole about what he had learned at the earlier meetings.
[98] It is not apparent from Mr Miller’s evidence as to whether he also formed a view that Mr Symes had not been truthful in his account of events on 1 March 2018 at the earlier meetings or that this view was relevant to the reasons for his decision to dismiss Mr Symes. On the basis that Mr Poole raised this matter in his evidence, I have considered it as I think it probable that Mr Miller held a similar view or that view was relayed to Mr Miller by Mr Poole.
[99] I do not accept that Mr Symes was dishonest in the interviews with the Company after the events had occurred and that this was a valid reason for dismissing Mr Symes. By the time Mr Symes was questioned about the missing consignment, at least 34 days had elapsed. The Company had known that the consignment was missing well before anyone discussed the matter with Mr Symes. The Company had access to the video footage at all relevant times and knew or should reasonably have known that Mr Symes and Ms Bedford had left the consignment in the transfer safe. Mr Poole knew that this was the case before the meeting of 6 February 2018 and I am satisfied that he did not raise it that meeting.
[100] Mr Symes was not shown the footage at the point he was questioned on 3 and 6 April 2018 and it is probable that the fact that Mr Symes recounted what he would have done with the consignment in normal circumstances, rather than what actually happened in the context of the events of 1 March 2018, was due to a failure to remember the events which occurred over 30 days earlier rather than dishonesty.
[101] I have also considered the reasons for dismissal of Mr Symes set out in the Respondent’s written submissions and oral submissions at the hearing of this application. In summary those submissions are that Mr Symes failed to follow vital security procedures which led to the loss of client money, serious breaches of security protocol creating a risk to safety and impacting a high value client of Armaguard. For reasons set out above I do not accept that the security breaches listed in the written submissions constituted valid reasons for the termination of Mr Symes’ employment. I am also of the view that when all of Mr Symes’ conduct on 1 March 2018, and in the investigation period which followed is considered, the conduct was not of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response to the conduct.
[102] In reaching this conclusion I have had regard to Mr Symes’ persistent refusal to accept responsibility for his conduct and his insistence that Ms Bedford was at fault at every possible point. Mr Symes played an equal part in the errors to that of Ms Bedford and it is arguable that his conduct was more reprehensible given his seniority. It is also the case that notwithstanding that Ms Bedford was acting as Crew Leader on 1 March 2018 Mr Symes had no compunctions about expressing views including that they should take the AV back to the Depot before Mr Kesting had authorised that it be moved. Mr Symes’ attempts to portray himself as being under the direction of Ms Bedford and in a subordinate role so that he did not feel that he should impose his views were somewhat disingenuous. Mr Symes only departed from these assertions when pressed under cross-examination to the point that he had no other choice. However, while Mr Symes’ attitude in this regard did him no credit it remains the case that the reasons for his dismissal were not valid.
Whether Mr Symes was notified of the reason for his dismissal – s. 387(b)
[103] Section 387(b) of the Act is included is part of a statutory framework by which the Commission is required to consider whether the dismissal of an employee is attended with substantive and procedural fairness. An important aspect of procedural fairness is that the reason for an employee’s dismissal is notified to the employee before the decision to dismiss the employee is taken. The plain meaning of the term “notified” is that information is provided in a formal manner. Notification of the reason for dismissal informs the subsequent matters required to be considered by the Commission in ss. 387(c) and (d) of the Act. As a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty Ltd:43
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify the employee and give them an opportunity to respond after the decision to terminate their employment.”
[104] Sections 170CG(3)(b) and (c) of the former Workplace Relations Act were in similar terms to the present sections 387(c) and (d) of the present Act and respectively provided that for the purposes of arbitrating an application alleging that a dismissal was unfair the Commission must have regard to whether the employee was notified of a reason for termination of employment related to capacity or conduct and whether the employee was given an opportunity to respond to any such reason. As the Full Bench held in Crozier, ss. 170CG(3)(b) and (c) of the former Act were clearly related to the concept of procedural fairness.44 The same can be said in relation to sections 387(c) and (d) of the current Act.
[105] In the present case the reasons for Mr Symes’ dismissal were provided to him at a meeting on 13 April 2018 when a letter setting out those reasons was read aloud to him by Miller and handed to Mr Symes. At that point the decision to dismiss Mr Symes had already been made. It is also the case that decisions to the effect that Mr Symes had not provided information to the Company sufficient to explain or mitigate his conduct had already been made in circumstances where Mr Symes was not informed that his job was in jeopardy.
[106] Further the decision to dismiss Mr Symes was based on matters including Mr Symes’ truthfulness, and allegations in this regard were not put to him and he was not given an opportunity to respond. Effectively the reasons for dismissal were provided to Mr Symes by the reading aloud of the termination letter. In all of the circumstances that letter was not a notification of the reasons for dismissal as contemplated by s. 387(b) so that Mr Symes could have a meaningful opportunity to respond, as provided in s. 387(cd) of the Act. Accordingly, I am not satisfied that Mr Symes was notified of the reason for his dismissal.
Whether Mr Symes was given an opportunity to respond to reasons for his dismissal related to his capacity or conduct – s. 387(c)
[107] Mr Symes was dismissed on the basis of his conduct on 1 March 2018 and during the investigation following the events of that date. The consideration of whether an employee was given an opportunity to respond to reasons for dismissal based on conduct includes whether the employee was aware of the allegations so as to be able to respond to them and whether the employee was given an opportunity to defend the allegations and attempt to persuade the employer not to terminate his or her employment.
[108] An employee facing dismissal on the grounds of alleged misconduct should be made aware that the conduct upon which the allegations are based, could, if established, result in disciplinary action including termination of his or her employment. I do not accept that an employee can properly respond to allegations absent information about the possible consequences of the response. In the present case, I do not accept that Mr Symes was given an opportunity to respond to the reasons for his dismissal related to his conduct.
[109] Three meetings were held with Mr Symes for the purpose of seeking information from him about the events of 1 March 2018. It is common ground that the meetings were about a serious issue – the loss of a significant amount of money. It is also common ground that prior to the meeting on 13 April 2018, Mr Symes was stood down from operational duties and provided with non-operational work such that he should have known that there were issues with his conduct. However, Mr Symes was not told that the meetings were disciplinary in nature and that his employment was in jeopardy as a result of views which had been or were in the process of being formed about his part in the sequence of events which resulted in the consignment going missing and about his honesty. I accept that at the meetings Mr Symes was asked a number of questions about his recollection of events. I also accept that Mr Symes was asked during the meetings preceding his dismissal about his guarding position and entering the AV when the rear door was open. However there is no evidence that Mr Symes was asked to explain why he left the consignment in the transfer safe, or that he was even informed that this had occurred prior to the meeting on 13 April 2018 at which his employment was terminated. The only reference to the transfer safe is in the discussions on 13 April 2018 when the notes indicate that it was put to Mr Symes that he was in the AV when Ms Bedford was at the transfer safe.
[110] In the meeting on 3 April 2018 Mr Symes was asked whether he saw Ms Bedford use the transfer safe and said that Ms Bedford got into the truck first and that he did not see her use the transfer safe. At this point Mr Symes had not seen the CCTV footage. There is no indication in the notes of the second meeting on 6 April 2018 that Mr Symes was asked about leaving the money in the transfer safe. This was a serious allegation and the matter said to have contributed most significantly to the loss of the consignment. It is of particular concern that by the time he attended the meeting of 6 April 2018, Mr Poole must have known that this is exactly what occurred. Mr Poole must also have known that the outer door of the AV had failed to latch close when Ms Bedford swung it and that he failed to see this because he was not looking in the direction of the AV. These matters were not put to Mr Symes in the meeting prior to his dismissal or in any of the earlier meetings. This is particularly significant given that the meetings were for the purpose of allowing Mr Symes to provide mitigating reasons for his conduct on 1 March 2018. I do not accept that Mr Symes could have properly responded to allegations about his conduct (much less provide information to mitigate that conduct) when he did not know that his employment was in jeopardy and had not been provided with information about the conduct in sufficient detail to enable a response to be made, or mitigating factors to be identified.
[111] It is also apparent that prior to the meeting on 6 April 2018 Mr Poole (and probably Mr Miller) had formed a view that Mr Symes had been dishonest at the first meeting on 3 April 2018 in relation to his responses to questions about his conduct when compared to the contents of the CCTV footage. While I accept that there may have been good reason for not showing the CCTV footage to Mr Symes before 13 April 2018, I do not accept that the allegations about his conduct were put to him at that meeting in light of what the footage showed. The allegations were complex and involved a number of alleged failures on the part of Mr Symes. Those allegations could and should have been clearly articulated so that Mr Symes had an opportunity to respond to them. Mr Symes should also have been given more time between viewing the footage and responding particularly in circumstances where the view that he had been dishonest in his earlier answers had been formed. The significant allegation of dishonesty was not put to Mr Symes at all, much less the basis for Mr Poole and Mr Miller forming that view. There was also a failure on the part of Mr Miller to consider the fact that there had been a significant time delay between the events of 1 March 2018 and the discussions with Mr Symes so that allowances needed to be made for the fact that he may not recollect a particular collection among the many that he had undertaken in the period since 1 March 2018.
[112] I am also of the view that in the circumstances of this case, a proper opportunity to respond may have changed the outcome given that Mr Miller was not aware of a number of significant matters – including the earlier malfunction of the AV doors – when he made the decision to dismiss Mr Symes. It is not to the point that in the hearing of Mr Symes’ unfair dismissal application, Mr Miller states that the malfunctioning doors would not have changed his view. Mr Miller should have considered that matter before he made the decision to dismiss Mr Symes, and he did not because of the failure to give Mr Symes an opportunity to respond to the allegations in a manner that was fair and reasonable in the circumstances that pertained, including that there were three meetings held before the decision to dismiss Mr Symes was made, at which significant matters which led to the decision to dismiss Mr Symes were not put to him. In all of the circumstances Mr Symes was not given an opportunity to respond to all of the reasons for his dismissal based on his conduct.
Whether there was an unreasonable refusal to agree to a request from Mr Symes for a support person – s. 387(d)
[113] Mr Symes requested and was granted permission to have a support person present at all meetings and this consideration is not relevant in the present case. I do not consider that Armaguard’s insistence that a support person is not to act in the role of an advocate or representative at a meeting in relation to misconduct allegations is an unreasonable refusal to allow a support person to participate in such a meeting.
Whether Mr Symes was warned about unsatisfactory performance – s. 387(e)
[114] Mr Symes was dismissed for reasons of conduct rather than unsatisfactory performance and this consideration is not relevant in the present case.
Whether size of Armaguard’s undertaking impacted on procedures followed in effecting Mr Symes’ dismissal – s. 387(f)
[115] Armaguard is a large employer and I have given consideration to this matter and its impact on the procedures followed in effecting the dismissal of Mr Symes. The mechanics or form of the procedures followed was appropriate. A number of meetings were held with Mr Symes at which relevant matters could have been discussed. Mr Symes was shown CCTV footage on which the Company was relying as a basis for the allegations albeit not until the meeting where he was dismissed. Mr Symes had support persons present at each meeting. He was asked questions about his recollection of events and given an opportunity to answer those questions. Mr Symes was also stood aside from operational duties while the investigation of his conduct took place.
[116] The processes followed by Armaguard were as would be expected from a larger employer. However, for reasons set out above, while the form of the process followed by Armaguard in putting the allegations to Mr Symes was appropriate, the substance was not.
Whether presence of dedicated human resource management specialists impacted on the procedures followed in effecting Mr Symes’ dismissal – s. 387(g)
[117] Similarly Armaguard has dedicated human resource management specialists or expertise and this clearly impacted on the procedures followed in effecting Mr Symes’ dismissal. The form of the procedures was appropriate but the substance of what was put to Mr Symes during the procedures was not.
Other relevant matters – s. 387(h)
[118] I consider that there are other matters relevant to the consideration of whether Mr Symes’ dismissal was unfair. Mr Symes had over 17 years’ service with Armaguard. There is no evidence that he had ever been involved in any disciplinary matters prior to the events that led to his dismissal and which are the subject of the present case. Mr Symes was summarily dismissed and states that this has a significant impact on his ability to obtain employment in the security industry, which is the only industry in which he has experience. I am also of the view that alternatives to dismissal were not considered. Armaguard could have sanctioned Mr Symes for his part in the events of 1 March 2018 by (for example) removing his Crew Leader role and requiring him to attend training in relation to his duties as an AVO. The Company could also have given Mr Symes a final warning instead of dismissing him.
Conclusion in relation to unfair dismissal
[119] After weighing the considerations in s. 387, I have concluded that Mr Symes’ dismissal was unfair on the grounds that it was harsh and unreasonable. The dismissal was harsh because the conduct engaged in by Mr Symes while deserving of censure and disciplinary action, was not of sufficient gravity to warrant dismissal, much less summary dismissal. The dismissal was unreasonable because insufficient consideration was given to relevant mitigating circumstances, with the result that inferences were drawn about Mr Symes’ culpability for the consignment going missing and being stolen, in circumstances where the information which was before Armaguard did not support those inferences. In particular insufficient weight was given to other factors which had a greater or at least equal impact on the consignment going missing and being stolen - namely:
• The malfunctioning doors of the AV;
• The failure of Mr Lorensini to report the matter to Mr Kesting when Ms Bedford first reported it to him, in circumstances where the malfunction to the doors of the AV was the second in the space of a week;
• The lack of detail in the Handbook in relation to the suitable guarding position and the lack of refresher training in this regard;
• The fact that the Handbook did not cover a situation where the door of an AV is open and the alarms indicating a breach are not activated;
• The fact that it is not uncommon for outer doors of AVs to fail to latch and that there is a technique (holding the door while pushing it instead of swinging it) to ensure that the latch engages which Mr Symes and Ms Bedford were not aware of until the incident on 1 March 2018;
• The fact that the Despatch Clerk made two errors – failing to see the consignment in the transfer safe and circling the loading docket to indicate that it was received when this was not the case;
• The failure to account for the consignment in the global count;
• The fact that the receipt for the missing consignment was mislaid – or as Mr Miller described it “did not make its way across the cash floor” – resulting in an assumption that the consignment had not been collected; and
• The failure to have a procedure to search AVs before they are sent out for repairs and of Mr Lorensini to check the transfer safe before the vehicle was sent out for repairs.
REMEDY
[120] Given that I have found that Mr Symes’ dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Mr Symes was protected from unfair dismissal and that he has been unfairly dismissed. I am also of the view that Mr Symes should have a remedy for his unfair dismissal. Mr Symes seeks reinstatement.
[121] Reinstatement is the primary remedy for unfair dismissal. Compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. In the present case I have found that Mr Symes was disproportionately blamed for the events which led to the consignment of cash going missing and being stolen, and that Armaguard did not have a reasonable basis for this conclusion. That conclusion supports an order for reinstatement. There is also evidence from Mr Miller to the effect that he has lost trust and confidence in Mr Symes and his ability to carry out the duties of an AVO. While this would militate against an order for reinstatement, I am of the view that Mr Miller’s conclusion in this regard was not made in the context of a proper consideration of all relevant information, in particular, the malfunctioning doors of the AV. Mr Miller was also not aware that the Despatch Clerk had circled the missing consignment as having been removed from the AV when it was not. Further, Mr Miller did not have regard to the contribution to the situation made by the failings on the part of Mr Lorensini and the error whereby the consignment was included in the global count on 1 March 2018, when it was not received, and the further error caused by the missing receipt.
[122] In all of those circumstances, I am of the view that Mr Miller’s loss of trust and confidence in Mr Symes is not soundly based and that it should not be an impediment to reinstatement. I also note that a number of Mr Symes’ colleagues gave evidence on his behalf in relation to acting as support persons for him in meetings about the incident that led to his dismissal. Those witnesses were not cross-examined as to whether they had lost confidence in Mr Symes’ ability to carry out the role of an AVO or reluctance to work with him. There is no evidence to that effect – other than an assertion from Mr Miller. I do not consider that this is an impediment to reinstatement. I have also considered Mr Symes’ attitude in the hearing including his persistent refusal to accept responsibility for his part in the events leading to the loss of the consignment and his attempts to saddle Ms Bedford with the blame. Notwithstanding these matters, Mr Symes did retreat from these positions under cross-examination and accordingly I do not see this as an impediment to reinstatement given Mr Symes ultimately accepted that his conduct fell short of what was required. There is no other reason on the evidence before me, why Mr Symes cannot be reinstated. Accordingly I am satisfied that an order should be made requiring that Armaguard reinstate Mr Symes by appointing him to the position in which he was employed immediately before the dismissal.
[123] I am also satisfied that it is appropriate for an order in respect of continuity of Mr Symes’ employment and his period of continuous service to be made. Such an order is appropriate on the basis that Mr Symes has been unfairly dismissed after 17 years of service. Further, I am satisfied that it is appropriate for an order to restore lost pay to be made. Mr Symes tendered a payslip for the period from 23 to 29 April 2018 showing an hourly rate of $32.3214 and indicating that his earnings for the year to date were an average of $2,041.54 per week or $53,080.04. Mr Miller tendered Group Certificates issued to Mr Symes indicating that Mr Symes’ gross payments for the financial year 2016 – 2017 were $86,815 and that for the period 1 July 2017 to 13 April 2018 (the date Mr Symes was dismissed) Mr Symes received gross payments of $82,675.
[124] Mr Symes has a part-time weekend job from which he earns $12,000 per annum and has continued in that employment since his dismissal. I have taken that amount into account in determining the amount of lost remuneration to be awarded to Mr Symes but have determined that I will not deduct the earnings form the part-time position from that remuneration for the following reasons. Mr Symes held that part-time position prior to his dismissal and I am of the view that the amount earned from that position should not be deducted from compensation for lost earnings as Mr Symes would have continued to earn his salary from Armaguard and the additional earnings from his other employment had he not been dismissed unfairly. Accordingly, the full amount of his salary with Armaguard is the amount of his loss for the purposes of s. 391(3).
[125] If Mr Symes had increased his earnings from that additional position by working more hours as a result of his dismissal from his position with Armaguard, it may be appropriate to deduct that additional amount. However, in a further affidavit filed by Mr Symes he deposed to not having increased his income from his second job during the period following his dismissal by Armaguard and that he has had no other income besides loans from family members in this period. Armaguard was offered an opportunity to be heard in relation to that affidavit and to indicate whether it wished to cross-examine Mr Symes on this point, and declined to do so.
[126] I also consider it appropriate that Mr Symes should not receive the full amount of his lost remuneration. The Commission has discretion to order the payment of “an amount” for lost remuneration and such an order may be for the full amount or part of it. Notwithstanding my finding that he was unfairly dismissed, Mr Symes was negligent and careless in the performance of his duties and contributed to the loss of and subsequent theft of a significant sum of money with a real potential to cause reputational and financial damage to Armaguard. Mr Symes had a lengthy period of employment and was qualified as a Crew Leader and frankly should have known better. Mr Symes had significantly more experience than his colleague who was undertaking the role of Crew Leader on 1 March 2018 and his attempts to portray himself as subordinate to her were unimpressive.
[127] The amount by which I intend to reduce the order for lost remuneration is an amount of 60%. That reduction reflects the seriousness of Mr Symes’ conduct and its implications and his level of culpability in comparison with his colleague Ms Bedford. An order will issue with this Decision requiring that Armaguard reinstate Mr Symes with effect from 14 days from the date of this Decision and that the continuity of Mr Symes’ employment and continuous service with Armaguard be maintained. I also intend to Order that Armaguard pay to Mr Symes an amount for lost wages and superannuation contributions for the period between 13 April 2018 when his dismissal took effect, and 21 December 2018, when the Order for reinstatement will take effect.
[128] Based on Mr Symes’ evidence and the Group Certificates tendered by Mr Miller, Mr Symes would have earned an amount of $72,592.56 for the period from 13 April to 21 December 2018. As previously indicated I have determined to reduce that amount by 60% on account of Mr Symes’ conduct resulting in an amount of $29,037.02. I therefore award an amount for lost remuneration to Mr Symes for his unfair dismissal in the amount of $29,037.02 plus an amount of superannuation of $2,758.51. I have also had regard to the fact that the sum for lost remuneration will be taxed according to law. An Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr L Norris of the Transport Workers’ Union on behalf of the Applicants.
Mr M Rawlings of Counsel on behalf of the Respondent.
Hearing details:
Brisbane.
31 July, 1 August and 2 August.
2018.
Final written submissions:
19 July 2018.
Printed by authority of the Commonwealth Government Printer
<PR702520>
1 Exhibit R1.
2 Exhibit A2 Statement of David Grant McSween.
3 Exhibit A3 Statement of Stephen Ray Hurndell.
4 Exhibit A4 Statement of Russell Michael Humpreys.
5 Exhibit A5 Statement of Nathan Iago Smythe.
6 Exhibit 11 Statement of Paul Kenneth Lorensini.
7 Exhibit R13 Statement of Michael George Morris.
8 Exhibit R16 Statement of Brian Poole.
9 Exhibit R17 Statement of Chris Thomas Miller.
10 [2018] FWC 7574 at [121].
11 Transcript PN3085.
12 Transcript PN2646.
13 Transcript PN2384.
14 Transcript PN3406.
15 Transcript PN3676-3677.
16 Ibid Annexure 4.
17 Ibid Annexure 5.
18 Ibid Annexure 6.
19 Transcript PN3702.
20 Exhibit R18 paragraph 21.
21 Transcript PN3465-3466.
22 Transcript PN3476, PN3479 and PN3489.
23 Transcript PN3550-3553.
24 Transcript PN406.
25 Transcript PN429-434.
26 Transcript PN560-564.
27 Transcript PN529.
28 Transcript PN532-541.
29 Transcript PN2944 – 2948.
30 Transcript PN2963 – there is an obvious error in the transcript which refers to “two cars” instead of “two guards”.
31 Transcript PN2997.
32 Transcript PN3346.
33 Transcript PN3406 – 3407.
34 Transcript PN3115.
35 Transcript PN3119, PN3129.
36 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
37 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
38 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
39 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
40 Bista v Glad Group Pty Ltd [2016] FWC 3009.
41 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
42 [2018] FWC 7574 at [137]
43 (2000) 98 IR 151 at [73].
44 Ibid at 151 para [70].
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