Mr Tafuaupolu Efu v SECURECorp (Qld) Pty Limited

[2011] FWA 575

[2011] FWA 575

FAIR WORK AUSTRALIA

DECISION

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

Mr Tafuaupolu Efu
v
SECURECorp (Qld) Pty Limited
(U2010/13949)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 4 FEBRUARY 2011

Summary - dismissal from employment – failure to comply with directions – fatigue – aggressive and threatening conduct.

[1] On 8 November 2010 Mr Tafuaupolu Efu (“the Applicant”) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). The Respondent was SecureCorp (Qld) Pty Limited (“the Respondent”).

[2] The application was the subject of a conciliation conference on 29 November 2010, which did not resolve the issues in contest. The application thereafter proceeded to an arbitration, which was heard in the Magistrates Court in Mt Isa on 27 and28 January 2011. The Applicant was self represented, while the Respondent was represented by Mr S.Pate of Gun Lawyers of Mt Isa.

[3] For 3 years the Applicant had performed duties as a security officer, in the employment of the Respondent, at the Haul Road guard house located at the intersection of the May Downs Road and the Haul Road at the Xstrata mine in Mt Isa. The Applicant performed duties arising from a contractual relationship between the Respondent and Xstrata. It appears the Applicant had performed similar duties for other contractors with the same client for a prior period of three years.

[4] The Applicant described his duties as ensuring that the vehicles accessing the intersection did so in a safe manner.

[5] According to the Applicant, the intersection of the May Downs Road and the Haul Road is an isolated area, and the guard house is 4 metres by 4 metres square. The Applicant appears largely to have worked 12 hours shifts at the guard house (on a four on and four off basis).

[6] The Applicant commenced duties with the Respondent on 1 November 2007. The date his dismissal took effect was 4 November 2010.

[7] The Applicant claimed that he had played music on a radio over the course of his period performing duties in the guard house, and that had helped him “conquer boredom and keep our minds mentally strong and healthy”. 1

[8] On 22 July 2010 the Respondent's Security Manager Ms Coral Lowe issued a written communication to all Haul Road security officers that all radios that played music were no longer allowed at the Haul Road guard house. This direction reinforced an earlier direction to the same end, which was entered directly into the communication log at the Haul Road guard house on 10 July 2010. It is not in dispute that the Applicant had knowledge of both of these directions at the relevant time.

[9] The reason given for issuing the directions was to ensure that security officers were able to monitor the radio communications between the officers at the gate and the trucks and light vehicles travelling along the Haul Road.

[10] The Applicant said that at around the time the direction was issued, he expressed his concerns about the direction with Ms Lowe and even attempted to demonstrate to her how he performed his duties, but “she refused to be open minded about the matter” 2. It is this exchange that the Applicant himself described as being “heated”.

[11] Ms Glenda de Winter, a security guard employed by the Respondent, gave evidence that on 14 September 2010 she had accompanied Ms Lowe to the Haul Road guard house. Ms de Winter stated that upon entering the guard house the radio was playing music and the Applicant moved to turn the volume down. The Applicant was then described as having attempted to conceal the radio by placing it in his bag. Upon Ms Lowe restating the policy authoritatively, Ms de Winter claimed that the Applicant opposed Ms Lowe’s direction, his language became abusive and aggressive and his behaviour became threatening.

[12] Ms de Winter claimed that Ms Lowe directed the Applicant to remove the radio from the site and not to bring it back to the guard house again.

[13] Ms de Winter gave further evidence that as she was required to drive past the guard house twice a day, she had observed the Applicant playing music on his radio on several occasions after the Respondent’s direction.

[14] Ms Lowe’s evidence reflected Ms de Winter’s evidence that the Applicant’s conduct had been threatening and aggressive. The Applicant did not believe so, claiming his conduct had not been “unusual” in any way. Ms Lowe disagreed and claimed the Applicant’s conduct had been unusual, to the extent that she claimed she complained of the Applicant’s conduct at that time to her General Manager, Mr John Blanchfield, and to Mr Darren Bracey (Xstrata Security and Protective Services Superintendent) who was the Respondent's client. Ms Lowe stated that she subsequently took the issue up with the Applicant and he apologised for his conduct.

[15] Ms Lowe described the Applicant’s conduct as comprising an aggressive posture involving aggressive language, pointing at her and putting his face into her personal space; all arguably accentuated by the relativity in body size between the Applicant and Ms Lowe.

[16] Mr Blanchfield’s evidence confirmed that Ms Lowe had contacted him and complained about the Applicant's failure to comply with the policy on radios at or about this time, but other than a broad-based recollection of having discussed the Applicant’s aggressive behaviour intermittently with Ms Lowe, he could not recall her specific complaint at that time. Mr Bracey did not give evidence in this matter so could not corroborate Ms Lowe’s complaint.

[17] On 23 September 2010 Mr Bracey, who acted as the client representative in relation to the security contract held between Xstrata and the Respondent, wrote to Ms Lowe. This communication, in the form of an email, stated that there had been a recent automotive incident on the Haul Road and the presence of radios playing music may have been a contributory factor in causing a security officer to not hear or misinterpret a communication over the radio system.

[18] Mr Bracey indicated that this was a non-negotiable requirement to be given effect that day, and that security officers who breached the direction would be subject to disciplinary processes.

[19] The Applicant acknowledged being shown this email by Ms Lowe at or around the time it was distributed to the Respondent.

[20] On 24 September 2010, the Applicant wrote directly to Mr Bracey, with Ms Lowe’s permission he claimed, and raised his concern about the direction not to play music in the guard house. He claimed that any investigation into the recent automotive incident (which was a near miss) did not include any interviews with security officers on the gate, and therefore any conclusion that the incident was related to music being played in the guard house was wrong. The Applicant claimed that as he had worked at the guard house for 5 years and the playing of music had never hindered his performance. He sought a meeting with Mr Bracey to discuss the issue further.

[21] The Applicant was of the view that in adopting the client’s instruction “Carol Lowe was miss using her authority as a manager by denying us the use of a stereo/radio without any clear evidence, proof or a justified reason.” [sic] 3

[22] That night it appears that Mr Blanchfield sent a communication to the Applicant requesting that he not make contact directly with the client. The Applicant, however, had already sent the email to Mr Bracey referred to above.

[23] On 27 September 2010 the Applicant signed a bulletin acknowledging the site requirement in relation to playing music (which extended to radios and MP3 players, laptops etc). The Applicant appears to have done this after Ms Lowe had approached his wife, who also worked as a security guard for the Respondent at the same location.

[24] It should be noted that under cross examination the Applicant conceded that despite the directions, (signed) bulletins and at least three identifiable meetings with Ms Lowe he had continued to bring his radio to work and played it over the course of his working day, including up until 2 November 2010, the day of his dismissal.

[25] On 2 November 2010 Mr Blanchfield and Ms Lowe attended the guard house as part of the annual contract review and to raise concerns with the Applicant about allegations concerning his continued use of a stereo system. Upon approaching the guard house by car, Mr Blanchfield and Ms Lowe stated that they saw the Applicant recognise them and return quickly to the guard house. Upon inspecting the guard house, Mr Blanchfield observed a stereo radio partially covered by the Applicant's jacket, or else sitting partly concealed in a bag.

[26] The Applicant was then informed by Mr Blanchfield that he was stood down pending an investigation of his use of a music stereo in the guard house in contravention of the above-cited direction.

[27] Upon being approached about these allegations, the Applicant refused to stand down from his position pending the investigation. It is alleged that he turned his music player up to a high level of volume and would not leave the workplace.

[28] Ms Lowe and Mr Blanchfield both gave evidence that during the incident in which the Applicant refused to accept his stand down, he acted in an aggressive manner, waved his arms and clenched his fists. Ms Lowe was concerned the incident would become violent.

[29] One witness, Mr Colin Hofmeier, a security officer who was called in after the incident had unfolded, stated that he observed the Applicant:

“...to be in a somewhat agitated state and was raising his voice quite considerably, upon getting out of the Mobile One vehicle I was asked by Ms Lowe to go to the guard house and collect the hand held radio (which was used to communicate with the road trains operating on the haul road) and take control of the gate, however, on approaching the guard house I was told (in quite an agitated tone) by [the Applicant] to “get out of here, no one is taking over my job.”  4

[30] Eventually, the Police were called (with three Police units attending) and, after a few minutes negotiation, the Applicant was escorted from the property.

[31] The Applicant contended that he acted as he did because of the aggressive manner in which Mr Blanchfield managed the issue:

“The manner John Blanchfield approached me on 2nd of November 2010 caused me to defend myself profusely, which caused me to become very upset and angry. He provoked me by charging into the guard house in search of the radio and then on viewing my radio questioning me as to whether the radio was mine, with my reply “yes”. John Blanchfield appeared to have an attitude of “we finally caught you red handed”. However this was not the case, as the radio was always in the guard house [...].” 5

[32] The Applicant further contended that Mr Blanchfield had been “the real bully [on the day] by using the strong arm of the law by removing me from my workplace.”

[33] The investigation into the Applicant's conduct extended to his conduct in refusing a direction to vacate the mine lease and the hurt the conduct caused to the Respondent's corporate image.

[34] The details of the allegations were put to the Applicant in writing later on 2 November 2010 following the incidents, and he was requested to provide a written response by the next day. The Applicant was informed at this time that he may seek the assistance of another person or a representative organisation.

[35] The Applicant replied the following day. He stated that the allegations put to him were correct, did not challenge them, apologised for his behaviour, sought a second chance, and undertook to comply with the Respondent's policies in the future. The Applicant also stated that he did not believe the matter was as serious as it had come to be.

[36] Mr Blanchfield notified the Applicant of his dismissal on a summary basis on 4 November 2010. Mr Blanchfield stated that having had regard to the Applicant's written response, he contended that the policy prohibiting the use of music players of whatever kind from the guard houses had been made clear in July 2010, and had been expressly acknowledged by the Applicant. However by November 2010, Mr Blanchfield stated that the Applicant had demonstrated that he continued to refuse to comply with the policy.

[37] Further, the Applicant’s conduct on 2 November 2010 in not removing himself from the mine site (until the Police intervened to facilitate his removal) upon being stood down was threatening conduct and caused corporate embarrassment (given the client representative was present during the incident).

CONSIDERATION

[38] Section 387 of the Act reads as follows:

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.

Section 387(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)

[39] The evidence of Ms de Winter and Ms Lowe was that on 14 September 2010, the Applicant had acted in an aggressive and threatening manner when contesting the Respondent's directions. I have set this evidence out above. I very much doubt Ms Lowe would have sought any apology from the Applicant unless the incident had taken place as a matter of fact. The evidence of both Ms de Winter and Ms Lowe, in my view, was given candidly and assuredly.

[40] The Applicant’s evidence about the events of 14 September 2010 was that he did not consider his conduct at the time to have been threatening, preferring to construe the incident as an ordinary feature of the relationship he held with Ms Lowe. Ms Lowe believed the impact of the Applicant's conduct to be out of the ordinary and unusual. Ms de Winter’s reaction to the conduct was similar. The Applicant himself conceded the exchange was “heated”. 6

[41] Whilst issues of perception will colour the characterisation of the conduct, I prefer the evidence of Ms Lowe and Ms de Winter that on 14 September 2010 the Applicant’s conduct at this time went beyond the range of ordinarily acceptable standards.

[42] I accept it is entirely probable that the Applicant himself was not cognisant of the transition in his conduct from being in voluble disagreement to being threatening and aggressive.

[43] Further to this, the evidence supports a finding that on 2 November 2010, the Applicant acted in an unacceptable manner in response to a direction to stand down. He:

• refused to accede to the stand down direction;



• refused to allow another employee entry to the guard house;



• refused to hand over his two-way radio;



• only vacated the workplace (the guard house on the mining lease) when directed to do so by Police who were called to the site; and



• acted in an aggressive manner.

[44] None of this conduct was disputed by the Applicant.

[45] The direction to stand down pending an investigation was a reasonable and lawful direction: it was the result the Applicant’s admitted and persistent refusal (over a four month period) to comply with his employer’s policy in respect of playing the radio whilst attending to the radio communications on the Haul Road.

[46] It can be reasonably inferred, I add, that the Applicant's refusal to stand down, vacate the mining lease and handover the hand held radio meant that the Respondent was in breach of the commercial services contract it held with its client during that time in that it was not monitoring traffic movements on the Haul Road. This was also a safety issue in its own right, given that the Applicant described his principal duties (cited above) as including ensuring that vehicles approached the Haul Road intersection safely.

[47] In any event, it is sufficient that conduct as I have set out above (in respect of both the incidents of 14 September 2010 and 2 November 2010) ordinarily is destructive of the trust and confidence inherent to the employment relationship.

[48] There were no mitigating circumstances of any substance in this case: neither Ms Lowe nor Mr Blanchfield had themselves been aggressive or in some manner threatening to the Applicant at the relevant times. Ms Lowe had spoken authoritatively at the time of the 14 September 2010 incident in an effort to persuade the Applicant to comply with a policy promulgated some months before. At the time of the 2 November 2010 incident, at the highest Mr Blanchfield may have given the Applicant the impression that he had caught him out, which reasonably could have generated a feeling of annoyance on the part of the Applicant (though hardly one of surprise given he had admitted contravening the Respondent's policy for four months prior).

[49] But in neither case can the Applicant's subsequent conduct be attributed to his employer’s actions or otherwise be condoned or explained away. The Applicant remains solely responsible for his conduct, and under an obligation in the workplace to demonstrate greater impulse control than he did.

[50] Taken together, the two incidents (14 September 2010 and 2 November 2010) are sufficient in my view to warrant the Respondent having a valid reason for the termination of the Applicant's employment. Further, in my view, the incident of 2 November 2010 was sufficient in its own right to establish a valid reason for the dismissal of the Applicant.

[51] I add that common to both incidents cited above was the Applicant's objection to the Respondent's direction not to use stereo radios or other music players at the guard house.

[52] There is nothing unreasonable about an employee agitating concern about such a policy, particularly in the circumstances in which the Applicant worked. Such an issue may give rise to a genuine fatigue issue, which could be of concern both to the Respondent and its client given the safety issues on the Haul Road.

[53] But seeking a review of such a policy must be carried out in a civil manner, and be something short of simple defiance (which was the Applicant's admitted response). The assistance of a representative organisation may have been of benefit in such a matter. Clause 15.5 of the Applicant's employment agreement expressly provided for the Applicant to notify a dispute. The agreement was also to be read in conjunction with an agreement certified in 2005.

[54] Indeed, the Applicant’s own evidence demonstrated that he had himself threatened to notify a dispute over roster hours in 2010 to the “Industrial Relations Commission”. He would have been well advised to have taken the same course in relation to the fatigue issue that arose in these proceedings.

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

[55] The Applicant was provided a written statement of the allegations he faced by the Respondent on the day of the incident on 2 November 2010. This written statement was sufficient notice of the reasons for the prospective termination of the Applicant's employment.

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

[56] As set out above, the Applicant was provided an opportunity to respond to the conduct that was the subject of the allegations. The Applicant availed himself of that opportunity.

s.387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[57] There is no evidence that any issues in relation to support persons was raised over the process leading to the Applicant's dismissal. I note the Respondent expressly outlined the opportunity for a representative organisation to have a role in its correspondence to the Applicant on 2 November 2010. The Applicant was also aware of the institutional dispute resolution framework available to him (as I have mentioned above).

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

[58] This matter concerned conduct issues, not performance issues.

s.387(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

[59] Nothing was put to me in respect of the size of the employer, let alone any impact it had upon the procedures effecting the dismissal.

s.387(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

[60] Nothing was put to me in respect of the absence of any human resource expertise on the part of the employer, let alone any impact it had upon the procedures effecting the dismissal.

s.387(h) any other matters that FWA considers relevant.

[61] It appears somewhat out of the ordinary that the following the incident of 14 September 2010 the Applicant was not warned formally and immediately in relation to the aggressive and threatening conduct he evinced at that time. There is some argument perhaps that the Respondent, in not acting to warn the Applicant formally about his conduct, failed to establish appropriate boundaries for the Applicant. I do note, however, that Ms Lowe gave evidence that she approached the Applicant two weeks after the incident and sought the Applicant's apology.

[62] I also acknowledge that the Applicant was remorseful for his conduct in his written response to the allegations on 3 November 2010, and indicated that he would comply with the Respondent's polices into the future (though he had not done so since they were first articulated in July 2010). But here I note that the Applicant had previously undertaken to comply with the radio policy, but had failed to do so.

[63] In his evidence in these proceedings, the Applicant did not take responsibility for his own conduct on 2 November 2010, but instead sought to make Mr Blanchfield accountable for his (the Applicant's) behaviour. I have cited the Applicant's evidence in this respect above.

CONCLUSION

[64] Having regard to the above discussion, the Applicant’s conduct was of such a character on 2 November 2010 that it was not harsh, unjust or unreasonable for the Respondent to have terminated his employment summarily. The Applicant’s conduct at that time was aggressive and threatening and indicated that the Applicant was unable to control his impulses or his frustrations in the workplace. I very much doubt the Applicant appreciates the impact of his behavioural lapses on others.

[65] It could not be expected that following such an incident (on its own), and where Police intervention was necessary, that the relationship of trust and confidence could be restored readily.

[66] This is even more the case when the incident of 14 September 2010 is taken into account.

[67] Given that there were no other circumstances (such as procedural deficiencies etc) that give me cause to conclude the dismissal was unfair, I dismiss the application for a remedy under s.394 of the Act in relation to the alleged unfair dismissal of the Applicant by the Respondent.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr. T. Efu for himself

Mr. S. Pate for the Respondent

Hearing details:

2011.
Mt Isa Supreme, District and Magistrates Court Complex.
January 27 and 28.

 1   Statement of Mr Tafuaupolu Efu dated 3 January 2011, page 1.

 2   Statement of Mr Tafuaupolu Efu dated 3 January 2011, page 2.

 3   Statement of Mr Tafuaupolu Efu dated 3 January 2011, page 2.

 4   Statement of Mr Colin Hofmeier undated, page 1.

 5   Statement of Mr Tafuaupolu Efu dated 3 January 2011, page 3.

 6   Transcript of proceedings at PN110

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