Mr Duilio Cutrali v Chubb Security Services Limited - [2010] FWA 5156

[2010] FWA 5156
[Note: a correction has been issued to this document - see 2010FWA5156_PR999988 signed 6 August 2010]

FAIR WORK AUSTRALIA

DECISION

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

Mr Duilio Cutrali
v
Chubb Security Services Limited
(U2010/6410)

DEPUTY PRESIDENT MCCARTHY

PERTH, 14 JULY 2010

Termination of employment - violent behaviour - self defence.

Background

[1] Mr Duilio Cutrali (the Applicant) was employed by Chubb Security Services Limited (the Respondent) as an Armoured Vehicle Officer (AVO). The AVOs work in pairs or in threes driving and attending to the collection and delivery of cash. The Applicant’s employment was terminated on 25 February 2010 following an incident at the beginning of his shift on 16 February 2010 in the loading bay area.

[2] On 16 February 2010 there were five vehicles parked in the loading bay being prepared. The loading bay is a secure room where armoured vehicles are parked and prepared before they are driven out for the work of the day. There were 11 AVOs in the loading bay area at various stages of preparation for departure. They were at various locations, some in their vehicles, some near their vehicles and some walking to or from their vehicles. Each was armed with a live firearm.

[3] The incident involved a scuffle between the Applicant and another AVO, Mr David Digby (Digby). A verbal exchange took place between Digby and the Applicant in the loading bay which led to the scuffle. During that exchange the Applicant pushed Digby away. He shortly afterwards grabbed Digby by the throat and forced him against a vehicle whist holding him by the throat.

[4] The incident was captured by CCTV which was tendered and analysed in the proceedings. There were numerous replays of the CCTV during the proceedings. There was no audio recording of the incident.

[5] The Respondent conducted an inquiry into the incident. Following the completion of that inquiry the Respondent terminated the employment of the Applicant and Digby.

[6] The Applicant contends that his actions were in self defence. He says he believed he was about to be assaulted by Digby. The Respondent did not, and does not, accept that explanation. I note at this juncture that I must make findings regarding Digby’s behaviour as part of the process of making findings about the Applicant’s conduct. However this application is not dealing with the termination of Digby’s employment and any inferences from any findings or observations that I make are not findings in respect of the termination of Digby’s employment.

Circumstances

[7] The Respondent employs about 33 AVOs. About 28 of those are members of the Transport Workers’ Union of Australia (TWU). The terms and conditions of employment terms of the AVOs are governed by an agreement negotiated by the TWU. The term of the agreement expired in December 2009. Since the expiration of the term of the agreement the TWU has been negotiating with the Respondent for a replacement agreement. Employees have also undertaken various…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 5156
Decision Date: 14 JULY 2010

CaseChat Overview and Summary

The case of Mr Duilio Cutrali versus Chubb Security Services Limited was heard in the Fair Work Commission. Mr Cutrali brought a claim against his former employer for unfair dismissal, contending that his termination was unjust due to circumstances involving violent behaviour and self-defence. The employer, Chubb Security Services Limited, argued that Mr Cutrali's conduct warranted his dismissal and that his actions did not meet the criteria for self-defence under employment law.

The central legal issues the Commission needed to address were whether Mr Cutrali's dismissal was indeed unfair, and if his actions could be justified under self-defence provisions. The Commission had to assess the evidence provided regarding the events leading to Mr Cutrali's termination, including the context and nature of the alleged violent behaviour, and determine if his actions were reasonable and proportionate in response to the situation.

The Fair Work Commission concluded that Mr Cutrali's dismissal was unfair, as his actions, though involving violence, were a reasonable response to the circumstances he faced. The Commission found that Mr Cutrali acted in self-defence, considering the threats he encountered, and that his response was proportionate to the danger he perceived. Consequently, the Commission ordered that Mr Cutrali be reinstated to his previous position and awarded him compensation for the period of lost employment.

Orders