Mr Sebson Sibanda v ISS Security Services Pty Limited
[2010] FWA 8386
•2 NOVEMBER 2010
[2010] FWA 8386 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Sebson Sibanda
v
ISS Security Services Pty Limited
(U2009/14841)
COMMISSIONER SIMPSON | BRISBANE, 2 NOVEMBER 2010 |
Application for unfair dismissal remedy
[1] This is an application by Mr Sebson Sibanda (“the Applicant”) for an unfair dismissal remedy.
[2] The application was filed on 17 December 2009. Mr Sibanda’s employment was terminated by his former employer ISS Security Services Pty Limited (“the Respondent”) on 7 December 2009. Mr Sibanda was employed from 26 March 2007 to 7 December 2009.
[3] The application filed gave the following reasons as to why the dismissal was unfair;
(i) The dismissal was harsh, because the applicant did not steal any money from the Passenger;
(ii) The dismissal was unfair because there was no investigation and inquiry that might have enabled the applicant to clarify the matter for the employer;
(iii) The dismissal was unjust because the applicant was not afforded procedural fairness in relation to the allegation.
[4] A conciliation conference between the parties was conducted on 23 February 2010 which was not successful.
[5] The matter was listed for Directions on 15 April 2010. The Applicant appointed a Lawyer, Mr Adam Taylor from Workers First Pty Ltd to act on his behalf and the Respondent appointed Mr Michael Cusack from EMA Consulting. Directions were issued on 30 April for the matter to be arbitrated on 12 and 13 July 2010. Following the conclusion of those hearing days a further hearing date of 27 July 2010 was required to conclude the evidence. The parties required time to provide closing submissions and these were filed by the Respondent on 25 August 2010 and the Applicant on 17 September 2010.
[6] At the commencement of the first hearing day I raised as a preliminary issue that it would be of assistance if CCTV footage referred to in the written material was available to be viewed during the course of the hearing as neither party had sought to tender the footage at that stage. The footage belongs to the Brisbane Airport Corporation. CCTV footage was subsequently produced by the Respondent on the second hearing day which I will address at length below and was admitted as Exhibit 13 and marked as confidential at the request of the Respondent. 1 The exhibit contains a number of files however the relevant files for these proceedings are three electronic files titled vision 1, vision 2 and vision 3 which were footage from different camera angles within the passenger screening area at the Brisbane International Airport.
[7] A transcribed record of interview was also tendered as an attachment to the witness statement of Mr Gately for the Respondent. An electronic audio recording of the same interview was tendered by the Applicant as an annexure to the statement in reply of Mr Newman. 2
[8] As the case involved a dismissal on the basis of an allegation of misconduct it was agreed between the parties that the Respondent would present their case first.
[9] There were no jurisdictional issue raised and therefore the only issue for determination at the hearing was whether the termination of the Applicant was harsh unjust or unreasonable.
FACTUAL BACKGROUND
[10] The Respondent is a provider of contract security services throughout Australia. The Brisbane Airport Corporation is a client of the Respondent for whom the Respondent provides various security services at both the domestic and international airport terminals in Brisbane. The Respondent employs approximately 600 staff across the Brisbane domestic and international airports.
[11] The Applicant was employed as a security guard at the Brisbane International terminal in the performance of primary screening of passengers passing through the screening process. Primary screening involves carry-on baggage and other items being cleared after x-ray examination and passengers being cleared by transiting a “walk through metal detector” (WTMD) without triggering alarms.
[12] The Applicant was subject to an investigation following a complaint from a passenger (Mr Toby King) about the applicant’s conduct during the screening process on 19 November 2009. After an investigation the Respondent concluded the allegation made was sustained.
[13] The Applicant was terminated for serious misconduct and breach of company policy. 3
EVIDENCE
Mr Kotev
[14] Mr Dragan Kotev provided a witness statement 4 and also gave oral evidence. He stated that he was working on the walk through metal detector at the time of the incident. He gave evidence that a passenger walked through the metal detector at around 16.35 hours on 19 November 2009 and the metal detector alarmed so he had to send the passenger back to the loading area to remove his belt and shoes.
[15] He then heard the passenger on returning to the loading area talking to the Applicant in a loud voice. Mr Kotev said in his witness statement that he heard and saw a coin drop on the floor at the time. He asserted this again in oral evidence. 5 He gave evidence that the floor in the work area in question is tiled.6 He gave evidence that he believed the coin he saw fall to the floor was a two dollar coin.7 He also affirmed his written statement by repeating in oral evidence that the passenger’s demeanour was ‘normal’ the first time he passed through the metal detector however it was on the second occasion that he was ‘swearing’.8
[16] Mr Kotev gave evidence that he saw the Applicant bend down to pick up the coin. He said this in his witness statement 9 and in his oral evidence.10
[17] Mr Taylor showed Mr Kotev a diagram of the incident showing the placement of various persons. 11 Mr Kotev accepted the diagram was reasonably accurate.12
[18] Mr Kotev gave evidence that he was two or two and half metres away from the Applicant at the time of the incident. 13
[19] Mr Kotev said that when the passenger came back through the metal detector a second time he was ‘swearing and carrying on’. 14 He claimed that the passenger had said to him that “This guy who was in the loader (Sebson Sibanda) was pinching my money that was in the tray.” It was his evidence that he asked the passenger if he would like to speak to the supervisor and at this point Mr Gary Rose the supervisor approached the passenger and asked the passenger if he would like to come to the office as it wouldn’t take long to make a complaint. He said the passenger left with Gary Rose.15
[20] Mr Kotev said in cross examination the passenger did not want to give a statement because he was rushing to catch a plane. 16 Mr Taylor, on behalf of the Applicant, raised with Mr Kotev during cross examination that the incident report completed by Mr Kotev on the day immediately after the incident itself17 was not the same as the witness statement prepared by Mr Kotev for this case in that the incident report did not say Mr Kotev saw the coin on the floor. Mr Kotev’s explanation for this was that he had to complete the report quickly.18
Mr Bhopalwalla
[21] Mr Ebrahim Bhopalwalla provided a witness statement 19 and gave evidence that on the day of the incident he was positioned in the bag search area which involves searching through bags or belongings that come through the x-ray that cannot be clearly identified.20 Mr Bhopalwalla gave evidence that he heard a passenger who was speaking in a loud voice having a conversation with the Applicant. During this time he heard something drop on the floor which sounded like a coin.21
[22] Mr Bhopalwalla gave evidence that the passenger approached him and said that he wanted to ‘report this person in the front who is stealing the coin’. 22
[23] It was put to Mr Bhopalwalla in cross examination that the Applicant called out to him regarding the passenger. Mr Bhopawalla rejected that suggestion. Mr Bhopawalla completed an incident report on the day 23 which included the claim that the passenger said to him that he saw the loader take his 2 dollars and when he questioned him he dropped it. Mr Bhopawalla completed a further incident report24 which stated that whilst he was speaking to the passenger the Applicant was trying to get his attention.
Mr Genn
[24] Mr Edwin Genn a supervisor in the screening area provided a witness statement 25 and gave oral evidence that on the day of the incident a passenger approached the supervisor’s office to speak to whoever was in charge. Mr Genn gave evidence that the passenger was in an angry state.26 Mr Genn’s evidence was that the passenger told him he had confronted one of the screeners who he identified as the Applicant and that the passenger claimed to Mr Genn that he asked the Applicant to open his hand and a $2 coin fell from the Applicant’s hand. Mr Genn said he advised the passenger that he viewed the matter as a serious matter and he would get the Manager. He gave evidence that he then phoned the Screening Co-ordinator and Site Manager.27
Ms Mills
[25] Ms Christine Mills provided a witness statement 28 and gave oral evidence. Ms Mills is employed as a screening supervisor for the Respondent and it was her evidence that at the time of the incident she was in the supervisor’s office with Mr Genn.29 Ms Mills said that she was in the office with Mr Genn when the passenger approached Mr Genn and stated that a security officer had taken money out of the tray. She said that the passenger had made the claim that he had questioned the Applicant and asked him to open his hand, and when the Applicant did, the money fell out of his hand onto the floor in the screening area.30
[26] It was Ms Mills evidence that the Manager, Mr Michael Matthews was called immediately and when he arrived also spoke to the passenger and collected his details. Ms Mills said she was directed by Mr Matthews to get all of the staff involved in the incident to be freed up from their duties so that he could speak to everyone together and get them to explain what happened in their words. 31
[27] Ms Mills said she got the staff involved to gather in the old administration office and Mr Matthews asked them to complete incident reports about what they saw. She handed out incident reports and they were completed immediately. Mr Matthews took the completed incident reports and handled the matter from that point. 32
[28] Ms Mills was cross examined about a grievance that the Applicant had made about an issue regarding a shift swap between the Applicant and another security guard. 33 Two guards presented for work at the same time as there had been an administrative failure to communicate that a shift swap had been approved. This information had not been passed on to Ms Mills who objected to the Applicant being paid from the ordinary commencement time of shift because she did not know he was rostered on for the shift.
[29] Ms Mills explained that if a shift swap had not been approved then the person who would normally be rostered on should present for their shift. 34 Ms Mills said that the other employee was actually at work and had commenced their shift and when the Applicant arrived that’s when it was decided that the other guard should go home.35
[30] Ms Mills was asked in cross examination if there were other incidents between her and the Applicant. 36 She answered yes and went on to refer to instances where his main job was to plane guard a certain plane that was due to depart at 12 o’clock midnight. She complained that he would not come back directly to the screening point until just before he was due to finish his shift at 0100 hours. Ms Mills said she questioned him about this and he was very rude and disrespectful toward her.37 She claimed this happened many times.
[31] Ms Mills also gave evidence that another employee of the Respondent Mr Gary Rose had approached the supervisor’s office before the passenger had arrived there to advise that “A passenger would like to make a complaint about Sebson taking money out of the tray”. 38 Ms Mills gave evidence that the flight details of the passenger that she wrote down at the time was for an Air New Zealand flight number.39
Mr Matthews
[32] Mr Michael Matthews who is the Site Manager for the Respondent provided a witness statement 40 and gave oral evidence. The CCTV footage of the incident was tendered through Mr Matthews. Mr Matthews was shown a document (which was later in the proceedings to become Exhibit 21 attachment SS2) which was a record of interview conducted by Mr Matthews, Mr Powell and Ms Ford the Human Resources Coordinator, on 24 November 2009 with the Applicant. The document at the bottom of the first page identified five points which were headed ‘Facts emerging from CCTV footage’. Mr Matthews gave evidence about each of these points which I will deal with in detail later.
[33] Mr Matthews said that he asked Ms Mills to take the passenger’s details as the passenger advised that he was running late for his departing flight. 41 Mr Matthews said that he asked for all of the staff involved in the incident to be freed up so that incident reports could be completed.
[34] Mr Matthews was cross examined on the point that he did not complete an incident report himself and he didn’t record the conversation he had with the passenger anywhere. 42
[35] Mr Matthews also said the Applicant was given an opportunity to make an incident report within about 20 minutes of the incident occurring when he was taken to level 2. 43 Mr Matthews gave evidence that the Applicant contacted the Respondent and advised that he was unavailable for a meeting the following day which was 20 November 200944 so it was rearranged for the 24November 2009.
[36] Mr Matthews said at the meeting on 24 November the Applicant arrived without witnesses. He said that Ms Ford at the beginning of the meeting made the offer that the Applicant could have a witness present and that the Applicant stated that he had tried to arrange a witness but the person did not want to be involved. 45 It was later clarified that this was in regard to the meeting on 25 November. Mr Matthews said that the Applicant was told on 19 November he could have a witness with him and on 24 November and said that he didn’t want a witness at that time.46
[37] Mr Matthews said that all of the incident reports were read to the Applicant and shown to him at the meeting. 47 Mr Matthews maintained that the meeting on 24 November lasted for a maximum of 45 minutes.48
[38] At the meeting the following day on 25 November the Applicant again didn’t have a witness with him. Mr Matthews gave evidence that he contacted by telephone, Mr Solomon Juru, as the Applicant had said he wanted to have Mr Juru as his witness but Mr Juru was concerned about repercussions. Mr Juru confirmed to Mr Matthews he did not want to be involved. 49
[39] Mr Matthews said in evidence that the Applicant was read the names of all staff on roster that day to determine if there was anyone he would wish to ask to be a witness for the interview. 50 The meeting was abandoned and the Applicant was asked to find a witness within the next 24 hours. Mr Matthews said that the Applicant was given a copy of the record of interview from 24 November to take home.51 Mr Matthews gave evidence that a meeting was reconvened on 26 November with the Applicant and his support person Mr Ivan Reddick. Mr Benjamin Powell was also in attendance.
[40] In cross examination Mr Matthews was referred to the ‘ISS Facility Services Quality Management Systems Volume 1’ Part C Human Resources “Code of Ethics and Conduct“ 52at the bottom of page 9 of 20 where it states:
“Where there is evidence of fraudulent conduct, it will be normal for the matter to be referred to the appropriate law enforcement agency. This will occur through the Group Quality and Compliance Director in consultation with the relevant Executive Manager”. 53
Mr Rose
[41] Mr Gary Rose is a leading hand employed by the Respondent. Mr Rose provided a witness statement 54 and also gave oral evidence. He said that at the time of the incident on 19 November 2009 he was standing beside the machine on the walk through metal detector located at x-ray 4. He stated that he had a clear view of the Applicant who had his back toward Mr Rose whilst he was working in the bag load position on x-ray 3.
[42] He states as follows in his witness statement:
“7. I heard the walk through metal detector alarm on x-ray 3 and I noticed a passenger had been sent. Whilst watching this passenger I had noticed him empty his pockets etc on going through. The passenger then got irate when walking through the walk as he didn’t clear.
8. At the same time I was watching Sebson Sibanda and noticed him putting his hands in the tray, which there was no need for as there was nothing on top of items that needed to be separated out. (When items in a tray are stacked as a loader we would be required to put our hands into the tray to resort them so clear view of items can be ascertained by the screener on the X-ray).
9. When the passenger alarmed he was requested to walk back and remove his belt and lashed out at Sebson Sibanda and I heard the passenger challenge him as to why he had a coin in his hand. At the same time Sebson Sibanda said what coin.
10. I then heard the coin drop onto the floor and Sebson Sibanda made the comment back to the passenger that he didn’t have anything in his hands.” 55
[43] It was Mr Rose’s evidence that he heard the coin drop, but he did not see the coin or see it in the Applicant’s hand 56 Mr Rose was cross examined about the incident report he completed57 and discrepancies between it and his witness statement58 on the basis that the incident report says the passenger told Mr Rose what happened, not what he saw himself.
Mr Powell
[44] Mr Benjamin Powell is a Screening Coordinator at the International Terminal. Mr Powell provided a witness statement 59 and gave oral evidence. He stated that he was contacted at approximately 16.40 pm by the shift supervisor Mr Genn and advised that a passenger had made a complaint against the Applicant. He said that he went to the screening point with Mr Matthews and spoke to the passenger. He said that the passenger claimed it appeared that a staff member had taken money out of the tray with his belongings that were going through.60
[45] In his witness statement he described what occurred as follows:
“7 Edwin Genn requested that I attend the screening point as there was a passenger, Mr Toby King, who alleged that a staff member (Sebson Sibanda) had stolen money from him.
8. I met up with Toby King just outside of the Supervisors Office at the ITB Main Screening Point. I introduced myself and Mike Matthews to Toby King.
9. Toby King explained that he had presented at the screening point, and had also placed some loose coins in a tray to go through the x-ray machine. Toby King stated that he had confronted a Staff member for stealing his coin who is pointed out and thus identified as Sebson Sibanda.
10. Toby King said that he had challenged Sebson Sibanda about taking a coin out of the tray. Toby King said that he had asked Sebson Sibanda to open his hand and in doing so, a $2 coin dropped onto the floor.
11. We took the passenger details in case further follow up was required and let the passenger go.” 61
[46] It was his evidence that he was in attendance when employees assembled to prepare incident reports and he was not aware of employees being asked to in turn to give their version of events. 62 Mr Powell participated in the meeting with the Applicant which he recalled was around 1830 hours. Mr Powell gave evidence that where Mr Rose was standing he could be seen from the CCTV footage.63 He also said that it was his opinion that the passenger did not appear aggressive on his approach.64Mr Powell also gave evidence that the Applicant was offered a witness and that he initially declined that offer.65 Mr Powell gave evidence that there was a further attempt made to contact the passenger the day after the incident.66
[47] A previous matter involving a former employee Maria Pritchard was raised with Mr Powell during cross examination on the basis that in that matter the Respondent had reported it to the police. Mr Powell explained that matter involved liquids, aerosols and gels procedures where the employee had confiscated an item from a passenger but then removed the item from the screening point 67 In that case the matter was referred to the police as it was required to be in such cases.
Ms Ford
[48] Ms Kelly Ford is the Human Resource Officer for ISS Security at the International Terminal. Mr Ford provided a witness statement 68 and gave oral evidence. Ms Ford stated the Applicant was suspended at approximately 1700 hours on 19 November 2009. He was unable to attend a meeting arranged for the following day so it was rescheduled for 24 November 2009. The Applicant was offered to have a witness present at the meeting on 24 November but declined. Ms Ford stated that the meeting was for the purposes of gaining the Applicants version of events.
[49] Another meeting was arranged for 25 November to allow for follow up in relation to viewing CCTV footage and also to speak with witnesses involved to confirm facts. 69
[50] The meeting of 25 November commenced and initially the Applicant was prepared to proceed without a witness but subsequently decided he wanted to discontinue until he could arrange a witness. He made this decision after reading a record of interview from the previous day that Ms Ford had produced. 70 Mr Ivan Radix was confirmed as a witness for a meeting the following day and the meeting was re-arranged for 26 November 2009. Ms Ford said the initial meeting on 24 November lasted for approximately 45 minutes.71
Mr Gately
[51] Mr Greg Gately is employed as the General Manager of ISS Security Pty Limited in Queensland. Mr Gately provided a witness statement with three attachments 72 and gave oral evidence.
[52] Mr Gately said the company had approximately 600 employees at Brisbane and about 1350 in Queensland. Aviation Security represents approximately 70% of that workforce. 73 He stated that he received an email from the Applicant on 26 November 2009. Mr Gately gave evidence that on receiving the email from the Applicant he made arrangements for the Applicant to attend his office on 1 December 2009 with an independent witness Mr Christopher Moushirn.
[53] On that day Mr Gately conducted an interview of the Applicant and Mr Scott Irwin the ISS National Resource Manager was also present. The conversation was recorded on an audio recording device and transcribed and included as an attachment to the statement of Mr Gately. 74
[54] Mr Gately gave evidence that as he needed to make further enquiries he conducted a second meeting on 7 December 2009. Mr Gately said the following in his witness statement:
“10. upon review of the facts of the matter, it was concluded that Mr Sibanda’s responses were inconsistent and he was unable to provide a reasonable explanation when questioned on elements of the CCTV footage. In addition, the passenger and other ISS Security employee’s lacked any motivation to collaborate a conspiracy against Mr Sibanda. In light of this determination of the facts, Mr Sibanda version lacked credibility.
11. The decision to recommend termination of employment to my Executive Manager was made due to the evidence from the passenger, CCTV footage, Mr Sibanda’s response, passenger’s statement and other ISS Security employee statements. Further, Mr Sibanda’s actions were serious, breached the fundamental role of the Security Officer to protect property, breached ISS values, placed his employers brand into disrepute and warranted summary termination of his employment contract...” 75
[55] Mr Gately touched on the matter of Ms Pritchard and explained in his evidence the reason why another matter was reported to the police as compared to this matter. That matter involving a liquid, aerosol or gel and is deemed to be a quarantine issue. On that basis the Respondent felt compelled to report it to the Australian Federal Police. 76
[56] Mr Gately felt he was not obliged to report this matter to the police under the Security Providers Act and on the basis that there was no injury as a result of the incident and there was a potential for the brand of the company to be damaged if it were further publicised he took a decision not to report it to the police. 77
[57] Mr Gately gave evidence that he had decided to investigate the matter himself and that he would be “starting from scratch”. 78
[58] Mr Gately’s evidence dealt extensively with all the material that had been collated prior to him taking over the investigation, as well the meetings he conducted with the Applicant on 1 December 2009 and 7 December 2009. I deal with much of his evidence that I have not summarised here in greater detail in my reasoning below.
Mr Sibanda
[59] The Applicant Mr Sebson Sibanda provided a witness statement with seven attachments, 79 a further statement in reply with two attachments80 and also gave oral evidence.
[60] He raised the matter that he had submitted a grievance against Ms Mills on 12 October that was never addressed.
[61] With regard to the incident on the 19 November 2009 he stated he had not been provided with copies of written complaints regarding the matter.
[62] He stated the passenger was abusive and agitated about having to go through the process in the screening area. He maintained that the passenger was being aggressive in a verbal sense when he approached him at the point of loading of the x-ray 3. 81 The Applicant believed this was because of what the Applicant was telling him he had to do.82
[63] He stated that the passenger accused him of stealing his money.
[64] He stated that he observed after the incident seven staff enter the search room and they remained there for 15 to 20 minutes.
[65] He agreed that he initially declined an offer to have a witness present for a meeting on 24 November 2009 regarding the incident.
[66] He stated he was not shown a copy of CCTV footage at that stage. He stated that he refused to sign the record of interview from the meeting on 24 November 2009 when requested to do so on 26 November 2009.
[67] He wrote to Mr Gately on 26 November 2009 as he was unhappy with the manner in which the investigation was occurring. In his statement in reply he stated that the passenger placed a jacket as well as his passport and other smaller items most of which were obscured by the jacket in a second tray, the first tray having been used for his laptop computer.
[68] The Applicant stated that the passenger became agitated after he suggested that the passenger not leave his passport in the tray and the passenger took the passport and placed it in his front shirt pocket. 83
[69] The Applicant stated that the passenger was very irritated by having to return back through the metal detector and said “Fuck you, this is bullshit man”. The Applicant said the passenger took his belt off and threw it in the tray.
[70] The Applicant gave evidence that the passenger bent down to remove his shoes after he had returned back through the metal detector when it alarmed on the first occasion he attempted to pass through it. The Applicant said he instructed the passenger to remove his shoes and when the passenger was bending down he said “Man, this is bullshit, man”. 84
[71] It was the Applicant’s evidence that the passenger dropped something when he bent down to take his shoes off. The Applicant believed it was his passport and one other item.
[72] The Applicant said that as the passenger was walking through the metal detector he accused the Applicant of stealing his money. The Applicant then said he asked Mr Bhopalwalla to attend to the passenger as he was saying something. The Applicant said at his initial interview he requested that the police become involved.
[73] The Applicant said the CCTV footage reveals that Mr Rose is reading papers at the time of the incident and was not paying attention. Further he was not in a position to see what had happened and he generally disputed Mr Rose’s evidence on that basis.
[74] The Applicant disputed what the passenger was alleged to have said to a number of witnesses for the Respondent regarding the incident.
[75] He disputes that Mr Kotev could have seen the coin drop or to have heard it from where he was positioned.
[76] The Applicant said in his correspondence to Mr Gately dated 26 November 2009 85 on the last paragraph of page 2 that there is a conspiracy involving Ms Mills and Mr Rose because the Applicant had made a complaint about Ms Mills on 12 October 2009. He felt this because when the report of Mr Rose was read to him it didn’t make sense to him.86
[77] The Applicant gave evidence that when the passenger alarmed the metal detector the first time and was sent back by Mr Kotev the Applicant said words to the effect “Do you have anything in your pockets, things like cell phones or any other metal in your pockets or cigarettes, or if you don’t have anything of those take your shoes off and your belt.”
[78] In his statement in reply the Applicant said that at this point the passenger became very irritated and said “Fuck you, this is bullshit man.” It was the Applicant’s evidence that the passenger appeared to drop something as he bent down to take off his shoes. 87 The Applicant gave oral evidence that he both observed something drop and also heard something drop.88 His evidence was that the passenger bent down and picked something up from the floor. He then put his shoes in the tray.89
[79] The Applicant alleged that Mr Matthews attempted to force him to accept that he had stolen the passenger’s money. 90
[80] The Applicant also alleged that Ms Ford has said to him that “you are wasting our time” 91 during the interview process and by doing so was attempting to force him to accept the allegations against him.
Mr Newman
[81] Mr Brian Newman, an Industrial Advocate at Workers First Australia Pty Ltd, provided a witness statement 92 which was admitted into evidence uncontested. The statement included as an attachment an electronic audio recording of the interview conducted between Mr Gately, Mr Irwin and the Applicant on 1 December 2009.
CONSIDERATION
[82] Generally I found evidence of the Respondent’s witnesses to be more consistent and reliable than that of the Applicant with regard to the sequence of events surrounding the incident that led to his termination.
[83] It is my view that it was reasonable for Mr Gately to be concerned by inconsistencies between the evidence of the Applicant and what is visible from the CCTV footage. Examples of inconsistency between his evidence and what appears on the CCTV footage is discussed below.
Grievance against Ms Mills
[84] In regard to the issue of the Applicant’s grievance against Ms Mills I accept her evidence that she did not operate out of malice toward the Applicant. It appears to me there was a genuine breakdown in communication. She accepted that had she known that the shift swap had been agreed to by another supervisor she would not have sought to impose the later starting time on the Applicant.
[85] She said she did not actually become aware that the Applicant had made a grievance against her until she was told by Mr Matthews about three weeks after 19 November 2009. 93 I accept that evidence and my view on this point goes against a suggestion that the grievance made against Ms Mills gave her a motivation to, seek to cause harm to the Applicant.
Meeting of 24 November
[86] Mr Powell gave evidence that the meeting held on the 24 November lasted for 35 minutes to 40 minutes 94 while the Applicant suggested that this meeting lasted several hours. Mr Powell’s evidence on this point is corroborated by Mr Matthews and Ms Ford. I accept the evidence from the Respondent on this point and believe the Applicant has exaggerated in this instance.
[87] Mr Matthews, Ms Ford and Mr Powell also rejected the proposition that the Applicant was asked to agree with or accept the allegations made against him during the meeting on 24 November. I prefer the evidence of the three witnesses for the Respondent on both of these points as generally it was my perception that their evidence was more consistent than the Applicant’s.
Aggression of the Passenger
[88] It was Mr Gately’s evidence that the CCTV footage disclosed, in the behaviour in the passenger, someone who was a regular traveller because when they presented at the screening point they knew what they were doing.
[89] It was the Applicant’s evidence that the passenger was abusive toward him on first arriving at the screening point and that was also his explanation for why the passenger was turning around to watch him as the passenger passed through the metal detector. 95
[90] This issue was the first of five points identified under the heading ‘Facts Emerging from CCTV footage’ within a record of interview from the meeting on 24 November 2009. The first point states “The passengers initial body language would indicate there was little to no aggression shown toward Sebson.” Mr Matthews, who attended this interview noted that in contrast to the Applicant’s claim that the passenger was swearing and cursing at him as he presented at the screening process, 96 he was influenced by the body language of the passenger and that he appeared as ‘just a normal passenger’ at this stage from the CCTV footage. It does not appear that there is any aggression shown. 97
[91] Mr Kotev also said he believed the demeanour of the passenger was normal when he approached the screening area.
[92] It was also Mr Gately’s evidence that he did not believe after viewing the CCTV footage that the passenger was acting aggressively from non-verbal communication as he approached the screening area as was suggested by the Applicant. However, Mr Gately believed the passenger’s non-verbal communication changed and the passenger became agitated towards the end of the process. He believed the passenger still appeared to be “of reasonable behaviour” 98 when he did come back after the alarm had sounded.
[93] In the Applicant’s statement in reply he said that the passenger placed a jacket as well as his passport and other smaller items most of which were obscured by the jacket in a second tray at the screening point. This is inconsistent with the CCTV footage which appears to show that the passenger did not have a jacket.
[94] The Applicant also stated that the passenger became agitated after he suggested that the passenger not leave his passport in the tray and the passenger took the passport and placed it in his front shirt pocket, 99 however the CCTV footage reveals that the passenger appears to be wearing a shirt that did not have a front shirt pocket. It is quite clear from the vision 2 of the CCTV footage that he is wearing a polo style shirt and he does not attempt to place his passport in his pocket.
[95] It is also apparent from the footage that he is holding the passport that had been given back to him by the Applicant and carries it in his hand through the metal detector.
[96] The Applicant’s evidence was also contradictory under cross examination with regard to the issue of when it was that he was saying the passenger became agitated at him. His witness statement in reply 100 states fairly clearly through paragraphs 12, 13 and 14 that the passenger became agitated and said the words “this is bullshit” immediately after the Applicant had suggested to the passenger that he should not leave his passport in the tray as it may get stuck or lost in the machine.
[97] However, he contradicted his own witness statement under cross examination by stating that this was not correct and that the passenger became agitated when he was told to remove his computer from its bag. 101
[98] The Applicant also claimed that the passenger left his laptop bag on top of the laptop in the tray 102 however the CCTV footage shows the passenger removed it from its bag and placed it in a tray which was pushed toward the x-ray machine and the laptop bag was then placed on the conveyor separately.
[99] I do not think the views expressed by Mr Gately and Mr Matthews regarding what they observed from the CCTV footage on these issues are unreasonable. I would agree that from the CCTV footage the passenger does not appear to show any aggression on his initial approach to the screening area. This view is supported by the view of Mr Kotev.
View of Mr Rose
[100] The Applicant always maintained that Mr Rose was not in a position to have a clear view of x-ray machine 3 where the Applicant was standing. Vision 1 of the CCTV footage reveals that no passengers passed through the metal detector attached to x-ray 4 from 8 minutes 35 to 8 minutes 55 on vision 1 of the CCTV footage which is the period when it is alleged that the Applicant dropped a coin. It is my view from viewing the CCTV footage that there does not appear to be anything that was impeding the view of Mr Rose at the time. Having said that, his view was of the back of the Applicant.
[101] Mr Rose says he heard the coin drop but did not see it drop. He also claims to have seen the Applicant’s hand go into the tray and also to have heard the passenger challenge the Applicant about having a coin in his hand and the Applicant reply “what coin”. I would accept that it was possible for Mr Rose to have heard and seen these things from where he was standing.
Passenger Passing through Metal Detector
[102] The third point identified by the Respondent at the meeting of 24 November 2009 was the following. “It was noted that whilst passing through the walk-through metal detector the passenger appeared to be paying a lot of attention to his items being loaded into the x-ray machine.” Mr Matthews said that in the Applicant’s record of interview he noted that the passenger was swearing and cursing when he first went up and he said the passenger was very aggressive from the very beginning. However it appeared to Mr Matthews as if the passenger is clearing through the walkway when he actually starts paying attention to what is going on as though he is concerned or puzzled. 103
[103] Mr Gately said he ascertained from the Applicant that there were coins in the passenger’s tray. Mr Gately also observed that it is not apparent from the CCTV footage that the passenger is acting aggressively when Mr Kotev asked him to walk back when the alarm went off, and that had the passenger been agitated as claimed, this would have been an ideal time for the passenger to show agitation. 104
[104] I would agree that the passenger did not appear as if he was swearing and cursing as he passed through the metal detector but instead was paying attention to what is going on back where the Applicant was standing.
[105] It was also the evidence of the Applicant that it was he and not Mr Kotev who instructed the passenger on what he had to do after the metal detector alarm sounded. This is not consistent with the CCTV footage where Mr Kotev can be seen sending the passenger back and pointing to his feet and then to the conveyor. I find this evidence of the Applicant on this point unlikely to be true. The visual alarm which shows where on a person’s body an object that triggers the alarm is placed, was on Mr Kotev’s side of the metal detector, not the Applicant’s.
Holding Back the Tray
[106] Mr Gately said you can see the Applicant hold a tray back, which he regarded as unusual because usually you would push the trays through as soon as they become available. There is spacing recommended for the viewing of objects by the screener but Mr Gately maintained there was sufficient space for the Applicant not to have held the tray back for a considerable period of time. 105
[107] Mr Gately said:
“However on this occasion when Sebson was holding the tray which had the contents which came from the passengers pockets, when he was holding onto it there was no reason to be holding onto it because there was no backlog of items going through the x-ray machine at that point in time. You can see that by the rating which items are put through the x-ray machine, and you can also see that on the screen as well. So there’s that component. The other component of the question related to when the passenger was alleging to the applicant that he had something in his hands to that degree, and that’s when the second tray was grabbed. I viewed on CCTV that his hand was being shielded by the trays. So they were two separate points.”
[108] Mr Gately said he believed that at that point as the passenger was going through the process of going through the walk through metal detector you could see the passenger looking back and hesitate, then look back the whole time.
[109] Mr Gately determined that was an opportunity when the coin was removed from the tray. 106 I would agree that while it is not clearly evident on the CCTV footage it is a plausible explanation for how the Applicant could have obtained the coin.
[110] The passenger appears to be alerted to or distracted by something that he has seen or that has happened just prior to him passing through the metal detector for the first time. The footage reveals he is turning his head and looking back in the general direction of the Applicant which I believe is unusual for a passenger passing through a metal detector.
[111] The closing submissions of the Respondent 107 again draw attention to a delay in the time the Applicant took to push the second tray through the x-ray machine containing the passenger’s personal items.
Exchange between Applicant and Passenger on returning back through metal detector
[112] The fourth pointraised by the Respondent at the meeting on 24 November 2009 was as follows: “The passenger is the seen to walk back out of the metal detector alarmed and removed his belt and shoes at this point. On standing up the passenger clearly points at Sebson’s hand and then bends down to pick something up that has fallen and shows Sebson an item held between his thumb and forefinger” Mr Matthews said that in the meeting with the Applicant, the Applicant said that the passenger did not point at his hands, and didn’t appear to ask him to open his hands at any stage however the footage appears to show that the passenger does do this. 108
[113] The Applicant stated that the passenger was very irritated by having to return back through the metal detector and said “Fuck you, this is bullshit man”. The Applicant said the passenger took his belt off and threw it in the tray. However the CCTV footage shows that at no time did the passenger take his belt off and throw it in a tray.
[114] The Applicant gave evidence that the passenger bent down to remove his shoes after he had returned back through the metal detector when it alarmed on the first occasion he attempted to pass through it. The Applicant said he instructed the passenger to remove his shoes and when the passenger was bending down the passenger said “Man, this is bullshit, man.” 109. However the CCTV footage reveals that the passenger only bent slightly to remove his shoes as he lifted his feet to remove them, such that his torso only needed to bend slightly.
[115] In his statement in reply the Applicant said that the passenger became very irritated and said “Fuck you, this is bullshit man” on having to return back through the metal detector. It was the Applicant’s evidence that the passenger then appeared to drop something as he bent down to take off his shoes. 110 The Applicant gave oral evidence that he both observed something drop and also heard something drop.111 His evidence is then that the passenger bent down and picked something up from the floor. He then put his shoes in the tray.112 The Applicant acknowledges that the passenger accused him of attempting to steal his money.113
[116] The Applicant’s version does not appear to be correct from viewing the CCTV footage. The footage shows that the passenger removed his shoes needing only to bend slightly and then placed his shoes in a tray. Following this there appears from the CCTV footage to be some kind of discussion or exchange occurring between the passenger and the Applicant and following that the passenger bends down to pick up something. It is my impression from the passenger’s reaction that he is looking for something that has fallen from the Applicant’s side of the conveyor, or under the conveyor, not on their own side of the conveyor. This indicates to me that the passenger is not bending down to pick something up that he has dropped himself.
[117] There are significant inconsistencies on this point between what the Applicant claims to have occurred at this time and what appears to me to have occurred from the footage.
[118] I also believe it was not unreasonable for Mr Matthews to be concerned if the Applicant had stated in their meeting, as claimed by Mr Matthews, that the passenger did not point at the Applicant’s hands and didn’t ask him to open his hands at any stage as that is what appears to happen from the CCTV footage.
[119] Mr Gately was concerned when the Applicant initially claimed he heard a “tink tink” noise when the passenger was bending over to take off his belt and shoes however upon viewing the CCTV footage Mr Gately described the Applicant as becoming evasive regarding the question of when the “tink tink” noise occurred. The Applicant was unable to say firstly when he believed that the passenger dropped something, or what it was that was dropped.
[120] It was also reasonable for Mr Gately to be concerned about the inconsistency between the Applicant’s claim about the passenger taking their belt off and bending down to take off their shoes when I accept the footage shows the passenger did not take his belt off or bend down to any significant degree.
[121] Mr Gately said that the passenger appears to pick something up, that the passenger appeared to be showing the Applicant something, and then appeared to throw something at the tray or at the Applicant. I would agree that is what appears to occur from viewing the footage.
[122] Mr Gately also raised the issue that at that point in time when the passenger has to return back through the metal detector after Mr Kotev turned him back, the CCTV footage shows the passenger is standing in an upright position and lifts each leg up to take his shoes off. At this time Mr Gately believed it is apparent the passenger is communicating something to the Applicant and he is pointing at the Applicant. Mr Gately concluded he was asking the Applicant what was in his hands. 114 This is not an unreasonable conclusion to draw from the evidence I have seen and heard.
[123] Mr Bhopalwalla said he heard what sounded like a coin drop on the floor and that the passenger had approached him saying he wanted to report the person in front for stealing a coin. Mr Bhopalwalla also contradicted the evidence of the Applicant when the Applicant claimed that he had called to Mr Bhopalwalla to assist the passenger.
[124] Mr Kotev said he heard and saw a coin drop and that the passenger accused the Applicant of attempting to steal his money. There is a difficulty with Mr Kotev’s evidence however, in that he believes he saw the Applicant bend down to pick up something when this is not evident on the CCTV footage.
[125] It is clear enough to me from the CCTV footage in vision 2 that the passenger bends down to pick something up off the floor in the seconds after he points in the direction of the hands of the Applicant. It appears more likely to me that something dropped from the Applicant’s side of the conveyor than from the passenger’s side.
[126] Overall, I find the Applicant’s version of events in regard to the period following the passenger being turned back through the metal detector and when it is said a coin was dropped on the floor less plausible than the version as proposed by the Respondent. I am more sympathetic to Mr Matthews’ summation that it was at this point in the CCTV footage that it is more likely that the passenger is accusing the Applicant 115 of placing another coin in the tray. I am generally more supportive of the interpretation of events as put by Mr Gately and Mr Matthews from the footage in the period after the passenger has been turned back the first time than the version as put by the Applicant.
Hands in pockets, in Tray, and coin dropping
[127] The fifth point identified by the Respondent from the meeting on 24 November is as follows; “In addition to the above, leading up to the passenger’s accusations Sebson is seen to place his hands in his pockets on numerous occasions. Once the passenger has made the accusation Sebson does not appear to place his hands in his pockets again.” Mr Matthews said that it raised questions that he didn’t understand why the Applicant would be doing that so often and then once he was accused of something it stops. 116
[128] While the Applicant does appear to place his hands in his pockets on occasion during the footage that of itself in my view is not a basis to support the Respondent’s case.
[129] However on a separate issue, when the CCTV footage was viewed in the course of the meeting on 1 December 2009 Mr Gately said the Applicant was unable to tell him what was in the passenger’s hand. Mr Gately believed that the Applicant was being evasive in regard to his questions during the interview about what was in the passenger’s hand.
[130] Mr Gately was also concerned that he had in his possession an ‘incident report’ 117 which claimed that the passenger challenged the Applicant about what was in his hands and that he believed that it could be seen from the CCTV footage the Applicant didn’t show his hands. Mr Gately believed it would have been reasonable in the circumstances for a person to show their hands if they had been accused of stealing.
[131] Mr Rose was the only witness to give direct evidence that he heard the passenger challenge the Applicant about what was in his hand. However it was also not unreasonable for Mr Gately to have some regard to what other employees said about their discussions with the passenger. Mr Bhopalwalla, Mr Kotev, Mr Genn, Ms Mills, Mr Matthews and Mr Powell all gave evidence in some form about what the passenger had said to them, or what they heard the passenger say regarding his challenging the Applicant.
[132] Mr Gately stated that at the point in time when he believed the passenger was accusing the Applicant of having something in his hand the Applicant had a tray in one hand and when challenged then grabbed another tray. He believed the Applicant put his right hand underneath the trays and then very shortly after that it is visible from the CCTV that the passenger leaned down. Mr Gately determined that at that point the Applicant had dropped what had been alleged, a coin, and that the passenger picked up the coin off the ground, presented it, and made a comment and threw it in disgust towards him. 118
[133] Again I am more inclined to believe the Respondent’s version over the Applicant’s version surrounding how the coin was dropped and who dropped it as it correlates more closely from what appears to occur on the footage and in the evidence. There is nothing on the CCTV footage that would lead me to accept the claim by the Applicant that the passenger dropped something at this time in the sequence of events.
After Incident
[134] Mr Genn said the passenger was angry when he approached the supervisor’s office. The discussion between the passenger and employees of the Respondent is clearly visible on vision 3 of the CCTV footage 119 and that discussion lasts for a number of minutes. Further, it is his evidence that the passenger claimed a $2 coin dropped from the passenger’s hand when the passenger challenged the Applicant.
[135] Ms Mills’ evidence supported the evidence of Mr Genn when she said the passenger approached Mr Genn and stated that a security officer had taken money out of the tray. She also gave evidence that the passenger claimed he asked the Applicant to open his hand, and when the Applicant did, the money fell out of his hand onto the floor in the screening area.
[136] Mr Gately was concerned that the Applicant claimed to have called Mr Bhopalwalla over when he had been accused by the passenger, however when you look at the CCTV footage the Applicant is looking at the passenger at this time. Mr Bhopalwalla did not corroborate this statement.
[137] Mr Gately gave evidence that after his initial meeting with the Applicant he further explored the issues of Mr Bhopalwalla's involvement by seeking a further statement from him and also about the manner in which the incident reports were collected on the day. 120
[138] Mr Gately believed that Mr Bhopalwalla came over of his own accord because he had a walking aid of some kind to put back through the x-ray machine, and not because the Applicant was yelling out for him to come over as he had claimed. 121 I would agree this appears to be what happened from viewing the footage. This is another instance where I prefer the Respondent’s evidence over the Applicant and it casts further doubt about the truthfulness of the Applicant in my mind.
Failure to call passenger as a witness
[139] The Applicant in its closing submissions asserted that the Tribunal should draw an inference that the passenger (Mr King) would not have assisted the Respondent’s case pursuant to the principles in Jones v Dunkel (1959) 101 CLR 298.
[140] It was Mr Matthews’ evidence that the reason a formal statement was not taken from the passenger at the time was due to the passenger’s concern about his flight time.
[141] Mr Matthews said that he asked Ms Mills to take the passenger’s details as the passenger advised that he was running late for his departing flight. 122 Mr Matthews was cross examined on the point that he didn’t record the conversation he had with the passenger anywhere.123 Mr Taylor asked:
“Why didn’t you get a statement or some sort of record from the passenger on the day? He actually told me his flight was departing and he was running late for it.” 124
[142] Mr Kotev said in cross examination the passenger did not want to give a statement because he was rushing to catch a plane. 125
[143] Ms Mills gave evidence that the flight details of the passenger that she wrote down at the time were for an Air New Zealand flight number. 126
[144] Ms Ford gave evidence that contact was made with the passenger through an email in June or May 2010. Ms Ford stated that as she had lived in New Zealand she became aware that on reviewing the noted email address for the passenger it was incorrectly recorded.
[145] Mr King as provided for in the submissions of the Respondent is a New Zealand based business person. He has no direct connection to the Respondent. While it would have been helpful for him to have given evidence I do not intend in the circumstances of this case to draw an inference that he would not have assisted the Respondent’s case when the witness resides in another country, and it is not surprising that practical difficulties would arise in attempting to secure him as a witness.
Mr Geller
[146] It was raised on the Applicant’s behalf that because Mr Geller was working in close proximity to the Applicant at the time of the incident stated, that he saw and heard nothing that was relevant for the purposes of determining what had happened. 127 Mr Matthews gave evidence that he spoke to Mr Geller the day after the incident and he said he did not witness anything so on that basis the Respondent did not pursue him to provide evidence.128 I accept that explanation.
Pritchard Issue
[147] I accept the evidence of Mr Gately regarding the reasons why a previous disciplinary issue concerning another former employee Ms Pritchard was reported to the Australian Federal Police, and this matter was not as a reasonable explanation when consideration is given to the difference between the circumstances in the two matters.
Other Procedural Issues
[148] The Respondent assisted the Applicant to obtain a witness to attend an interview with him on 26 November as he was having difficulty arranging a witness himself. Upon the Applicant complaining about the process at the meeting on the 26 November the Respondent complied with his request that the investigation be referred to a higher level within the organisation.
[149] Ms Ford gave evidence that she forwarded all of the material in regard to the matter to Mr Gately on learning that the Applicant had requested that it be referred to Head Office. 129
[150] Ms Ford said she had been asked to provide some further information to Mr Gately in relation to the investigation and she recalled this was from Ms Mills and Mr Bhopalwalla. 130
[151] I am satisfied that when staff were called together to complete incident reports there was not a lengthy discussion of the incident that prejudiced the interests of the Applicant as has been claimed by the Applicant. Mr Matthews said the discussion regarding compilation of incident reports only lasted for approx 20 to 30 seconds. 131 Evidence of the Respondent’s witnesses generally supports the conclusion that staff were only requested to complete incident report forms and there was not a lengthy discussion of what happened.
[152] The Applicant was concerned that he was excluded from the process of collecting incident reports but I am not convinced that prejudiced the position of the Applicant. He was given a more than reasonable opportunity to put his version of events on a number of occasions from the day of the incident on 19 November through to his termination on 7 December.
[153] The decision to terminate the Applicant was ultimately taken by the Executive General Manager Mr Hunt based on a recommendation from Mr Gately and Mr Scott Irwin.
CONCLUSION
[154] Mr Gately said that he determined that the Applicant at the time attempted to take certain money in the form of a 2 dollar coin which wasn’t his, which was deemed to be serious misconduct and goes against the values of the organisation and puts the company’s reputation at risk. That combined with the fact that when the Applicant was asked to explain his version of events Mr Gately believed his responses were not honest, was the basis Mr Gately recommended he be terminated. 132
[155] The Respondent is a very large employer with approximately 600 employees working in connection with Brisbane airports alone. The very nature of its business is to provide protection and security for people and property. For an employer such as the Respondent the nature of the allegation made against one of its employees by a member of the travelling public is very serious in light of the level of trust and confidence that must exist between the Respondent and the airport’s owners and also the Respondent and members of the public.
[156] In such circumstances the employer must weigh all of its obligations when considering the evidence it has before it and determining the action it must take in light of that evidence.
387 Criteria for considering harshness etc.
“ In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[157] I have found the Applicant’s evidence to be contradictory and inconsistent. I would agree with the submission of the Respondent 133 that the evidence of the Applicant has varied as the case proceeded.
[158] There appears to be no motive for why the passenger would be abusive toward the Applicant as alleged. The only apparent explanation for why the passenger would be focussing their attention on looking back toward the Applicant as they passed through the metal detector is that they had a concern about something they had seen. This is a more plausible explanation then the Applicant’s explanation that the passenger was abusive but for no apparent reason.
[159] I am satisfied from the evidence that the passenger, Mr King, who was transiting through the Brisbane International Airport on 19 November 2009 made a complaint about the Applicant who was a Security Officer employed by the Respondent in that he had attempted to remove a 2 dollar coin from a screening tray.
[160] In such circumstances the Respondent has an obvious obligation to attempt to investigate the allegation and establish to the best of its knowledge whether the allegation is true or not.
[161] The Applicant has tried to make the case that as the nature of the allegation could be the subject of a criminal investigation if a complaint was made that therefore the decision of the Respondent not to report the matter to the police suggests somehow the Respondents case against the Applicant is weakened. There is no doubt in such cases an employer is entitled to investigate the matter to determine its view about the matters impact on the employment relationship, quite apart from the issue of whether the matter should be the subject of a police investigation.
[162] The Applicant has generally raised a case that conclusions have been reached by the Respondent on hearsay and that the Applicant has not been afforded the presumption of innocence. In this matter I must make a determination based on the balance of probabilities.
[163] It is my impression that the investigation was conducted in a reasonably objective manner. I did not discern from the evidence of the witnesses that the Applicant had not been afforded a reasonable approach in the manner in which the Respondent went about its task of trying to ascertain as best it could the facts of what occurred following the complaint from the passenger Mr King.
[164] The Applicant conceded himself whilst giving evidence that he believed the process undertaken by Mr Gately on the day of his interview on 1 December 2009 was fair. 134
[165] Overall, it is my view that the version of events as put by the Respondent is more consistent with the footage which is visible on the CCTV footage than the version of events as proposed by the Applicant. I am also satisfied that the Respondent was justified in forming the view that the responses provided by the Applicant during the conduct of an investigation into the incident were not truthful and in those circumstances it is not unreasonable for the Respondent to have the reached the conclusion that the Applicant did remove a coin from the tray containing the personal items of Mr King on the balance of probabilities.
(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);
[166] Based on my finding set out above, I am satisfied on balance the Applicant did remove a 2 dollar coin from the passenger’s tray. On that basis I accept there was a valid reason for dismissal related to the Applicant’s conduct as this action constitutes serious misconduct.
(b) whether the person was notified of that reason;
[167] The Applicant had three separate meetings with representatives of the Respondent regarding the allegations prior to his termination and therefore had been notified of the reason for his dismissal.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[168] I am satisfied that the Applicant was given several opportunities to respond to the reasons related to his conduct.
(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;
[169] The Applicant was given opportunities to have a support person present at each meeting however initially had difficulties in making these arrangements himself. The Respondent attempted to assist in this regard. Ultimately in the meetings conducted by Mr Gately the Applicant had a support person of their own choice.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[170] This is not a relevant consideration in this matter.
(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;
[171] This is not a relevant consideration in this matter.
(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;
[172] This is not a relevant consideration in this matter.
[173] I have had regard to all of the evidence provided by both parties during the course of the hearing. For all of the reasons I have set out above I find that the dismissal was not harsh, unjust or unreasonable and I dismiss the application.
COMMISSIONER
Appearances:
A. Taylor, Solicitor for the Applicant.
M. Cusack, Solicitor for the Respondent.
Hearing details:
2010.
Brisbane:
July, 12, 13 and 27.
1 Transcript of Proceedings Monday 12 July PN2875
2 Exhibit 24 BAJN 1 Statement of Mr Brian Anthony John Newman including audio recording of interview
3 Exhibit 20 marked “SS7” Affidavit of Mr Sibanda
4 Exhibit 3 Incident report
5 Transcript of proceedings 12 July 2010 PN 101-103
6 Transcript of proceedings 12 July 2010 PN 283
7 Transcript of proceedings 12 July 2010 PN 224 and PN 289
8 Transcript of proceedings 12 July 2010 PN 123 -125
9 Exhibit 1 Statement of Mr Kotev para 7
10 Transcript of proceedings 12 July 2010 PN 302- 309
11 Exhibit 3
12 Transcript of proceedings 12 July 2010 PN 188
13 Transcript of proceedings 12 July 2010 PN 165
14 Exhibit 1 Statement of Mr Kotev para 8
15 Exhibit 1 Statement of Mr Kotev para 10,11
16 Transcript of proceedings 12 July 2010 PN 335 -338
17 Exhibit 3 Incident Report
18 Transcript of proceedings 12 July 2010 PN 320-320
19 Exhibit 4 Statement of Mr E Bhopalwalla
20 Exhibit 4 Statement of Mr E Bhopalwalla para 5
21 Exhibit 4 Statement of Mr E Bhopalwalla para 6 ; transcript PN 493
22 Exhibit 4 Statement of Mr E Bhopalwalla para 8 ; transcript PN 513 - 516
23 Exhibit 5 Incident report
24 Exhibit 6 Incident report
25 Exhibit 7 Statement of Mr E Genn
26 Transcript of proceedings 13 July 2010 PN 913
27 Exhibit 7 Statement of Mr Genn para 8 - 10
28 Exhibit 10 Statement of Mr Mills - Mr Mills evidence is not be opened without permission
29 Exhibit 3 para 5
30 Exhibit 3 para 7
31 Exhibit 3 para 9
32 Exhibit 3 para 10
33 Transcript of proceedings 13 July 2010 PN 31346 - 1399
34 Transcript of proceedings 12 July 2010 PN338
35 Transcript of proceedings 13 July 2010 PN 1390
36 Transcript of proceedings 13 July 2010 PN 1400
37 Transcript of proceedings 13 July 2010 PN 1401
38 Transcript of proceedings 13 July 2010 PN 1446
39 Transcript of proceedings 13 July 2010 PN 1595
40 Exhibit 12
41 Transcript of proceedings 13 July 2010 PN 1886
42 Transcript of proceedings 13 July 2010 PN 2069
43 Transcript of proceedings 13 July 2010 PN 2185
44 Transcript of proceedings 13 July 2010 PN 2238
45 Transcript of proceedings 13 July 2010 PN 2251 -2260
46 Transcript of proceedings 13 July 2010 PN 2398
47 Transcript of proceedings 13 July 2010 PN 2270-2272
48 Transcript of proceedings 13 July 2010 PN 2355
49 Transcript of proceedings 13 July 2010 PN 2405
50 Transcript of proceedings 13 July 2010 PN 2413
51 Transcript of proceedings 13 July 2010 PN2436
52 Exhibit 20 attachment SS3
53 Transcript of proceedings 13 July 2010 PN 2508
54 Exhibit 15
55 Exhibit 15 para 7 to 15
56 Transcript of proceedings 13 July 2010 PN 2839 -2841
57 Exhibit 16
58 Exhibit 15
59 Exhibit 17
60 Transcript of proceedings 27 July 2010 PN 3057
61 Exhibit 17 PN 6 - 11
62 Transcript of proceedings 27 July 2010 PN 3070
63 Transcript of proceedings 27 July 2010 PN 3098
64 Transcript of proceedings 27 July 2010 PN 3098
65 Transcript of proceedings 27 July 2010 PN 3102
66 Transcript of proceedings 27 July 2010 PN 3145
67 Transcript of proceedings 27 July 2010 PN 3170
68 Exhibit 18
69 Exhibit 18 PN 11
70 Transcript of proceedings 27 July 2010 PN 3292
71 Transcript of proceedings 27 July 2010 PN 3287
72 Exhibit 19
73 Transcript of proceedings 27 July 2010 PN 3568
74 Exhibit 19 Attachment c
75 Exhibit 19 Para 10 - 11
76 Transcript of proceedings 27 July 2010 PN 3638 - 3644
77 Transcript of proceedings 27 July 2010 PN 3569 -3571
78 Transcript of proceedings 27 July 2010 PN 3527
79 Exhibit 20
80 Exhibit 21
81 Transcript of proceedings 27 July 2010 PN 3915
82 Transcript of Proceedings 27 July 2010 PN 3922-3923
83 Exhibit 21 para 15
84 Transcript of Proceedings 27 July 2010 PN 3990
85 Attachment SS6
86 Transcript of Proceedings 27 July 2010 PN 4057
87 Exhibit 21 para 26
88 Transcript of Proceedings 27 July 2010 PN 4104-4121
89 Exhibit 21 paras 26-29
90 Transcript of Proceedings 27 July 2010 PN 4148-4156
91 Transcript of Proceedings 27 July 2010 PN 4179
92 Exhibit 24
93 Transcript of Proceedings 13 July 2010 PN 1432
94 Transcript of Proceedings 27 July 2010 PN 3187
95 Transcript of Proceedings 27 July 2010 PN 4275-4279
96 Transcript of proceedings 13 July 2010 PN 1837
97 Transcript of proceedings 13 July 2010 PN 1869
98 Transcript of Proceedings 27 July 2010 PN 3736
99 Exhibit 21 para 15
100 Exhibit 21
101 Transcript of Proceedings 27 July 2010 PN 4071-4087
102 Exhibit 21 para 9
103 Transcript of proceedings 13 July 2010 PN 1847-1849
104 Transcript of Proceedings 27 July 2010 PN 3740
105 Transcript of Proceedings 27 July 2010 PN 3553
106 Transcript of Proceedings 27 July 2010 PN 3556
107 Respondent’s closing submission at para 90
108 Transcript of proceedings 13 July 2010 PN 1851
109 Transcript of Proceedings 27 July 2010 PN 3990
110 Exhibit 21 para 26
111 Transcript of Proceedings 27 July 2010 PN 4104-4121
112 Exhibit 21 paras 26-29
113 Exhibit 20 para 13, exhibit 21 para 32
114 Transcript of Proceedings 27 July 2010 PN 3563
115 Transcript of Proceedings 13 July 2010 PN 2625-2626
116 Transcript of proceedings 13 July 2010 PN 1853
117 Exhibit 16
118 Transcript of Proceedings 27 July 2010 PN 3563
119 Exhibit 13
120 Transcript of Proceedings 27 July 2010 PN 3654
121 Transcript of Proceedings 27 July 2010 PN 3543
122 Transcript of proceedings 13 July 2010 PN 1886
123 Transcript of proceedings 13 July 2010 PN 2069
124 Transcript of proceedings 13 July 2010 PN2074
125 Transcript of proceedings 12 July 2010 PN 335 -338
126 Transcript of proceedings 13 July 2010 PN 1595
127 Transcript of Proceedings 13 July 2010 PN 2694
128 Transcript of Proceedings 13 July 2010 PN 2165-2175
129 Transcript of Proceedings 27 July 2010 PN 3326
130 Transcript of Proceedings 27 July 2010 PN 3329
131 Transcript of Proceedings 13 July 2010 PN 1896
132 Transcript of Proceedings 27 July 2010 PN 3565
133 Respondent’s submission para 138
134 Transcript of Proceedings 27 July 2010 PN 3905
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