Mr Saar Markovitch v Krav Maga Defence Institute Pty Ltd T/A Kmdi
[2019] FWCFB 4258
•18 OCTOBER 2018
| [2018] FWC 6114 [Note: This decision has been quashed - refer to Full Bench decision dated 19 June 2019 [2019] FWCFB 4258] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Saar Markovitch
v
Krav Maga Defence Institute Pty Ltd T/A KMDI
(U2018/6030)
| COMMISSIONER RIORDAN | SYDNEY, 18 OCTOBER 2018 |
Application for an unfair dismissal remedy – jurisdictional objection.
Mr Saar Markovitch (the Applicant) was employed by Krav Maga Defence Institute Pty Ltd (the Respondent) on 19 September 2015. The Applicant was dismissed on 21 May 2018.
The Applicant lodged an unfair dismissal application on 7 June 2018.
The Respondent is owned by Mr Ron Engleman. Mr Engleman and the Applicant were considered best friends prior to the Applicant’s termination and had been involved in lengthy discussions in relation to a business partnership.
Leave was granted in accordance with section 596 of the Fair Work Act, 2009 (the Act) to allow the Respondent to be represented by Mr Moorhouse, of Counsel, at the Hearing on 23 September 2018.
The Respondent objected to the Applicant’s unfair dismissal application on the basis that it is a small business and that it had complied with the Small Business Fair Dismissal Code (section 388 of the Act). The Hearing only dealt with this jurisdictional objection.
Background
Both the Applicant and Mr Engleman were previously Officers in the Israeli Army. Krav Maga is a full contact martial art / self defence system which is taught and practiced in the Israeli Army.
The Respondent operates 3 Krav Maga gyms in the Sydney Metropolitan Area at Surry Hills, Caringbah and Bondi Junction. The Applicant was the manager of the Bondi Junction gym.
The Applicant was the only full time employee at the Bondi Junction gym. His duties included working as an instructor as well as managing the gym. Other employees were either casuals or contractors. The Applicant also conducted 2 classes per week at the Surry Hills gym.
The Applicant was a s.457 via worker who had been sponsored by the Respondent.
The Applicant was terminated on 23 May 2018 for allegedly not providing supervision to the students during classes in accordance with the Respondent’s policies.
Section 388 of the Act states:
“The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
“The Code
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
(my emphasis)
The Applicant was issued with the following termination letter on 23 May 2018:
“23 May 2018
Dear Saar
Termination of Employment
1. Serious misconduct
1.1 On 21 May 2018, we met and discussed an allegation made against you of serious misconduct following the Company becoming aware of you failing to supervise the clients of the Company under your care.
1.2 At the meeting, you confirmed the conduct alleged occurred and agreed that your actions amounted to serious misconduct and offered your resignation effective immediately. We acknowledge you subsequently rescinded the resignation by way of email on 21 May 2018 which we accept.
1.3 We take the safety of our client as paramount and cannot accept or tolerate the conduct of nay employee who willfully puts our clients at risk.
1.4 Your conduct amounts to:-
· Engaging in conduct that causes risk to our client’s health and safety and to the Company’s reputation; and
· Serious and willful neglect in the performance of your duties.
1.5 Consequently the Company has terminated your employment summarily (without notice) in accordance with clause 18 of your employment contract effective on 21 May 2018.
…
4.0 Other Matters
4.1 The Company has incurred significant costs associated with your 457 vsa and subsequent permanent residency application. consequently, your final payment owed and any outstanding leave entitlements will be withheld to assist in offsetting the costs incurred by the Company.
4.2 The Company reserves its right to pursue you for breach of contract and damages for the full costs incurred associated with your 457 visa and permanent residency application.
Yours sincerely
Ron Engleman
Director
Krav Maga Defence Institute”[1]
The Respondent is relying on video footage that has been recorded at the Bondi Junction gym to substantiate its claim that the Applicant was not providing appropriate supervision to its students, thereby creating a serious OH&S issue.
During the course of Mr Engleman’s cross examination , I asked him whether he had advised his staff about the installation of the video cameras and their possible use:
“PN323
So what authority have you got to watch the gym from an external location?‑‑‑We've installed signage in all of our gyms advising that the areas under constant surveillance when a client's - every client who steps foot into a class signs a disclaimer that they agree to be photographed in the course of their training.PN324
And what have you said to the employees?‑‑‑Nothing to that extent. All my employees are very aware that the cameras are installed mainly for their safety. Often instructors are left on their own. Sometimes a male instructor with a female client and that's to be able to make sure that everything is fair. Everything is honest.
PN325
Have you told - have you advised the employees that they could be subject to disciplinary action as a result of anything just seen on the video?‑‑‑No, I have not.PN326
Mr Moorehouse I might let you address that issue at the appropriate point in time.”[2]
The NSW Workplace Surveillance Act, 2005 replaced the 1998 Workplace Video Surveillance Act. In reading the Bill for a second time in the NSW Parliament, the Honourable Henry Tsang, Parliamentary Secretary to the Minister for Industrial Relation said:
“In common with the Workplace Video Surveillance Act 1998 the Bill creates a general prohibition on surveillance by employers of their employees at work unless employees have been given notice of the surveillance in accordance with the Bill, or unless the surveillance is carried out under the authority of a covert surveillance authority issued by a Magistrate…
…While it is true that the notification regime seeks to ensure that employees are made aware of any surveillance being conducted by an employer, notification is not itself an onerous requirement. Essentially, the Bill promotes transparency in the workplace, obliging employers to be open about surveillance practices.”
“Part 2 outlines the notification requirements for surveillance not to be considered covert. Essentially, employees must be given written notice 14 days prior to any surveillance commencing. This notice, which can be sent via email, must indicate the kind of surveillance to be carried out; when the surveillance will start; whether the surveillance will be continuous or intermittent; and whether the surveillance will be for a specified limited period or ongoing…
Each of the three types of surveillance also has additional requirements. For ‘camera surveillance’ cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) must be clearly visible in the place where the surveillance is taking place. Signs must also notify people that they may be under surveillance in that place and must be clearly visible at each entrance to that place. These mirror the requirements under the Workplace Video Surveillance Act 1998…”
Part 2 of the Workplace Surveillance Act, 2005 states:
“Part 2 Notification of workplace surveillance of employees
Note. Surveillance of an employee that does not comply with this Part is covert surveillance (see the definition of covert surveillance). Covert surveillance of an employee is an offence unless the surveillance is authorised by a covert surveillance authority (see Part 4).
9 Application of Part
This Part applies to the surveillance of an employee carried out or caused to be carried out by the employee’s employer while the employee is at work for the employer.
10 Notice of surveillance required
(1) Surveillance of an employee must not commence without prior notice in writing to the employee.
Note. Subsection (6) provides for an exception to the notice requirement.
(2) The notice must be given at least 14 days before the surveillance commences. An employee may agree to a lesser period of notice.
(3) If surveillance of employees at work for an employer has already commenced when an employee is first employed, or is due to commence less than 14 days after an employee is first employed, the notice to that employee must be given before the employee starts work.
(4) The notice must indicate:
(a) the kind of surveillance to be carried out (camera, computer or tracking), and
(b) how the surveillance will be carried out, and
(c) when the surveillance will start, and
(d) whether the surveillance will be continuous or intermittent, and
(e) whether the surveillance will be for a specified limited period or ongoing.
(5) Notice by email constitutes notice in writing for the purposes of this section.
(6) Notice to an employee is not required under this section in the case of camera surveillance at a workplace of the employer that is not a usual workplace of the employee.
11 Additional requirements for camera surveillance
Camera surveillance of an employee must not be carried out unless:
(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and
(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.
12 Additional requirements for computer surveillance
Computer surveillance of an employee must not be carried out unless:
(a) the surveillance is carried out in accordance with a policy of the employer on computer surveillance of employees at work, and
(b) the employee has been notified in advance of that policy in such a way that it is reasonable to assume that the employee is aware of and understands the policy.
13 Additional requirements for tracking surveillance
Tracking surveillance of an employee that involves the tracking of a vehicle or other thing must not be carried out unless there is a notice clearly visible on the vehicle or other thing indicating that the vehicle or thing is the subject of tracking surveillance.
14 Exemption for certain surveillance by agreement
Surveillance of an employee is taken to comply with the requirements of this Part if the employee (or a body representing a substantial number of employees at the workplace) has agreed to the carrying out of surveillance at the premises or place where the surveillance is taking place for a purpose other than surveillance of employees and the surveillance is carried out in accordance with that agreement.”[3]
(my emphasis)
At the conclusion of the proceedings, I invited the parties to provide further submissions and evidence in relation to the issue of workplace surveillance[4].
The Respondent applied for an extension to the Directions on the basis of workload constraints. The Applicant objected to the Respondent being granted an extension. The Respondent’s request was denied. The Respondent was reminded that their submissions and evidence must be lodged by 4pm on 30 August 2018.
The Applicant lodged his materials on 29 August 2018 at 8.20pm. The Respondent lodged some material on 30 August 2018 at 5.05pm, 65 minutes after they were due. The Respondent filed written submissions on 31 August 2018 at 1.25am, some 9 hours and 25 minutes after they were due.
I am very concerned that a number of parties within the IR system who seem to believe that they can flout the Directions of the Commission with no adverse consequences. The Directions of the Commission are not like a hairdressing appointment or a golf tee time. They cannot be changed at the whim of one of the parties. The Respondent’s submissions were not filed in accordance with the Directions. I am tempted to simply ignore the late submissions and evidence, however, that would be unfair to the Respondent. The statutory declaration of Ms Town from Bradbury Legal states that the delay was caused by the Respondent’s legal representatives. This behaviour, in my view, is unfortunate and unprofessional. If the unrepresented Applicant was able to read the Act and provide a coherent submission within the timeframe of the Directions then surely a solicitor could also comply.
I have also considered that the level of prejudice to the Applicant in allowing the Respondent to lodge their material a few hours late to be minimal.
I accept the evidence of Mr Engleman that the Applicant was aware of the plan to install CCTV cameras and that, even though they were installed whilst he was overseas, the Applicant actually authorised the payment to the contractor for the installation upon his return. I also accept that the reason why the CCTV equipment is primarily installed is for the protection of employees and students. I have taken this into account.
If the Applicant was a partner rather than an employee, this explanation would be satisfactory. However, the Respondent has emphatically stated that the Applicant was an employee. As such, the Applicant is entitled to the protections that are afforded to employees under the Workplace Surveillance Act 2005, ie, the provision of signs in the workplace and two weeks’ notice in writing from the employer before the CCTV system starts recording. Neither of these two privacy measures have been initiated by the Respondent. Therefore the recordings of the Applicant do not comply with the Workplace Surveillance Act. As a result, I find the CCTV recordings to be inadmissible. I have taken this into account.
Although Mr Engleman testified that signs had been installed at the Bondi Junction gym identifying that video cameras are in operation, proof of the existence of these signs has not been provided. I accept the evidence of the Applicant that these signs do not exist. I have taken this into account.
Students pay money to attend this gym to receive tuition in Krav Maga. This tuition should not result in self-supervision or self-learning. In this regard, the behaviour of the Applicant is unsatisfactory. I have taken this into account.
I have taken into account all of the submissions and evidence that has been submitted by the parties.
Conclusion
When attending for work, every employee has a right and expectation that there employer will abide by the law.
The breach of safety, as alleged by the Respondent, is not of sufficient magnitude to warrant a determination to override the provisions of the Workplace Surveillance Act. Even if I were to allow the video recording into evidence, the conduct of the Applicant did not create an imminent risk of serious injury to the Applicant or any of the students.
The Respondent’s decision to terminate the Applicant was based on evidence obtained from the CCTV recordings of the gym. These recordings were not conducted in accordance with the NSW Workplace Surveillance Act 2005. This means that the recordings were obtained illegally. As a result, the Respondent has no evidence to infer that a serious safety incident has occurred. Therefore, the provisions of the Small Business Code have not been met.
The jurisdictional objection raised by the Respondent is dismissed.
Directions for the substantive matter will be issued in the near future.
COMMISSIONER
<PR700968>
[1] Exhibit 1 Annexure A
[2] Transcript 23 August 2018 TN322 - 326
[3] Workplace Surveillance Act 2005
[4] Transcript 23 August 2018 TN974
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