Mr Emmanuel Azzopardi v Australian Concert and Entertainment Security Pty Ltd T/A ACES Security

[2014] FWC 5785

[2014] FWC 5785

The attached documentreplaces the document previously issued with the above code on 11 September 2014.

Fixing paragraph numbering

Wendy Burgess

Associate to Senior Deputy President Hamberger

Dated 12 September 2014

[2014] FWC 5785

FAIR WORK COMMISSION

DECISION

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

Mr Emmanuel Azzopardi
v
Australian Concert & Entertainment Security Pty Ltd T/A ACES Security
(U2014/3583)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 11 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 2 January 2014, Mr Emmanuel Azzopardi (the Applicant) applied for an unfair dismissal remedy in relation to the termination of his employment on 12 December 2013 by Australian Concert and Entertainment Security Pty Ltd T/A ACES Security (the respondent). The matter was referred to me for determination and was heard on 4 August 2014.

[2] The applicant did not attend the hearing on 4 August 2014. He did not seek an adjournment from the Fair Work Commission (the Commission), however he did provide to the Commission a medical certificate stating his wife was sick. The certificate was sent by facsimile on 4 August at 7.56am with a handwritten note signed by Mr Azzopardi stating “I will not be able to attend the hearings on the 4th and 5th August 2014.” The respondent was represented at the hearing by Mr S Kennedy of Turks Legal.

[3] The applicant filed written submissions in the Commission on 5 May 2014. The respondent filed written submissions in the Commission on 23 May 2014

[4] The following witness statements were submitted into evidence on behalf of the respondent:

● Ms Karen Hewitt (Senior Human Resource Manager);
● Mr Travis Semmens (Managing Director);
● Mr Gary Price (Security Ranger Manager); and
● Mr Paul Sheehan (Services Manager).

[5] Following the hearing transcript was provided to the applicant and he was given an opportunity to make any further submissions on what was said during the hearing by close of business Friday 15 August. The applicant subsequently filed these submissions on 16 August 2014.

Background

[6] On the day his employment was terminated, Mr Azzopardi was sent a letter signed by Ms Hewitt, (the respondent’s Senior Human Resource Manager). The letter included the following:

‘Emmanuel, in relation to current events whereby ACES found out it was your intent to obtain further employment with another Security Company; the decision has been made to release you from your employment with ACES.

As you are aware this is the second time we have had to discuss you obtaining secondary employment without authorisation. This is a breach of your terms and conditions of employment and has resulted in a loss of faith in your ability to move forward with ACES as in the meeting you clearly did not understand or justify why you failed to comply with the terms and conditions of your contract.

Upon return of all uniforms and equipment to Gary Price at SOPA, all outstanding monies will be paid to including time in lieu for two weeks.’

The Evidence

[7] The applicant did not appear at the hearing. The respondents’ witnesses on the other hand made themselves available for cross examination. Accordingly I prefer the evidence of the respondent’s witnesses over the submissions made by the applicant on factual matters.

[8] Mr Azzopardi commenced working with the respondent as a casual Security Ranger at the Sydney Olympic Park Authority site on 20 July 2012. On 31 December 2012 1 he was employed as a permanent full time employee (SOPA Ranger). At the time of his dismissal he reported to Mr G Price, Security Ranger Manager. His contract of employment stipulated that he worked a 38 hour week (averaged over 26 weeks) his work was covered by the ACES (Permanent Employees) Enterprise Agreement 2007 (ACES enterprise agreement).

[9] The ACES enterprise agreement provides:

‘19.9 Alternative Employment: If you are employed on a full time or part time basis, you are not permitted to accept work external to ACES where such work may adversely impact on your working hours, commitments or accountabilities associated with you (sic) role with ACES, or where such work represents a conflict of interest with your role with ACES.

19.9.1 If you are contemplating secondary employment external to ACES, you are required to initially discuss your intention with your immediate Supervisor and ACES Human Resources Manager prior to accepting such a position. ACES shall not unreasonably refuse a request.’

[10] The applicant submits that he has not worked with MSS Security (MSS) or any employer since he has been employed with ACES on a full time basis, and added that he emailed ACES on 10 July 2013 stating “I will not work elsewhere that will pose a conflict of interest to the company and I will seek authorisation to work for another company in future”.

[11] The applicant also submits that he was not advised of the proposed dismissal and not given any opportunity to respond to the dismissal. He was only advised to attend a meeting with ACES on the 11 December 2012.

[12] The respondent submitted that the applicant was dismissed:

● for repeated breaches of the respondent’s policy and the ACES enterprise agreement; and
● a breakdown in the employment relationship as a result of a loss of trust and confidence in the applicant.

[13] Mr Kennedy referred to Ms K Hewitt’s written statement 2 of 23 May 2014 where she confirmed the induction process including providing the applicant with various policies, procedures and a copy of the enterprise agreement that applied to the workplace. In particular in clause 5 of the her statement she quotes clause 19.9 Alternative Employment of the enterprise agreement which points out that employees of ACES are required to obtain permission to work at other jobs.3

[14] Ms Hewitt’s evidence is that she telephoned the applicant on 10 July 2013 because she had become aware that he was working with MSS and that he was not entitled to do so. ‘I told the applicant that he could not be employed with both the respondent full-time and concurrently with MSS Security in any capacity.’ Following that discussion the applicant emailed Ms Hewitt and confirmed that he would remain employed fulltime with ACES and would not work elsewhere that would pose a conflict of interest to the company and would seek authorization to work for another company in the future.

[15] It was Ms Hewitt’s evidence that on 4 December 2013, Mr G Price, Site Ranger Manager was advised that there were personal emails left opened on a computer within the control room of the Sydney Olympic Park Authority (SOPA). When inspected it was found that the applicant had been using the client’s computer to access his personal emails. This included an email to MSS which indicated dates that the applicant was available to work including New Years Eve. Ms Hewitt stated that it is mandatory for staff of ACES to work New Years Eve.

[16] A screen shot of the email was tendered as evidence. 4 It was from the applicant to a Mr Tristan Hollis at MSS Security. It included the following:

‘Dear Tristan,

I hope all is well!

My wife has finished work a few months ago, so I’ll be available to wok more shifts.

If you are stuck on any shifts that is not mentioned, let me know and I’ll elect annual leave with my current employment to cover the shifts (providing there is a little notice).’

[17] The email then indicated 11 days in November and 12 days in December that the applicant said he was free to work day shifts, and 11 days in November and a further 11 days in December that he could work night shifts.

[18] I infer from this that the applicant was working for MSS Security on a regular basis in addition to his full time work for the respondent.

[19] Ms Hewitt telephoned MSS and spoke to an unknown male in Human Resources who confirmed that the applicant was registered with them as a full time employee 5.

[20] Ms Hewitt spoke to the applicant and followed up with an email on 4 December 2013 requiring him to attend a meeting on 6 December 2013. He was advised of the email to Mr Hollis that had been found. He was told he was entitled to bring an independent witness 6.

[21] The applicant by way of email requested that the meeting be rescheduled to 11 December 2013. Ms Hewitt and Mr Sheehan attended for the respondent. 7

[22] According to the notes of the meeting tendered by the respondent, the applicant ‘offered no logical explanation to sending an email to MSS even though it was only a few months ago we had the same discussion and he was verbally warned.

‘Showing no remorse, comes across as not being too pleased about being called in to the office. Coming across as if it wasn’t an issue.

He doesn’t seem to understand WHS concerns or the breach of terms and conditions of employment.’ 8

[23] The applicant was the issued with a written notice of the termination of his employment on 12 December 2013.

Consideration

[24] Section 387 of the Fair Work Act 2009 requires that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

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

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

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

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

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

[25] I am satisfied that the respondent had a valid reason for terminating the applicant’s employment. The applicant was dismissed because he was in clear breach of the terms of the ACES enterprise agreement. The applicant had been told that his concurrent employment with MSS was unacceptable to the respondent on 11 July 2013 when the respondent first became aware of the breach. 9

[26] The applicant was notified of the respondent’s concerns in the email sent to him on 4 December 2013.

[27] The applicant was given an opportunity to respond to ACES concerns at the meeting on the 11 December 2013.

[28] The applicant was not refused the presence of a support person at the meeting.

[29] The applicant had previously been given an initial warning in July 2013 about his continued employment with MSS Security in breach of the enterprise agreement. He could hardly have failed to know that the respondent had grave concerns about his continued secondary employment.

[30] The procedures adopted by the respondent were consistent with its relative size and sophistication.

[31] I am satisfied that the applicant was in clear breach of the enterprise agreement and find that the applicant’s dismissal was not harsh, unjust or unreasonable.

Decision

[32] For the foregoing reasons, the application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr R Kennedy, solicitor for the respondent

Hearing details:

Sydney

2014

4 August

Final written submissions:

16 August, 2014

 1   Exhibit ACES 1, annexure 7

 2   Exhibit ACES 2

 3   Transcript PN58

 4   Exhibit ACES 1, annexure 13

 5   Exhibit ACES2, paragraph 14

 6   ACES 1 annexure 15

 7   ACES1, paragraphs 19-20

 8   Exhibit ACES 1, annexure 19

 9   Transcript PN73 -PN81

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