Mr Martin Green v MSS Security Pty Ltd - [2010] FWA 1822

[2010] FWA 1822

FAIR WORK AUSTRALIA

DECISION

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

Mr Martin Green
v
MSS Security Pty Ltd
(U2009/11754)

COMMISSIONER SPENCER

BRISBANE, 14 DECEMBER 2010

Termination of employment - arbitration - whether valid reason.

Introduction

[1] This determination concerns the application made by Mr Martin Green (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), in which he claims his dismissal from MSS Security Pty Ltd (the Respondent) was harsh, unjust and unreasonable. He sought reinstatement as the appropriate remedy.

[2] The application proceeded to conciliation but was unable to be resolved. The matter was then listed for arbitration and Directions were set for the filing of submissions and evidence.

[3] The Applicant was represented by Mr Robert Reed, Counsel, instructed by the Liquor, Hospitality and Miscellaneous Union (the LHMU). The Respondent was represented by Mr Daniel Pratt, Counsel, instructed by Mr Chris Muir of Employer Services Pty Ltd.

[4] All of the submissions and evidence have not been referred to in this decision; however, all of such have been considered in making this determination.

Background

[5] The Applicant was employed as an Access Control Officer by the Respondent and its predecessors for approximately 21 years, in the same position, on the Amberley RAAF Base (the Base). He was employed by the Australian Public Service prior to the position being contracted out to the Respondent. The Applicant was an LHMU delegate for approximately 10 years, until the termination of his employment.

[6] The termination of the Applicant’s employment occurred after he made a remark of a sexual nature to his supervisor, Ms Caroline Graham. The Applicant claimed that the summary termination of his employment was disproportionate to the incident and that the remark, in its context, was not a ground for gross misconduct and thus the termination was unfair. The Respondent claimed that the dismissal was consistent with the implementation of its discrimination and sexual harassment policy (Maintaining a Respectful Workplace), of which the Applicant was aware.

[7] The termination letter 1 signed by Mr Doug Lansley, Defence Account Manager, referred to the Applicant’s inappropriate question of a sexual nature, directed at another employee. The correspondence indicated that the circumstances and Applicant’s explanation for the remark had been considered, however the company concluded that the actions constituted serious misconduct and therefore the Applicant’s employment was terminated effective immediately.

Legislation

[8] The unfair dismissal application was made pursuant to s.394 of the Act. It is set out, relevantly, as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

...

[9] In determining whether a dismissal was harsh, unjust or unreasonable (and therefore unfair), FWA is required to consider certain matters set out in s.387 of the Act, as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA…

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 1822
Decision Date: 14 DECEMBER 2010

CaseChat Overview and Summary

The case between Mr Martin Green and MSS Security Pty Ltd was heard by the Fair Work Commission. Mr Green, the applicant, sought to have his dismissal by MSS Security, the respondent, reviewed. The crux of the dispute was whether the termination of Mr Green's employment was lawful and if there was a valid reason for his dismissal. The Commission was tasked with determining if the dismissal was harsh, unjust, or unreasonable under the Fair Work Act.

The primary legal issues before the Commission were whether the respondent had just cause for dismissal and if the process leading to the termination was fair. The Commission had to examine if the respondent followed its own policies and procedures in dismissing Mr Green and if the decision to terminate was made in good faith. Additionally, the Commission needed to assess whether the dismissal was proportionate to the alleged misconduct.

In reaching its decision, the Commission considered the evidence provided by both parties, including the respondent's disciplinary procedures and the circumstances surrounding Mr Green's termination. The Commission found that the respondent had followed its own policies and that the dismissal was not harsh, unjust, or unreasonable. The evidence supported that there was a valid reason for the termination, and the process was handled appropriately. Consequently, the Commission dismissed Mr Green's application, upholding the respondent's decision to terminate his employment.

Orders