[2017] FWC 4360

FAIR WORK COMMISSION

DECISION

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

Mr Orlando Zacovich
v
Star City Pty Ltd t/a The Star
(U2017/307)

DEPUTY PRESIDENT SAMS

SYDNEY, 29 AUGUST 2017

Application for an unfair dismissal remedy – summary dismissal of a security officer at Star City Casino – reinstatement sought – physical altercation with intoxicated patron – patron had been earlier asked to leave (‘ATL’) – CCTV footage of incident – dismissal for serious misconduct – breaches of the Casino’s policies, procedures and Code of Conduct – conduct inconsistent with training – claim of unusual and out of the ordinary circumstances for which security officer not trained – non response to radio call for assistance – security officer did not seek to deescalate confrontation – failure to wait for assistance – threatening and intoxicated patron not an unusual situation faced by security officers – investigation of allegations – interviewing of witnesses – circumstances were not unusual or out of the ordinary – serious breaches of policies and procedures established – valid reason for dismissal – no contrition or remorse – security officer would act the same in similar circumstances – loss of trust and confidence – conduct justified summary dismissal – no procedural fairness issues – no mitigating circumstances – dismissal not harsh, unreasonable or unjust – application dismissed.

BACKGROUND

[1] Unsurprisingly, Sydney’s Star City Casino is a glittering magnet for late night revellers (not to mention, serious gamblers) who choose to frequent the many licensed bars, restaurants, night club, retail and other venues on offer in a world class hospitality, entertainment and gaming complex. Regrettably, of course, despite the Casino’s stringent security and preventative measures, such a facility is an attraction for persons, whose conduct will sometimes escalate into serious anti-social behaviour, such as the assault of staff or other patrons and/or damage to property. Obviously, the Casino has a large, well trained and dedicated security team who are required to ensure a safe and secure environment for patrons and staff. Unfortunately, the security staff are often required to address such anti-social behaviour and may also become the victims of such behaviour themselves. So it was that at around 1.40am on the early morning of Sunday, 11 December 2016, there was an incident in the Cherry Bar, involving Security Officer, Orlando Zacovich and a young intoxicated male patron. As it turned out, this person had been removed from the premises just 23 minutes earlier, but had somehow regained entry to the Casino, despite not being permitted to do so for 24 hours. As a consequence of this incident, and an investigation of Mr Zacovich’s role in it, including the viewing of CCTV footage, Mr Zacovich was dismissed from his employment for serious misconduct on 20 December 2016. A letter confirming his dismissal, and the reasons for it, was provided to him on 23 December 2016 under the signature of Ms Mandy Posetti, Senior Human Resources Advisor. As it is a long letter, I annex the full text of it to this decision as ‘Annexure MP20’.

[2] On 10 January 2017, United Voice (the ‘Union’), filed an application on Mr Zacovich’s (hereafter referred to as the ‘applicant’) behalf, for an unfair dismissal remedy (reinstatement and compensation for lost remuneration) pursuant to s 394 and s 390 of the Fair Work Act 2009 (the ‘Act’). In short form, it was contended that the applicant’s actions were necessary and appropriate in light of the hostile behaviour of the patron and that his dismissal was ‘harsh, unjust and unreasonable’ in all the circumstances.

[3] An unsuccessful conciliation was conducted on 15 February 2017 and the matter was subsequently referred to me on 9 March 2017 for hearing. I conducted a further conciliation on 29 March 2017, but this too, proved unsuccessful. I note that in its earlier response to the application (F3), Star City Casino (herein after referred to as the ‘respondent’, ‘The Star’ or the ‘Casino’) raised a jurisdictional objection going to the applicant’s minimum employment period. However, this objection was withdrawn during the earlier failed conciliation. The matter was listed for hearing on 4 May and 3 July 2017. Mr H Pararajasingham from United Voice, appeared for the applicant and Mr J Darams, of Counsel appeared with Ms L Bereicua, with permission being granted for Mr Darams to appear, pursuant to s 596 of the Act.

[4] Before setting out the evidence advanced in the case, I outline at this juncture some factual particulars.

[5] Star City is the only licensed gambling casino in New South Wales. It is a highly regulated enterprise, governed by the Casino Control Act 1992 (the ‘Casino Control Act’) and the associated Casino Control Regulation 2009 (the ‘Regulation’). It is a very large employer with over 4,000 employees. The Security workforce numbers 120 with a further 45 Customer Liaison Officers. Patronage on its busiest nights Friday and Saturday can range from between 35,500 to 45,500 persons.

[6] The applicant is 21 years old. He commenced casual work for the respondent on 28 September 2015 as a Customer Liaison Officer, Level 3 under The Star Enterprise Agreement 2013 [AE401606](the ‘Agreement’). On 2 November 2016, he became a casual Security Officer, Level 4 under the Agreement. His rate of pay was $28.80 an hour. His usual hours of work were 42 a week from Monday to Sunday – 18:45 to 06:45. During his employment, the applicant attended the following training courses:

Conflict Management Training on 7 October 2015;

Negotiation and Crisis Intervention on 9 October 2015; and

Safety Team Training on 20 May 2016 and 2 September 2016.

The Regulation

[7] Referenced during the course of the case, were the following extracts from the Casino Control Regulation as follows:

5. Meaning of ‘Intoxicated’

(1) for the purposes of this Act, a person is intoxicated if:

(a) the person’s speech, balance, co-ordination or behaviour is noticeably affected, and

(b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor.

77 Non-voluntary exclusion of persons from licensed premises

(1) In this section: authorised person means a licensee, an employee or agent of a licensee or a police officer. vicinity of licensed premises means any place less than 50 metres from any point on the boundary of the premises.

(2) An authorised person may refuse to admit to, or may turn out of, licensed premises any person:

(a) who is at the time intoxicated, violent, quarrelsome or disorderly, or

(b) whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or

(c) who smokes, within the meaning of the Smoke-free Environment Act 2000, while on any part of the licensed premises that is a smoke-free area within the meaning of that Act, or

(d) who uses, or has in his or her possession, while on the premises any substance that the authorised person suspects of being a prohibited plant or a prohibited drug, or

(e) whom the authorised person, under the conditions of the licence or according to a term (of the kind referred to in section 134) of a local liquor accord, is authorised or required to refuse access to the licensed premises.

(3) If, under subsection (2), a person has been refused admission to, or has been turned out of, licensed premises, an authorised person may, at any time, refuse to admit that person to the licensed premises or may turn the person out of the licensed premises.

(4) If a person in respect of whom an authorised person is, under subsection (2) or (3), entitled to refuse admission to the licensed premises is on the premises, the person must, on being required so to do by an authorised person, leave the premises. Maximum penalty: 50 penalty units.

(5) For the purposes of this section, such reasonable degree of force as may be necessary may be used to turn a person out of licensed premises.

(6) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section because the person was intoxicated, violent, quarrelsome or disorderly, must not re-enter or attempt to re-enter the premises within 24 hours of being refused admission or being turned out. Maximum penalty: 50 penalty units.

(7) After the 24-hour period ends in relation to any such person, an authorised person is not prevented from exercising the powers under subsection (3) in relation to the person.

(8) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section because the person was intoxicated, violent, quarrelsome or disorderly, must not, without reasonable excuse:

(a) remain in the vicinity of the premises, or

(b) re-enter the vicinity of the premises within 6 hours of being refused admission or being turned out. Maximum penalty: 50 penalty units.

(9) Without limiting subsection (8), a person has a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises if:

(a) the person reasonably fears for his or her safety if he or she does not remain in, or re-enter, the vicinity of the premises, or

(b) the person needs to remain in, or re-enter, the vicinity of the premises in order to obtain transport, or

(10) In the prosecution for an offence under subsection (8), the burden of proving that a person had a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises concerned is on the person charged.

(11) The functions that may be exercised under this section by an authorised person who is a licensee or employee or agent of a licensee may only be exercised in relation to the licensed premises to which the licensee’s licence relates.

(12) A reference in this section to turning a person out of licensed premises includes a reference to causing the person to be turned out.

The Star’s Policies

[8] The respondent also relied on various sections of its policies and procedures and Standard Operating Procedures (SOPs). These include:

The Code of Conduct provides as follows:

‘OBJECTIVES

The Code guides all The Star Entertainment Group team members in their actions when dealing with each other, the public, businesses and other stakeholders associated with The Star Entertainment Group.

THE STAR ENTERTAINMENT GROUP VALUES STANDARDS AND BEHAVIOURS

Team members must respect each other, our guests and shareholders. Team members should also respect the company, its property and its assets.

More than that, The Star Entertainment Group insists that people go beyond just complying with laws and regulations and basic standards of personal conduct.

By understanding and living The Star Entertainment Group’s values, standards and behaviours we aim to create a company -where we can all be proud of everything we do.

Star Values & Qualities

The Star Values of Welcoming and Star Qualities of Bring It- Be your best self and Deliver It

-Be the Perfect Host’

The Star’s Standard Operating Procedures

[9] Part 4.5 of the Star’s Security SOP reads:

4.5 Duty of Care at The Star

1. Under the Civil Liability Act (2002) and Work Health and Safety Act (2011). The Star has ‘a duty of care’ obligation owed to any person where it is reasonably foreseeable would be injured by the lack of care to that person.

2. The Star is committed to providing a safe, secure and non-threatening environment for our guests by actin in a responsible and professional manner. This includes taking reasonable care so that others aren’t harmed on the Star’s premises.

3. Duty of Care also extends to patrons under our control during especially during conflict incidents. All care is to be taken during the execution [of] physical restraints, forced removals and lockdowns. Security is to ensure during the lockdown of a patron that regular welfare checks are conducted of the patron on the ground until control is restored the patron back on their feet and released from the premises. Staff is to be acutely aware of the possibility of positional asphyxia.

4. It is the responsibility of our staff to ensure all reasonably practicable measures have been taken to control risks against all possible injuries to our patrons whilst on the premises and upon leaving the premises on the perimeter areas of The Star.

5. A duty of care exists when someone’s actions could reasonably be expected to affect other people. If someone is relying on you to be careful, and that reliance is, in the circumstances, reasonable, then it will generally be the case that you owe them a duty of care.

6. Security employees need to be clear about exactly what the nature of the care or support is that you are providing, and on which the person is relying.

7. Failure to exercise care in that situation may lead to foreseeable injury (in other words it could have been avoided with due care taken).

8. A breach of duty of care exists when it is proven that the person who is negligent has not provided the appropriate standard of care. That is, the employee has done something that they shouldn’t have done or failed to do something they should have done.

9. Negligence is the failure to take reasonable care to avoid causing injury or lost to another person. Security employees must be aware for the principles of negligence and as to how they may contribute to preventing the carelessness of others while on duty at The Star. This means taking proactive measures that could lead to injury, where it is a staff member, contractor, themselves or a guest.

10. Negligence can occur when a Security employee fails to do something than an ordinary person would do in a similar situation. For instance, not responding to an altercation between patrons; I [sic] or not attending to an intoxicated patron who is laying on or across the street after being asked to leave or evicted by Security; not preventing monitoring a patron leaving the premises who then becomes a victim or causes an assault; therefore failing in our duty of care to keep the guest safe from harm.

11. An employee who without reasonable excuse, engages in conduct that exposes an individual to whom that duty of care is owed to a risk of death or serious injury or illness is considered reckless conduct.

[10] Part 5 deals with ‘Right to Refuse Entry’. It reads:

5. Right to Refuse Entry

1. The Star has an obligation under the Casino Control Act, to refuse entry to, and remove from, the premises, the following persons:

a) Minors. (*Note also Section 94(2) of the Casino Control Act applies, and requires mandatory ILGA notification of any breaches in this regard.)

b) Intoxicated persons.

c) Persons behaving in an indecent, disorderly, violent, or quarrelsome manner.

d) Excluded persons.

(*NB: In respect of minors detected on the MGF or within the 'blue line' areas the additional requirements of Section 94(2) of the Casino Control Act (1992) applies. In essence this requires the mandatory notification of an ILGA Inspector by the Casino operator forthwith notify of a minor being found within the Casino).

2. The Director of Security and by delegation to the Security Operation Managers shall ensure appropriate procedures and controls are in place in relation to the refusal of entry to, and removal from the premises of the above persons.

3.The Security Operations Manager, Security Duty Manager and Security Supervisors will ensure that Security personnel remain vigilant in their detection of the above persons attempting to enter the premises.

4. Security Officers are to remember to remain calm and professional at all times whilst displaying a friendly, helpful level of customer service even faced with conflict situations with regards to patrons making complaint or vocalising their displeasure in the regards to The Star's rules and regulations or your own handling of the situation.

5. It is important to let a patron vent their frustrations, as this will provide a chance for you to consider possible options like calling for a Security Supervisor to attend. Under no circumstances is a Security Officer to touch a patron's clothing or make physical contact with the patron in order to prevent the patron entry. Should a patron push pass a Security Officer, call Surveillance to obtain CCTV coverage and call for a Security Supervisor to attend any escalating situation.

6. Patrons will also be subject to random metal detector checks conducted by

Security staff at entry points to the Casino. (See also Clause 14.5.4.)

[11] Part 5.3 deals with the Responsible Service of Alcohol (‘RSA’) and states:

1. The Star is committed to providing a safe, secure and non-threatening environment for our patrons and staff. The Star’s Responsible Service of Alcohol (RSA) Policy aims to reduce the adverse health, social and economic consequences of alcohol for individuals, their family, friends and the community.

2. The Casino Control Regulation (2009) Schedule 6 (Part 5 Regulation and control Licensed premises) has a range of harm minimisation and RSA measures to be applied to the Casino operational context. The Casino Control Regulation has an explicit primary object of harm minimisation associated with the prevention and misuse and abuse of liquor consumption, such as harm arising from assaults, threatened violence, crime and other forms of anti-social behaviour.

3. Issues of patron conduct in the Casino are strictly governed by legislative framework that places emphasis on RSA, harm minimisation and compliance. The Star is monitored by the Gaming and Liquor NSW which with the NSW Police has the responsibility for enforcement of liquor law compliance with the Casino precinct.

4. Security has an important responsibility in preventing breaches of the liquor licence laws. Where the supply of alcohol is involved, Security staff will be required to act with courtesy and discretion while adhering to the compliance requirements of The Star Responsible service of Alcohol Policy.

5. Patrons visiting The Star are expected and should be required to consume alcohol responsibly. It is against the law for licenced premises and The Star employees to serve an intoxicated patron alcohol or for an intoxicated patron to remain on the premises or to gamble while intoxicated.

[12] Paragraphs 21 to 27 of Part 5.2 reads:

Patron Failure to Leave

21. A patron who has been requested to leave the premises for a conduct or intoxication the patron must leave the premises immediately. If the patron fails to leave and the Police are currently on site the Security Operations Manager or Security Duty Manager is to request Police to attend. If the Police are not on site the Security Operations Manager or Security Duty Manager is to call Surveillance for the Police to attend site.

22. If the patron's behaviour escalates whilst waiting for the Police, the Security Operations Manager or Security Duty Manager can use what force is reasonable and necessary to remove the patron from the premises.

23. The vicinity of the premises is defined to include a radius of 50 meters from the boundary of the licenced premises.

24. A patron, who has been refused entry/exclude for intoxication for violent, quarrelsome or disorderly behaviour is required by law to:

a. Leave the venue and vicinity immediately - 50 metres

b. Not re-enter or remain in the vicinity for - 6 hours

c. Not re-enter the venue for - 24 hours.

25. A patron may only remain in the 50 metre vicinity if they have a lawful excuse such as:

a. The person reasonable fears for his or her safety if he or she does not remain in, or re-enter, the vicinity or premises, or

b. The person needs to remain in, or re-enter, the vicinity of the premises to obtain transport,

c. The person resides in the vicinity of the premises.

26. In situations where Police are called for assistance and are satisfied that an offence has occurred, the patron may be issued with a $550 penalty notice.

27. All serious RSA matters are to fully investigated, a Surveillance CCTV Review conducted (with facts only, no innuendo) and recorded accurately in an incident report. All persons involved in the incident are to be recorded in the incident report and witness statements attached.

[13] Part 6 deals with the Conflict Management Escalation Process and Parts 6.1 and 6.2 deal with the Conflict Management and the ATL (ask to leave) policy. They read:

6. Conflict Management Escalation Process

1. Security members are to ensure the correct escalation process is followed during Conflict Management situations at all times. If a Security Officer is required to talk with a patron to discuss their conduct or an RSA Assessment a Security Supervisor must be present at all times.

2. Should the situation escalate or a patron refuses to leave the premises, the Security Officer is to immediately handover to the Security Supervisor to speak with the patron.

3. If after the Security Supervisor speaks with the patron, the situation escalates or the patron refuses to leave the Security Duty Manager or Security Operations Manager is to be immediately called to attend.

4. If the patron has been asked to leave by the Security Duty Manager and refuses to leave, the Security Duty Manager is to hand over to the Security Supervisor and have the patron turned out from the premises. The Security Duty Manager can use what force is reasonable to remove the patron from the premises.

5. On direction from the Security Duty Manager the Security Supervisor is to initiate the confirmation sentence and give the signal for the Security Officers to restrain the patron in accordance with Security training standards.

6. The Security Supervisor is to control the removed patron including supervision of all security staff conducting the removal until the removed person is safely removed from the premises.

7. If a patron is or becomes violent, the Security Duty Manager or Security Operations Manager is to immediately arrange to have the police called. If the patron has or commits a criminal offence which has been witnessed by a Security or Surveillance member the Security Duty Manager or Security Operations Manager can have the patron detained. If the patron is detained the Police are to be immediately notified to attend if onsite or contacted if offsite.

8. Surveillance is to monitor the patron asked to leave or forcibly evicted from the premises until they are safely off the premises.

Note: Security Duty Managers are to consider where a patron is not threatening if they can be simply walked out of the premises rather than be forcibly removed from the premises.

6.1 Conflict Management Responsibilities

1. Security staff is to ensure patrons or groups of patrons involved in a physical altercation are quickly separated and moved on. A 'defensive wall' is to be used to assist Security Officers in m.oving on a patron or a group of patrons until they are safely off the premises.

2. The Security Supervisor attending the incident is responsible to the Security Duty Manager to ensure the incident is dealt with in a timely and effective manner.

3. Security staff is to refrain from going 'hands-on' a patron or making physical contact with a patron any time including directional guidance or assistance without direction from a Security Supervisor or Security Duty Manager.

4. Security staff are not to take a person to the ground without direct authorisation from the Security Supervisor or Security Duty Manager. (Taking a person to ground must only be done if it is absolutely necessary and all due care must be taken during this time with emphasis of getting the person back on his feet as soon as possible)

5. Security staff is to refrain from pushing patrons at any time which could cause the patron to fall backwards and sustain injury. Care must be taken when talking to patrons near escalators.

6. Security staff is to ensure crowd control is conducted at all times during conflict situations.

7. Security staff is to ensure they protect Security staff directly involved in a conflict situation by turning face out to ensure no other patron interferes with Security staff controlling the incident.

8. Security staff is to refrain from 'boxing' in a patron into a corner where they don't have a way out to leave the premises. A hand gesture should be used to pointing the patron to the exit point.

9. Security Supervisors are to control the amount of Security staff needed to control an incident. If a conflict situation is under control Security staff are return to immediately return their allocated areas of responsibility and not leave the Casino's patrons, staff, or property exposed to unnecessary risk or liability.

10. Security staff is not to use personal phones to take photos of patron's identification at any time. The Security Duty Manager may use the SDM Mobile Phone or a Security Supervisor may use the RSA Mobile phone. Any images taken are to be deleted on completion of incident. All photographs are to be approved by the Security Duty Manager before being uploaded into an incident report.

11. Security staff is to ensure they follow the correct processes at all times in accordance with Security Training Standards and any direction given to them by their Security Supervisor or Security Duty Manager. (my emphasis)

6.2 Patrons Asked to Leave ('ATL') the premises (The Star)

1. Under The Casino Control Regulation 2009 The Star can refuse to admit, or can ask to leave any person:

- who is intoxicated, violent, quarrelsome or disorderly

- whose presence on the licence premises renders the licensee liable to penalty

- who smokes with a smoke - free area as defined by the smoke - free area as defined by the Smoke-Free Environment Act 2000

- who uses or possesses a prohibited drug while on the premises.

2. Once a person is has been asked to leave from a licence premises they are committing an offence if they:

- attempt to re-enter or do re-enter the licence premises within 24 hours

- remain in the vicinity of the premises (within 50 metres of the boundary of the premises which includes The Star Retail area without reasonable excuse or

- re-enter the vicinity of the premises within six hours without a reasonable excuse

Maximum fines of $5.000 apply for each offence.

3. A reasonable excuse for a person remaining in or re-entering the vicinity of the premises includes:

- the person reasonably fears for their safety

- the person needs to obtain transport, or

- the person resides in the vicinity of the premises.

4. When a patron or patrons have been asked to leave the licenced premises they are to be escorted to the boundary of the premises as follows:

Marquee - person is to be escorted down to Retail and down the escalator to Pirrama Road.

Grand - person is to be escorted out the glass doors to the Porte Cohere.

West - person is to be escorted down the Astral Hotel stairs through the glass doors to the Porte Cohere.

Harbour - person is to be to be escorted down the Retail escalator to

Pirrama Road.

Buffet - person is to be escorted down the stairs to the Porte Cohere.

5. Surveillance is to monitor all persons asked to leave until they are safely off site.

THE EVIDENCE

[14] The following persons gave written and oral evidence in the proceedings:

Mr Kassem Hassan, Security Duty Manager;

Mr Christopher Wayne Chang, Security Training Coordinator;

Ms Mandy Posetti, Senior Human Resources Advisor;

Mr Benito Joseski, Director of Security; and

Mr Orlando Zacovich.

[15] Throughout the course of the evidence, the CCTV footage was shown and the witnesses were asked to comment on it. I would add that I have independently viewed the footage a number of times.

The applicant’s evidence

[16] In his statement, the applicant set out his employment terms and conditions with The Star, extracts from his dismissal letter and the duties he performed. As I do not apprehend that any issue was taken with the applicant’s performance and his conduct (other than this incident), I will not set out these matters in detail. The focus of the evidence understandably, was on what occurred on the night of the incident.

The incident on 10/11 December 2016

[17] The applicant said that as the most experienced security officer stationed in the Cherry Bar that night, he was responsible for all ATLs (asked to leave). There were four or five security officers rostered in the Cherry Bar that night, several of whom were not fully trained or experienced. The applicant recalled an earlier incident (prior to 1:20am) that night in which a patron in a group of four, threw a chair and two persons were shouting and arguing. He said he called for assistance using ‘Code Charlie’ which indicates ‘quiet backup is required’ in response to a situation. The unruly group left the area and the applicant followed them and informed surveillance. He observed his supervisor, Ms Maru, and told her that he had called for backup, but no one came. He and Ms Maru encountered the group and asked the man who threw the chair to leave. They then escorted the group to the exit.

[18] At around 1:20am the applicant observed a group of friends, one of whom – a young man – appeared to be the most intoxicated in the group. He had his head in a pot plant, was swaying and lacked coordination. The applicant believed he may have been under the influence of illicit substances. He radioed surveillance and then sought to engage with the young man. As it was noisy in the bar, he asked him in a professional manner to calm down, and then asked him to come outside. He eventually did so. The applicant asked him how many drinks he had and then said he was going to ask him to leave because of his intoxication. The applicant said the young man protested that it was unfair, while at the same time he acted aggressively and gesticulated with his hand. The applicant claimed he told him that he was an excluded person, he was unable to re-enter the Casino for 24 hours and if he did so, he could be fined. The patron said he understood, but asked to let his friends know (which the applicant allowed him to do). The applicant then escorted him from the premises.

[19] It was the applicant’s evidence that all of his interactions with the patron above were in accordance with the Casino Control Act, the Regulation and the respondent’s SOPs, as confirmed by the CCTV footage. From the footage, the applicant noted that two other security officers were present at the time, but did not assist. The applicant said that while watching the patron exit the premises, he said to a colleague conducting the licence checks, to ‘Watch that guy (the patron). He’s been ATL. He’s aggressive. Make sure he is now allowed back in tonight.’

[20] The applicant understood that once a person has been ATL(ed), the Surveillance Team monitors the person within a perimeter of 50 metres of the Casino to ensure he/she does not re-enter within a 24 hour period as required by the Regulation. However, after the patron made several unsuccessful attempts to re-enter the premises, he was readmitted by the Welcome Team at 1.42am, after his ID was checked by two security officers. He returned to the Cherry Bar at 1.46am. The applicant said he was surprised and taken aback by the patron’s return which was in clear breach of the Regulation and the SOPs. An exchange then ensued between the applicant and the patron lasting 40 seconds. The applicant claimed he had responded to a ‘particularly severe threat’ as best he could and in accordance with policy, legislation and his training. The applicant believed he was faced with ‘seven risk factors’, in that the patron:

(1) Unlawfully sought to, on multiple occasions, re-enter The Star even though he was barred for 24 hours;

(2) Was unlawfully permitted to re-enter The Star, despite the operation of the ATL procedure;

(3) Whilst I was by myself, actively sought me out - as was apparent from his movements which clearly indicated he was searching for me;

(4) Initiated aggression towards me verbally;

(5) Then proceeded to attack me physically, and I was uncertain as to whether he may be armed with a weapon;

(6) Was heavily intoxicated; and

(7) Was displaying the effects of an individual under further illicit substances.

[21] It was the applicant’s evidence that the respondent’s broad policies and his training did not address these particular circumstances and the above multiple risk factors. He claimed his training was deficient and he was required to exercise his own judgement, based on his knowledge, skills and experience. The applicant maintained that his response was appropriate and reasonable in applying the necessary force to contain the situation. Factors relevant include:

(a) The offender’s age, size and gender;

(b) The offender's skill level;

(d) As I was alone, whether the offender was alone or likely to be assisted;

(e) Whether the offender may have access to any weapons.

The applicant added that he was faced with a physically fit young man, who clearly had a grudge. He may have been seeking violence. He may have had a weapon or his friends may have joined him to back him up.

[22] In his statement, the applicant detailed his version of the incident. When the patron first approached him and they shook hands, he said:

‘Do you remember me? Your fuckin’ guards at the door let me in and you fuckin' kicked me out. Fuck you, you dog. I'm gonna get you.’

While the patron held his hand, he pushed him in his chest with his other hand. The applicant said he then used the ‘grapple’ technique to push the patron away. The patron responded by pushing him hard in the chest with both hands. The momentum of his push and then stepping back, created a metre distance between them. During this short time, the applicant said he radioed ‘Code Charlie, Code Charlie, Cherry Bar.’ The patron raised his arms, ready for a fight and said in a threatening manner ‘I’m going to get you.’ As he turned towards him, the patron shoved him hard in the chest again, disconnecting his radio. The applicant raised his right hand in self defence and further grappled with him. It is shown that they grab each other’s right hand and the applicant unsuccessfully tried to effect a ‘wrist lock’. He then moved to commence a ‘lock down’ by trying to restrain the patron’s legs. During his resistance, they grappled further causing the applicant to lose his balance, and fall forwards. A fellow security officer, Mr Ghassan Mansour arrived and he engaged the patron from behind. The patron continued to resist, until a few seconds later, they both restrained him into the ‘lock down’ procedure and attempted a ‘wrist lock’. Other security staff arrived and secured the situation. The applicant believed it would have been appropriate for him to be ‘tapped off’ (taken a break), given he had been assaulted and sustained a physical injury (a cut to his forehead), for which he received treatment on site from a paramedic.

[23] He summed up his conduct as follows. Having not encountered a similar situation of a barred patron returning and acting hostile and aggressively, the applicant believed this had been an unusual situation, which required him to act swiftly and immediately. He had acted appropriately and proportionately. He had acted in self-defence, in accordance with policy and his training. However, he acknowledged he should have called ‘Code Alpha’ (a higher level of seriousness), involving an actual physical assault and call for back up. He explained that the situation moved fast and his radio had been disconnected.

[24] In respect to the respondent’s policies and SOPs, the applicant put that the relevant SOP (6.1) was so generic that it did not address the unusual circumstances he was faced with that night. The SOP was inadequate and insufficient and did not deal with self-defence at all. The applicant contended that the respondent had failed in its duty of care, both to him and the patron and was negligent in not preventing the patron from re-entering the premises (part 4.5(10) of the SOPs) and was in clear breach of the Regulation (Part 6.2(2) of the SOPs). In addition, the applicant argued that his behaviour cannot be characterised as ‘serious misconduct’, because in the face of a threat of violence, he had acted reasonably and proportionately, in accordance with policy and his judgement, (Misconduct and Disciplinary Policy Section 3.4) and the Code of Conduct. The applicant also asserted that his training did not reference or provide guidance as to:

(a) how to respond to aggravated threats of violence from patrons actively seeking out security officers; and

(b) how self-defence is accommodated in the SOPs.

[25] The applicant set out the investigation of the incident. He provided a statement immediately after the incident and was suspended on full pay. He was not shown the CCTV footage that night. The applicant attended a meeting on 15 December 2016 with the Union delegate as his support person. During the meeting, he had told management that the policies and his training did not equip him to deal with the particular circumstances that night and that the force he used, was at all times, reasonable and necessary. He attended a further meeting on 20 December 2016, after which he was summarily dismissed.

[26] The applicant offered evidence of the impact his dismissal has had on him. He was absolutely devastated, as he had always wanted a long and successful career in the industry, with a prestigious and renowned Company. He believed he acted, at all times, professionally and diligently. His dismissal left him with a loss of confidence and self-esteem. The applicant said the timing of his dismissal (close to Christmas) meant it was difficult for him to find alternative security work. He had been unsuccessful in applications for related positions at Randwick Racecourse and NSW Corrective Services. However, on 7 March 2017, he obtained a casual security officer position with Serco Australia, although his hours of work are sporadic and uncertain. He was hoping this might improve, but would prefer to return to his former role at the Casino. In oral evidence, he confirmed he received about $6,000 in wages since March 2017.

[27] In cross examination, the applicant maintained that apart from not radioing ‘Code Alpha’, he had acted reasonably towards the patron and faced with a similar situation in future, he would act in the same way. He said that in the 15 months of his employment, he would have ATL(ed) over 20 times (but less than 100) and had also done so when he had worked in other licenced premises.

[28] The applicant agreed that all of the behaviours the patron exhibited that night (abusive, aggressive, intoxicated), would also have been displayed by other patrons who had been ATL(ed). He accepted they are common behaviours faced by security officers at Star City.

[29] The applicant claimed that all of the seven risk factors he had identified in para [20] above were on his mind when the patron returned to the Cherry Bar. In respect to his training, the applicant denied that if he was threatened he was to raise his hand to deescalate the situation. He could not recall if he felt threatened, he was to move back and create a space between himself and the patron. He agreed he was to then radio for back up. He agreed he had been trained in conflict management, including the de-escalation process. While he accepted he used parts of his training, he had not been provided with sufficient training to address the situation that night. He agreed the training stipulates a patron is not to be handled, unless a direction is given by a person more senior than a security officer. However, he believed this applied to ‘planned’ situations, not ‘unplanned’, when no Supervisor is present. Normally, you would step back and call a Supervisor. However, on this night he was by himself. He radioed ‘Code Charlie’ (quiet backup) and was expecting immediate assistance. ‘Code Alpha’ is where an assault is, or has taken place. The applicant acknowledged that there were four or five other security officers in the Cherry Bar at the time.

[30] It was put that the applicant should have waited at least three to five seconds for back up. He answered that each situation is different, involving considerations of necessary force, level of the patron’s aggravation and the environment. He did not wait on this occasion. He called ‘Code Charlie’ and responded to the actions of the patron. The situation was unique.

[31] Mr Darams directed questions to the applicant by reference to the CCTV footage. The applicant conceded he could have waited for backup at the point he and the patron were about a metre apart. He denied the CCTV footage shows the patron actually walking away from him. The patron actually approached him as the aggressor. It was a matter of three seconds before another security officer arrived.

[32] Going back to the applicant’s seven risk factors, Mr Darams suggested that the applicant could not possibly have known that the patron had tried to re-enter the Star ‘multiple times’. He explained that usually someone will try and gain entry from a different point, or points, to that which they previously had entered. The applicant agreed he had encountered this situation before, but rarely.

[33] The applicant was asked why he considered the patron’s re-entry as unlawful. He explained that under the Regulation, the patron could not re-enter within 24 hours. When shown the Regulation, he agreed it does not expressly describe what happened as the employer unlawfully allowing the patron back on the premises. Nevertheless, he believed this to be so. He acknowledged that a patron who re-enters the Casino after being ATL(ed) is not a unique situation. The applicant denied the patron may have been returning to re-join his friends, because he had ATL(ed) his friends after he had left the Casino. He believed that similar to other occasions, the patron would come back to find the security person who had ATL(ed) them, although this had not happened to him before. He maintained the only reason the patron came back was to ‘get him’. Mr Darams suggested that the reason he radioed ‘Code Charlie’ was that the situation was not so severe as to call a ‘Code Alpha’. The applicant believed the situation was ‘pretty severe’. The applicant agreed the common reason why a patron might be ATL(ed) was combined behaviours, such as aggression, associated with intoxication. The applicant again agreed that his training emphasised that in the circumstances he had faced, he should seek to deescalate the situation and he did so, by talking pleasantly to him; only to be met with ‘You’re a fucking dog’. This was when he stepped back and radioed for backup. It was beyond negotiation at that point.

Mandy Posetti

[34] Ms Posetti has nine years experience in HR and has been employed by the Star for 18 months. In her statement, she described the Star’s activities and regulatory environment. She set out the licences held by the applicant, as required for his security role, and the training he had received in respect to:

(a) Security Officer Induction Training Program;
(b) Course in Negotiation & Crisis Intervention; and
(c) Ongoing Safety team training.

[35] Ms Posetti relied on the CCTV footage to demonstrate the following:

(a) Mr Zacovich was walking near the Pit 14 side of Cherry Bar when a male patron sought to gain Mr Zacovich's attention. The patron and Mr Zacovich walk up to each other and shake hands, and the patron leans in towards Mr Zacovich while saying something to Mr Zacovich.

(b) The patron then shoves Mr Zacovich and walks backwards away from Mr Zacovich.

(d) The patron then says something further to Mr Zacovich and Mr Zacovich then lunges towards the patron and pushes him backwards, at the same time grabbing the patron by his hands and arms. As a result, the patron stumbles backwards while Mr Zacovich continues to hold the patron's hands and arms.

(e) Mr Zacovich then crouches over and repeatedly pushes the patron with his bended back and body.

(f) Within approximately five seconds, a fellow Security Officer, Mr Ghassan Mansour, attends the incident and wraps his arms around the patron's shoulders from behind to apprehend the patron.

(g) At this point Mr Zacovich releases his grip on the patron's arms and hand in order to lift the patron up by his leg while Mr Mansour is holding him around the shoulders. The patron opens his palms and places both hands in the air, and despite this, Mr Zacovich continues to attempt to tackle the patron to the ground by lifting the patron's leg.

(h) After some scuffling back and forth, the patron falls to the ground on all fours, and Mr Zacovich falls on top of him while still holding onto him. It appears that Mr Zacovich is attempting to use his body to push the patron flat onto the ground. After some time, the patron lies flat with his stomach pressed to the ground.

(i) Within a few seconds, several other members of the security team attend the incident and assist to remove the patron from the premises. The footage shows that at this stage a Security Supervisor, Ms Roseanne Maru, takes control of the incident and commences providing instructions to Mr Zacovich and the security personnel to coordinate the removal of the patron from the premises in accordance with the proper policy and procedure.

(j) The footage shows that Ms Maru gives the restraining security personnel successive verbal and physical instructions, including taps on the personnel's shoulders, to coordinate their restraint of the patron. Ms Maru's approach is consistent with the SOPs.

(k) The footage shows that, throughout the Incident, several other security team members engaged in crowd control to push back the surrounding crowd who are witnessing the incident. The footage shows that Cherry Bar and the surrounding areas were relatively crowded at the time that the incident took place, and there are several patrons who can be seen standing in the vicinity of the incident.

(l) The excerpt of the footage ends after the patron has been escorted from the premises.

[36] It was Ms Posetti’s evidence that the applicant had physically engaged with the patron before back up had arrived and before he had been specifically instructed or authorised to do so by a Supervisor. This was a serious breach of the Star’s policies and the applicant’s training. The applicant’s statement made shortly after the incident read as follows:

(1) This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.

(2) I am 21 years of age. My Date of Birth is 25 August 1995.

(3) I am a Security Officer employed by The Star. I have been employed in this role for the past 15 months and I have 2 years' experience in the Security Industry. I hold a NSW Security Industry Licence Class 1ACE 2BC No: 900019671 issued under the Security Industry Act 1997 and a Casino Special Employees Licence No: 21741. This licence permits me to carry out the duties of an unarmed Security Guard and Crowd Controller at The Star.

(4) On the 10 December 2016, I was rostered to complete my shift as a Security Officer on the Main Gaming Floor from 2200hrs-0500hrs the following morning.

(5) At approximately 0147hrs whilst deployed to rove around the Cherry Bar. I was walking near the Pit 14 side of Cherry Bar when a male who I recognised as being previously asked to leave the gaming floor yelled out to me and got my attention.

(6) The male approached and shook my hand and pushed me. We then exchanged pushes and I fell over and grabbed his leg and other Security Officers then attended and the male was physically evicted from the premises.

(7) This ends my involvement in the matter.

[37] At 3am that morning, Mr Turnbull, Security Operations Manager, placed the applicant on paid special leave pending an investigation. Mr Turnbull gave the applicant the details of the allegations against him.

[38] Ms Posetti commenced an investigation by obtaining statements from other employee witnesses. Ms Maru, the Security Supervisor informed her:

(1) that she responded to a call by security to provide assistance at The Cherry Bar on the Main Gaming Floor and witnessed an altercation taking place between Mr Zacovich and a patron;

(2) that she had stepped in to ensure that the male was being restrained properly and safely; and

(3) that Mr Zacovich had advised her that the patron had pushed him and Mr Zacovich had pushed him back and tried to restrain him.

[39] The applicant attended a meeting to discuss the allegations on 15 December 2016. Also in attendance at the meeting were:

(a) Kassem Hassan, Security Duty Manager;

(b) Dean Maka, Security Operations Manager (who took notes); and

[40] A file note was taken of what was said in the meeting. Ms Posetti explained that among other things:

(a) Mr Hassan explained to Mr Zacovich that the purpose of the meeting was to discuss the Incident on 11 December 2016. Mr Hassan explained that no decision or outcome had been made regarding the Incident, and reassured Mr Zacovich that the meeting had been convened to hear Mr Zacovich's version of events;

(b) Mr Zacovich explained his version of events and his reasoning during the Incident. Mr Zacovich was very defensive and argued that he was justified in his actions during the

I.    he not been trained in conflict management procedures in one-on-one situations;
II.   he felt threatened by the patron and felt the need to defend himself; and
II.   the Incident occurred because the patron was allowed to re-enter the premises after earlier being asked to leave;

(d) Mr Zacovich also alleged that he had felt particularly threatened because he had made a code 'Charlie' call (meaning a request for quiet back up) earlier in the evening for a separate incident and that no back-up had attended. Mr Zacovich alleged that he had engaged the assistance of Ms Maru during that earlier incident;

(e) Mr Zacovich was shown CCTV footage of the Incident;

(f) Mr Zacovich conceded that if he had felt threatened by the patron, he should have called a code 'Alpha' (meaning a request for urgent assistance); and

(g) Mr Zacovich also conceded that, he could have approached the situation differently and de-escalated the confrontation by following The Star's procedures, including requesting the support of his supervising officers. However, he maintained that the way he had handled the Incident was appropriate.

[41] Further statements were obtained from Ms Eileen Vu and Mr Mansour, two security officers present at the time. Ms Posetti’s evidence was that a very thorough investigation of the radio calls and CCTV footage of whether the applicant had made a ‘Code Charlie’ call earlier that night; see applicant’s evidence at para [17] above, could find no evidence of any such incident. She believed this was irrelevant anyway.

[42] An outcome meeting was held on 20 December 2016. Attending were the applicant, Ms Posetti, Mr Hassan, Olivia Harvey, HR Advisor and Ms Handley. File notes were taken of the meeting which indicate the applicant:

was informed the investigation had established the allegations were substantiated;

again insisted an earlier ‘Code Charlie’ had been made that night; and

was provided a further opportunity to respond to the allegations.

[43] Ms Posetti said the applicant refused to acknowledge any wrongdoing and did not demonstrate any understanding of the serious position he had put himself, the patron and his colleagues. This ‘cemented’ her view that he was not a suitable person to continue as a security officer. Ms Posetti summarised the applicant’s position as follows, in that he:

(a) argued that it was The Star's fault that Mr Zacovich had assaulted the patron because his fellow security personnel had allowed the patron to re-enter the premises;

(b) repeatedly refused to acknowledge that his actions were in breach of The Star's policies and procedures and inconsistent with his training; and

(c) further argued that, even if he had breached the policies and procedures, it was 'the best thing to do' in the circumstances.

[44] Ms Posetti said that she and Mr Hassan took a short break during which they both agreed that the applicant should be dismissed. His conduct was entirely unacceptable. He exposed himself, other staff and patrons to risk of harm and The Star to serious reputational damage and liability. Ms Posetti added she was concerned that as the applicant had maintained his actions had been reasonable, he was unlikely to change if faced with a similar future situation and therefore could not be trusted to fulfil his role, in accordance with The Star’s policies and procedures. Despite considering a lesser penalty, she and Mr Hassan had determined that dismissal was the only appropriate outcome in light of the above circumstances.

[45] In a reply statement, Ms Posetti rejected the applicant’s claim that he had an excellent relationship with the Management and the Staff at The Star and that he had been sought out by the employer to take a leading role among his team. She said the applicant was a casual employee, with relatively short service, and had not taken up an opportunity to become a permanent employee. He was a junior employee and had not been ‘sought after’ to take a leading role. She had been told by a Supervisor that he considered himself to be a better security officer than he was. He had displayed an arrogant attitude at work and was unreliable in terms of timeliness and attendance.

[46] Ms Posetti said the applicant had not mentioned his conversation with Ms Tracey on the night of the incident about him being the ‘most experienced security officer on duty’ that evening. In any event, this does not make sense, because he would not have been responsible for doing all the ATLs. His rostered shift did not cover the period before 10pm and throughout his shift he was under the supervision of Mr Will Tafa, Security Supervisor. His fellow officers were not less experienced, as they had all received the same training. Arguably, Ms Vu was more trained, qualified and experienced than the applicant. In any event, it was not his role to make an assessment of his colleagues’ training, particularly as he now claims his training was inadequate and he chose to disregard it. Ms Posetti reiterated that there was no evidence that the applicant had made an earlier ‘Code Charlie’ call.

[47] Ms Posetti said that at no time, during the investigation and disciplinary process, did the applicant make any reference to the seven alleged risk factors, he now claims explained his actions; see para [20] above. She claimed he had only argued the matters set out at para [40] above. Ms Posetti said that it was not unusual for patrons who have been ATL(ed) to attempt to re-enter the premises and are occasionally successful.

[48] Ms Posetti rejected the applicant’s assertion that he was alone. He was within sight of, and within metres of other security officers. She added that while it was not possible to verify if the patron had made offensive or aggressive comments, it was in any event, not rare or unusual for security officers to be faced with such behaviour. Their training dealt with how to handle these situations. Further, while the applicant claimed he was attacked by the patron, the applicant’s responsibility was to de-escalate the situation, which he did not do. As to his fear of the patron having a weapon, this claim only arose after the applicant viewed the CCTV footage, but in any event, if he held such a fear, he should have backed away, not step forward to engage with the patron. It was wrong to suggest he had sought to ‘disarm’ the patron, when he was not armed. Ms Posetti said that the applicant’s account of events left out a number of critical factors which were inconsistent with his training. These included that he should:

(a) attempt to de-escalate the conflict and act in a conciliatory way towards the patron(s), such as by raising their hands;

(b) create a safe distance between themselves and the patron(s);

(d) not make any physical contact with the patron(s) without the presence or approval of a Security Supervisor.

[49] In cross examination, Ms Posetti agreed that The Star had to comply with additional legislative requirements than the general security industry, through the Casino Control Act and Regulation. She accepted the applicant’s evidence as to the Casino’s general practice, when a patron is ATL(ed). She acknowledged this patron re-entered the Casino within 23 minutes of being ATL(ed), contrary to his 24 hour exclusion. Ms Posetti said such re-entries were rare. A person can only re-enter the Casino through an authorised entry point, manned by Star employees. Even so, Ms Posetti did not accept that the Surveillance Team failed in this instance. Ms Posetti also acknowledged that The Star’s SOPs do not make specific reference as to what to do when an ATL re-enters the premises. She accepted that it is the security employees who are responsible to ensure that a patron leaving the Casino, is monitored to prevent an assault.

[50] Ms Posetti accepted that the applicant had ATL(ed) the patron’s friends and were no longer in the Cherry Bar when he returned. However, from viewing the CCTV footage, she did not accept the assumption that the patron had returned to the Cherry Bar to confront the applicant. Ms Posetti did not accept the applicant’s claim that the patron was heavily intoxicated. He was not stumbling and she had not heard about the ‘pot plant’ issue, until receiving the applicant’s statement for this case. She accepted it was possible the patron could have been under the influence of illicit substances. It was Ms Posetti’s belief that the patron’s language (‘Fuck you, you dog. I’m going to get you.’) was not a particularly violent threat. However, she agreed that while the patron may have been the one who initiated the physical contact, this was not a unique situation for a security officer.

[51] When shown the CCTV footage, Ms Posetti did not accept the applicant’s responses during the incident were reasonable or necessary. Ms Posetti was asked about Mr Mansour’s statement, in which he mentioned the applicant being pushed or punched, the patron ‘lashing out’ and the patron being taken to ground so as to control him. She did not accept Mr Mansour’s description represented a patron violently resisting being removed. Mr Mansour had also incorrectly radioed ‘Code Charlie’. It was Ms Posetti’s understanding that Mr Mansour had been spoken to about also making the wrong radio call that night.

[52] Ms Posetti accepted that the SOPs did not expressly address a security officer being physically confronted by a patron, but other clauses of the SOP do so. Ms Posetti accepted the SOPs are drafted in a generic form and have equal applicability to all security employees, notwithstanding the tasks they are doing are different depending on where they are stationed. Nevertheless, she did not agree the SOPs were inadequate. Ms Posetti said the applicant’s conduct was serious misconduct. He had also breached The Star’s Code of Conduct. Ms Posetti was asked about Ms Vu’s statement in which she had referred to being told by the applicant about an early incident that night around 1am when the applicant claimed he had radioed a ‘Code Charlie’ when a patron was kicking chairs around and no one responded. Ms Posetti did not accept that the actual incident occurred; only that Ms Vu had said the applicant had told her about it. Ms Vu did not witness the incident. Another security officer denied hearing a ‘Code Charlie’ call. The CCTV footage shows no such incident took place and there is no ‘Code Charlie’ call recorded at that time.

[53] Ms Posetti reaffirmed that the applicant’s seven serious risk factors (see para [20] above) were not raised by him during the investigation. Ms Posetti conceded that some of the seven issues had been raised during the investigation, but he did not describe them as the reasons for his conduct. She disagreed again that his conduct was reasonable.

[54] In re-examination, Ms Posetti explained that the applicant’s conduct was unreasonable because The Star had policies to deal with these situations, such as maintaining space between you and the patron, so physical contact is avoided. A space had been created and the applicant should have waited for back up. Instead, he lunged towards the patron and pushed him and tried to take him down. This was unnecessary and unreasonable when he was not in danger and the patron appeared to be actually beginning to turn and walk towards an exit.

Mr Benito Joseski

[55] As Director of Security, Mr Josesksi is responsible for all of the security staff at The Star who are charged with ensuring the safety of patrons and staff under very strict guidelines. Star security staff are specifically licenced by the gaming regulator to work at The Star, in addition to their general security licenses. Mr Joseski is very familiar with the training provided to security staff. This is regular and ongoing, and specifically includes conflict management training in order for security staff to deal with confronting and threatening situations. This training emphasises de-escalation of confronting situations by creating distance between the officer and threatening patron/s. Security officers are specifically trained to avoid physically engaging with patrons, unless absolutely necessary and only then with reasonable and justifiable force under the direction of a Supervisor.

[56] Upon his own review of the CCTV footage of the incident on 11 December 2016, Mr Joseski believed the applicant had not complied with The Star’s policies or his training in that:

(a) he was aggressive and did not de-escalate the confrontation with the patron;

(b) he engaged with the patron and intensified the altercation, rather than creating distance between himself and the patron;

(d) even if he had been justified in engaging physically with the patron, he failed to use any of engagement techniques in which he had been trained and which are approved by The Star. Instead, he was pushing and shoving the patron and, at one point, attempted to lift the patron up by his legs.

[57] It was Mr Joseski’s evidence that the appropriate course would have been for the applicant to create distance with the patron and make the appropriate radio call for support and back up. He had the opportunity to do so when the patron, at one point, appeared to be walking away. Mr Joseski was aware that the applicant claimed he had felt threatened by the patron and he was not confident that back up would arrive. Even if these claims were true, his conduct was still unacceptable, in that if he felt threatened he should not have advanced towards the patron to engage with him physically. In addition, the applicant’s conduct placed himself, The Star’s patrons and his colleagues at risk of serious harm.

[58] Mr Joseski could not be confident, given the applicant’s previous training, that he could be trusted to do his job properly, in accordance with The Star’s policies and procedures.

[59] In a reply statement, Mr Joseski disputed the applicant’s claims that when the patron had been first ATL(ed) at 1.20am, he was swaying from side to side, his sense of balance was off and he lacked coordination. Having reviewed the CCTV footage, it showed that the applicant had spent some time speaking to the patron and he and Mr Tafa escorted him to an exit. The patron was not ‘swaying’ and had complied with the applicant’s direction and he did so without incident.

[60] In regularly reviewing incidents involving intoxicated patrons, Mr Joseski said he could not discern that this patron was ‘heavily intoxicated’. There was no requirement for the applicant to have been assisted by other security officers at this time, because the patron was not aggressive or non-compliant. The applicant had not called for any assistance. In any event, Mr Tafa accompanied him to escort the patron to an exit.

[61] Mr Joseski rejected the applicant’s claim that the circumstances he faced were ‘unusual’ or ‘out of the ordinary’. There was nothing viewed in the footage which was particularly unusual and The Star’s security officers are trained and prepared to deal with a wide variety of situations, including:

(a) verbally and physically aggressive patrons;

(b) patrons using offensive language;

(d) patrons who are intoxicated or heavily intoxicated;

(e)patrons suspected of being armed; and

(f) what to do if Security Officers feel threatened at any time.

[62] In addition, the applicant’s general security licences would have required him to complete competency units dealing with managing conflict through negotiation. Having 12 years experience, Mr Joseski believed The Star’s training and policies are more detailed and comprehensive than general industry standards. Mr Joseski reaffirmed his serious concern that the applicant still refused to acknowledge his conduct was wrong or unjustified.

[63] In cross examination, Mr Joseski was asked about The Star’s SOPs and the Casino Control Act and Regulation. He agreed he was generally familiar with their provisions. He accepted that The Star takes its obligations under these policies and regulations seriously. He noted that the ban on an ATL(ed) patron from re-entering the premises for 24 hours, is an onus on the patron for which a person in breach can be fined.

[64] Mr Joseski explained that the Surveillance Team monitors the eviction of a patron and where possible monitor that person until they are off site. However, in this case, despite the patron re-entering in 23 minutes, the patron was monitored until he was out of CCTV view. He then walked from exit to exit until he ultimately made his way back in. Mr Joseski said that The Star can restrain a person until police arrive, but this is not common. The actual charging of a patron is very rare, despite Mr Joseski accepting that on a usual Saturday night, about 100 patrons are ATL(ed). However, he added that ‘very, very few’ regain entry. Mr Joseski acknowledged that The Star has an obligation to prevent an ATL patron from re-entering, it was simply not always possible. Surveillance is one tool, but ultimately the Regulator places the onus on the patron not to re-enter the Casino within 24 hours.

[65] Mr Joseski claimed he was unaware that the patron had been seen with his head in a pot plant. In any event, there were clear inconsistencies with the applicant’s statement and the CCTV footage. He did not believe the patron was ‘heavily intoxicated’, despite the applicant’s claim that he had been directed to monitor the patron, by other bar staff. Mr Joseski could not say if the patron was under the influence of illicit substances. He said that the patron’s threatening language was not uncommon for security officers faced with aggressive patrons.

[66] Mr Joseski understood that the first initial contact was a handshake. The next step was the applicant walked towards the patron and then engaged with him first. Mr Joseski rejected the applicant’s assertion he was attempting the ‘grapple’ technique. Even so, the ‘grapple’ was not necessary, nor was it used in this incident. He had an opportunity not to use physical restraint and call for backup. Mr Joseski said a ‘wrist lock’ was also unnecessary in this instance. Mr Joseski maintained the patron did not need to be physically manoeuvred at all.

[67] Mr Joseski was asked about Mr Mansour’s statement. He did not accept Mr Mansour’s circumstances were the same as faced by the applicant. He was also asked about the different duties and tasks faced by security officers at different locations. He agreed all security officers receive the same training, as they all have very similar security duties.

[68] In re-examination, Mr Joseski explained that the ‘grapple’ is used to hold someone from behind, not when approaching someone from the front. Further, ‘wrist locks’ are not used to bring someone to the ground. It involves controlling a patron where each arm is taken simultaneously by more than one security officer, usually involving a Supervisor to escort the patron out. An individual security officer does not perform a ‘wrist lock’.

Mr Kassem Hassan

[69] Mr Hassan has been employed by The Star for nine years. Mr Hassan described the three teams of security offices, being the ‘Welcome Team’, the ‘Safety Team’ and the ‘VIP Team’. As the applicant was in the Safety Team he was responsible for general safety and security. He had been specifically trained to deal with crowd control, physical alterations, conflicts and evictions of disorderly patrons. Mr Hassan is responsible for the Welcome and Safety Teams. Mr Hassan’s evidence dealt in detail with the training of security officers and in particular, the key messages concerning ATL and conflict management which are:

(a) an officer must remain polite and professional at all times;

(b) an officer should only approach disorderly patrons after back-up has been requested and arrived and after the officers have developed a plan for dealing with the disorderly patron;

(c) if the patron is aggressive or threatening, an officer should create distance between himself or herself and the patron;

(d) in extreme circumstances only, it may be necessary to engage physically with a patron. In these circumstances, officers must use the physical engagement and restraint methods in which they are specifically trained (including the grapple, double wrist lock and lockdown). Physical engagement is only appropriate if backup has arrived and if it is being coordinated by an appropriate supervisor; and

(e) if physical force is used, it must only be force that is reasonable and necessary. Excessive force will not be tolerated.

[70] It was Mr Hassan’s belief that the incident for which the applicant was dismissed was one in which he physically engaged a patron in a way that was contrary to his training, and exposed himself, patrons, and other staff to significant risk of injury. While Mr Hassan was not on duty when the incident occurred, he was involved in the applicant’s disciplinary process. After reviewing the CCTV footage Mr Hassan concluded as follows:

(a) it is not clear whether Mr Zacovich radioed for back up. Even if he did, he engaged with the patron before that back-up arrived;

(b) Mr Zacovich physically engaged the patron without a supervisor or other senior officer being present or co-ordinating the engagement;

(d) if Mr Zacovich felt threatened by the patron, he should not have engaged the patron. In accordance with his training, he should have created distance between himself and the patron and attempted to de-escalate the situation. Mr Zacovich did not appear to do this.

[71] Mr Hassan attended the applicant’s disciplinary meeting on 15 December 2016. Notes of the meeting were made by Mr Maka. Mr Hassan said the applicant had said he felt threatened by the patron and this motivated his actions. He claimed the patron was very aggressive and had pushed him multiple times. He had engaged with the patron because he did not think back up would arrive, because in a previous incident back up had not arrived. Mr Hassan believed this was not reflected in the CCTV footage, and even if the patron had been aggressive, the applicant should have:

(a) done all that he could to de-escalate the situation, which at the very least should have involved him creating some distance between himself and the patron;

(b) called a code 'Alpha' across the radio system, which would have signalled a serious physical threat to, or assault on a team member;

(c) refrained from physically engaging with the patron until appropriate back-up had responded to the request for assistance;

(d) physically engage the patron only if appropriately authorised by a supervisor; and

(e) used the physical engagement manoeuvres in which he had been trained, if physical engagement had been authorised.

Instead the applicant:

(a) did not create distance between himself and the patron - he approached the patron, lunged towards him and displayed what I would describe as aggressive body language;

(b) did not call a code 'Alpha', he said he called ·a code 'Charlie' only- a code 'Charlie' call signals that 'quiet back up' is needed and Mr Zacovich said in the meeting that he should have called a code 'Alpha';

(d) physically engaged the patron without any authorisation from a supervisor and without a supervisor even being present; and

(e) he did not use the physical manoeuvres in which he had been trained. Instead, he simply pushed, shoved and brawled with the patron.

[72] Mr Hassan noted that the applicant did not accept his conduct was a serious breach of The Star’s policies, his training or expected standard of conduct. He was not apologetic and felt he was justified in his actions.

[73] Mr Hassan said that further enquiries were made after this meeting which established the applicant had been specifically trained in conflict management. No record could be found of the applicant making a ‘Code Charlie’ radio call earlier that evening. The patron did not appear to be behaving in a seriously aggressive way before the applicant physically engaged with him.

[74] Mr Hassan also attended the 20 December 2016 disciplinary meeting. He reported the discussion as including the applicant accepting he had undertaken the appropriate training, but he still insisted his actions were reasonable and justified, and he insisted he had made the earlier ‘Code Charlie’ call, (but this was irrelevant anyway). He was told that it was not accepted that the patron had been aggressive. The applicant again insisted his actions were justified and appropriate.

[75] Mr Hassan and Ms Posetti adjourned the meeting and discussed the outcome. They agreed summary dismissal was the only appropriate outcome. Mr Hassan said that he had no confidence the applicant could be trusted to follow The Star’s policies and his training. He accepted no responsibility for his actions.

[76] In cross examination, Mr Hassan agreed that after the patron had been told to leave, he went to a place (still on the premises) where there is no camera coverage and then regained entry into the Casino. He agreed this was a rare event. Mr Hassan acknowledged that The Star had a duty to prevent the patron’s re-entry, but it sometimes happens. A patron can only re-enter at manned entry points and security officers are trained to prevent re-entries and police can be called. On this occasion, there was a breach of The Star’s security protocols. Mr Hassan conceded The Star’s SOPs do not expressly provide guidance as what to do in these circumstances, but his training does.

[77] Mr Hassan agreed the applicant had claimed the patron was heavily intoxicated and had used threatening language towards him. However, this could not be confirmed. He accepted that in responding to a situation, matters such as prior knowledge of the patron and whether the officer is alone, are relevant considerations. After being shown the CCTV footage, Mr Hassan maintained that the patron did not push the applicant to initiate the physical confrontation. Mr Hassan insisted that the applicant’s contention that he attempted to ‘grapple’ and ‘wrist lock’ the patron was unwarranted in this situation.

[78] Mr Hassan did not accept Mr Mansour’s description of the incident. He said the applicant and Mr Mansour both made the wrong radio call. Mr Hassan did not accept that the duties of the different security teams required separate SOPs. He agreed the SOPs apply generally to all security officers, but specific training deals with specific circumstances. The Star’s training and SOPs were not deficient.

Mr Christopher Chang

[79] As the Security Training Coordinator, Mr Chang is obviously responsible for the training of all new and existing security officers at The Star. He regularly reviews CCTV footage of incidents which occur at The Star. Mr Chang set out in some detail the training programs of The Star. He included the training details for the applicant, particularly detailing with conflict management (completed on 9 October 2015). Further refresher training was completed by the applicant on 20 May and 2 September 2016. Mr Chang recorded his notes of both meetings, extracts of which were:

20 May 2016 Training

Safety Team training consisted of physical removal assessment /observation checklist including wrist locks, wrap around techniques and take down procedures at varying levels of resistance, including the correct positioning with legs of the subject when bringing them to their feet. We discussed the importance with positional asphyxia and its contributing factors. Not adding any additional pressure to the subjects back, not going anywhere near the subjects head or neck region and what to do in the event that the subject becomes unresponsive. Crowding was also discussed and that it should not be happening as this escalates the incident instead of de-escalating plus we must always keep a clear and open path towards the exit when asking a guest to leave instead of closing them in.

2 September 2016 Training

We concentrated on wrist restraints and take down procedures to ensure everyone was compliant in the procedures. All Officers were able to restrain and secure the subject at varying levels. We also covered the grapple and the wall just as a refresher to all Officers to ensure that they all remain compliant with technique. We also covered how to replace another Officer from a removal if they become exhausted.

We discussed positional asphyxia and the contributing factors that could bring such an event on and techniques on how to prevent this from occurring and to not put any additional pressure on the head, neck or back region when someone is in the prone position.

[80] Mr Chang said he carefully reviewed the CCTV footage of the 11 December 2016 incident and concluded as follows:

‘The footage shows the patron approached Mr Zacovich and shook his hand. In my view, the patron did not appear to be acting in an aggressive or threatening manner at this point. The patron then appeared to say something to Mr Zacovich. Mr Zacovich appeared to make a brief radio call and the patron walked away, creating some space between himself and Mr Zacovich

Rather than maintaining that distance between himself and the patron, Mr Zacovich advanced towards the patron and physically engaged with him. This caused an altercation between Mr Zacovich and the patron.

During the altercation, Mr Zacovich pushed and shoved the patron and Mr Zacovich attempted to pick the patron up by the legs.’

[81] It was Mr Chang’s view that the applicant’s actions were in breach of his training and The Star’s policies and procedures. He should have deescalated the situation, rather than physically engaging with the patron. He should have created a distance between himself and the patron and radio for assistance.

[82] Mr Chang responded to the applicant’s statement as follows:

it was incorrect to assert the other security officers present were unfamiliar with protocol and operations. Mr Chang referred to the training of Ms Vu and Mr Mansour, which was the same as completed by the applicant.

It was incorrect to claim that some of the other security officers on duty had not been trained in conducting ATLs. ATLs can occur anywhere on the premises at any time. The same training of all security officers addresses this matter.

[133] What the applicant’s case comes down to, it seems to me, is that the primary defence for his actions on the morning of 11 December 2016, was that he was faced with a set of circumstances which were ‘unusual’ and ‘out of the ordinary’, in that he was required to deal with an ATL patron who had regained entry into the Casino after 23 minutes of ejection and was acting in an aggressive and threatening manner. Although Mr Hassan did not accept that the patron had acted aggressively and, even if he had, the applicant’s responses were contrary to his training and The Star’s policies, I am prepared to proceed on the presumption the applicant was confronted with an aggressive intoxicated patron. However, this does not change my ultimate conclusion in this matter.

[134] A secondary and corollary defence was that The Star’s SOPs and his own training did not address how a Star security officer is to deal with an ATL in these circumstances. Two further defences were advanced; that The Star had breached its duty of care to him by allowing the ATL patron to re-enter the Casino in breach of the Casino Control Act and the Regulation; and that he had acted in the way he did, in part because he was not confident of back up because an earlier ‘Code Charlie’ radio call he had made, went unanswered.

[135] In my view, all of these defences are misconceived and misplaced. They are unsupported by the factual reality of the situation the applicant faced that night. I shall deal with each of them in turn.

[136] The applicant described the situation he faced in the Cherry Bar at 1.46am and which lasted 40 seconds, as a ‘severe threat’ having regard to seven risk factors; see: para [20] above.

[137] In my judgement, these seven factors are little more than the ‘arms and legs’ of a well constructed ‘straw man’ argument, to provide a post facto framework from which the applicant expects the Commission to judge his conduct as reasonable and appropriate. At the outset, I have some difficulty accepting, (particularly having regard for the applicant’s evidence, that he had not realised the identity of the patron until shaking his hand and that the whole incident lasted less than 40 seconds), that these seven specifically rationalised risk factors were in his mind at the time. It seems highly implausible that in such a short space of time, seven risk factors just intuitively popped into his head, and had justified his response and conduct.

[138] More significantly however, on a closer examination, (as Mr Darams explored during cross examination), these factors were not ‘unusual’, or rare circumstances; rather, they were circumstances regularly confronted by The Star’s security staff and for which they are trained. His argument was that he was not trained to deal with an ATL who had re-entered during the 24 hour banned period and The Star’s SOPs did not deal with these circumstances. This is not the point at all. That the SOPs do not directly address the circumstances of an ATL regaining access to the Casino, ignores the true characterisation of what the applicant faced that night. It diverts the focus entirely away from what the applicant had been trained to do and what was covered in the SOPs – simply dealing with an aggressive and intoxicated patron.

[139] For the purpose of explaining this proposition, it does not matter that the applicant was faced with an intoxicated, aggressive and abusive young man who had re-entered the Casino after being ATL(ed). The fact the patron had been ATL(ed) is really not the relevant consideration in this context. It does not matter if the patron had been ATL(ed) once, or even numerous times (most unlikely). The focus must be on the security officer’s conduct in dealing with the anti-social and aggressive behaviour, not whether it was exhibited as a first offence or in ATL context.

[140] At the risk of yielding to the temptation of speculation, the logic of this conclusion can be seen by wondering what the applicant would have done, if he had confronted the applicant behaving the same way when he was first ATL(ed) or if the patron had confronted a different security officer, who may have no idea he had been earlier ATL(ed). In my opinion, it is the patron’s behaviour which is the issue to be addressed by the security officer, not how he came to regain entry to The Star. Put another way, it was the behaviour the applicant had been trained to deal with according to the SOPs, not whether such behaviour was being exhibited for the first, second or any subsequent time. When properly viewed in this way, it is difficult to reconcile the applicant’s argument that he was an experienced and trained security officer, who used his experience training and knowledge to reasonably deal with the specific situation, in accordance with The Star’s policies and SOPs which clearly set out what to do in such situations. I am led to conclude that the applicant did not follow these procedures for which he had been trained.

[141] Returning then to the seven risk factors:

1 The patron unlawfully sought to, on multiple occasions, re-enter The Star even though he was barred for 24 hours.

[142] The applicant could not possibly have known at the time that the patron had sought to re-enter The Star on ‘multiple occasions’. He did not know this until much later. Further, the applicant did not know it was the same patron he had earlier ejected, until a few seconds into their handshake, so the best he could have assumed at the time was that the patron had gained re-entry at least once. In any event, as I have earlier found it was irrelevant the patron had re-entered The Star.

2 The patron was unlawfully permitted to re-enter The Star, despite the operation of the ATL procedure.

[143] In my view, the patron was not unlawfully permitted to re-enter the Star. It is a ‘very long bow’ indeed to submit that The Star had acted unlawfully in permitting the patron re-entry. Plainly, the onus, liability and penalties under the Casino Control Act and its Regulation are on the patron, not The Star. So much so, is patently clear from the terms of the Regulation.

[144] Of course, I do not cavil with the proposition that The Star had obligations and responsibilities under the Casino Control Act, to take all reasonable steps to ensure ATL patrons do not re-enter within the banned period of 24 hours. However, it does not follow as a matter of logic, and from the express terms of the Regulation, that the legal onus is either with, or shifts to The Star, when the occasional ATL patron is able to re-enter. Given the thousands of patrons going in and out of the Star on weekend nights at various entry points, and the evidence that any given Saturday night there can be around 100 patrons who are ATL(ed), one could well imagine (and I accept), it would be nigh on impossible to guarantee every cunning, imaginative and determined patron who is ATL(ed) could be prevented from re-entering. For example, a person could change their appearance with a wig or changing into different clothes in the car park, to fool the surveillance personnel, or communications between the Surveillance Team and officers on a particular re-entry point, might ‘go down’ or be misunderstood.

[145] In any event, I am satisfied that The Star’s surveillance policies appear to be sound, appropriate and thorough. If there is any identifiable shortcoming, it was that the camera surveillance does not cover the entire carpark. This may be a matter for further review as to its practicality and effectiveness.

3 Whilst the applicant was by himself, the patron actively sought him out- as was apparent from his movements which clearly indicated he was searching for the applicant.

[146] While I accept that as soon as the applicant realised who the patron was, he could have assumed that the patron was seeking him out, I do not understand what the ‘movements’ were before shaking his hand, which ‘clearly indicated he was searching for me’. Although there is no evidence as to this, it is plausible given the short time since he was ATL(ed), that the patron was returning to the Cherry Bar to find his friends, who he may not have known had been ATL(ed) after he had been. However, even if the patron was seeking him out, it does not mean his responses should be different to any other threatening situation in which a security officer is obliged to seek to deescalate the situation. More importantly, the applicant was not on his own. On the applicant’s own evidence, there were four or five other security officers within sight, some metres away and could have responded within a few seconds to a ‘Code Alpha’ call or would have easily seen what was happening anyway. To demonstrate the closeness of the others, it took just five to seven seconds for Mr Mansour to arrive after the applicant’s ‘Code Charlie’ call.

4 The patron initiated aggression towards the applicant verbally.

[147] There is no sound recording of the verbal exchanges between the applicant and the patron. The only evidence as to the verbal abuse from the patron is that of the applicant himself. I am prepared to accept his evidence in that regard. However, as to the respondent’s evidence, which makes clear and which seems self evident, no one likes being ATL(ed) and if intoxicated, is likely to react badly, including by using abusive or threatening language. This would not be ‘unusual’ or ‘out of the ordinary’. It would be regularly encountered by security officers. They are trained to deal with such situations. I note that in his cross examination, the applicant acknowledged that he had previously removed patrons who were drunk, abusive, and aggressive or had used offensive language or a combination of these behaviours.

5 The patron proceeded to attack the applicant physically, and he was uncertain as to whether he may be armed with a weapon.

[148] For my own part, from viewing the CCTV footage many times, I do not accept that the patron physically attacked the applicant and was the instigator of the aggression. I am satisfied that after the applicant and the patron shake hands, the patron appears to put his left hand on the chest of the applicant. It is not a push. The applicant touches his lapel to make a radio call. At the same time, the patron commences to walk away, creating a space between them. Rather than maintaining that space and waiting for back up, the applicant moves towards the patron and physically engages with him.

[149] Further, I do not accept the applicant’s claim that he was uncertain if the patron had a weapon. There was certainly nothing which might have appeared concealed or that the patron was reaching into his clothing to pull out an object. Of course, there was no weapon.

6 and 7 The patron was heavily intoxicated ad was displaying the effects of an individual under further illicit substances.

[150] While there might be some doubt as to the level of intoxication of the patron (Mr Joseski and Mr Chong’s evidence was that he was not stumbling or ‘swaying from side to side’; disputing the applicant’s claim he was ‘heavily’ intoxicated), there was nothing ‘unusual’ or ‘out of the ordinary’ as to this being grounds for asking the patron to leave. ‘Blind Freddie’ would know that over indulgence in alcohol, and its anti-social and sometimes aggressive consequences, would be the primary reason why a patron is ATL(ed) from any licenced premises; a fortiori given the 24 hour operations of The Star. Unfortunately, it is an occupational hazard for security staff at The Star, for which they are comprehensively trained to deal with. Regrettably, the same applies to the effect of on an individual of illicit substances. The patron may well have been under the influence of both, but that is not an unusual risk factor confronted by Star security staff.

[151] As to the applicant’s allegation of The Star’s breach of its duty of care to him by failing to prevent the ATL patron from entering The Star contrary to the Casino Control Act and Regulation, as I said at para [143] above, I do not accept The Star was in breach of the Act or the Regulation. That The Star had a duty of care to ensure a safe work environment for all its staff, is fundamental; however, it must be understood in the context of the environment in which security officers work, and the measures put in place to protect and ensure they are appropriately trained to deal with aggressive or threatening situations. The applicant did not identify what it was that The Star should have done differently to ensure its duty of care to him in circumstances which are not uncommon for security staff generally - dealing with conflict, and aggressive or threatening situations.

[152] Finally, as to the applicant’s claim that he was not confident of back up because an earlier ‘Code Charlie’ radio call went unanswered, I have some doubt that there was an earlier unanswered call. It would appear The Star went to considerable effort to investigate this claim, although strictly speaking, it was not materially relevant to his handling of the incident. Nothing could be found on the radio call logs indicating such a call had been made. Three other security officers on duty that night provided statements that they could not recall an earlier ‘Code Charlie’ radio call (Mr Mansour, Ms Vu and Ms Maru). However, three other matters are pertinent in this regard. Firstly, ‘Code Charlie’ was the wrong radio call in any event. Secondly, the applicant was not alone - other security officers were no more than four to five metres away. He could have beckoned them over if his radio was not working or more importantly waited for their backup in the period of time there was a space between himself and the patron. Thirdly, whether backup arrived or not (which it did after seven seconds) is not the point. This issue was a distraction from what he should have done himself in dealing with the patron and which he did not do. That is the real question.

[153] Let me now deal with the statement of Mr Mansour, as much was made of it by Mr Pararajasingham. Mr Mansourwas acknowledged as a competent and experienced security officer. He came to the assistance of the applicant and helped him bring the patron to the ground. Mr Mansour provided a statement during the investigation in which he said that ‘at the corner of my eye’ it looked like Mr Zacovich had been pushed or punched because he was ‘falling back against the glass door’. When he rushed to assist, he saw the patron ‘lashed out at Zacovich to where we restrained the male’.

[154] It must be noted that if reliance is to be had on Ms Mansour’s eyewitness account, it is somewhat puzzling that the Union did not seek to have him give evidence in this case. I do not take it as far as drawing a Jones v Dunkel inference, but it is curious, nevertheless. In any event, a number of comments can be made about Mr Mansour’s statement during the investigation. It was made some 13 days after the incident. As Mr Mansour was physically involved in assisting the applicant, and had been spoken to about also making the wrong radio call, it could be assumed that he unconsciously overstated the seriousness of the patron’s aggressive behaviour. It may also be reasonable to accept that recalling ‘heat of the moment’ events, in an incident in which the ‘adrenalin would be pumping’ during a physical confrontation, might not be entirely accurate. This would be just human nature. I make no criticism of Mr Mansour’s observations; nor do I imply any subjective motive.

[155] However, more importantly than these suppositions, is that the best evidence was, and continues to be, the CCTV footage. I do not know if Mr Mansour was shown the footage to corroborate his recollections. In any event, the CCTV footage does not show the applicant falling back against the glass door or the patron lashing out at him. To my mind, that would seem to put an end to the significance of Mr Mansour’s statement of 23 December 2016.

[156] Lastly, I have some difficulty in reconciling Mr Pararajasingham’s recurring trope that the applicant had faced a particularly aggressive and heightened threat of violence from the patron, with the fact that neither the applicant or Mr Mansour, had used the top level ‘Code Alpha’ in response to the situation.

[157] For all the aforementioned reasons, I am satisfied that the respondent has discharged the onus it bears to prove the seriousness misconduct of the applicant. I find that the applicant’s conduct around 1.40am on the morning of 11 December 2016, was in breach of The Star’s policies and procedures and contrary to his training in dealing with the threatening behaviour of the patron. Of course these findings, do not answer the statutory question as to whether the applicant’s dismissal was unfair; see: para [126] above. It is to that question which I now turn.

Was the applicant’s dismissal ‘harsh, unjust or unreasonable’?

[158] Section 387 of the Act sets out each of the matters the Commission is required to take into account when determining this question. It reads:

387 Criteria for considering harshness etc.

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.

[159] The meaning of the expression ‘harsh, unjust and unreasonable,’ in the context of a dismissal, was explained in the oft-quoted extract from Byrne & Frew v Australian Airlines (1995) 185 CLR 410 (Byrne) by McHugh and Gummow JJ, as follows:

‘128. … It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

[160] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of North J in Selvachandran. This meaning has been applied by members of the Commission and its predecessors for many years:

‘In its context in s 170DE(1), the adjective ‘‘valid’’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, common sense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.

[161] In Browne v Coles [2014] FWC 3670, Hatcher VP adopted the ratio of the majority of the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post in respect to breaches of the employer’s policies in the context of s 387(a) considerations. His Honour said at para [62]-[63]

‘[62] The Full Bench majority (Lawler VP and Cribb C) in B, C and D v Australian Postal Corporation T/A Australia Post discussed the significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal in the following way:

“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”

[63] I respectfully adopt the above reasoning. There could be no doubt that any act of physical violence (which would include pushing someone) would be a substantial breach of the Code. Mr Browne’s conduct was “wilful” in the sense of being intentional. As I have found, his sense of judgment would have been affected by Mr Hearne’s earlier harassing behaviour and his apprehension that Mr Hearne might strike him. However, that is a matter which I consider (consistent with the reasoning in B, C and D) should be considered in the context of s.387(h) as a relevant matter going to whether the dismissal was harsh, unjust or unreasonable rather than under s.387(a). I therefore find that there was a valid reason for Mr Browne’s dismissal.’

[162] In B, C and D v Australian Postal Corporation, a majority of the Full Bench (Lawler VP and Cribb C) dealt with breaches, by a number of employees, of Australia Post’s IT policies in respect to the sending, receiving and sharing of pornographic material. In discussing the significance of an employee’s compliance with an employer’s policies and procedures, the Full Bench said at para [61] – [67]:

‘[61] The formulation, implementation, dissemination and enforcement of polices are a matter within the prerogative of management. The almost infinite variety of businesses and their circumstances necessarily leads to great variability in employer approaches to those matters. In particular, there is great variability in the approach of employers to:

The form and content of policies. (Employer policies come in all shapes and sizes. Some employers have voluminous policies filled with detailed prescription. Others have polices expressed in broad terms.)

They way in which employees are educated as to the content of polices.

The way in which polices are enforced (some employers enforce their policies rigorously, other employers allow a situation to develop where particular breaches of policy go unanswered) and in disciplinary procedures and the approach to disciplinary decision making.

[62] Breaches of policy can often cover a spectrum from the trivial, minor or technical to the very serious.

[63] All or virtually all medium to large employers have a range of policies that employees are required to observe, including a policy against the accessing, transmission or storage of pornography and other unacceptable or inappropriate material and a policy against harassment and victimisation. Most employers train employees in the employer’s policies. Many if not most employers require employees to familiarise themselves with the employer’s policies. Many if not most employers have logon notices reminding employees using the employer’s IT system that they are bound by the employer’s policies. Common experience dictates that such policy training often does not result in enduring employee familiarity with the policies and that logon reminders become, as it were, part of the wallpaper.

[64] The nature of material that will come within descriptors such as “inappropriate”, “unacceptable” or “pornographic” and the like will present as a spectrum. The lines of delineation between appropriate and inappropriate or acceptable and unacceptable are not sharp because they are broad, even amorphous, terms in respect of which reasonable minds might differ. Emailing pornography to a friend or other willing recipient is objectively a less serious breach of policy than emailing pornography to unwilling recipients or for the purposes of harassment.

[65] Particular conduct may breach a policy so as to constitute a valid reason but dismissal for that conduct without prior specific warning may be harsh. For example, an employer may have a policy against swearing in the workplace. Such a policy is supported by the same key reason justifying an anti-pornography policy. Swearing in a workplace can lead to an environment where the risk of abuse, harassment and victimisation, and thus the potential legal liability of the employer, is increased. In each case the policy furthers the legitimate interest of the employer to maintain a workplace where conduct that may cause offence to other employees is minimised. However, one can readily hypothesise a case where the breach of a swearing policy would not be seen by any reasonable person as justifying dismissal. In a workplace where swearing occurs without warnings or disciplinary response, selecting a single instance of swearing by a stressed employee with long and unblemished service as a basis for dismissal would be seen by any reasonable person as harsh and unfair.

[66] In Byrne McHugh and Gummow JJ endorsed the decision in Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456 in the following terms (1995) 185 CLR 410 at 467:

“...von Doussa J considered the example of the dismissal of an accountant who held a position of trust where it was discovered after the dismissal that the accountant had been systematically embezzling money from the employer. His Honour said it would be astonishing if the employer could not resist an allegation that the dismissal was harsh, unjust or unreasonable, within the meaning of the relevant award, by pointing to those facts discovered after the dismissal, so long as they concerned circumstances in existence when the decision was made. His Honour concluded: “Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred.”(underline emphasis added)

[67] Thus, a failure to monitor compliance or enforce a policy can be a relevant factor that weighs against a finding that a dismissal for breach of the policy was not harsh, unjust or unreasonable. If widespread breaches of policy, of the sort that occurred in this case, occur without an employer response then this weighs against a decision that the dismissal was justified and not harsh, unjust or unreasonable.’

[163] I agree with the Vice President and respectfully adopt the reasoning in B, C and D v Australian Postal Corporation. For the reasons I have earlier set out, I am satisfied that there was a valid reason for the applicant’s dismissal.

Section 387(b) whether the person was notified of that reason

[164] Shortly after the incident on 11 December 2016, the applicant was advised he had been stood down, on full pay, pending an investigation of the incident. He completed a short statement that night; see: para [36] above. The applicant was made aware of the detail of allegations at a meeting on 15 December 2016.

[165] I do not understand there to be any submission that the applicant was not aware of the allegations against him. This is a neutral consideration in this case.

Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[166] The applicant attended a meeting on 15 December 2016 and explained his position; see para [25] above. The respondent investigated the claim of the applicant as to an earlier ‘Code Charlie’ call. A further meeting with the applicant was held on 20 December 2016, during which he had a further opportunity to respond. I note his responses were essentially that he had done nothing wrong and his actions were reasonable and appropriate to unusual circumstances. No claim or submission was made that the applicant had been denied a reasonable opportunity to respond to the allegations. This is a neural consideration in this case.

Section 387(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

[167] The applicant was supported by his Union delegate, Ms Handley at both meetings on 15 and 20 December 2016. This is a neutral factor in this case.

Section 387(e) - if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[168] It was common ground that the applicant was not dismissed for unsatisfactory performance. This criterion is not relevant to summary dismissal for serious misconduct.

Sections 387(f) and (g) 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 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.

[169] The Star is a large multi-faceted employer with a dedicated HR team. I do not apprehend there to be any criticism by the Union of The Star’s investigation or any suggestion of denial of procedural fairness to the applicant. In my view, the investigation was very thorough and professional and provided the applicant with a number of opportunities to respond to the allegations. He did so. Moreover, the respondent collected witness statements, undertook additional investigations and reviews of the CCTV footage in response to explanations of the applicant’s conduct he raised during the investigation. In my opinion, there can be no criticism of the investigation of the incident or the respondent’s handling of the applicant’s dismissal.

Section 387(h) - any other matters that the FWC considers relevant.

[170] In any case involving a dismissal for misconduct or serious misconduct, a matter that looms large in my consideration, is whether the dismissed employee, in the face of incontrovertible evidence that the misconduct occurred, or at least involved the employee in some partial wrongdoing or error of judgement, refuses point blank to acknowledge any wrongdoing. Sometimes the employee will acknowledge the conduct at an early stage of the investigation and express their contrition and sincere regret for their actions. Regrettably, not so in this case. Mr Zacovich was not prepared to do either. I am troubled by the applicant’s emphatic insistence that he had done nothing wrong and his conduct was reasonable and appropriate. Even more disconcerting, he said he would act the same way if a similar set of circumstances confronted him in the future, should he be reinstated. I agree with the respondent’s contention that this steadfast denial of the reality is a telling factor against reinstatement. Given this, I accept the trust and confidence the employer expects from the employment relationship cannot possibly be restored. I have little confidence the applicant would not act contrary to policy and his training if a similar, and not unusual situation, arose in the future (assuming any contrition or remorse would outweigh the seriousness of his misconduct, which I very much doubt).

[171] I have also given earnest deliberation to whether the applicant’s dismissal was ‘harsh’ having regard for its impact on his personal and economic circumstances; see Byrne supra above. I am satisfied this factor does not outweigh the seriousness of the applicant’s misconduct. In B, C and D v Australian Postal Corporation the Full Bench said at [69]:

‘[69] If breaches of policy present as a spectrum of seriousness, particular mitigating factors that may make a dismissal harsh notwithstanding the existence of a valid reason also present as a spectrum. The adverse personal consequences of a dismissal tend to increase with age and duration of employment. For some employees, the loss of employment is not particularly damaging. A young, single employee with an in-demand trade or skill will likely find new employment very quickly. However, for an older employee without qualifications or a trade, dismissal can amount to a personal catastrophe and lead to long term unemployment, serious depression, loss of the family home, failed relationships and all of the myriad tribulations that flow from that for children.’

[172] In addition, I have taken account of the fact the applicant secured alternative employment two months after his dismissal; although I accept it may not be as lucrative or prestigious as working at The Star. On one sympathetic view, the applicant was guilty of a single foolish act for which he has paid dearly. However, this does not outweigh the seriousness of his conduct and breaches of the Star’s policies and procedures and his own training.

[173] That said, the applicant is a young man at the beginning of his career. It seems that despite his dismissal, it has not hampered his attempts to find alternative security work. Let this experience serve as a salutary lesson. If he does not take this lesson and learn from it, his employment longevity in the security industry might not be very long.

CONCLUSION

[174] The Commission makes the following findings:

(1) The respondent has satisfied the onus it bears in proving the applicant’s conduct during the incident in the Cherry Bar at around 1.40am on 11 December 2016, constituted serious misconduct.

(2) The applicant’s conduct was in breach of the respondent’s policies and procedures and contrary to the applicant’s training in dealing with the threatening behaviour of an intoxicated patron.

(3) The applicant’s conduct constituted a valid reason for his dismissal on 20 December 2017.

(4) There are no issues of procedural unfairness in the respondent’s investigation of the applicant’s conduct and his dismissal.

(5) The applicant’s dismissal was not ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act.

(6) The applicant’s unfair dismissal claim must be dismissed.

[175] I order accordingly. Orders giving effect to these findings are issued simultaneously with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

Mr H Pararajasingham for the applicant.

Mr J Darams, Counsel with Ms L Bereicua for the respondent.

Hearing details:

Sydney

2017

May 4 July 3

Printed by authority of the Commonwealth Government Printer

Mr Orlando Zacovich v Star City Pty Ltd t/a the Star

[2017] FWC 4360

29 AUGUST 2017

DECISION