Mr Patrick Peterson v TCB Trading Pty Ltd

[2015] FWC 5402

[2015] FWC 5402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr Patrick Peterson
v
TCB Trading Pty Ltd; TCB (CIT) Pty Ltd; Security Logistics Australia Pty Ltd
(U2014/15692)

COMMISSIONER GREGORY MELBOURNE, 11 AUGUST 2015

Application for relief from unfair dismissal.

Introduction

[1] Mr Patrick Peterson has been employed by TCB Trading Pty Ltd (“TCB”) since at least February 2013. TCB provides armed security guards to another business, Security Logistics Australia Pty Ltd. Mr Peterson has also worked with the business since 2011, prior to it either being acquired by TCB or operated under a different name.

[2] Mr Peterson was dismissed from his employment without notice on Saturday, 17 November 2014, as a consequence of his actions during a meal break on a shift 4 days earlier. TCB alleges his behaviour at the time was in breach of firearms regulations and its standard operating procedures.

[3] Mr Peterson subsequently lodged an unfair dismissal application on 4 December and this decision deals with that application. Mr Michael Senior appeared on behalf of Mr Peterson, indicating he appeared as a friend, rather than as a paid agent. Mr Tony Celona appeared on behalf of TCB.

[4] Both parties provided brief written submissions and separate witness statements, although the statements were not sworn or signed. Neither party sought to provide further sworn witness evidence in the proceedings.

The Issue to be Determined

[5] There is no dispute in this matter that at the time of his termination Mr Peterson was a person protected from unfair dismissal under the terms of s.382 of the Fair Work Act 2009 (“the Act”).

[6] Section 385 of the Act continues to provide:

“A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.” 1

[7] In considering whether a dismissal is “harsh, unjust or unreasonable” the Act also provides that the Commission must take into account the criteria in s.387. It states:

“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.” 2

[8] Therefore, having regard to the considerations contained in s.387, has Mr Peterson been unfairly dismissed in that the Commission is satisfied his dismissal was “harsh, unjust or unreasonable.”

The Evidence and Submissions

[9] Mr Peterson’s witness statement indicates he was employed by TCB as an ATM technician and worked for the business for approximately four years prior to his termination on 17 November 2014. He said the business changed its trading name on several occasions during this time. He also said he made various complaints while he was employed about his working conditions and the state of the vehicles provided and maintained by TCB. He also raised issues to do with his employment entitlements, including non-payment of superannuation.

[10] Mr Peterson said he did not receive any written warnings during the time he was employed by TCB, but in the eight months prior to his termination was called into the office on several occasions and asked to respond to various allegations apparently raised by other staff members. He believes these were baseless allegations and he always endeavoured to carry out the tasks assigned to him to the best of his ability.

[11] He said he attended work on Saturday, 17 November 2014 to perform his normal rostered shift. However, he was called into the office and questioned about an incident that had apparently occurred during his shift four days earlier on 13 November. He was told another employee he worked with during that shift, Mr Gary Caris, had provided an incident report which indicated Mr Peterson had disregarded standard operating procedures and firearm regulations by purchasing food at the Sunshine Plaza and eating it in a public area while carrying a firearm. It was also alleged that he said he had a Thai massage, although this allegation was not pursued. Mr Peterson said he asked to have a witness present in these discussions, and also asked to be able to read a copy of the report of the incident provided by Mr Caris, but both requests were refused.

[12] Mr Peterson said he flatly denied the allegations about the massage, but confirmed he did purchase a hotdog in the Plaza, which he ate the on the way to the rest room. He also provided a copy of a report he provided to TCB which indicated he purchased a hotdog and sat at a table for approximately 5 minutes before using the public toilets. He also said he asked one of the managers, Mr David Hadley, about where employees are allowed to eat or have a meal break and was told they are allowed to eat in the vehicle.

[13] Mr Peterson also stated that the standard operating procedures he was aware of indicate it is permissible to purchase food and drinks while on duty and make no reference to food and drink being required to be consumed in the vehicle. He also stated he believed he was terminated because of the issues he had raised about the working conditions and the state of the vehicles, as well as the issues he had raised about his employment entitlements.

[14] Mr Peterson also submits it was common practice for employees to be eating in public during their shifts, and two other employees had previously been involved in personal shopping in a supermarket in circumstances where they were eventually approached by the police. He submits those employees were not dismissed and one still works with TCB. He submits that in his case he sat down at a table in the Plaza and locked off the job, which is required with all ATMs, before purchasing a hotdog and walking to the rest room.

[15] Mr Peterson also submits the statement provided by Mr Caris cannot be relied upon as an accurate account of what occurred because it indicates Mr Peterson told Mr Caris he was going to get some food in the Plaza, and Mr Caris responded by telling Mr Peterson he was going back to the vehicle, where he waited for approximately 25 minutes before Mr Peterson returned. Mr Peterson submits that based on this account Mr Caris did not actually witness what occurred and therefore little weight should be attached to his statement.

[16] Mr Peterson also submits he has never been provided with a copy of a document attached to TCB’s written submissions headed “Professional Conduct,” containing information about various requirements, including at paragraph 11.3, “Eating and Drinking.”

[17] The written submissions provided by TCB attach the incident report, dated 13 November 2014, provided by Mr Caris. The opening paragraphs state:

“I Gary Caris while working Zone one 2up PM with Patrick Peterson did witness my colleague Breach Company SOP, by purchasing and consuming food in a Public Place, being Wendy’s hotdogs at the main entrance Sunshine Plaza while in uniform carrying a company authorised firearm, Patrick stated that he was going to get some Food (hotdog and coke) which he did and then stated that he was going to sit there and eat it. I said to Patrick that I was going back to the Car.

Patrick is well aware of my views of sitting in a public place consuming food while on duty and that it is a breach of the firearms act as well as company policy.

I waited back at the Car for about 25 minutes before Patrick returned.” 3

[18] The statement indicates at a later point, “When the Opportunity became available I contacted My Operations’ Manager Dusan to inform him of what had transpired.” 4

[19] TCB submits it responded to this incident report by carrying out a further investigation. As a result of this investigation the issue to do with Mr Peterson allegedly having a Thai massage during the course of his shift was not taken further as there was no proof he was involved in this activity. However, it did conclude he had been involved in “personal shopping,” in that he was eating and sitting in a public place while armed with a gun, and this was in breach of its standard operating procedures. It also submits Mr Peterson confirmed he had been involved in this behaviour, and he should have been aware that any food purchased was to be eaten in the vehicle, in accordance with the standard procedure that all employees are familiar with.

[20] TCB denies that any issues raised by Mr Peterson about his employment entitlements, or his employment contract, or the scope of award coverage that applied to him, had anything to do with the decision to terminate his employment.

[21] TCB also submits Mr Peterson did ask for a representative to be present in the meeting on 17 November, but it believed he had already found employment elsewhere and decided this was not necessary. It therefore proceeded to inform him that he was dismissed with effect immediately. It also submits that apart from this incident, and one other previous similar incident where he was given a verbal warning, it had no other issues to do with his work performance or behaviour.

[22] TCB also provided an extract from a document headed “Professional Conduct,” which indicated in part, “11.3 EATING AND DRINKING Security personnel are not permitted to eat or drink whilst in view of the public, whilst on duty. Bottled water may be consumed whilst on duty.” 5 It submits that Mr Peterson, along with all other employees, was aware of this requirement and had actually signed an acknowledgement to this effect, although this signed acknowledgement was not produced in the proceedings.

[23] TCB indicated that these documents were developed after two other employees were involved in similar behaviour, which led to proceedings about whether it was appropriate for the business to hold a security licence. However, it also confirmed that those employees were not dismissed at the time, and one of those employees still continues to work for TCB.

Consideration

[24] As indicated, s.387 sets out the criteria the Commission must take into account when assessing whether Mr Peterson’s dismissal was “harsh, unjust or unreasonable.” What falls within that description has also been considered in previous decisions of the Courts and this Tribunal, including in the High Court decision in Byrne v Australian Airlines Limited 6 when McHugh and Gummow JJ concluded:

“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.” 7

[25] I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.387 that I must take account of.

(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);

[26] The decision in Selvachandran v Peteron Plastics Pty Ltd 8 makes clear that the reason for dismissal should be “sound, defensible or well founded” and, conversely, should not be “capricious, fanciful, spiteful or prejudiced” if it is to be a valid reason for dismissal.9

[27] The reason for dismissal relied on by TCB concerns the alleged breach of its standard operating procedures and the firearms regulations occasioned by Mr Peterson purchasing a hotdog at a fast food outlet at the Sunshine Plaza, the and then sitting at a table in the Plaza before eating the hotdog on the way to the rest rooms. TCB submits Mr Peterson should have been aware that purchasing food and eating it in public was in breach of TCB’s procedures. He should also have been aware that the required procedure was to consume food or drink in the vehicle in a secluded place.

[28] TCB relies on the statement provided by an employee who was working with Mr Peterson at the time of the alleged incident, and a statement provided by Mr Peterson in response, in support of its decision to summarily dismiss him.

[29] Mr Peterson points to various matters in response. He submits the standard operational procedures he was familiar with indicate it is permissible to purchase food and drink while on duty, and make no reference to food and drink being required to be consumed in the vehicle. He also submits Mr Caris, by his own acknowledgement, returned to the vehicle where he remained for 25 minutes while the alleged incident occurred. Mr Peterson accordingly submits Mr Caris was not in a position to know what actually occurred.

[30] Mr Peterson also submits he has been singled out and treated differently to other employees, and refers to a previous incident in which two other employees were involved in personal shopping in a supermarket and were observed by the police at the time. He submits that neither of those employees were dismissed as a result of that behaviour.

[31] Mr Peterson also submits he has never been provided with a copy of the “Professional Conduct” document TCB now relies on, and notes TCB did not produce the copy of that document, signed by Mr Peterson, that it says it has.

[32] I have considered the various submissions and evidence provided in regard to the issue of “valid reason,” noting that neither party sought to rely on any sworn evidence in support of their submissions. Based on these considerations I am not satisfied TCB had a valid reason to dismiss Mr Peterson. I rely, in particular, on the fact that TCB was not able to produce evidence of its so-called Standard Operating Procedures, to confirm Mr Peterson was, or should have been aware, of these procedures and was clearly in breach of them. The fact this evidence could not be provided seems unusual, given TCB is involved in armed security operations. However, as indicated, in the absence of clear evidence Mr Peterson was aware of the correct procedures, and acted in breach of them, I am not satisfied that a valid reason for his dismissal existed.

[33] I am also not satisfied Mr Caris can have a clear understanding of what occurred given his statement indicates he returned to the vehicle and remained in the vehicle while the alleged incident occurred. I am also not satisfied that TCB’s actions were proportionate. Mr Peterson appears to have been subject to summary dismissal in circumstances where two other employees, previously involved in personal shopping in a supermarket, were not dismissed.

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

[34] This does not appear to be an issue of any significance in this matter, although Mr Peterson takes issue with whether the reason given to him for his termination was actually the reason why he was terminated.

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

[35] Mr Peterson was provided with an initial opportunity to provide a response to the issues raised, which he did in an email on 12 November. However, he was not given a copy of the report of the alleged incident from Mr Caris, which provided the basis for his termination. A second meeting which had been foreshadowed was then cancelled and Mr Peterson was terminated.

(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;

[36] Mr Peterson asked to have a support person present at the meeting to discuss his response to the issues raised about the incident. He says this request was refused. However, TCB submits the meeting did not proceed because it believed Mr Peterson had obtained work elsewhere, so it simply acted on its decision to dismiss him.

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

[37] TCB said Mr Peterson had been warned about an earlier issue involving the purchase of some items at a store, but acknowledged there were no other issues to do with his work performance or behaviour.

(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;

[38] The parties did not make submissions about the relevance or otherwise of these considerations. However, TCB is clearly a relatively small business and there was no indication it has any dedicated human resource management specialists or expertise. These factors clearly impacted on the procedures followed in effecting Mr Peterson’s dismissal.

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

[39] Nothing was raised in this context and there does not appear to be anything further that needs to be considered.

[40] Having considered each of the matters in s.387 that the Commission is required to take into account, and the authorities that have been referred to, I am satisfied in all the circumstances that Mr Peterson’s dismissal was harsh, unjust and unreasonable. In coming to this decision I have had particular regard to the conclusions arrived at in respect of s.387(a).

Remedy

[41] Section 390 of the Act states:

“(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.” 10

[42] Mr Peterson submits he does not seek reinstatement and, in any case, the degree of rancour exhibited between the parties in the proceedings suggests the employment relationship is well beyond repair. Section 392 of the Act continues to set out the criteria to be taken into account in considering whether to make an order the payment of compensation. It provides:

“Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.” 11

[43] It continues to indicate:

“Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $66,500 from 1 July 2014

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.” 12

[44] The Commission is unable to come to a concluded view about these matters based on the evidence and submissions now before the Commission. Both parties are accordingly directed to provide further written submissions dealing with the considerations contained in s.392. Mr Peterson is to file and serve his submissions and evidence by 19 August 2015. TCB is then to file and serve its submissions and evidence in response by 28 August 2015. It is then suggested that the matter can be determined “on the papers,” based on the written submissions provided by both parties. However, if either party seeks the opportunity to make further oral submissions then the matter will be set down for further hearing.

COMMISSIONER

Appearances:

Mr Michael Senior appeared on behalf of Mr Patrick Peterson.

Mr Tony Celona appeared on behalf of TCB Trading Pty Ltd.

Hearing details:

2015.

Melbourne:

3 June.

 1   Fair Work Act 2009 (Cth) at s.385

 2   Ibid at s.387

 3   Submissions of TCB as attached in ‘TCB Security Elite – Incedent (sic) Report 13/11/14’ signed by Gary Caris

 4   Ibid

 5   Ibid as attached in ‘Professional Conduct’ at 11.3

 6 (1995) 185 CLR 410

 7   Ibid at 465

 8 (1995) 62 IR 371

 9   Ibid at 373

 10 Above n.i at s.390

 11 Ibid at s.392

 12   Ibid

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