Mr Leon Bruce Edge v Illawarra Yacht Club
[2012] FWA 5047
•14 JUNE 2012
[2012] FWA 5047 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Leon Bruce Edge
v
Illawarra Yacht Club
(U2011/2682)
VICE PRESIDENT WATSON | SYDNEY, 14 JUNE 2012 |
Application for unfair dismissal remedy -whether dismissal is harsh, unjust or unreasonable - - whether valid reason for dismissal - whether notified of reasons for dismissal -Fair Work Act 2009 ss.387, 394.
[1] This decision, edited from a decision on transcript on 6 June 2012, concerns an application for an unfair dismissal remedy by Mr Leon Edge in relation to his employment with the Illawarra Yacht Club Ltd (the Club). The application is made under s.394 of the Fair Work Act 2009 (the Act). The ultimate question to be determined is whether the termination of Mr Edge by the Club is harsh, unjust or unreasonable.
[2] In determining that question the tribunal is required to take into account a range of factors set out in s.387 of the Act. In this matter I have had regard to the evidence of Ms Maureen Bogolin, Ms Toni Parkes and Ms Lynne Perrow on behalf of the Club and Mr Edge, Mr Wayne Quinn and Ms Megan Pearson on behalf of Mr Edge. I have also had the advantage of viewing the closed-circuit television (CCTV) evidence relied on by the Club which indicates certain conduct of Mr Edge on certain evenings during November and December of 2011.
[3] The termination of Mr Edge was for reasons explained in a letter of termination dated 22 December 2011. The reasons expressed include drinking whilst on duty, no payment for the drinks consumed, ignoring safety procedures and a lack of performance whilst on duty. Significant reliance was placed by the Club on evidence of Mr Edge’s conduct on the CCTV footage which was produced as evidence in this matter.
[4] Having considered the evidence in its totality I am satisfied that the conduct relied on by the Club to terminate Mr Edge did occur. Specifically, there is clear evidence that Mr Edge, as the duty supervisor and in conjunction with other employees, was observed drinking whilst on duty prior to clocking off from his rostered shift. In addition, Mr Edge was required to work further rostered time to execute the duties of his role, which included locking up the premises, ensuring that all staff were escorted off the premises and to their vehicles by the security personnel late at night and being the last to leave the Club with the security personnel. There is evidence that these tasks were yet to be completed. It is clear from the evidence that drinking whilst on duty was in breach of the Club’s policies and rules and therefore Mr Edge’s conduct in that regard constituted a valid reason for termination.
[5] The second ground for termination was non payment for drinks consumed. From the evidence, I find that there was no appropriate record of payment for the drinks and no appropriate circumstances for Mr Edge to authorise the free provision of drinks to staff on the occasions on which it was observed on the CCTV footage.
[6] The third ground for termination was ignoring safety procedures. This matter concerned the practice of Mr Edge and the staff under his supervision failing to escort staff to their vehicles or appropriately off the premises at the end of their shifts following an incident of an attempted robbery at the Club’s premises approximately six months before. After that particular incident, Mr Edge was formally warned of the failure to apply appropriate safety and security care to fellow employees, and all employees were reminded of the security arrangements to be followed, especially at the end of their evening shift. I am satisfied on the evidence that Mr Edge, as the duty supervisor, did not follow the procedures that were established from that memorandum and did not reflect a change in his approach following the warning that was given to him in June 2011.
[7] The fourth ground for termination concerned the lack of performance whilst on duty. This ground appeared to relate to miscellaneous matters including closure of the Club at an earlier time than what could have been expected when there were a number of patrons still on the premises and other miscellaneous matters and procedures.
[8] Mr Edge has indicated in his evidence that he believed that the requirements imposed on him were not clear. He submitted that in some cases the conduct he engaged in was condoned and engaged in by others. In relation to security arrangements, Mr Edge submitted that he did not follow the full extent of escorting staff to their vehicles because staff did not seek or wish such assistance. He took strong objection to the suggestion that his conduct amounted to unsatisfactory performance.
[9] I reject Mr Edge’s characterisation of his conduct in the manner he described. I find that the conduct, as relied on by the Club, did amount to unsatisfactory performance. It was of a serious nature and it had serious implications for the safety of the Club’s employees as well as the security of the Club’s assets. I find that the conduct was in breach of the Club’s policies and requirements and I find that Mr Edge, both in response to the allegations and in evidence given in these proceedings, was dismissive and, in my view, irresponsible towards the policies and requirements of his position. I consider that his approach generally contributed to his behaviour and to the seriousness of the conduct in question.
[10] Mr Edge contends that the disciplinary action imposed on him related to a claim he made to the Club for underpayment of overtime. I am satisfied on the material that this was considered by the Club to be a separate matter. It was raised by Mr Edge and dealt with separately. His entitlements were recognised and it is understandable that the misconduct was subsequently discovered and came to light while checking the circumstances of the relevant evening of which overtime was claimed. However I do not find that those circumstances suggest that the dismissal occurred because of the complaint and claim that Mr Edge made. In all of the circumstances I find that there is a valid reason for the termination in the sense that the reason was sound, defensible and well founded.
[11] The next factor I am required to take into account is whether Mr Edge was notified of the reasons for the termination. I find that he was notified in writing by way of a letter and email dated 20 December 2011 requiring his attendance at a meeting to be held on 22 December 2011 to discuss various matters that had arisen earlier on that day. At the meeting held on 22 December, Mr Edge had the opportunity to respond to the allegations. I find that the 20 December 2011 letter and the content of that meeting satisfied the requirement of s.387(b). I am also satisfied that Mr Edge was provided with an opportunity to respond to the reason relating to his conduct and that he was provided with an opportunity to have a support person in the form of an official from United Voice present. He utilised the support of the United Voice official in those meetings.
[12] I also find that Mr Edge’s unsatisfactory performance was the subject of a warning that was issued in June 2011 regarding security arrangements. That warning, in my view, should have alerted Mr Edge as to the need for diligence in relation to all of his duties and that his conduct, displayed in November and December of 2011, showed contrary conduct which amounted to unsatisfactory performance.
[13] I do not consider that the size of the employer’s enterprise or the availability of dedicated human resource management specialists are relevant considerations in this case.
[14] I have also had regard to the period of employment of Mr Edge and all of the other circumstances of his employment raised by the parties in the proceedings. In all of the circumstances I find that the dismissal of Mr Edge was not harsh, unjust or unreasonable. The application for an unfair dismissal remedy is dismissed.
VICE PRESIDENT WATSON
Appearances:
Mr C. Acev for Mr Edge.
Mr G. Arnold with Mr C. Langton for the Illawarra Yacht Club Ltd.
Hearing details:
2012.
Sydney.
29 May, 6 June.
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