Ms Kelly Bedford v Linfox Armaguard Pty Ltd T/A Linfox Armaguard
[2018] FWC 7574
•13 DECEMBER 2018
| [2018] FWC 7574 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kelly Bedford
v
Linfox Armaguard Pty Ltd T/A Linfox Armaguard
(U2018/4507)
DEPUTY PRESIDENT ASBURY | BRISBANE, 13 DECEMBER 2018 |
Application for an unfair dismissal remedy.
OVERVIEW
[1] Ms Kelly Bedford applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to the termination of her employment by Linfox Armaguard (the Respondent). Ms Bedford was employed as an Armoured Vehicle Operator/Cash in Transit Security Guard (AVO) and also performed the role of Crew Leader as required. Ms Bedford was employed by Armaguard from August 2013 until her dismissal on 13 April 2018. Ms Bedford was dismissed for her part in a series of events commencing on 1 March 2018, which resulted in an amount of $58,710.00 of client money going missing. Ms Bedford was working on 1 March 2018 with another AVO Mr Craig Symes who was also dismissed. Ms Bedford was performing the role of Crew Leader on that date.
[2] In summary, on 1 March 2018, Mr Symes and Ms Bedford were operating an Armoured Vehicle (AV) and attended at the premises of a client to collect a cash consignment. When they exited the AV they did not note that the outer door of the AV failed to close. When they returned to the AV and noted the open door, Mr Symes entered the vehicle and Ms Bedford placed the consignment into a transfer safe accessible from outside the AV. The money was not removed from the transfer safe before they returned the vehicle to the Company’s Depot. Armaguard’s policy is that cash or valuables are not to be transported in transfer safes. When the AV was unloaded at the Depot the consignment was left in the transfer safe. The consignment was incorrectly recorded by a Despatch Clerk as having been received and its absence was not noted in a global count undertaken by Armaguard. A receipt for the consignment was later mislaid and it was assumed that the consignment had not been collected. The fact that the consignment was missing was not discovered until Mid- March 2018.
[3] On or around 4 March 2018, the AV was sent to an external company for maintenance and the presence of the consignment in the transfer safe was not noted before it left Armaguard’s premises. While the AV was at the premises of an external maintenance company the consignment was stolen by an employee of that Company. The consignment was subsequently recovered. Ms Bedford was summarily dismissed for a number of reasons including that Armaguard concluded that her failure to follow proper procedures resulted in the consignment going missing and subsequently being stolen. Mr Symes was also dismissed for substantially the same reasons.
[4] It is not in dispute that Ms Bedford’s application was made within the time required in s.394(2) of the Act. Ms Bedford is a person protected from unfair dismissal as defined in s.382 of the Act. Armaguard is not a small business and the dismissal was not a case of redundancy. The matter was dealt with by way of a hearing. Ms Bedford and Mr Symes represented by Mr Lee Norris of the Transport Workers’ Union of Australia (TWU) sought separate hearings of their applications. Armaguard opposed this course and contended that the significant degree of commonality in the evidence, and the factual and legal issues in dispute warranted that the applications be heard together. Armaguard also requested that confidentiality orders be made under ss. 593 and 594 of the Act in respect of certain parts of the evidence related to cash handling procedures and security related matters.
[5] At a preliminary hearing to deal with these issues I decided, on the grounds of efficiency and fairness, that the two applications would be heard in a manner whereby the evidentiary cases for Mr Symes and Ms Bedford were presented consecutively and the evidence of witnesses for Armaguard was given concurrently in respect of both applications. I also decided that I would make confidentiality orders in relation to evidence dealing with cash handling procedures and security related matters on the basis that I was satisfied that security and safety considerations in relation to details of these matters outweighed the principles of open justice. Further, I indicated to the parties that I would suppress the contents of the Armaguard Road Crew Team Member Handbook 1 (the Handbook) tendered by Argmaguard as evidence in the case and which prescribes the manner in which AVO’s carry out their duties.
[6] I also stated to the parties that I would endeavour to keep the discussion of the contents of the Handbook to a minimum in my Decisions. Armaguard provided written submissions in relation to matters it sought to have suppressed. I have generally acceded to those requests with the exception that I decided not to suppress the value of the consignment as in my view this is a significant factor of relevance and in the absence of the identity of the client I do not accept that this matter is a security risk to the extent that suppression of this information is warranted. Further, there are certain procedures that it has been necessary to include in the Decisions and in my view the information I have set out about these procedures is so obvious that it could not be described as confidential in nature.
[7] Permission was given for Armaguard to be represented by Mr Mitch Rawlings of Counsel on the basis that I was satisfied that this would enable the hearing to be conducted more efficiently given its complexity. Consistent with the views of the TWU I have considered the applications of Mr Symes and Ms Bedford separately although there is some overlap in the evidence. Neither Mr Symes nor Mr Bedford gave evidence for each other. However, it has been necessary to consider some of the evidence given by Mr Symes to deal properly with the application of Ms Bedford and vice versa. Ms Bedford gave evidence on her own behalf. 2 Evidence in Ms Bedford’s application was also given by:
• Mr Russell Michael Humphreys, AVO and TWU Delegate; 3 and
• Mr Nathan Iago Smythe, AVO and TWU Delegate. 4
[8] Evidence on behalf of the Respondent was given by:
• Mr Paul Kenneth Lorensini, Logistics Co-ordinator; 5
• Mr Michael George Morris, Logistics Supervisor, Murrarie; 6
• Mr Brian Poole, Transport Manager, Murrarie; 7 and
• Mr Chris Thomas Miller, Branch Operations Manager, Murrarie. 8
[9] During the hearing CCTV footage taken from cameras in the AV and in the Depot was viewed. It was agreed that the footage would be viewed simultaneously by Mr Symes, Ms Bedford, Mr Poole and Mr Miller (who were all under oath at the relevant time) and the representatives of the parties. All parties were given an opportunity to comment on the footage and to give evidence in relation to what it showed. I have had regard to statements made by the witnesses during the viewing of the footage.
EVIDENCE
Background
[10] Relevant evidence can be summarised as follows. Armaguard is a currency management company which provides customers with a variety of cash delivery and collection services. To provide those services Armaguard employs a range of employees including AVOs. AVOs operate AVs for purposes including delivering and collecting money from clients of Armaguard. AVOs work in crews with a suitably qualified AVO taking the role of Crew Leader as required and receiving a higher rate of pay while performing that role. Ms Bedford holds a Certificate III in Security Operation and a Handgun Licence. Ms Bedford was initially employed on a casual basis as an AVO and was made a permanent part-time employee approximately one year before her dismissal. While still a casual employee, Ms Bedford asked to be trained as a Crew Leader. The training involved going out on approximately eight shifts with a Crew Leader Trainer. Ms Bedford said that the training was rushed and there are still some aspects of the role that she has not been trained in. In particular, Ms Bedford said that none of the training dealt with malfunctioning AV doors. Ms Bedford completed a few months of shifts as a Crew Leader before her employment was terminated.
[11] Apart from the eight shifts with Crew Leader Trainers, Ms Bedford has only undertaken annual gun training necessary to renew her gun licence. Ms Bedford said that she has not been given any refresher training on Company policies and procedures since 2013. In her oral evidence Ms Bedford maintained that she had not been officially signed off as a competent Crew Leader. Armaguard could not produce records to substantiate whether this was correct. However, it is not in dispute that Ms Bedford acted in the role of Crew Leader from time to time and was doing so on 1 March 2018.
[12] Ms Bedford conceded during cross-examination that the general security and operating procedures Crew Leaders are meant to follow whilst on duty are outlined in the training material she received whilst working as an AVO including the Handbook. 9 Ms Bedford also conceded that as consequence of her training for the Certificate III in Security Operations, she is aware of the standard industry procedures for handling money whilst in transit.10
[13] Mr Poole said in his evidence that the Handbook is the basic reference principle for AVOs but that in annual refresher training in relation to firearms, there is a discussion about guarding principles and situational awareness. What is a suitable distance in terms of a guarding position is determined by the AVO at the time. Mr Poole said under cross-examination that the Handbook was distributed in 2014 and that refresher training has not been done “in my presence” in relation to the Handbook since that time. 11 There is no evidence from any witness for Armaguard that annual refresher training has been undertaken by Armaguard in relation to the Handbook since it was distributed in 2014.
[14] The AV operated by Ms Bedford and Mr Symes on 1 March 2018 has certain features relevant to the incident that led to their dismissal which it is necessary to discuss. The AV has an inner and an outer door separated by an area referred to as the man trap. When the AV is operating correctly, the outer door and the inner door are not able to open at the same time. According to the evidence of Mr Miller, if both doors of the AV open at the same time, there has been a security breach that could result in unauthorised people gaining access to the AV.
[15] Relevantly, the Handbook provides that when exiting a vehicle the Crew Leader exits when the Escort is in a guarding position. In relation to the guarding position, the Handbook states that the primary responsibilities of the Escort include: “Remain alert at all times. Maintain a suitable distance from the Crew Leader/Passport.” The Handbook also states that on exiting the vehicle Road Crew should ensure that the door is secured. There are two alarms which are activated if the vehicle is breached through a person or persons attempting to force entry. One alarm is attached to the vehicle and the other is a personal device carried by the AVO. The Handbook states that if the alarm attached to the AV is activated when an AVO returns to the vehicle, the AVO should not attempt to re-enter the vehicle and should:
• Immediately return to the Client’s premises.
• Secure any cash that the AVO is carrying.
• Contact the AVO’s Branch Manager or Supervisor and await further instructions.
[16] The transfer safe is the primary method for delivering a cash consignment bag to the interior of the AV. Standard procedure within Armaguard for passing a consignment through the transfer safe into the interior of the AV is for the road crew member carrying the consignment from the client’s premises (generally the Crew Leader) to open the transfer safe from outside the AV, place the consignment inside and close the door of the transfer safe. The consignment is then required to be removed from the transfer safe by accessing it from inside the AV and stored in an appropriate place inside the AV. There is a strict procedure set out in the Handbook that cash or valuables are not transported in the transfer safe and a sign to this effect is prominently displayed inside the AV in proximity to the transfer safe. There are other insurance related reasons for this policy.
Events of 1 March 2018
[17] In her oral evidence Ms Bedford stated that on the morning of 1 March 2018 when she reported for work, she was assigned to a run in the Everton Hills area as a Crew Leader working with another casual AV. Ms Bedford was assigned to this run because the Crew Leader that she usually worked with on country runs was away sick. Mr Symes was rostered to work as an AV in a crew to be led by another AV. Mr Symes and the Crew Leader he was to work with were rostered to take the AV that malfunctioned on 1 March 2018. That Crew Leader was not happy with his assignment on that date as he did not know the run and a tablet with GPS capacity was not available for use. According to Ms Bedford, the Crew Leader was “blowing his na-na” and did not want to do the run. Ms Bedford said that she lives in the area in question and knows that area, although she did not know the run. Ms Bedford said that she is prepared to do anything and to keep the peace, volunteered to swap with the Crew Leader on that run on the basis that he knew the run that she was rostered to do.
[18] The swap was implemented and Ms Bedford and Mr Symes commenced their run at 7.00 am. At or around midday (half way through the run) while they were undertaking a collection at the premises of a client, Ms Bedford was exiting the vehicle which required her to press an internal door button to open the man trap. Usually internal door is then closed and an outer door button is pressed to open the outer door. On this occasion, when Ms Bedford pressed the button to open the inner door the outer door of the AV opened at the same time. Ms Bedford said that she considered that this was a dangerous situation because it meant that if they had been stalked by people with unlawful intentions they could seize the chance to breach the vehicle, particularly the inner part. Ms Bedford and Ms Symes tested the inner door button three or four times and on every occasion it opened the outer door when pressed.
[19] Ms Bedford contacted the line Supervisor Mr Lorensini by telephone and states that she had a conversation with him in the following terms as set out in her Witness Statement:
“I told Mr. Lorensini what had happened and he said the following words to me:
‘Oh no, not again, same issues as last week.’
I then stated to Mr. Lorensini:
‘Why is it on the road?’
Mr. Lorensini stated to me words to the effect of:
‘I don't know, but it had the same door issues last week.’
I said to Mr. Lorensini words to the effect of:
‘Paul, it's a security breach and Symes wants to bring it back.’
Mr. Lorensini then asked me with words to the effect:
‘Could you continue the run, if it happens again call me straight back, as it is
a security breach and you will have to come straight back.’
I then stated to Paul words to the effect:
‘I'm happy to go back and finish the run if you could get me another AVO and
another truck as Symes wants to go home.’
Paul responded:
‘there aren't any spare trucks or spare bodies here at the moment.’
I then stated with words to the effect:
‘I will continue the run but if it happens again I will call and return the truck
as it's a security breach.’
…
Mr. Lorensini then stated ‘thanks Kel’ and hung up.” 12
[20] Ms Bedford said that she felt that being asked to continue and being told that there were no other trucks or personnel to replace Mr. Symes meant that she was being directed to continue, and did not have a choice about whether she wanted to do so. In relation to her discussion with Mr Lorensini about a replacement for Mr Symes, Ms Bedford was asked whether she had stated that Mr Symes did not want to work overtime and had the following exchange with Counsel for Armaguard:
“You indicated that Mr Symes didn't want to work any overtime that day? --- No, I didn't say that at all. Mr Symes knows and I know that when a truck malfunctions you've got to return the truck. You've got to empty the truck, you've got to take it down the bottom, you've got to unload … everything. You've got to sit there, you've got to wait for another crew to finish, come back with the truck, then you grab all their equipment, you quip up, you get in their truck, you go up the top, you load all theirs in and then you sit, in peak hour traffic. We wouldn't be getting home till 9 o'clock that night. That's why Mr Symes didn't want to hang around and wait that afternoon, to wait for a truck to go back out and finish the run because it would have been a late finish. It had nothing to do with him not wanting to do overtime. There was no spare bodies, there was no spare trucks available at the time on return.
You called Mr Lorensini and you said, “Symes wants to go home,” didn't you? --- I said that, because he's made it very clear that there was no trucks or spare bodies to replace him and there was no spare trucks. I was happy to continue. I was happy to take the truck out and finish my run, because I don't care if I stay out till midnight.” 13
[21] Later in response to a question from me, Ms Bedford said that Mr Symes was happy to go back out with her as long as there was another vehicle available for them to “jump straight into” and they would not be too late returning after completing the run. 14 Ms Bedford also maintained that the AV was not operating properly when she called Mr Lorensini and that she told Mr Lorensini that this was the case. Ms Bedford said that both doors were closed when she was outside the truck and that she was not happy to continue the run but did so because Mr Lorensini told her there were no spare trucks or no spare bodies. Ms Bedford maintained that Mr Lorensini told her that the door malfunction was a security breach and he knew about it a week prior to 1 March 2018. Ms Bedford also said:
“You agree that he said, “If it happens again, call back”? --- I wasn't happy about it, but I wasn't going to get into a confrontation with him over the phone, in regards to continuing.
Okay? --- He's the manager there that answered the phone in the office, I'm going to follow what he - I rang for help and that's what I did, I followed his instruction by continuing because, as I said, there was spare trucks, there was no AVOs to get this work done. I wasn't going to get into a confrontation with Mr Lorensini over me turning the truck around off my own will and taking it straight back.
Ms Bedford, I put it to you that Mr Lorensini said if the malfunction happens again to call back? --- Yes.
He said, if it happens again that you'll be returning to the depot? --- No. He said, if it happens again it's a security breach.” 15
[22] In evidence in his own case, Mr Symes disputed that he wanted to go home and that he did not want to work overtime. However during the viewing of the CCTV footage Mr Symes said in response to a question from me that at a point when Ms Bedford was outside the AV talking to managers at the Depot, he was checking his mobile telephone because he had to work that night. 16 Mr Symes also gave evidence that he has a second job. Given that Mr Symes would have worked a full shift for Armaguard on 1 March 2018, it is probable that he was planning to work that night in his second job and that he did not want to work for a significant period beyond the end of his rostered shift and that in particular he did not wish to wait around the Depot in the event that another AV was required to be found so that the run could be completed. Mr Lorensini conceded under cross-examination that he told Ms Bedford that there were no bodies and no vehicles to complete the run if Ms Bedford returned the AV to the Depot when it first malfunctioned.17 I accept Ms Bedford’s evidence on this point in preference to that of Mr Symes and Mr Lorensini.
[23] In relation to her statement that if she had been permitted to return the AV “this would never have happened” Ms Bedford said in cross-examination that had the AV been returned to the Depot when she first reported the fault to Mr Lorensini, she would have been “on the ball” and that everything fell apart after that malfunction. 18 In response to the proposition that the consignment would not have been lost if the door had been closed properly at the next client’s premises, Ms Bedford said that she would have been thinking more clearly if the proper approach had been adopted when she first reported the malfunction to Mr Lorensini and that the consignment would have been taken out of the transfer safe and stored in the appropriate place in the AV as Ms Bedford had done for the past five years without incident. Ms Bedford conceded that if Mr Symes was looking towards the AV when she exited he would have noted that the door had not closed but maintained that Mr Symes was a suitable distance from her and could stand anywhere. Ms Bedford also said that she could not control where Mr Symes was looking at a particular time.
[24] In her evidence in chief Ms Bedford recounted the events at the premises of the client whose consignment went missing. Ms Bedford said that they were only required to undertake a collection to complete that job, and she was not carrying a consignment when she entered the client’s premises. Mr Symes got out of the AV first and according to Ms Bedford’s statement guarded her as she exited. In Ms Bedford’s experience the manner in which a colleague guards another colleague – ie. their distance from the colleague – can be different in every case. Ms Bedford is not aware that there is a set position when guarding so could not correct anyone in relation to this matter. Ms Bedford said that when she got out of the AV she gave the outer door a strong backward heave on its hinges as she was walking away. According to Ms Bedford, the manner in which she did this is the way she has been doing it for the last five years and no one from the Company, including crew leaders who provided training to her, has corrected her or told her to close the door in some other way.
[25] Ms Bedford stated that that the outer door made a clear sound like it had engaged with the lock and that Mr Symes was walking close to her at this time and did not turn around. When they returned to the AV after collecting the consignment from the Client’s premises, the outer door was open. Ms Bedford stated that the alarms indicating that the vehicle had been breached were not activated and her recollection of what she was taught during induction training was that if those alarms were activated the procedure is to return to the safety of the customer’s premises and telephone Armaguard. Mr Bedford also stated that given the problems with the doors at the premises of the previous client, and the information provided by Mr Lorensini that the doors on that AV had malfunctioned the previous week, she formed the view that while caution was required, the present situation was a continuation of the malfunctioning doors.
[26] Ms Bedford stated that she looked inside the man trap to check whether the inner door was open, and saw that it was closed and engaged. She then walked around the AV and placed the consignment into the transfer safe. 19 Ms Bedford then called Mr Morris to report on the door issues. Ms Bedford stated that while she was reporting those issues, Mr Morris cut her off part way through and said words to the effect of: “Hold tight, I will get Glenn [Kesting] to call your mobile.” Mr Kesting is a Technician with Armaguard Technical Services (ATS).While Ms Bedford was waiting for Mr Kesting’s call she telephoned Mr Richard Walton to inform him that the AV was being returned and what jobs had been missed and to request him to find another crew to finish the run so that the Company did not have any missed services or fines.
[27] Ms Bedford stated that Mr Kesting did not call back for a long time and Mr Symes told her that they should return the AV to the Depot as soon as possible. Ms Bedford received a call from Mr Kesting as they were pulling out of the driveway. According to Ms Bedford, she told Mr Symes to pull over to a safe position as directed by Mr Kesting and then told Mr Kesting that the doors of the AV were malfunctioning and had done so at the at the previous client’s premises. Ms Bedford stated that she also told Mr Kesting that Mr Lorensini had told her that the doors had malfunctioned in the previous week. According to Ms Bedford, Mr Kesting said that he did not know about any of these issues. Mr Kesting then informed Ms Bedford that he wanted to test various functions on the AV and requested that she check the doors, the buttons, the door strap and the buttons again. While these checks were being carried out, both doors continued to open at the same time. Mr Kesting then told Ms Bedford to return the AV to the Depot as there was a security breach and that he would look at the AV that afternoon.
[28] Ms Bedford stated that the AV was then returned to the depot and unloaded with the assistance of a Despatch Clerk. When the AV was unloaded all services not completed were put to one side. While this is not an exceptional thing, it is out of the ordinary to have to separate bags and items as on a normal run all jobs are completed and can be stacked into one pile. Ms Bedford states that she called out all the work that they did on that day while the Despatch Clerk marked it off the run sheet. The Despatch Clerk then entered the AV to make sure everything had come off the vehicle. Ms Bedford and the Despatch Clerk counted the keys and they reconciled with completed jobs. Ms Bedford also checked the run sheet one last time and said that every job had been circled in red pen by the Despatch Clerk to indicate that it had been received. Ms Bedford and Mr Symes then got into the truck and drove it to the transport section. Ms Bedford states that she spoke to Mr Lorensini before clocking off and was informed by him that the truck had been grounded again.
[29] Under cross-examination, Ms Bedford was questioned about guarding positions and had the following exchange with Counsel for Armaguard:
“Just to clarify, you're - - -? --- If I was - if I was emptying the transfer safe to carry money into the client, I would expect my AVO to be behind me guarding me, yes, as I am transporting money. But a suitable position away is - was he was in front of me, there was no money going in. I just don't understand why he had to be in a certain position to guard me if there was no money being escorted into the client. That's why I am just not getting as a suitable position. It could be any position. It could be him in front, him behind, him beside me. There was nothing going in.
I'll just get you to stop there. I'm just going to ask you a question? Yes.
Am I to understand that you say the guarding position is not required if you are not carrying a consignment, is that your understanding? --- I didn't - no, I didn't say that. I just said it's a suitable position. There is no set position that I have been told that he needs to stand two metres to the left facing this way at the back of the truck. I have never been told that. Suitable position as in suitable to myself, guarding me, guarding whoever he is guarding is a suitable position. There has never been a set - I have never been told that there is a set position that he needs to stand two metres here, facing this way, feet this way and walking this - this to me. I have never been told exactly how. Everybody works differently - everybody. And in the handbook it's, “Suitable positioning.” If he's meant to stand two metres or three metres.” 20
[30] Ms Bedford maintained her understanding that a guarding position is more important if she has a consignment with her and to assist with the safe movement of client money. Ms Bedford also maintained that Mr Symes was behind her when they left the client’s premises until they started approaching the AV and saw that the door was open. Further Ms Bedford maintained that the AV was not breached on the basis that the alarms were not activated but agreed that the doors had been malfunctioning at the premises of the previous client and had opened at the same time. Ms Bedford agreed that the alarms had not activated at the premises of the previous client and that someone could have entered the AV if both doors were open but said that when both doors were opening at the premises of the previous client, she was in the AV pressing buttons.
[31] Ms Bedford agreed that she placed the consignment into the transfer safe but maintained that she did not do this until she checked that the inner door of the AV was closed by standing outside the vehicle and looking into the man trap. It was apparent that the inner door was locked because Ms Bedford observed that the pin was engaged and the door was shut. Ms Bedford also agreed that Mr Symes checked that there was no one in the vehicle before giving her the all clear to place the consignment into the transfer safe. In response to the proposition that no one was guarding her while she did this, Ms Bedford said that Mr Symes was in the man trap but stuck his head out until the safe door went down. Ms Bedford later conceded that no one was guarding her at the time she placed the consignment into the transfer safe.
[32] Ms Bedford conceded under cross-examination that she forgot to tell Mr Symes to empty the transfer safe and made the following statement:
“Okay? --- I know that that transfer safe has to be emptied, every single job, I've been doing it for five years. But to come into a truck, after we had issues at the post, and making phone calls, in regards to these doors, then coming out of Bunnings and to that, with the door left open, and then trying to get taken serious in this office, trying to make phone calls, in regards to the problems that we've been having with these doors, I then proceeded to make phone calls. I spoke to … first, then I tried to do the right thing, knowing that I was bringing the truck back, after the second time, made phone calls to … , to organise a crew to pick up the extra work, so that Armaguard doesn't get fined for missed services that afternoon, so he could organise someone to finish my run, and then waiting for … to call back, look, I admit, I made a mistake by not emptying that transfer safe, it's a mistake. It's the first one in five years I've done.” 21
[33] In relation to the proposition that she approached the AV while the rear door was open Ms Bedford maintained that the AV was not breached. Ms Bedford repeated this assertion in response to the proposition that if she had treated the AV as being breached the consignment would not have been lost but conceded that this was the case and that it was unlikely that the consignment would have gone missing had she treated the AV as being breached. In response to the proposition that Mr Morris told her to stay put, Ms Bedford said that he did not make such a statement and was adamant that Mr Morris told her to hold tight. Ms Bedford also said that she did not interpret this as a direction from Mr Morris that she should not move the vehicle until Mr Kesting authorised her to do so. In relation to this matter, Ms Bedford had the following exchange with Counsel for Armaguard:
“Words to the effect of, "Remain there until Glen - - -? --- Me, “Hold tight. Just hold tight.” He cut me off, he didn't even listen to what I had to say about these doors again and he cut me off and he said, “I'll get Glen to call you, hold tight.” That's me hold tight, with the phone and just wait for him to ring? He didn't say - did not give me a lawful, reasonable instruction because if he did I definitely would have followed it. That's why I've rung for help, to get direction on what to do with this, and he - - -” 22
[34] Later in cross-examination Ms Bedford stated that while waiting for Mr Kesting to call her she called Mr Walton to tell him what jobs on the run sheet had been missed and to try to arrange for the run to be completed. Mr Symes told her that they should take the truck back and Ms Bedford maintained that had Mr Morris issued her with an instruction to the contrary she would have complied with it on the basis that a failure to do so would have been a sackable offence on the basis of refusing to follow a lawful and reasonable direction. In response to the proposition that she did not remove the money from the transfer safe before the vehicle left the client’s premises, Ms Bedford said:
“Because I was still on the phone telling Richard Walton what missed services we had, reading it off my run sheet and when I hung up I then relayed everything to Craig what was said, from Walton, and what was relayed from Mick Morris and that we were waiting for Glen to call. It completely slipped my mind to remind Craig to empty it. It slipped my mind after being outside with two phone calls and organising missed services and everything to get completed that day, that it slipped my mind to even empty that transfer safe.” 23
[35] Ms Bedford agreed that it was her responsibility as Crew Leader to ensure that the consignment was removed from the transfer safe. In relation to the unloading of the AV on return to the Depot, Ms Bedford said that the Despatch Clerk directed her to mark the jobs she and Mr Symes had missed on the run sheet, and that she has never been certain as to what the correct procedure is for recording missed jobs. Ms Bedford denied that she had taken the red pen from the Despatch Clerk and used it to mark the run sheet and maintained that she believed that the missing consignment had been deposited as it had been circled in red pen by the Despatch Clerk. Ms Bedford conceded that it was part of her responsibilities as Crew Leader to check the transfer safe and other storage areas in the AV were completely empty before the run sheet was signed off.
[36] In relation to the unloading process, Ms Bedford said under cross-examination that the AVO empties the dump safe and passes consignments to the Crew Leader who reads the name on the consignments to the Despatch Clerk and places the consignment on a trolley. The Despatch Clerk then marks off the consignments. Ms Bedford said that on 1 March 2018 there were missed services and the process is that these are also read out to the Despatch Clerk. Ms Bedford was also required to check the run sheet to ensure that the missed services coming off the truck matched the run sheet as she did not load the truck. Ms Bedford put all the missed services into one pile to the side and called those out first. Ms Bedford agreed that if there was a missed service there should have been no mark beside it or red circle around it. In response to the proposition that there was no need for her to write on the run sheet, Ms Bedford said that she did not know whether to write the missed services she had returned on the run sheet or leave it blank. Ms Bedford agreed that she did include some information on the run sheet for 1 March 2018 but this was at the insistence of the Despatch Clerk.
[37] Ms Bedford rejected the proposition put to her in cross-examination that she took the run sheet off the Despatch Clerk and marked the missing consignment as having been received. Ms Bedford also maintained that she does not carry a red pen with her and that the markings on the run sheet comprising red circling of the missing consignment were put there by the Despatch Clerk. In response to the proposition that if she had cleared the truck as required she would have found the consignment in the transfer safe Ms Bedford said:
“If [Despatch Clerk] - I would have got literally in the truck and searched myself if [Despatch Clerk] didn't circle it off in red, and check the vehicle himself. I trusted him to do two things that he gets paid for. It's his job and clearly he did it poorly and he kept his job. I checked that run sheet twice. I make sure, before I leave, that all those keys are circled and every single consignment that I've got in the inner bag column is circled in red. Every single bag was circled. Why would I then get in the truck and search for something that is not missing, when he has got in and physically inspected himself and has marked it all off and everything else reconciles, even with the keys.” 24
[38] Ms Bedford went on to concede that it was her responsibility and that of Mr Symes to clear the AV during the unloading process. Ms Bedford also agreed during cross-examination that on 27 September 2017 she had been disciplined by the Respondent for breaches of the Respondent’s company policies and procedures. The incident that gave rise to the breach, which Ms Bedford does not deny, involved Ms Bedford accidently damaging the mirror of an AV belonging to the Respondent that she had been operating during the course of her employment. 25 Ms Bedford conceded that she was given a written disciplinary letter in relation to this incident that noted she could face significant consequences, including termination, for further confirmed breaches of the Respondent’s company policies and procedures.26 Ms Bedford says that whilst she viewed the breach as a serious matter, particularly given the written warning, she claims that the manner in which the written warning was issued to her was not of a particularly formal or serious nature and that she owned up to the damage and accepted responsibility for it.27
[39] The evidence of Mr Lorensini in relation to the telephone call he received from Ms Bedford on 1 March 2018 was broadly consistent with the evidence of Ms Bedford. Mr Lorensini agreed that Ms Bedford stated that the AV doors were popping open and that he told her that the same issue had happened last week. Mr Lorensini also stated that he asked Ms Bedford whether the doors were working correctly at that time, and that Ms Bedford confirmed that the inner and outer doors were operating correctly. Mr Lorensini stated that it was in this context that he told Ms Bedford that if the doors malfunctioned again, to call straight back so that a report could be made to ATS and Mr Kesting could be called. Mr Lorensini confirmed that Ms Bedford informed him that Mr Symes wanted to go home but that she would be happy to complete the run if he could get another AVO and that he responded by informing her that there were no spare drivers available. Mr Lorensini also confirmed that Ms Bedford responded by stating that she would continue with the run and that if a further problem occurred she would call him back and that he thanked her.
[40] Under cross-examination Mr Lorensini confirmed that when Ms Bedford reported the malfunctioning doors to him he said: “Oh no, not again, same issues as last week”. 28 Mr Lorensini maintained that he told Ms Bedford to continue with the run after she told him that the AV was functioning normally. Mr Lorensini also said that he could recall Ms Bedford asking whether there was another AVO available but that he could not recall her asking about another vehicle. Mr Lorensini said that this was the best of his recollection and agreed that this was as high as he could put it. Mr Lorensini also agreed that he had spoken to Ms Bedford after the truck returned to the Depot and told her that it had been grounded again but could not recall when it had previously been grounded.
[41] In response to questions from the Commission, Mr Lorensini agreed that if the AV was brought back early and it was not able to be used because it was malfunctioning, another AV would need to be found and the shift would extend beyond its normal length. Mr Lorensini also agreed that there would be time taken up with unloading the AV and working out where the Crew was up to with all of the pickups and deliveries. Mr Lorensini did not know whether this was the context in which Ms Bedford was asking if there were additional resources available to complete the run.
[42] In re-examination Mr Lorensini had the following exchange with Counsel for Armaguard:
“You said you asked Ms Bedford to continue with the run? --- Yes.
Can you recall the words that you used to ask her, to continue with the run? "Is the truck operating as it should be?" Which I got a "yes" response. And I said, "Okay, can you continue the run because we've got no people, no trucks."
And what was her response to that? "Yes, no worries.” 29
[43] Mr Morris gave evidence about the practice adopted by Armaguard since 2016 in relation to malfunctioning AVs. According to Mr Morris, if a Road Crew member contacts the Depot to advise that he or she is currently experiencing a malfunction with a vehicle in the field, the Road Crew member is immediately required to stop driving the vehicle and wait until Mr Kesting contacts the Crew member to assess the problem. In Mr Morris’ experience when Mr Kesting makes contact with the Road Crew he first attempts to correct the problem using remote access to the vehicle, and if this is not possible he then decides whether it is safe for the Crew to return the vehicle to the Depot or makes arrangements for it to be collected.
[44] On previous occasions when Road Crew members have reported a single occurrence of an apparent fault or malfunction of an AV and the AV is operating normally at the time the report is made, Mr Morris has advised that the Road Crew members continue the run and report any further issues. Mr Morris has adopted this approach because from an operational perspective if every vehicle with a single fault was taken off-line, it would reduce the ability of Armaguard to service its customers. Further, a single fault can often be attributed to factors such as a Road Crew member pushing the wrong button. However where a fault continues for a prolonged period or repeats during a shift, the strict practice of directing Road Crew not to move the vehicle until Armaguard Technical Services has assessed it, applies.
[45] Mr Morris said that he had a telephone conversation with Ms Bedford at approximately 1.10 pm during which Ms Bedford told him that the outer door had popped open and she was bringing the AV back to the Depot. Mr Morris stated that he told Ms Bedford: “No, stop, stay where you are, don’t move the truck. Glen from ATS will call you.” Mr Morris agreed that he cut Ms Bedford off during the conversation but stated that he did this because of his concern that Ms Bedford was proposing to bring the vehicle back to the Depot without waiting for ATS to assess it first in accordance with Armaguard’s practice. Mr Morris also said that there was nothing to be gained from continuing the conversation because Ms Bedford was highly agitated and he is not a technician and could not assist her further with the fault.
[46] Under cross-examination, Mr Morris agreed that the practice he had referred to is not in the Handbook and said that he did not know if all Road Crew were aware of the practice. Mr Morris agreed that the practice applies to all serious malfunctions and that circumstances where the inner and outer doors of an AV were opening together is a security breach. Mr Morris then had the following exchange with Ms Bedford’s representative Mr Norris:
“Does it apply to life threatening malfunctions or not? --- What would you class as a life threatening malfunction?
Well, for example, of the exterior door and the mantrap door were both open, that's a security breach, do you agree with me? --- That's correct.
And bad people could, using lethal force, gain entry into the mantrap and the internal part of the AV, couldn't they? --- If both doors were open?
If both doors were open, yes? --- I would believe so.
So that's a life threatening situation. Do you agree with that or not? --- I suppose I have to agree with that, yes.
Yes. So does this practice apply to life threatening situations or not? --- Yes. It still has to go through the technician.
Shouldn't reports of that nature be acted on immediately though? --- They are.
Shouldn't the vehicle be immediately grounded? --- They are.
Shouldn't the vehicle be immediately returned to the branch? --- Actually, no.
So how many reports of simultaneous opening of the exterior door and the mantrap door have you actually fielded yourself, personally? --- Maybe one in the whole period of time I've been there.
And your response was to keep using the vehicle and see if it happened again? --- It may have been at that time, I can't recall.” 30
[47] Mr Morris disagreed with the proposition put to him in cross-examination that he told Ms Bedford to “hold tight”. In response to questions from the Commission Mr Morris accepted the possibility that Ms Bedford might have misunderstood his instruction because she was “agitated” but maintained that he told her not to move the AV and that Mr Kesting would call her. 31
[48] Armaguard did not place evidence before the Commission about the events which occurred in relation to the AV operated by Mr Symes and Ms Bedford on 1 March 2018, after it was unloaded. In response to questions from me directed to witnesses for Armaguard, the following facts emerged. The vehicle was grounded for a period of three days on the basis that it was already booked in for maintenance/servicing prior to the events of 1 March 2018 occurring. Mr Poole’s evidence was that there is no procedure for searching vehicles to establish whether the vehicle has been cleared before they are sent to an external company for repairs. The process which Mr Poole referred to as a “safety net” 32 is that an Armaguard manager accesses a vehicle which is to be sent out for repairs to ensure that the vehicle is rendered safe to be handed over. This includes isolating the vehicle so that it does not go into duress mode while it is being accessed for the purpose of repairs. The process is not undertaken for the purposes of searching the vehicle to establish whether there are any consignments or other valuables left in the vehicle.
[49] The “safety net” process in relation to the vehicle operated by Mr Symes and Ms Bedford on 1 March 2018 was undertaken by Mr Lorensini. Mr Lorensini confirmed in his evidence that the AV in question had been grounded prior to 1 March 2018 and said that he had been informed of this fact by Mr Kesting. Mr Lorensini further confirmed that when Ms Bedford told him that the vehicle was malfunctioning he said: “Oh no, not again, that happened last week.” 33
[50] During the course of the hearing, Mr Morris obtained information about the vehicle in question and confirmed that on 1 March 2018 it was overdue for service and needed to be sent for service as soon as practical. Mr Morris confirmed that it was not the practice at the relevant time for vehicles to be searched prior to being sent out to be serviced. In response to a question about whether a practice of searching vehicles prior to them being sent out for service had been implemented since the events of 1 March 2018, Mr Morris said: “It certainly has.” 34 Mr Morris agreed that as soon as he referred the vehicle to ATS he was told to tag it out as it would need to be looked at.
[51] Mr Miller’s evidence was that the consignment went missing because it was left in the transfer safe when the AV was collected by a mechanic from the Company responsible for servicing vehicles. The AV went to that Company’s workshop and was parked outside that workshop for a period and later moved inside the workshop. An employee of the servicing company then allegedly stole the consignment. Armaguard became aware that the consignment was missing on or around 19 March 2018 and began an investigation.
[52] Mr Miller agreed that after the bag containing the cash was left in the transfer safe, there were more errors. The Despatch Clerk circled the run sheet indicating that the consignment had been taken off the AV when in fact it had not. The truck was then sent for servicing without the consignment being removed from the transfer safe. Mr Miller also agreed that there was a procedure whereby someone should have checked the AV before it went for service. A further error occurred when the receipt for the consignment find its way across the cash floor”35 and it was deemed to be a missed consignment that had not been collected.
Investigation in relation to missing consignment
[53] Mr Miller said in his evidence that he became aware in mid-March 2018 that a consignment totalling $58,710 that had been collected from a client on 1 March 2018 was missing. Mr Miller did not become involved in the investigation until 12 April 2018 when the Branch Manager who had been involved went on leave. Mr Miller also said that as is the practice within Armaguard in cases where consignments go missing, separate investigations were carried out by the Company’s Operations and Security teams.
[54] Ms Bedford stated that on 19 March 2018 she received a call from Mr Dan Williams, Coordinator, asking whether the consignment pickup on 1 March 2018 was completed or whether it was a missed service. Ms Bedford said that she responded to Mr Williams informing him that it was the last job they did before returning that day and they had door issues. Ms Bedford stated that she asked Mr Williams why he wanted to know this, and Mr Williams replied that Ms Kelly Willis, Cash Floor Manager, had asked. 36 Ms Bedford stated that she then rang Mr Symes and told him about the discussion with Mr Williams. Ms Bedford then rang Ms Willis who asked whether she did the job and told Ms Bedford that she thought she would remember because of the door issues. Ms Bedford states that she was curious about why the questions were being asked given that the job was so long ago, but neither Mr Williams nor Ms Willis told her this.
[55] Ms Bedford continued to work her assigned shifts both before and after this conversation and worked with Mr Symes again on 7 and 23 March 2018. During this period, Ms Bedford attended the premises of the client whose consignment was missing and was asked about the situation by the client’s manager who had received an email about it from Armaguard. Ms Bedford said that she knew nothing about the matter but reassured the client’s manager that it would turn up. Ms Bedford accepted that by 19 March 2018 she knew that something was wrong with respect to the consignment.
[56] On 4 April 2018, Ms Bedford attended a meeting with Mr Poole. Ms Bedford arranged for Mr Smythe to attend the meeting. Ms Bedford stated that she recalls Mr Poole saying that Mr Smythe was only her “support person” and that the meeting was “informal” so that he could “get his head around what happened on the day”. 37 Ms Bedford stated that no allegations concerning her conduct were put to her during this meeting and she was not told that matters were being investigated that could lead to her employment being in jeopardy. Ms Bedford also stated that no record was kept of the meeting although Mr Poole was making notes and that normally when a meeting is disciplinary in nature, a record is kept.
[57] According to Ms Bedford, when Mr Poole asked her what had happened on 1 March 2018 she started to talk about the failure of the doors prior to the collection of the missing consignment. Mr Poole interrupted Ms Bedford and said that they would get back to that later and that he wanted to know about what had happened at the premises of the client whose consignment had gone missing. Ms Bedford said that she did not receive a copy of Mr Poole’s notes of the meeting and it is difficult for her to remember what was said because the meeting was informal.
[58] On 6 April 2018, Ms Bedford attended another meeting with Mr Smythe, Mr Poole, Mr Michael Eva, the Company’s Operations Manager, and Ms Nikki Ward, Human Resources Advisor, who attend by telephone. Ms Bedford states that while they were walking to the meeting, Mr Poole told her that it would just be a re-cap from the other day and that if she wanted to add anything she could do so. Mr Poole also told Ms Bedford that Ms Ward would be on the line listening in and may also ask her some questions. According to Ms Bedford, the meeting mainly involved Mr Poole asking questions about the events of 1 March 2018 and “at no time before, during or after the meeting was it ever said to me that my employment could be in jeopardy”. 38 Ms Bedford also stated that Mr Poole mainly asked her about the events at the premises of the client whose consignment had gone missing, and not the earlier job where the doors of the AV had malfunctioned. Ms Bedford further stated that she believes that at that meeting Mr Poole made her aware that the consignment had been left in the transfer safe but that she could have been aware of this at an earlier time. Ms Bedford stated that she was aware that she was not supposed to carry consignments in the transfer safe while in transit, but that she was dealing with a major security issue at the time and did not realise the consignment was still in the transfer safe. Ms Bedford also stated that the consignment was missed by Despatch Clerk at the unloading dock.39
[59] Ms Bedford and Mr Symes were given alternative duties from 9 to 12 April 2018 and were not on the road for that period. Those duties included office work and answering telephones; driving employees on workers’ compensation to medical appointments and home; cleaning out a shipping container; and cutting up old uniforms. On 13 April 2018 Ms Bedford was directed to attend a meeting with Mr Poole and Mr Miller. Ms Bedford attended with Mr Smythe and Mr Humphries. According to Ms Bedford, the meeting opened with Mr Miller showing her the CCTV footage of the collection at the premises of the client whose consignment had gone missing. Ms Bedford stated that there were six screens to watch and the footage was played on a laptop making it difficult to keep up as Mr Miller was skipping from screen to screen and fast forwarding and rewinding while asking questions. Ms Bedford stated that she felt pressured to answer without time to think.
[60] When the discussion was finished Ms Bedford was asked to wait on-site as management wanted to have a meeting at a later time with her. Ms Bedford waited in the staff room for approximately five hours before being asked to return to the Board Room. During what Ms Bedford described as an engagement rather than a meeting, Mr Miller read a letter out loud to Ms Bedford advising that her employment was terminated. Mr Miller then signed the letter and handed it to Ms Bedford before she left the room.
[61] Under cross-examination, Ms Bedford said in relation to the meeting on 4 April 2018 that it was conducted in the Board Room by Mr Poole who had previously given her a warning in relation to the September 2017 incident; notice of the meeting was given; a support person was present; and that she knew the meeting was about a serious matter being a missing consignment. Ms Bedford also agreed that she was given an opportunity to describe what she recalled happening with respect to the missing consignment. In relation to the second meeting on 6 April 2018, Ms Bedford said that she knew this meeting was about the same matter but did not know whether the consignment had been found by that time. Ms Bedford also agreed that a run that she was scheduled to undertake with Mr Symes on 6 April 2018 was cancelled so that she could attend the meeting. In response to the proposition that she was provided with an opportunity to respond to questions from Ms Ward, Ms Bedford said that Ms Ward asked her one question and wanted a brief outline from start to finish in response. The response was not long and Ms Bedford did not recall anything that was said.
[62] Ms Bedford agreed that she had been told by 6 April 2018 that the money had been left in the transfer safe and that she knew on 9 April 2018 that the money was found. Ms Bedford remembers that this was the date she was informed of the money being found because it was her 40th birthday and she considered it the best birthday present she had ever received. Ms Bedford also agreed that between 9 and 13 April 2018 she was suspended from operational duties and was undertaking what Mr Poole had described as “meaningful tasks” around the yard. In relation to the meeting on 13 April 2018 Ms Bedford maintained that while she knew that it was a further meeting about the missing consignment, she did not know that it was so serious that she was going to lose her job. This was particularly so when she found out on 9 April that the missing consignment had been found and in light of her knowledge that neither she nor Mr Symes had stolen the consignment.
[63] Ms Bedford agreed that she was shown CCTV footage and asked a series of questions which she cannot recall. Ms Bedford does recall that she was asked about taking the run sheet off the Despatch Clerk when the AV was unloaded and that there was a question about separation between guards when they were dealing with the missing consignment. Ms Bedford also recalled that she was asked about why she had not cleared the transfer safe and responded by saying that it had slipped her mind. Ms Bedford said that she did agree that she should have remembered that the consignment was in the transfer safe and reminded Mr Symes of this.
[64] In relation to being shown the CCTV footage at the meeting of 13 April 2018, Ms Bedford agreed that she was given an opportunity to respond to what she was seeing on the CCTV footage but that this was brief. In relation to the malfunction of the AV Ms Bedford agreed that this was not occurring when they left the premises of the client whose consignment went missing on the basis that the fault was occurring when they exited the vehicle rather than when they entered it. Mr Smythe attended the meeting on 4 April 2018 as Ms Bedford’s representative. Mr Smythe’s evidence is that in response to a question as to whether the meeting was a security investigation into missing money, Mr Poole stated that it was a fact finding exercise and indicated that it was an informal meeting by virtue of the fact that no formal record was taken. Mr Smythe also attended the meetings on 6 and 13 April 2018 with Ms Bedford. In relation to the meeting on 6 April 2018 Mr Smythe observed that Ms Ward asked Ms Bedford a few questions after requesting that Ms Bedford recap about the events of 1 March 2018. Mr Smythe stated that at no time during this meeting was Ms Bedford told that her employment was at risk or that it was a disciplinary meeting.
[65] Mr Smythe’s evidence about the meeting on 13 April 2018 is that Ms Bedford was shown some footage on a laptop computer. It is Mr Smythe’s understanding that this was the first time the footage was shown to Ms Bedford. Mr Miller asked Ms Bedford five or six questions about the footage and stated that “HR” would be sent all of the information and would be making the decisions about it. The meeting ended and Mr Smythe and Ms Bedford were asked to stay around. Approximately six hours later they were called into the board room and Mr Miller read out a letter terminating Ms Bedford’s employment, signed it and handed it to her. Mr Humphreys also attended the meeting on 13 April 2018 and gave similar evidence about it to that given by Mr Smythe. Mr Smythe states that when Ms Bedford was handed the termination letter, he asked Mr Miller how he could do this when the Despatch Clerk who searched the truck only received a first and final warning. Mr Miller responded by stating that this was irrelevant.
[66] Under cross-examination Mr Humphreys said that he was told on 12 April 2018 that the missing consignment had been found. Mr Humphreys also agreed that Ms Bedford was asked a series of questions at the meeting of 13 April 2018 about: why she had entered the AV when the door was open; the appropriate procedure for approaching a breached vehicle; lack of separation between Ms Bedford and Mr Symes on approach to the client’s premises and return to the AV; appropriate guarding techniques; why the transfer safe was not cleared; and why Ms Bedford had taken the run sheet from the Despatch Clerk. Mr Humpreys agreed that Ms Bedford was given an opportunity to respond to all of these questions and on the CCTV footage that was played during the meeting. In response to a question from the Commission, Mr Humphreys said that at the meeting “they more or less said” that Ms Bedford had circled the missing consignment on the run sheet and Ms Bedford had denied that she had done this and stated that she did not have a red pen. Mr Humphreys also said that if he had approached an AV with an open door but no alarms activated he would not have treated it as a breached vehicle and had approached a vehicle in these circumstances in the past.
[67] Mr Smythe was also cross examined and maintained that the meeting on 4 April 2018 was not about a serious matter on the basis that Mr Poole stated that it was a fact finding meeting, but agreed that the subject of missing money is serious. In relation to the meeting on 6 April 2018 Mr Smythe agreed that Ms Bedford was asked questions during that meeting and was given an opportunity to respond. With respect to the meeting on 13 April 2018 Mr Smythe confirmed the evidence of Mr Humphreys in relation to the questions asked of Ms Bedford and that she had an opportunity to respond to them.
[68] In response to a question from the Commission, Mr Smythe confirmed his evidence that he had been involved in incidents where alarms on AVs had activated and had been told go out and have a look, and named the Manager concerned and the client involved. Mr Smythe also confirmed his evidence that it is common for an AVO or Crew Leader to take a run sheet from a Despatcher and to mark something on it that has been forgotten but maintained it is it the Despatch Clerk’s job to circle items to indicate that they have been received. Mr Smythe also said that he attended a meeting with the Despatch Clerk who assisted with the unloading of the AV on 1 March 2018 in relation to his part in the events that led to the consignment going missing. At that meeting the Despatch Clerk stated that he had circled the missing consignment on the run sheet and in response to a question about why he had done this, stated that the jobs below that one were going back out on another truck to be done so he made the circle thicker or wider and did so in red pen. I also asked Mr Smythe to comment on whether if he saw an open door on an AV without the alarms being activated he would consider it to be a breached vehicle. Mr Smythe responded as follows:
“I've entered - I have lost count, I mean it'd near be in double digits, the amount of times when I've crew led and driven for somebody else, come out of a job, the door is open and we go, "Here we go again," and we've looked around, cleared it, gone into the truck and continued.
So why would the door be open? --- Some of the doors are faulty. When you shut them they nearly close to the end and they pop back open and by then you've walked and you're going away. Because you've got to remember, too, we're under a time constraint and we're always pushed, go, go, go. If you're lagging behind the next minute you have management on your back, "Why are you taking so long? What's going on?" So everybody, when you slam the door, you hear the bang, you're not actually watching a door when you push it. We have a lot of faults like that. I've entered many trucks with the outer door open.
The inner door - - -? --- Is closed.
And that's a process to close it, other than just shutting it, isn't it? Other than just slamming it shut? --- If you don't shut - you don't slam the inner door, it's a bit more sensitive, but if the inner door does not shut the outer door will not open.
All right? --- And if you hop out of the truck and somehow an inner door opens, I don't know how but does, then the outer door will not open again and you're locked out, and we get locked out a lot.
All right. So, as I understand it, once you shut the inner door behind you, if you can open the outer door you generally wouldn't look back to see if the inner door was shut because you know the outer door won't open if the inner door isn't shut? --- That's correct. If they both open at the same time, then you have a major security malfunction there.” 40
[69] In relation to closing of the doors, Mr Humphreys agreed that it is clear when the inner door is closed because it makes a particular sound but in relation to the outer door, Mr Humphreys said:
“It can happen quite a lot. If you don't look back, or if somebody doesn't pick it up, you could very well clearly swing the door shut and bang, you know you're shut and off you go, especially if you're just carrying an empty bag, and you'd be none the wiser, unless you look back, you may come back and, “Shit, that hasn't shut.”” 41
[70] Mr Poole’s evidence about the series of meetings with Ms Bedford is that by 4 April 2018 when he attended the first meeting with Ms Bedford he knew that a consignment totalling $58,710.00 had been collected from a client by Ms Bedford and Mr Symes on 1 March 2018, and it had gone missing. Mr Poole stated that as Ms Bedford’s manager, he wanted to hear from her about what had occurred on 1 March 2018 in the hope that it might shed some light on what happened to the consignment. According to Mr Poole, the meeting on 4 April 2018 was simply “a fact finding exercise”. Ms Bedford attended the meeting with Mr Smythe. Mr Poole recalls telling Mr Smythe at the beginning of the meeting that he was there as a support person only and that it was an informal meeting intended to assist him to understand what had happened on 1 March 2018. Mr Poole agreed with Ms Bedford’s evidence to the effect that he cut her off when she began talking about the collection that had been made immediately prior to that of the missing consignment, but said that he did this because he wanted to focus on the collection of the missing consignment on the basis that it remained unaccounted for and he hoped that Ms Bedford would be able to shed some light on the situation.
[71] Mr Poole took handwritten notes of the meeting 4 April 2018 which he later typed up using a template provided to Armaguard managers by the Company’s Human Resources team. Mr Poole said that he did not offer a copy of his notes to Ms Bedford or Mr Smythe but did not prevent them from taking notes. Mr Poole’s typed notes of the interview 42 indicate that in response to a question about what occurred at the site on 1 March 2018, Ms Bedford described her interaction with the client and its representatives and the signing of various documents. The notes go on to indicate that as Ms Bedford and Mr Symes left the client’s premises and walked to the AV they noticed the outer door of the AV was wide open. They then approached the AV to see if the inner door was open. Ms Bedford is recorded as stating that she jumped in the man trap with the bag in her hand and that Mr Symes was outside and shut the outer door behind her. Ms Bedford is recorded as stating that she entered the inner door [which she unlocked using the usual process] and placed the consignment inside the AV. Ms Bedford is then recorded as stating that once in the AV she pressed the button to open the outer door for Mr Symes and that the inner door opened at the same time. Ms Beford is also recorded as stating that she saw both doors open at the same time and that she got out of the AV and called the branch to speak with Mr Morris.
[72] The notes record that Ms Bedford stated that Mr Morris told her to “stand by” and he would get Mr Kesting to call her back and that Ms Bedford waited approximately 10 – 15 minutes for that call. Ms Bedford is also recorded as stating that she called Mr Walton in relation to the missed services to ask for his assistance and that Mr Symes remained in the truck while she made those calls. Ms Bedford was asked who decided to move the truck after she was asked to stand by and advised that Mr Symes made the call to return to the Depot and that they then received a call from Mr Kesting who asked them to pull over to a safe area so that he could shut down the truck. Mr Kesting then asked them to test the inner and outer doors which they undertook with Mr Symes standing in the man trap while Ms Bedford spoke to Mr Kesting. After the testing was complete, Mr Kesting asked them to return to the Depot.
[73] The notes then record that there were a series of questions about the process followed in unloading the AV. Ms Bedford confirmed that she called out the jobs from the documentation in the consignment bag window so that they could be marked off as incoming and that the Despatch Clerk got on the truck after the unloading was completed. Ms Bedford also confirmed that Mr Symes was in the truck at the same time. Ms Bedford further confirmed that the truck was taken to the transport yard and that she could not recall if the transfer safe and the back doors were opened in the transport yard. The notes of the 4 April 2018 meeting do not record that Ms Bedford was told that the consignment was left in the transfer safe or asked why this had occurred.
[74] After preparing his typed notes of the 4 April 2018 meeting with Ms Bedford, Mr Poole was informed that the version of events from Ms Bedford (and Mr Symes with whom Mr Poole had also met by this time) was inconsistent with the CCTV footage taken from the AV on 1 March 2018. Mr Poole watched that CCTV footage and noted:
• On exiting the AV at the client’s premises Mr Symes did not adopt a guarding position where he could see Ms Bedford exiting the AV;
• Neither Mr Symes nor Ms Bedford noticed that the outer door of the AV had failed to latch closed when Ms Bedford swung it while exiting the AV and they left the AV with the outer door open;
• Upon returning to the AV with the consignment both Mr Symes and Ms Bedford approached the AV despite the outer door being open;
• Mr Symes entered the inner door of the AV while Ms Bedford was still outside and remained in the AV whilst Ms Bedford placed the consignment in the transfer safe;
• Neither Mr Symes nor Ms Bedford removed the consignment from the transfer safe and placed it in the dump safe before leaving the carpark at the client’s premises; and
• Mr Symes and Ms Bedford began driving back to the Depot before they had been contacted by Mr Kesting to assess whether the AV was safe to drive back to the Depot.
[75] Mr Poole also reviewed the footage from cameras in the Depot and noted that neither Mr Symes nor Ms Bedford cleared the consignment out of the transfer safe before parking the AV for the night. Mr Poole noted that Ms Bedford took the run sheet from the Despatch Clerk on two separate occasions and made markings on the run sheet using the same coloured pen the Despatch Clerk was using. Mr Poole then formed the view that Ms Bedford may not have been truthful in the meeting on 4 April 2018 with respect to her account of how she and Mr Symes completed the collection of the missing consignment and cleared the vehicle on return to the Depot. Mr Poole decided that he would hold a further meeting with Ms Bedford to give her an opportunity to raise any mitigating circumstances that might have explained her conduct on 1 March 2018 and how the consignment came to be missing. As previously stated, that meeting was held on 6 April 2018 and was attended by Mr Poole, Mr Eva, Ms Ward, (by telephone) and Ms Bedford was accompanied by Mr Smythe as her support person.
[76] Mr Poole’s notes of the meeting with Ms Bedford on 6 April 2018 are headed: “Mitigating circumstances 6th April 2018 conducted meeting @8.35 am.” 43 The notes indicate that Ms Bedford was told that the meeting was: “to ask for her mitigating circumstances”. Ms Bedford was then asked whether she had anything she wished to add to her previous statement and provided information including the following:
• There was a truck issue with the inner and outer doors;
• Both doors opened;
• She spoke to Mr Lorensini who said if the problem continued to bring the truck back;
• The doors on the truck were faulty; and
• The door was wide open when they returned to the truck and Ms Bedford knew that she definitely slammed it shut as she heard the bang when it shut.
[77] The notes of the meeting also record that Ms Bedford said that she got into the vehicle first and let Mr Symes in, and that the inner and outer door were faulty again. Ms Bedford stated that she rang Mr Morris and that Mr Kesting called her after her discussion with Mr Morris and said to bring the AV back. Further, Ms Bedford stated that she had control of the consignment bag. In response to a question about who is responsible for clearing the transfer safe, Ms Bedford is recorded as stating that this was Mr Symes’ responsibility and that this is the way she works. Ms Bedford is also recorded as stating her belief that she had done the right thing and that the money was on the truck. The notes do not indicate that Mr Poole told Ms Bedford that the consignment had been placed in the transfer safe and left there. Mr Poole stated that he could not show the CCTV footage to Ms Bedford at that meeting as he had not been authorised by Armaguard’s security team to do so. Mr Poole further stated that it is highly unusual for security to permit Operations employees to view CCTV footage taken from the interior of an AV and that such footage is not readily available even to senior Branch management.
[78] Mr Poole said that as Ms Bedford had not raised any mitigating circumstances or additional information that excused or explained her actions, he decided to remove her from operational duties as he was very concerned about allowing her to continue to perform AVO or Crew Leader duties. Mr Poole said:
“I recall that Nikki, Michael and I discussed the responses from Kelly after the meetings on 6 April 2018 and were of the view that neither Craig nor Kelly should be performing AVO or Crew Leader duties in light of what we had seen on the CCTV footage and the inconsistent accounts both employees had continued to give of the events of 1 March 2018. We also considered it inappropriate for Craig and Kelly to continue in an AVO or Crew Leader role whilst Armaguard was considering commencing a disciplinary process against them. Accordingly, I spoke to Kelly later on 6 April 2018 to inform her that there would be a removal of AVO and Crew Leader duties in the short term. Ido not recall the exact words I spoke to Kelly, but do remember telling her I would provide her with “meaningful work”. 44
[79] On or about 12 April 2018 Mr Poole met with Mr Miller to brief him on what had been discussed with Ms Bedford at the meetings on 4 and 6 April 2018. Mr Poole relayed a summary of what Ms Bedford had told him and that Ms Bedford’s version of events differed from the conduct captured on the CCTV footage, which Mr Poole understood Mr Miller had seen. Mr Poole also gave evidence about the meetings with Ms Bedford on 13 April 2018 which he attended with Mr Miller. Ms Bedford was accompanied by Mr Smythe and Mr Humphreys.
[80] Mr Poole tendered a typed copy of notes he took of the 13 April 2018 meeting. The notes indicate that the CCTV footage was played for Ms Bedford to view and that Mr Miller stated that the footage showed that Ms Bedford had the consignment bag under her arm, Mr Symes entered the outer man trap door and Ms Bedford placed the consignment into the transfer safe. Mr Miller is then recorded as having stated that when Ms Bedford returned to the vehicle Mr Symes was in front of her, and that the outer door remained open and it was at that point that she placed the money into the transfer safe. Ms Bedford is recorded as stating that it was all coming back to her now and that Mr Symes had jumped into the truck before she closed the transfer safe. Ms Bedford is also recorded as stating that Mr Symes did not touch the transfer safe but sat in the truck while she rang Mr Morris and that Ms Bedford repeated that she now saw that she had placed the bag into the transfer safe. The following exchange is recorded between Mr Miller and Ms Bedford.
“CM- Now that you have seen that, what is the procedure when you encounter issues such as the one you encountered?
KB-
• I should not have gone out and checked the inner door as it wasn't open I put the bag in the transfer safe
• I should have done what Brian said I should have not got in to check if the doors were open
• Brian said I should have walked back to the Client and call the Police.” 45
[81] Mr Humphreys is recorded as questioning Mr Miller about whether he considered that the AV was breached in the circumstances depicted in the CCTV footage and stating that he would have checked first. The notes also record that Mr Smythe stated that he thought that the questions being asked of Ms Bedford were confusing. Ms Bedford is also recorded as having responded to a question as to why she did not clear the transfer safe by stating:
“• Because I was on the phone and had spoken with Mick MORRIS
• He advised me to wait for Glen KESTING to call
• I spoke with WALTON to arrange the potential missed services, I did the right thing to arrange work can be finished by another crew
• I try to work in with you
• I made calls to Mick MORRIS, WALTON
• The transfer safe should have been cleared by Craig
• I tried to arrange everything else
• Craig said "Fuck it lets go home"
• Yeah I forget
• With everything else going on Craig said we are going
• Glen KESTING rang we pulled over
• I load and unload, prep the receipts
• AVO normally does the transfer safe
• Confusion and everything else” 46
[82] Under cross-examination in relation to his evidence in Ms Bedford’s case, Mr Poole maintained that he could not understand how a crew member might become distracted and forget about an item in the transfer safe even in circumstances where the crew member was dealing with a malfunctioning AV and making multiple phone calls to the Branch to try to arrange for the run to be completed.
[83] Mr Poole agreed that he had made no reference in his evidence to the malfunction of the AV which caused Ms Bedford to call Mr Lorensini and that he was not investigating that incident. In response to the proposition that a situation where both doors on an AV are open together is a security breach, Mr Poole said that this is correct but there is a robust system for contact with a technician who is responsible for decisions in relation to grounding vehicles in consultation with the General Manager or Regional Security Manager. Mr Poole said that he did not know that the AV operated by Ms Bedford and Mr Symes on 1 March 2018 had malfunctioning doors the week prior to that date or whether it had been grounded. There was a report in January in relation to a faulty door strap which meant that the door would have over-extended and potentially injured someone. Mr Poole does not believe this could have caused the door to malfunction by failing to close. 47
[84] Mr Poole agreed under cross-examination that there is no procedure in the Handbook to deal with circumstances where an AV exterior door is open but the alarm systems are not activated. In response to the proposition that discrepancies between the CCTV footage and the accounts given by Ms Bedford and Mr Symes could be because the interviews were conducted some 34 days after 1 March 2018 and their memories could have been affected, Mr Poole said while he agreed that it was some time later, in an environment where they work as security officers he would expect that Ms Bedford and Mr Symes would be able to remember specific circumstances of significance. In response to the proposition that the significance only emerged after the event, Mr Poole said that they claimed that the door failed and that was significant. Mr Poole agreed that the discrepancies he was referring to were not in relation to the door.
[85] Mr Poole maintained under cross-examination that the CCTV footage showed Ms Bedford taking a pen and the folder with the run form in it from the Despatch Clerk. Mr Poole was not aware that the Despatch Clerk had conceded that he put a heavy circle around the missing consignment on the run sheet using a red pen to indicate that the consignment had been removed from the AV, and that this was where the run had stopped. Mr Poole said that he thought that Ms Bedford had circled the consignment because she had control of the run sheet and it is unusual that Road Crew members do that. In response to the proposition that a number of witnesses in the proceedings giving evidence on behalf of Ms Bedford and Mr Symes said that that there was nothing unusual about Road Crew marking a run sheet during unloading, Mr Poole said that this is not Armaguard’s usual procedure. Mr Poole agreed that he had formed the view that it was Ms Bedford who had placed the circle on the run sheet in relation to the missing consignment.
[131] There is no evidence of actual damage to the reputation of Armaguard although I accept that this could have occurred. There is evidence that Armaguard’s relationship with the client in question was already in difficulty in relation to matters not involving Ms Bedford or Mr Symes and that the latest incident was one in a series albeit the most significant incident. The entire blame for damage to the relationship with the particular client should not be visited on Ms Bedford. This is particularly so when the part played by Ms Bedford is considered in the overall chain of events which resulted in the consignment going missing and being stolen. There were many fingers in the pie and Ms Bedford’s part should not be weighed more heavily than those of other employees of Armaguard.
[132] In relation to other matters raised in these proceedings, while Ms Bedford was assigned to the role of Crew Leader on 1 March 2018, she was much less experienced than Mr Symes. It is also the case that Armaguard did not establish that Ms Bedford had been signed off in accordance with its usual procedures to undertake the role of Crew Leader. While Ms Bedford was assigned Crew Leader duties there were gaps in her training. The Handbook makes no reference to “standing back” when guarding a Crew Leader. Further, it is not specific about what a “suitable” guarding position is. It is clear from the evidence that suitability depends on the particular circumstances. Mr Symes did not adopt a position that allowed him to view Ms Bedford exiting the AV. Had Mr Symes adopted such a position he would have noted that the door had failed to close when Ms Bedford pushed it. Accordingly Mr Symes was partly responsible for the fact that the door was left open. Ms Bedford believed that the door had closed. Her failure to check this was careless but in circumstances where she had closed the door in exactly the same way on many previous occasions without incident, it was not negligent.
[133] Notwithstanding the carelessness displayed by Ms Bedford and Mr Symes, the Handbook does not indicate that Ms Bedford should have directed Mr Symes to adopt a different guarding position to that he took on 1 March 2018. It was relevant to the guarding position that Mr Symes adopted that Ms Bedford was not carrying any valuables on her person when she alighted from the vehicle. They were simply entering the client’s premises to collect a consignment. There is no reference in the Handbook to a guarding position being relevant to ensuring that an outer door of the AV has closed properly or to protecting a firearm even when an AVO is not carrying a consignment. If these are factors of such significance that failure to adopt what is considered to be a suitable position can lead to events which could result in dismissal, then it should be highlighted. There was also no evidence that this consideration had been conveyed to AVOs during training much less that the training dealt with separation between guards or standing off while performing guarding duties for these purposes. As Ms Bedford put the matter, it is also the case that she should not be held responsible for failing to notice the direction Mr Symes was looking towards.
[134] Further, there is evidence that occurrences whereby outer doors on vehicles do not close properly are not uncommon. That evidence includes that there is a vacuum created in the man trap when the inner door closes which can hinder the closing of the outer door. In the circumstances which applied on 1 March 2018, the strap preventing the outer door from opening to the maximum extent had been identified as an issue and repaired prior to that date. Further, when the door was being tested while Ms Bedford and Mr Symes were on their way back to the Depot, Mr Kesting asked them whether the strap was impeding the door. The issues with the door should have been identified prior to the AV being taken out by Ms Bedford and Mr Symes or immediately when they were reported to Mr Lorensini by Ms Bedford on the first occasion on 1 March 2018 when the doors malfunctioned.
[135] The CCTV footage establishes that there were problems closing the outer door when Ms Bedford entered the AV after placing the consignment in the transfer safe and that the inner and outer doors continued to malfunction when they were tested on the way back to the Depot. The CCTV footage also indicated that the outer door failed to latch when it was slammed but worked when it was closed slowly. Ms Bedford and Mr Symes both gave evidence to the effect that Ms Bedford swung the door closed in the usual manner when they first exited the building and that it made a sound familiar to them which they believed indicated it had closed. The problems with the closing of the outer door only emerged after they returned to the vehicle with the consignment. If there is a real potential for an outer door to fail to close, the Handbook should identify this matter and make clear that a guarding position when a Crew Leader exits a vehicle is also intended to ascertain that the vehicle is secured by virtue of the outer door being shut before the AVOs approach the client’s premises.
[136] Further, it is relevant that there had been no refresher training for Ms Bedford or Mr Symes since 2014. The issues identified above are good examples of subject matter that could be addressed in refresher training as case studies about the importance of a guarding position for purposes other than specifically guarding a colleague who is carrying a consignment. In all of the circumstances I have concluded that the failure on the part of Ms Bedford to ensure that the rear door of the AV was closed or that Mr Symes had adopted a guarding position enabling him to ascertain whether the rear door of the AV closed when Ms Bedford alighted was careless rather than misconduct of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response.
[137] I accept that Mr Morris intended to direct that Ms Bedford not move the AV however, I do not accept that he communicated this appropriately to Ms Bedford. Ms Bedford was adamant that Mr Morris told her to “hold tight” and that Mr Kesting would call her. Ms Bedford was equally adamant that if she had been given a direction not to move the AV it would have been a lawful and reasonable direction with which she would have complied. Ms Bedford also indicated her understanding of the repercussions of failing to comply with such a direction. Mr Morris accepted that Ms Bedford was agitated when they had the conversation and that she may not have understood that he was directing her not to move the AV. I generally found Ms Bedford to be a credible witness who made concessions where appropriate. I accept Ms Bedford’s evidence that she did not understand that Mr Morris intended to give her this direction.
[138] It is also apparent from the evidence that Mr Symes decided to drive the vehicle from the site back to the Depot and that Ms Bedford acquiesced with Mr Symes. Ms Bedford had no reason not go along with Mr Symes in relation to this matter. Mr Symes had more seniority and experience than Ms Bedford notwithstanding that she was operating in the role of Crew Leader on that shift. In the absence of clear direction from management of Armaguard that the AV not be moved I do not accept that this was a breach of Armaguard policy and procedure of such significance that dismissal was a sound, defensible and well-founded response.
[139] I am also of the view that Mr Miller did not give sufficient consideration to the impact of the doors malfunctioning nor did he receive a report on this matter before deciding to dismiss Ms Bedford. This is despite the fact that Mr Miller told Mr Symes during interviews about the events of 1 March 2018 that he would speak to Mr Kesting about the door malfunction. Clearly it was a significant malfunction and security breach given that Mr Kesting grounded the vehicle when he became involved. Mr Kesting should have been involved at an earlier point, and Mr Lorensini’s failure to advise Mr Kesting of the report made by Ms Bedford when the vehicle first malfunctioned also contributed the situation which later unfolded. The vehicle should have been tested under the supervision of Mr Kesting when it first malfunctioned given the serious security implications. It is also the case that Mr Lorensini knew that the vehicle had malfunctioned in the same way a week earlier. This alone should have been sufficient for Mr Lorensini to take immediate action and report the matter to ATS when the matter was first reported to him by Ms Bedford.
[140] Mr Poole’s evidence indicates that he formed a view that Ms Bedford had been not been truthful in her responses to questions at the first meeting conducted on 4 April on the basis that her account of events did not align with the CCTV footage. Mr Poole formed this view after viewing CCTV footage and before he attended the second meeting with Ms Bedford on 6 April 2018. Mr Poole did not put any allegation of untruthfulness to Ms Bedford at that meeting or the meeting on 13 April 2018. Mr Miller met with Mr Poole before the final meeting with Ms Bedford on 13 April 2018 and stated that at this meeting he received a briefing from Mr Poole about what he had learned at the earlier meetings.
[141] It is not apparent from Mr Miller’s evidence whether he also formed a view that Ms Bedford had not been truthful in her account of events on 1 March 2018 at the earlier meetings or that this view was relevant to the reasons for his decision to dismiss Ms Bedford. On the basis that Mr Poole raised this matter in his evidence, I have considered it as I think it probable that Mr Miller held a similar view or that view was relayed to Mr Miller by Mr Poole.
[142] I do not accept that Ms Bedford was dishonest in the interviews with the Company after the events had occurred and that this was a valid reason for dismissing Ms Bedford. By the time Ms Bedford was questioned at least 30 days had elapsed. The Company had known that the consignment was missing well before anyone discussed the matter with Ms Bedford. The Company had access to the video footage and knew or should reasonably have known that Ms Bedford and Mr Symes left the consignment in the transfer safe. Ms Bedford and Mr Symes were not shown the footage at the point they were questioned about their recollection of events. It is more probable than not that the fact that Ms Bedford and Mr Symes recounted what they would have done with the consignment in normal circumstances, rather than what they actually did in the context of the events of 1 March 2018, was due to failure to remember the events which occurred over 30 days earlier rather than dishonesty.
[143] I have also considered the reasons for dismissal of Ms Bedford set out in the Respondent’s written submissions and oral submissions at the hearing of this application. In summary those submissions are that Ms Bedford failed to follow vital security procedures which led to the loss of client money, serious breaches of security protocol creating a risk to safety and impacting a high value client of Armaguard. For reasons set out above I do not accept that the security breaches listed in the written submissions constitute serious misconduct such that they constituted valid reasons for the termination of Ms Bedford’s employment. I am also of the view that when all of Ms Bedford’s conduct on 1 March 2018 and in the investigation period which followed is considered the conduct was not of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response to the conduct.
[144] It is also the case that Mr Miller and Mr Poole concluded that Ms Bedford marked the run sheet with a red pen to indicate that the consignment had been received when it had not. This conclusion was wrong and the Despatch Clerk conceded that he had made the marks on the run sheet. Further, Mr Miller concluded that Ms Bedford had inappropriately made contact with the client to discuss the missing consignment and that this was a reason he had lost trust and confidence in her. I do not accept that this is the case. Ms Bedford was sent back to the client’s premises on a number of occasions after the consignment went missing and the client’s representative asked Ms Bedford about the matter. Ms Bedford’s response was perfectly appropriate and I accept her evidence about this matter.
Whether Ms Bedford was notified of the reason for her dismissal – s. 387(b)
[145] Section 387(b) of the Act is included is part of a statutory framework by which the Commission is required to consider whether the dismissal of an employee is attended with substantive and procedural fairness. An important aspect of procedural fairness is that the reason for an employee’s dismissal is notified to the employee before the decision to dismiss the employee is taken. The plain meaning of the term “notified” is that information is provided in a formal manner. Notification of the reason for dismissal informs the subsequent matters required to be considered by the Commission in ss. 387(c) and (d) of the Act. As a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty Ltd: 66
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify the employee and give them an opportunity to respond after the decision to terminate their employment.”
[146] Sections 170CG(3)(b) and (c) of the former Workplace Relations Act were in similar terms to the present sections 387(c) and (d) of the present Act and respectively provided that for the purposes of arbitrating an application alleging that a dismissal was unfair the Commission must have regard to whether the employee was notified of a reason for termination of employment related to capacity or conduct and whether the employee was given an opportunity to respond to any such reason. As the Full Bench held in Crozier, ss. 170CG(3)(b) and (c) of the former Act were clearly related to the concept of procedural fairness. 67 The same can be said in relation to sections 387(c) and (d) of the current Act.
[147] In the present case notification of the reasons for Ms Bedford’s dismissal was provided at a meeting on 13 April 2018 when a letter setting out those reasons was read aloud to her by Mr Miller and handed to Ms Bedford. At that point the decision to dismiss Mr Symes had already been made. It is also the case that decisions to the effect that Ms Bedford had not provided information to the Company sufficient to explain or mitigate her conduct, had already been made in circumstances where Ms Bedford was not informed that her job was in jeopardy, and was not provided with sufficient information about the conduct to enable a response to be made or mitigating factors to be identified.
[148] Further the decision was based on matters including Ms Bedford’s truthfulness, in circumstances where allegations in this regard were not put to her and she was not given an opportunity to respond. The effect was that the reasons for dismissal were provided to Ms Bedford by the reading aloud of the termination letter. In all of the circumstances I am not satisfied that this process was notification of the reasons for dismissal as contemplated by s. 387(b) so that Ms Bedford could have a meaningful opportunity to respond, as provided in s. 387(c) of the Act.
Whether Ms Bedford was given an opportunity to respond to reasons for her dismissal related to her capacity or conduct – s. 387(c)
[149] Ms Bedford was dismissed on the basis of her conduct on 1 March 2018 and during the investigation following the events of that date. The consideration of whether an employee was given an opportunity to respond to reasons for dismissal based on conduct includes whether the employee was aware of the allegations so as to be able to respond to them and whether the employee was given an opportunity to defend the allegations and attempt to persuade the employer not to terminate employment. The employee may convince the employer that the allegations are without foundation or if the allegations are substantiated, that there were extenuating circumstances which mitigate or explain the conduct so that the employer may conclude that termination of employment is not an appropriate action.
[150] The employee may also acknowledge the conduct and undertake not to repeat it. It is also the case that an employee facing dismissal for conduct should be able to respond to allegations before a firm decision has been made to dismiss the employee. To this list of considerations I would add that the employee should be made aware when being asked to respond to reasons for dismissal that the conduct upon which the allegations are based, could, if established, result in disciplinary action including termination of his or her employment. I do not accept that an employee can properly respond to allegations absent information about the possible consequences of the response. In the present case, I do not accept that Ms Bedford was given an opportunity to respond to the reasons for her dismissal related to her conduct`.
[151] Three meetings were held with Ms Bedford for the purpose of seeking information from her about the events of 1 March 2018. It is common ground that the meetings were about a serious issue – the loss of a significant amount of money. It is also common ground that prior to the meeting on 13 April 2018, Ms Bedford was stood down from operational duties and provided with non-operational work such that she should have known that there were issues with her conduct. However, Ms Bedford was not told that the meetings were disciplinary in nature and that her employment was in jeopardy as a result of views which had been or were in the process of being formed about her part in the sequence of events which resulted in the consignment going missing.
[152] I accept that at the meetings Ms Bedford was asked a number of questions about her recollection of events. I also accept that Ms Bedford was asked at the meeting on 13 April about separation between her and Mr Symes and about the process that she should have followed when the door of the AV was observed to be open on their return with the consignment. Ms Bedford was also asked about leaving the consignment in the transfer safe. However there is no indication in the notes of the meeting that any allegations that Ms Bedford’s prior statements had been untruthful. Ms Bedford is also recorded as stating that she never carries a red pen and there were questions about why she had taken the run sheet from the Despatch Clerk. However it was not put to Ms Bedford that she had circled the missing consignment to indicate that it had been received.
[153] While Ms Bedford conceded that she was told that the consignment was left in the transfer safe at the 6 April 2018 meeting, I am of the view that this concession was mistaken. In the meeting on 4 April 2018 the notes taken by Mr Poole do not record that any question was asked about why the consignment had been left in the transfer safe. The notes do not reflect that this information was conveyed to Ms Bedford. Mr Poole’s notes also record that at the meeting on 6 April 2018 Ms Bedford was asked whose responsibility it is to clear the transfer safe and responded that the way she worked as Crew Leader meant that it was Mr Symes’ responsibility as AVO. The notes do not record that it was put to Ms Bedford that the consignment was placed in the transfer safe, and subsequently not removed. This was a serious allegation and the matter said to have contributed most significantly to the loss of the consignment. It is of particular concern that by the time he attended the meeting of 6 April 2018, Mr Poole must have known that this is exactly what occurred. Mr Poole must also have known that the outer door of the AV had failed to latch close when Ms Bedford swung it and that she had not noted this.
[154] It is significant that these matters are not recorded in the notes of the meeting of 4 and 6 April 2018 as having been put to Ms Bedford and I do not accept that they were. This conclusion is also supported by the notes of the meeting on 13 April 2018 which record Ms Bedford as stating that she now remembered placing the consignment in the transfer safe. The failure to put these matters to Ms Bedford is particularly significant given that the meeting on 4 and 6 April 2018 were for the purpose of Ms Bedford being given an opportunity to provide mitigating reasons for her conduct on 1 March 2018. I do not accept that Ms Bedford could have properly responded to allegations about her conduct (much less provide information to mitigate that conduct) when she did not know that her employment was in jeopardy and had not been provided with information about the conduct in sufficient detail to enable a response to be made, or mitigating factors to be identified.
[155] It is also apparent that prior to the meeting on 6 April 2018 Mr Poole (and probably Mr Miller) had formed a view that Ms Bedford had been dishonest at the first meeting on 3 April 2018 in relation to her responses to questions about her conduct when compared to the contents of the CCTV footage. While I accept that there may have been good reason for not showing the CCTV footage to Ms Bedford before 13 April 2018, I do not accept that the allegations about her conduct were put to her at that meeting in light of what the footage showed. The allegations were complex and involved a number of alleged failures on the part of Ms Bedford. Those allegations could and should have been clearly articulated so that Ms Bedford had an opportunity to respond to them. In all of the circumstances Ms Bedford was not given an opportunity to respond to the allegations and in particular to explain the implications of the earlier malfunction of the AV doors. Ms Bedford should also have been given more time between viewing the footage and responding particularly in circumstances where the view that she had been dishonest in his earlier answers had been formed. The significant allegation of dishonesty was not put to Ms Bedford at all, much less the basis for Mr Poole and Mr Miller forming that view. There was also a failure on the part of Mr Miller to consider the fact that there had been a significant time delay between the events of 1 March 2018 and the discussions with Ms Bedford so that allowances needed to be made for the fact that she may not recollect a particular collection among the many that she had undertaken in the period since 1 March 2018.
[156] I am also of the view that in the circumstances of this case, a proper opportunity to respond may have changed the outcome given that Mr Miller was not aware of a number of significant matters – including the earlier malfunction of the AV doors and the fact that the Despatch Clerk circled the consignment on the run sheet – when he made the decision to dismiss Ms Bedford. It is not to the point that in the hearing of Ms Bedford’s unfair dismissal application Mr Miller states that the malfunctioning doors would not have changed his view. Mr Miller should have considered that matter before he made the decision to dismiss Ms Bedford and he did not because of the failure to give Ms Bedford an opportunity to respond to the allegations in a manner that was fair and reasonable in the circumstances that pertained, including that there were three meetings before the decision to dismiss Ms Bedford was made and at which significant matters which led to the decision to dismiss Ms Bedford were not put to her.
Whether there was an unreasonable refusal to agree to a request from Ms Bedford for a support person – s. 387(d)
[157] Ms Bedford requested and was granted permission to have a support person present at all meetings and this consideration is not relevant in the present case.
Whether Ms Bedford was warned about unsatisfactory performance – s. 387(e)
[158] Ms Bedford was dismissed for reasons of conduct rather than unsatisfactory performance and this consideration is not relevant in the present case.
Whether the size of Armaguard’s undertaking impacted on procedures followed in effecting Ms Bedford’s dismissal – s. 387(f)
[159] Armaguard is a large employer and I have given consideration to this matter and its impact on the procedures followed in effecting the dismissal of Ms Bedford. The mechanics or form of the procedures followed was appropriate. Three meetings were held with Ms Bedford at which relevant matters could have been discussed. Ms Bedford was shown CCTV footage on which the Company was relying as a basis for the allegations. Ms Bedford had support persons present at each meeting. She was asked questions about her recollection of events and given an opportunity to answer those questions. Ms Bedford was also stood aside from operational duties while the investigation of her conduct took place.
[160] The processes followed by Armaguard were as would be expected from a larger employer. However, for reasons set out above, while the form of the process followed by Armaguard in putting the allegations to Ms Bedford was appropriate, the substance was not.
Whether presence of dedicated human resource management specialists impacted on the procedures followed in effecting Ms Bedford’s dismissal – s. 387(g)
[161] Similarly Armaguard has dedicated human resource management specialists or expertise and this clearly impacted on the procedures followed in effecting Ms Bedford’s dismissal. The form of the procedures was appropriate but the substance of what was put to Ms Bedford during the procedures was not.
Other relevant matters – s. 387(h)
[162] I consider that there are other matters relevant to the consideration of whether Ms Bedford’s dismissal was unfair. Ms Bedford had over five years’ service with Armaguard. During the period of her employment Ms Bedford received one warning in relation to an accident in which a vehicle was damaged. Ms Bedford was summarily dismissed and states that this has a significant impact on her ability to obtain employment in the security industry, which is the only industry in which she has formal training and qualifications. Ms Bedford suffered additional hardship due to the fact that she is a single mother and was unable to obtain Newstart Allowance for a three month period due to the fact that Armaguard dismissed her for serious misconduct. As a result Ms Bedford had to move out of her rental accommodation.
[163] Ms Bedford struck me as a conscientious employee who made appropriate concessions about her errors both in the termination meeting on 13 April 2018 and her evidence to the Commission. It is also clear that Ms Bedford’s distraction on 1 March 2018 was because of her concern about completing the run and not letting down her employer and the clients. Ms Bedford has paid a heavy price for her concern. It is also relevant that Ms Bedford volunteered to undertake the particular run on 1 March 2018 to placate a colleague who did not want to do it.
[164] I am also of the view that alternatives to dismissal were not considered. Armaguard could have sanctioned Ms Bedford for her part in the events of 1 March 2018 by removing her Crew Leader role and requiring her to attend training in relation to her duties as an AVO. The Company could also have given Ms Bedford a final warning instead of dismissing her.
Conclusion in relation to unfair dismissal
[165] After weighing the considerations in s. 387, I have concluded that Ms Bedford’s dismissal was unfair on the grounds that it was harsh and unreasonable. The dismissal was harsh because the conduct engaged in by Ms Bedford, while deserving of censure and disciplinary action, was not of sufficient gravity to warrant dismissal, much less summary dismissal. The dismissal was unreasonable because insufficient consideration was given to the mitigating circumstances with the result that inferences were drawn about Ms Bedford’s culpability for the consignment going missing and being stolen, in circumstances where the information which was before Armaguard did not support those inferences. In particular insufficient weight was given to other factors which had a greater or at least equal impact on the consignment going missing and being stolen - namely:
• The malfunctioning doors of the AV;
• The failure of Mr Lorensini to report the matter to Mr Kesting when Ms Bedford reported it to him, in circumstances where the malfunction to the doors of the AV was the second in the space of a week;
• The lack of detail in the Handbook in relation to suitable guarding position and the lack of refresher training in this regard;
• The fact that the Handbook did not cover a situation where the door of an AV is open and the alarms indicating a breach are not activated;
• The fact that it is not uncommon for outer doors of AVs to fail to latch and that there is a technique (holding the door instead of swinging it) to ensure that the latch engages which Ms Bedford and Mr Symes were not aware of until the incident on 1 March 2018;
• The fact that the Despatch Clerk made two errors – failing to see the consignment in the transfer safe and circling the run sheet to indicate that it was received when this was not the case;
• The failure to account for the consignment in the global count;
• The loss of the receipt leading to an incorrect conclusion that the consignment had been missed – ie. not collected;
• The failure to have a procedure to search AVs before they are sent out for repairs and of Mr Lorensini to check the transfer safe before the vehicle was sent out for repairs; and
• The time lag between 1 March 2018 when the events occurred and the investigation.
REMEDY
[166] Given that I have found that Ms Bedford’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Ms Bedford was protected from unfair dismissal and that she has been unfairly dismissed. I am also of the view that Ms Bedford should have a remedy for her unfair dismissal. Ms Bedford seeks reinstatement.
[167] Reinstatement is the primary remedy for unfair dismissal. Compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. In the present case I have found that Ms Bedford was disproportionately blamed for the events which led to the consignment of cash going missing and being stolen, and that Armaguard did not have a reasonable basis for this conclusion. That conclusion supports an order for reinstatement. There is also evidence from Mr Miller to the effect that he has lost trust and confidence in Ms Bedford and her ability to carry out the duties of an AVO. While this would militate against an order for reinstatement, I am of the view that Mr Miller’s conclusion in this regard was not made in the context of a proper consideration of all relevant information, and in particular, the malfunctioning doors of the AV. Mr Miller was also not aware that the Despatch Clerk had circled the missing consignment as having been received when it was not. Further, Mr Miller did not have regard to the contribution to the situation made by the failings on the part of Mr Lorensini and the error whereby the consignment was included in the global count on 1 March 2018, when it was not received. It is also the case that Mr Miller wrongly concluded that Ms Bedford had inappropriately discussed the matter with the client in question when this was not the case.
[168] In all of those circumstances, I am of the view that Mr Miller’s loss of trust and confidence in Ms Bedford is not soundly based and that it should not be an impediment to reinstatement. I have also considered Ms Bedford’s attitude in this hearing. As previously noted, Ms Bedford made appropriate concessions about her conduct and acknowledged that she would not repeat her mistakes in the future. This is a further basis upon which I am satisfied that reinstatement is appropriate. Accordingly I am satisfied that an order should be made requiring that Armaguard reinstate Ms Bedford by appointing her to the position in which she was employed immediately before the dismissal.
[169] I am also satisfied that it is appropriate for an order in respect of continuity of Ms Bedford’s employment and her period of continuous service to be made. Such an order is appropriate on the basis that Ms Bedford been unfairly dismissed after 5 years of service. I am also of the view that it is appropriate for an order to restore lost pay to be made. Ms Bedford produced evidence that from 30 June 2017 until 8 April 2018 her gross earnings were $65,202.94 with a weekly average of $1,618.74.
[170] I also consider it appropriate that Ms Bedford should not receive the full amount of her lost remuneration. The Commission has discretion to order the payment of “an amount” for lost remuneration and such an order may be for the full amount or part of it. Notwithstanding my finding that she was unfairly dismissed, Ms Bedford was negligent and careless in the performance of her duties and contributed to the loss of and subsequent theft of a significant sum of money with a real potential to cause reputational and financial damage to Armaguard.
[171] The amount by which I intend to reduce the order for lost remuneration is an amount of 30%. That reduction reflects the seriousness of Ms Bedford’s conduct and its implications and her level of culpability in comparison with her colleague Mr Symes who had considerably more experience as an AVO and Crew Leader than did Ms Bedford. An order will issue with this Decision requiring that Armaguard reinstate Ms Bedford with effect from 7 days from decision and that the continuity of Mr Bedford’s employment and continuous service with Armaguard be maintained. I also intend to Order that Armaguard pay to Ms Bedford an amount for lost wages and superannuation contributions for the period between 13 April 2018 when her dismissal took effect, and 21 December 2018, when the Order for reinstatement will take effect.
[172] Based on the evidence of Ms Bedford about her earnings prior to dismissal, she would have earned an amount of $58,274.64 for the period from 13 April 2018 to 21 December 2018. As previously indicated I have determined to reduce that amount by 30% on account of Ms Bedford’s conduct resulting in an amount of $40,792.25. I therefore award an amount for lost remuneration to Ms Bedford for her unfair dismissal in the amount of $40,792.25 plus an amount of superannuation of $3,875.26. I have also had regard to the fact that the sum for lost remuneration will be taxed according to law. An Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr L Norris of the Transport Workers’ Union on behalf of the Applicants.
Mr M Rawlings of Counsel on behalf of the Respondent.
Hearing details:
Brisbane.
31 July, 1 August and 2 August.
2018.
Final written submissions:
19 July 2018.
Printed by authority of the Commonwealth Government Printer
<PR703123>
1 Exhibit R1.
2 Exhibit A6 Statement of Kelly Lee-Anne Bedford.
3 Exhibit A7 Statement of Russell Michael Humpreys.
4 Exhibit A8 Statement of Nathan Iago Smythe.
5 Exhibit R12 Statement of Paul Kenneth Lorensini.
6 Exhibit R14 Statement of Michael George Morris.
7 Exhibit R16 Statement of Brian Poole.
8 Exhibit R18 Statement of Chris Thomas Miller.
9 Exhibit R1; PN1311-PN1320.
10 Transcript of Proceedings, 31 July 2018 at PN1352-PN1365.
11 Transcript PN2566.
12 Exhibit A6 Statement of Kelly Lee-Anne Bedford paragraphs 19- 28.
13 Transcript PN1965-1966
14 Transcript PN 2506.
15 Transcript PN1976-1979
16 Transcript PN3085.
17 Transcript PN2406-2408
18 Transcript PN2006.
19 Exhibit A6, at [39] and [40].
20 Transcript PN1549-1551
21 Transcript PN1676
22 Transcript PN1680
23 Transcript PN1754
24 Trancript PN2032
25 Transcript PN1441 and 1446.
26 Exhibit R7.
27 Transcript PN1456, 1467 and 1470.
28 Transcript PN 2344.
29 Transcript PN2406-2408
30 Transcript PN2462-2472
31 Transcript PN2490.
32 Transcript PN2646.
33 Transcript PN2384.
34 Transcript PN3406.
35 Transcript PN3676-3677.
36 Exhibit A6, at [57]-[62].
37 Exhibit A6, at [68]-[72].
38 Exhibit A6, at [81]-[84].
39 Exhibit A6, at [87].
40 Transcript PN2280-2285
41 Transcript PN2292
42 Exhibit R16 Statement of Brian Poole Annexure 3.
43 Exhibit R16 Statement of Brian Poole Annexure 4.
44 Exhibit R16 paragraph 32.
45 Exhibit R16 Annexure 5.
46 Exhibit R16 Annexure 5.
47 Transcript PN2587.
48 Exhibit R18 paragraph 21.
49 Transcript PN3702.
50 Transcript PN3465-3466.
51 Transcript PN3476, PN3479 and PN3489.
52 Transcript PN3550-3553.
53 Transcript PN2944 – 2948.
54 Transcript PN2963 – there is an obvious error in the transcript which refers to “two cars” instead of “two guards”.
55 Transcript PN2997.
56 Transcript PN3346.
57 Transcript PN3406 – 3407.
58 Transcript PN3115.
59 Transcript PN3119, PN3129.
60 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
61 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
62 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
63 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
64 Bista v Glad Group Pty Ltd [2016] FWC 3009.
65 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
66 (2000) 98 IR 137 at 151 para [73].
67 Ibid at 151 para [70].
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