Ms Lynne Bennett v ISS Security Pty Ltd T/A ISS Facility Services

[2016] FWC 5386

[2016] FWC 5386

FAIR WORK COMMISSION

DECISION

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

Ms Lynne Bennett
v
ISS Security Pty Ltd T/A ISS Facility Services
(U2016/6135)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 18 AUGUST 2016

Unfair dismissal application – abandonment of security post - non- attendance at designated site - Gold Coast airport - trust in unsupervised environment - duty to contracted client - duty in sensitive security context – whether employer obliged to consider ‘economic and personal consequences’ of dismissal – idiomatic meaning of the adjectival phrase “harsh, unjust or unreasonable” - authorities discussed – difficult burden on employer to evaluate whether decision to dismiss is harsh.

[1] This decision concerns an application by Ms Lynne Bennett under s. 394 of the Fair Work Act 2009 (“the Act”) in relation to her dismissal from her position as an Aviation Protection Officer with ISS Security Pty Ltd T\A ISS Facility Services (“the employer”) stationed at the Gold Coast airport.

[2] Ms Bennett commenced working for her employer on 3 November 2008. The date her dismissal took effect was on 30 March 2016.

[3] Ms Bennett worked within the Enhanced Inspection Area (“EIA”) of the airport and worked permanent shifts from 6 AM to 6 PM two nights a week followed by two shifts between 6 PM and 6 AM. Following these four shifts, Ms Bennett had four rostered days off (“RDOs”) before resuming the same shift pattern.

[4] Mr Bennett claimed that she was dismissed for the following three reasons:

● an alleged failure to follow her employer’s Standard Operating Procedures (“SOP’s”) in relation to her duties, in particular abandoning her post on three occasions (for a total of 151 minutes) without consent and/or a relief officer being present;

● a claim that she had abandoned her post on three occasions for the purposes of sleeping whilst on shift; and

● falsification of entries in the security log book.

[5] In respect of these claims Ms Bennett argued that she did not abandon her post on any of the three occasions cited by her employer, but had to absent herself for reasons that she had been ill on each instance. On one occasion, Ms Bennett contended that she had a headache and had to sit in a dark room behind her desk in order for the Panadol to take effect.

[6] On the other two occasions, Ms Bennett argued that she had experienced ill-health for other reasons and had also spent varying amounts of time in the adjacent darkened room.

[7] Ms Bennett denied having slept during the time she was not at her post.

[8] Ms Bennett contended that she only entered the room when she had in her possession her radio and mobile phone and so was available to be contacted at any time.

[9] Ms Bennett contended that her employer did not have any procedures in place to manage fatigue or illness for people who were working overtime or alone.

[10] Ms Bennett claimed that she had never been counselled, or in any other way spoken to, about her alleged practice of abandoning her employment, other than at the time her employer initiated dismissal proceedings.

[11] Ms Bennett claimed that her employer dismissed her explanation regarding her illness and did not follow-up any of her witnesses in its investigation, but only relied upon CCTV footage for its decision.

[12] Ms Bennett claims that when she returned from her RDO’s on Saturday 12 March 2016, she was handed correspondence from her employer requesting a meeting the following Monday, 14 March 2016. The correspondence set out two concerns which were to be addressed at that meeting. The first concern related to a claim that Ms Bennett had abandoned her post without consent and/or a relief officer being present and, secondly, that she had abandoned her post for purposes of sleeping whilst on shift.

[13] Ms Bennett attended a meeting with her representative, Mr Todd Mainwaring. In the course of that interview, Ms Bennett conveyed her explanations for her conduct as I summarised above. Ms Bennett added that there was a high backed chair in the darkened room behind her desk and that she needed to rest her head owing to her headache. Ms Bennett also claimed that she explained that she had not failed to follow SOP’s, for reasons that there were no such procedures applicable to the EIA position and that she was unaware that there were any SOP’s that dealt with employees falling sick whilst they were on shift alone at night.

[14] Ms Bennett also conceded, in the course of her interview, that she had used the room at the back of her desk on two other occasions owing to illness. Ms Bennett claimed that she explained that on one of those occasions, she had taken Berocca and this had caused her to have diarrhoea, so she had sat in the darkened room behind her desk, so that her stomach would settle.

[15] Ms Bennett claimed she had retreated to the darkened room as she did not wish to be seen in her condition by any staff exiting the building.

[16] Generally, Ms Bennett argued that she had not slept whilst on duty and despite being in the darkened room, had her radio, mobile phone and laptop with her, so she could respond to any request across her area of responsibility.

[17] In the course of the interviews with her employer, the employer raised the issue of entries in the Security Log Book which Ms Bennett had made. The entries were to the effect that she had carried out a second patrol, and checked doors and windows as required, when in deed she had not completed this activity on any of the three occasions.

[18] Ms Bennett contended, that in response to this allegation she explained that she wrote the entries into the security log early into her shift and only changed the entries if circumstances were other than she had anticipated. On the three occasions in question, Ms Bennett had not remembered to make the changes to the security log book. Ms Bennett did not contend that her illnesses prohibited her from so amending the security log. Indeed, in relation to the absence from her post on 8 March 2016, Ms Bennett held that her headache had resolved itself by the completion of her shift and after her period of time in the adjacent room.

[19] A further meeting was conducted on 22 March 2016. Ms Bennett stated that “after much discussion over the charges, again, the meeting was closed & date set for follow up meeting […].” Ms Bennett was stood down from 23 March 2016.

[20] A further meeting was conducted on 24 March 2016. It was at this that Ms Bennett was informed of the further concern, which I have referred to above, as it related to the claim that she falsified an entry into the Security Log Book.

[21] Another meeting was convened for Tuesday, 30 March 2016, which ran for what appears to be almost 2 hours. Ms Bennett claimed that there had been very considerable discussion about the charges over this meeting.

[22] Another meeting was convened for 31 March 2016 by the employer. However, Ms Bennett claims never to have been notified of the meeting and did not attend as a consequence.

[23] As it was, on the evening of 31 March 2016, at 7.00 PM, Ms Bennett received an email which included as an attachment correspondence from Ms Sharrie Harrold. The correspondence had the effect of terminating Ms Bennett’s employment.

[24] I make a number of points about Ms Bennett’s witness evidence in support of her claims. Whilst Ms Bennett filed a number of short statements from various individuals, none of these persons attended the hearing to give evidence in support of their claims, or to be subject to examination. The statements as provided were not of probative value. One of Ms Bennett’s witnesses, I add, appears to have decided to withdraw from the proceedings and not to provide evidence, despite having provided an unsigned statement at an earlier time. I cannot accept the unsigned statement as evidence with any probative value, especially where the purported signatory is unable to be examined in relation to her claims. On its face, the statement in any event attested to a limited set of alleged facts in relation to a conversation (about whether Berocca produces a diarrhoea side-effect) around the end of February 2018.

[25] A number of other witness statements, which were very brief in their terms, amounted to references from co-workers as to the effectiveness of Ms Bennett’s work. The statements did not address the issues in contention here and were of no value for my determinative purposes.

[26] A further statement was filed by Ms Raelene Barker. That statement made a number of allegations about the employer allegedly acting in an inappropriate way to manage staff in the context of redundancy circumstances. The statement does not address the issues in contention in Ms Bennett’s application and was of no probative value for purposes of these proceedings, as it did not intersect with Ms Bennett’s particular claims or her defences in any manner. As mentioned above, Ms Barker did not attend the hearing, in any event.

[27] The employer, through its correspondence dated 31 March 2016, terminated Ms Bennett’s employment for reasons of serious misconduct. It held that on 21 February 2016, 28 February 2016 and 8 March 2016, Ms Bennett abandoned her post at the enhanced inspection area of the Gold Coast airport and left the area unattended for varying periods of time.

[28] On each of the three occasions identified above, Ms Bennett was said to have recorded in the security log book that she had completed a security patrol, that she did not in actual fact complete at all.

[29] Camera footage provided by the employer showed that on 8 March 2016, Ms Bennett left her post and entered an adjacent room (referred to as the CBS level 4 search room) from 1:39 AM until 2:45 AM.

[30] For the purposes of this shift, Ms Bennett recorded in the employer’s security log book for the EIA area that at 1:45 AM she had commenced the required security patrol and had ensured that all doors and windows were secure.

[31] The employer became aware of Ms Bennett’s absence from her post when another employee had arrived at the EIA area at 2:45 AM to sign in and found the desk unattended. Ms Cassandra Lindley – Cousin, the Leading Hand for the employer, was to take over Ms Bennett’s shift and had arrived some 15 minutes prior to the commencement of the shift changeover. Ms Lindley-Cousins heard an alarm – or at least a musical tune which might emanate from a mobile telephone - in a CBS level 4 search room (to the rear of Ms Bennett’s desk) as she signed in at the vacant security desk . Ms Cassandra Lindley – Cousin, gave evidence after hearing the musical tune and further entering the building, she shortly thereafter “noticed Lynn Bennett poke her head around to look in the staff kitchen”.

[32] Ms Lindley – Cousins some few minutes later claimed to have had a brief discussion with Ms Bennett and in the course of that discussion, Ms Bennett made no reference to her feeling unwell during the course of her shift. Ms Lindley - Cousins reported the circumstances to her Operations Manager, Ms Debbie Whitby, later that day.

[33] The CCTV footage was led as evidence in the proceedings. On 8 March 2016, the footage showed Ms Bennett leaving her post, looking from side to side, closing the EIA doors and entering the search room at the rear of her desk at 1:39 AM, closing the door behind her. The footage further showed that Ms Bennett left the search room at 2:45 AM, fixing up her hair and reopening the doors.

[34] Ms Whitby thereafter drafted a notice of meeting - to be held on 14 March 2016 - which set out the subject of the employers concerns about Ms Bennett’s conduct on 8 March 2016.

[35] Ms Bennett claimed that she had not been sleeping and that she had had a very bad headache and had no one to relieve her and no supervisor on site, so she went into the dark room to relieve her headache (as she claimed above). During the hearing Ms Bennett explained that the footage of her fixing her hair, was a result of her having released her hair from a hair tie to assist in coping with her headache, and was not evidence further supporting the claim that she had been sleeping in the darkened room.

[36] Ms Jessica Jackson, the People and Safety Manager for the employer, was said to have explained to Ms Bennett at that the SOP when an officer is unwell, is to call a shift supervisor or contact the next scheduled EIA officer or leading hand (who starts at 0300 hours). The SOP for Ms Bennett’s area of operation – tended in evidence – sets out the protocol in this regard.

[37] Ms Jackson also enquired of Ms Bennett during the meeting of 14 March 2016 as to whether Ms Bennett regularly had headaches and Ms Bennett responded that this had been “a one-off situation”.

[38] When Ms Bennett was asked why she had recorded in the logbook that a patrol had been completed when the footage showed that it not been, Ms Bennett gave the reply set out above - that she had written it down intending to complete the patrol, but her headache intervened. According to the record of interview (of 14 March 2016), the matter was put this way:

“JJ also noted that Lynne completed the Log Book to state that she was completing a patrol however the patrol was not completed. Lynne advised that she had written in this book as she had intended to complete the patrol when her headache went away however this did not occur.”

[39] Ms Bennett was then informed that the meeting would be suspended whilst a further CCTV footage was examined. Mr Jackson enquired of the applicant if there had been other occasions on which she had not been present at her post and entered the back room. Ms Bennett indicated that there were “maybe two other times she had done this”. Ms Bennett explained her conduct on these other occasions as arising from not feeling well on account of the lack of air conditioning during a hot night. Ms Jackson explained that a fan could be provided just as a heater had been provided in the colder months. Ms Bennett was said to have indicated that a fan was previously stationed at her post, but she was unaware of its current whereabouts.

[40] Subsequent to this initial interview, the employer conducted an examination of the CCTV footage, in relation to Ms Bennett’s two previous overnight swings. This investigation uncovered that on 21 February 2016, Ms Bennett had vacated her post at 00.27 hours and entered the search room, only to leave at 00.58 hrs.

[41] On 28 February 2016, the CCTV footage revealed that Ms Bennett had entered the search room at 00.14 hours and exited at 1.08 hrs.

[42] A further meeting was convened for 22 March 2016. At this meeting Ms Bennett was advised of the further two occasions on which she had left her post and entered the search room. Ms Bennett was also advised at this time that the logbook entries did not match with the times that she was actually taking breaks et cetera.

[43] Ms Bennett was asked whether she uses a phone alarm when she entered the search room. Ms Bennett confirmed to the employer that she did set a phone alarm, in the event that she fell asleep, however she had always stayed awake.

[44] Ms Bennett was asked whether she had entered the search room or left her post at any other time and Ms Bennett responded “that she could not remember”.

[45] A further meeting was conducted on 30 March 2016. At that meeting Ms Bennett was asked “why she had falsified the logbook and Ms Bennett responded that she could not remember”.

[46] The meeting concluded with an undertaking to resume the following day at 15:30 hours. The record of interview recorded this stated intention. Ms Bennett, however, did not attend the meeting at the agreed time the following day. Ms Bennett, for her part, contended that she was unaware of the requirement to meet again and her non-attendance was inadvertent. The employer forwarded to Ms Bennett by email, a copy of the letter of termination they were to give her at the meeting at which she was not in attendance.

[47] Having set out the evidentiary cases, I now turn to the legislative provisions which provide the context for the determinative task performing.

[48] Section 387 of the Act provides as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

Consideration

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[49] The determination as to whether there is a valid reason for Ms Bennett’s dismissal turns largely, on an assessment of her credibility as a witness, against the claims made by her employer.

[50] Having had the benefit of hearing the evidence in totality, I have concluded that Ms Bennett has not been truthful in disclosing her reasons for vacating her post on the three occasions cited above.

[51] I have come to this view for a number of reasons.

[52] Firstly, Ms Bennett claimed she was ill on three occasions, within three weeks, which required her to vacate her post (on each occasion), enter a darkened room, and incorrectly fill in her Security Log (thereby misleading her employer that her security patrol, which included checking windows and doors in the service of the contractual client, had been completed).

[53] It appears to me that it is unlikely that Ms Bennett would have failed to address the mistaken entries in the Security Log on all three occasions, that she was purportedly ill. It also seems to me unreasonable to assume that Ms Bennett would not have taken a logical step of informing her employer or her relieving Leading Hand, that she was ill and required relief, given the frequency of her bouts of ill health.

[54] It also appears to me that had Ms Bennett been genuinely affected by a severe headache on 8 March 2016 that required her to vacate her post and rest in a darkened room behind a closed door for such a duration, she may well have raised her difficulties with her Leading Hand, Ms Lindley-Cousins, upon Ms Lindley-Cousins’ arrival for shift changeover. Ms Bennett, in effect, claimed she did not do so because she had recovered by the time Ms Lindley-Cousins had arrived.

[55] Ms Bennett only emerged from the security room shortly after Ms Lindley-Cousins arrived at work, and they had a brief discussion a few minutes later. The matter would have been squarely in her mind at the time.

[56] Ms Bennett did not account for her failure to attend to any correction of the security logon any of the three occasions because of ill health. On each occasion, Ms Bennett merely seems to have overlooked the matter. This appears to me to be an unlikely account given the frequency of the omissions.

[57] In the alternative, if Ms Bennett did fail properly to complete the security log on three successive occasions, then she had very little regard for the standard of services and wider obligations reasonably expected by her employer.

[58] Having had the benefit of hearing Ms Bennett’s evidence, I do not consider that Ms Bennett has been truthful in disclosing the circumstances of her absence from her post on the three occasions cited or her reasons for failing to make correct entries into the security log, on three successive occasions.

[59] Ms Bennett claims that her employer’s actions in dismissing her were disproportionate to the conduct she exhibited, particularly taking into account her years of service (which is a matter I will discuss below). But I disagree.

[60] Ms Bennett’s employer requires a high degree of trust in relation to its employees in a security sensitive site, such as the Gold Coast airport, and where the employees concerned are unsupervised for large amount of time at night. Ms Bennett’s conduct was such however, that her employer was unable to derive the benefit of her services for the continuous period of her allocated shift, for which she received remuneration.

[61] Further, Ms Bennett’s conduct, compounded by her failure to disclose candidly the true nature of her actions upon her employer making reasonable enquiry, undermined her employer’s trust in her willingness to give faithful service to her contract of employment, and to have proper regard to the security sensitivities of her position and her employer’s duties to its contracted client.

[62] I do not understand that Ms Bennett’s claim that she was always nearby to her post and always available by radio and mobile telephone to be mitigating factors.

[63] In my view, the employer had a valid reason for Ms Bennett’s dismissal; it has lost trust in Ms Bennett to perform her duties to full effect in an unsupervised environment.

Whether the person was notified of that reason

[64] Ms Bennett was notified of the valid reason contemplated by the employer before such time as she was dismissed.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[65] As set out above, the employer engaged Ms Bennett in a number of meetings which were conducted over some lengthy time periods. The employer fully extended to Ms Bennett a procedural opportunity to respond to the valid reasons for which it was contemplating her dismissal.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[66] Ms Bennett was represented over the course of the various meetings and there is no claim that her employer unreasonably refused to allow her to have a support person present to assist in the discussions relating to her dismissal.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[67] Ms Bennett failed to perform her duties for reasons of her conduct, as set out above. That is, her dismissal did not relate so much to the unsatisfactory performance of her duties as such, but to her conduct, which meant that she did not perform her duties in the required manner.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[68] The procedure followed in effecting Ms Bennett’s dismissal was not affected by the size of the employer’s enterprise.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[69] The employer was able to access human resource specialists or expertise, and the procedure it followed in effecting Ms Bennett’s dismissal therefore was unaffected by the absence of such resources.

Any other matters that the FWC considers relevant.

[70] Ms Bennett sought to refer to matters not relating to her particular conduct. These included claims that her employer was seeking to reduce staff and labour costs and by implication, that her dismissal was concocted in order to meet her employer’s commercial goals. Having heard the matter, the employer was focused on conduct which arose as a result of Ms Bennett’s own personal decision-making and was not reasonably related to any other ulterior motive on its part, and Ms Bennett’s efforts to otherwise portray her employer’s conduct was not made out.

[71] Similarly, Ms Bennett sought to indicate very late in her closing oral submission that there were instances at other times at other posts where other employees had not completed a security log, but there had not been any ramifications. This assertion, concerning alleged conduct in different circumstances was not made out.

[72] I note that Ms Bennett had served her employer for some 7 ½ years and that as a consequence of her dismissal she has foregone her entitlement to long service leave. This is an outcome that Ms Bennett considers to be harsh, in hand with the fact that she is 58 years of age and believes herself to be unlikely to be reemployed.

[73] The idiomatic meaning of “harsh” in the adjectival phrase “harsh, unjust and unreasonable” has been taken by the Courts routinely to refer to the economic and personal consequences of a dismissal, as well as whether the dismissal was harsh in its execution (such as by summary means) or whether the decision was warranted in the context of the conduct or under performance demonstrated. (see for example Byrne v Australian Airlines Ltd (1995) 131 ALR per McHugh and Gummow JJ at 461) (“Re: Byrne”).

[74] The Court’s approach has been followed by the Commission. The Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 (per Vice President Lawler, Senior Deputy President Hamberger and Commissioner Cribb) (“Re: B, C and D”) outlined the following approach;

“[69] […] The adverse personal consequences of a dismissal tend to increase with age and duration of employment. For some employees, the loss of employment is not particularly damaging. A young, single employee with an in-demand trade or skill will likely find new employment very quickly. However, for an older employee without qualifications or a trade, dismissal can amount to a personal catastrophe and lead to long term unemployment, serious depression, loss of the family home, failed relationships and all of the myriad tribulations that flow from that for children.”

The approach adopted (in taking into account economic and personal consequences) is similar to compensation in damages claims (or in contract of employment disputes, where relevant, express terms are contravened).

[75] In the majority decision in Sipple v Coal & Allied Mining Services Pty Ltd T/A Mount Thorley Warkworth Operations[2015] FWCFB 5728 (“Re: Sipple”), regard was had to such matters as the applicant’s (appellant’s) length of service (which was “relatively long and is a factor that points to unfairness”), “his poor literacy” (however this was assessed, and assessed relative to the labour market skills required for his position) and the applicant’s family commitments which extended to consideration of financial support given to a family member, his daughter’s medical condition, her husband’s working arrangements and the difficulties associated with one of the daughter’s children (the applicant’s grandchild). Indeed, the prior Full Bench in Sipple Coal & Allied Mining Services Pty Limited T/A Mount Thorley Warkworth Operations [2015] FWCFB 2586 had granted leave to appeal on the basis that the Commissioner at first instance had not considered the wider circumstances of the application, which included applicant’s “low level of literacy” (which was said to have been “poor literacy” in the Full Bench in Re: Sipple) and that “he had family commitments”.

[76] The burden upon an employer to consider whether the dismissal of an employee is harsh in terms of its economic and personal consequences, prior to dismissing an employee, is an important one as it may render a dismissal harsh in all the circumstances. But dismissals often have damaging effects on employees of all kind. A forensic examination is required of an individual’s total circumstances to ascertain the true nature of the damaging effect or consequences of a dismissal (both economic and personal). Conclusions drawn on generalised grounds would be unsound, and regard, instead, must be had to the relevant facts.

[77] To give proper effect to the personal and economic consequences of a dismissal for a person, it would be necessary to ascertain, in any given dismissal (amongst other matters) whether the dismissed person:

● is young (and whether their limited employment record is tainted and\or self – confidence reduced) or old (and may not be able to obtain new or further employment on account of their age);

● is skilled and unskilled (and what is the employment market for such persons locally and regionally);

● has “poor literacy”, as the majority in Re: Sipple put it;

● has a housing mortgage, rents or owns a housing asset outright;

● has dependents (and how many), and the extent of the associated costs;

● has a long or short period of service and those with short periods of service (noting the interaction of the person’s skills and experience in determining the consequences of the period of service, including whether it was reasonable for an experienced employee to conduct themselves differently, act on the basis of familiarity with a wider set of information etc );

● has access to cash flows (through investments, negative gearing of shares or property, or savings) and inter-familial sources of support (in cash and kind); or

● has other liquid or disposable assets; or

● has fixed assets that allow for borrowing and those who have no asset base.

[78] The “myriad of tribulations” referred to by the Full Bench in Re: B, C and D cited earlier might require longitudinal considerations, if ever available, to be taken into account.

[79] It appears to me to be a particularly onerous obligation to require an employer to weigh in the balance, all the actual circumstances that may be relevant in relation to the harshness of a decision, to dismiss an employee in respect of the consequences for the employee concerned, such as those set out above. Such matters usually emerge ex post facto the dismissal.

[80] An employer, therefore, will seldom be able to investigate reasonably – if only for reason of the dismissed person’s privacy rights - the full range of financial and personal circumstances relevant to an employee whom it might identify for dismissal, in order to inform its judgment and ensure its dismissal decision is not cast as “harsh” because of its economic or personal consequences for the person (as the Courts and the Commission hold).

[81] It appears unusual that the Parliament would set out to impose on an employer an obligation or an adjudicative function it could not execute reasonably, and which would require the ultimate and inevitable intervention of a Tribunal or Court to synthesise the range of potentially “harsh” circumstances.

[82] The Court’s (and thus, the Commission’s) approach, I note, has been based on clauses which were inserted into Federal Awards following the 1984 Termination, Change and Redundancy Test Case (and on the basis of an ACTU definition of “harsh, unjust and unreasonable” which did not refer to “economic and personal consequences” of the dismissal decision). The Court judgments also do not address the contemporary legislative unfair dismissal regime, and do not have regard to the adoption into the statute in 1996 of the Common Law limitation on the scope of compensation for dismissal cases (at least where there are no relevant, express terms in the employment contract that were contravened).

[83] I note that in Re: Byrne, which is the leading Australian decision taken to support the proposition that economic and personal consequences of a dismissal are relevant considerations, Their Honours (McHugh and Gummow JJ) specifically noted that the decision should be viewed in relation to the specific Award relevant to that matter, and should not necessarily be interpreted, with a view to defining the meaning of harsh, unjust and unreasonable:

“133. The above propositions should be accepted as applicable to the present appeals. However, it should be emphasised that the present task is to construe the Award and that nothing now said necessarily determines the meaning of the phrase "harsh, unjust or unreasonable" in any other setting.”

[84] Notwithstanding these observations, whether a dismissal has harsh consequences, objectively determined, could not of itself render a dismissal harsh, unjust or unreasonable:

“The length and record of service of an employee, and his or her age and family circumstances, are undoubtedly relevant factors in considering whether a purported dismissal is unfair, harsh, unjust or unreasonable. It could not be contended, however, that the longest and best of employment records, and the most needy of family circumstances could operate to make any employee immune from dismissal for any reason. Close attention must also be paid to the immediate causes of an attempt to dismiss.” Gregory v Philip Morris Ltd (1987) 77 ALR 79 at [99] per Gray J.

[85] Further, in Byrne, the High Court (McHugh and Gummow JJ) favourably referenced a Full Federal Court judgment in this regard:

“[131] […] (iv) In Bostik (Aust) Pty Ltd v Gorgevski (No 1)(174), a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:

‘These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct.’

133. The above propositions should be accepted as applicable to the present appeals. […]”

[86] I note in Re: Sipple cited earlier that the majority ultimately found the wider personal and economic circumstances of the Appellant did not weigh against a finding the dismissal was harsh (given a physical capacity argument), and further indicated that it did not consider the Appellant’s familial circumstances to be “out of the ordinary”. There may be reasonable scope for variable adjudicative outcomes in other similar fact matters.

[87] Having said as much, if I take into account the difficulties that may arise for Ms Bennett as a consequence of her dismissal, it would not displace my views in relation to the severity of her conduct, in not faithfully fulfilling her important duties as an Aviation Protection Officer in an unsupervised environment, and not full disclosing the true nature of her conduct to her employer, upon its reasonable enquiry.

Conclusion

[88] Upon consideration of all circumstances, I do not consider that Ms Bennett’s dismissal was harsh unjust or unreasonable. Her application under s.394 of the Act is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms Bennett for herself.

Mr Moore for the respondent.

Hearing details:

Brisbane

10AM

11 August 2016

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