Neil Woods v MSS Security Pty Limited
[2024] FWC 1702
•18 OCTOBER 2024
| [2024] FWC 1702 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Neil Woods
v
MSS Security Pty Limited
(U2024/3917)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 18 OCTOBER 2024 |
Application for an unfair dismissal remedy – dismissal for alleged assault – Commission not satisfied there was an assault – dismissal unfair – reinstatement not sought – order for compensation appropriate – order for compensation to be assessed.
Mr Neil Woods (Applicant) has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to the application is MSS Security Pty Limited (Respondent). The application was the subject of a hearing at which witness evidence was received from Mr Woods, Mr Bradley Skeels (Security Site Manager for the Respondent) and Mr Ajay Gautam (a Security Officer employed by the Respondent).
Initial matters to be considered – s.396 of the Act
The application was made within the required 21-day period after the dismissal took effect (s.396(a) of the Act). There is no dispute that Mr Woods is a person protected from unfair dismissal because he had completed the minimum employment period, the MSS Security Victorian Enterprise Agreement 2021 (Agreement) applied to his employment, and he had an annual rate of earnings less than the high-income threshold (s.396(b)). Further, it is not disputed, and I am satisfied, that the Respondent was not a small business employer, such that the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)) does not fall for determination. Finally, it has not been claimed by the Respondent, and nor does the material before me suggest, that the dismissal was a case of genuine redundancy (s.396(d)).
Section 385 of the Act – was the dismissal unfair?
As to the circumstances set out at s.385 of the Act, there is no question or dispute that Mr Woods was dismissed (s.385(a)). Further, as outlined above, this is not a matter that involves a small business and the consequent consideration of whether the dismissal of Mr Woods was consistent with the Small Business Fair Dismissal Code (s.385(c)). Nor is it one which requires the Commission to consider whether or not the dismissal was a case of genuine redundancy (s.385(d)).
Only s.385(b) remains to be considered in this case. I must therefore determine whether the dismissal of Mr Woods on 15 March 2024 was harsh, unjust or unreasonable.
Background facts
Mr Woods commenced employment with the Respondent on 11 July 2016 as a security officer, initially on a casual basis. From 12 March 2018 until his dismissal, Mr Woods was engaged on a permanent basis as a Reliever Officer at the level 4 classification. He was paid an ordinary time rate of pay of $27.85 per hour. Mr Woods also gave evidence that at the time of his dismissal, he was studying mental health and held a second job as a social worker.
While working for the Respondent, Mr Woods’ employment conditions were governed by the following:
a)The Agreement;
b)A contract of employment in the form of a letter of appointment dated 9 March 2018 with attached standard conditions of employment signed by Mr Woods on 14 March 2018;
c)Various company policies and procedures; and
d)Various policies and procedures of clients of the Respondent at whose premises he performed work.
Further, it does not appear to be disputed that Mr Woods completed relevant Company policy and Client Site training as follows:
a)De-Escalation Training (13 January 2023);
b)Code Grey Training (3 March 2023);
c)Working With Vulnerable People Training (17 August 2023); and
d)Conflict Management (17 August 2023).
From December 2020 until his dismissal, Mr Woods was regularly rostered at Monash Health, Casey Hospital (the client site) in Ward E, which accommodates mental health patients. As part of his duties, Mr Woods was required to protect the patients’ welfare. During the period from 8:45am – 9.00am on Monday 19 February 2024, when he was working in Ward E with Mr Gautam and Ms Bronwyn Weston, a Monash Health senior nurse, Mr Woods became involved in an incident with a patient.
Mr Woods provided a written account of the incident[1] to Mr Skeels in its immediate aftermath in which he outlined that he was seated in a chair and subjected to name calling from a patient, who then approached and stood in front of him. In his statement, Mr Woods recorded that the patient attempted to pull his (Mr Woods’) name badge off and “grew a fist.” The account of Mr Woods continued with his recollection that the patient then “stretched out” to strike him while he was still seated and that, in response, he pushed the patient away before grabbing him and “putting” him to the ground.
Mr Woods was stood down from duty on Thursday 22 February 2024. He was subsequently provided with the opportunity to respond to a letter from the Respondent dated 23 February 2024. In this letter, the Respondent alleged that after looking at Mr Woods’ name badge the patient had turned and commenced walking away, at which point Mr Woods struck the back of the patient’s head.[2] In a written response sent on 28 February 2024, Mr Woods denied that the patient had turned away, outlining:
“may I confirm that the patient who attacked me did not turn away. He was verbally abusing me and seeing that I ignored him, he was walking around the room, showing signs of aggression towards me and putting his fist together to threaten me.
Seeing that I was still taking no notice of him, he walked up to me, calling me names, (racist names), while I was still seated and stretched out his hands and grabbed my name badge. This itself was physical abuse towards me. Then he raised his to fist me, that’s when I grabbed him to restrain him.” [3]
On 29 February 2024, Mr Woods attended a meeting where he had a further opportunity to respond to the allegations. On 11 March 2024, Mr Woods was sent a show cause letter dated 6 March 2024,[4] which outlined allegations and “preliminary findings” made by the Respondent, including that:
Mr Woods struck the patient in the back of the head with his hand as he walked away using a disproportionate amount of force; and
Mr Woods had to be pulled away from the patient by Mr Gautam and a medical staff officer while the distressed patient screamed for him to stop;
Mr Woods was given one day to respond to the show cause letter and provided a written response,[5] in which he outlined the following:
He was seated when the patient walked up and stood in front of him, touched his chest, snatched his name badge and ‘grew’ a fist;
He pushed the patient down in order to restrain him; and
He did not strike the patient’s head when he was walking away, or attack or strike him at all.
The Respondent followed up by sending Mr Woods a letter dated 15 March 2024. This letter outlined the Respondent’s decision to terminate the employment of Mr Woods on the basis of a loss of trust and confidence and the Respondent’s view that the actions of Mr Woods constituted serious and wilful misconduct, justifying immediate termination without notice.
Consideration
In considering whether I am satisfied that the dismissal of Mr Woods was harsh, unjust or unreasonable, I must take into account the criteria outlined in s.387 of the Act and will do so below.
Was there a valid reason for the dismissal relating to Mr Woods’ capacity or conduct? – s.387(a)
In considering whether the dismissal of Mr Woods was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees).
The Respondent submitted that Mr Woods committed physical assault on the patient by way of multiple strikes to the back of the patient’s head, which caused a serious and imminent safety risk to the patient, himself and others in Ward E. Further, the Respondent submitted the actions of Mr Woods brought its reputation into disrepute in the eyes of its client and were in breach of s.25 of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act), which relevantly provides that employees must take reasonable care for their own health and safety, and take reasonable care for the health and safety of persons who may be affected by the employee’s acts or omissions at a workplace. Specifically, the Respondent asserted Mr Woods should have known better, having regard his experience, training and understanding of his role. The Respondent submitted that Mr Woods acted in breach of the OHS Act by:
a)Placing himself in an unsafe situation by not stepping outside or taking alternative action to prevent the situation;
b)Failing to take reasonable care of the patient, a vulnerable member of the public with a mental health illness, by striking the patient at the back of the head twice; and
c)Failing to look after the safety of his colleagues and other personnel at the client site by unnecessarily escalating the situation, which resulted in another officer being injured.
The Respondent argued the misconduct of Mr Woods was substantiated through eyewitness accounts of nursing staff and security staff, together with body camera footage showing the patient holding his head in pain in the aftermath of the alleged assault and requesting the Applicant to stop hurting him.
In Mr Andrew Hill v Peabody Energy Australia PCI Pty Ltd,[6] the Full Bench described the Commission’s task under s.387(a) in the following terms:
“It is well established that in cases where an employee has been dismissed for a reason relating to conduct, the Commission must, in considering whether there is a valid reason for dismissal, be satisfied that the conduct occurred. This obligation, articulated by the Federal Court in Edwards v Giudice, flows from the plain wording of s.387(a), which requires the Commission to consider whether there is a valid reason for the dismissal. The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceeding before it, to the Briginshaw standard. The test is not simply whether the employer believed on reasonable grounds that the employee engaged in the conduct.”[7] (references omitted)
In Briginshaw v Briginshaw (Briginshaw),[8] it was established that the nature of the relevant issue (in this case, alleged assault) necessarily affects the “process by which reasonable satisfaction is attained.”[9] Briginshaw has long established that where serious allegations involving criminal conduct are made, such reasonable satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences” or “circumstances pointing with a wavering finger to an affirmative conclusion.”[10]
The evidence relied upon by the Respondent has fallen short of the Briginshaw standard and has not satisfied me that the alleged serious misconduct asserted by the Respondent occurred.
Firstly, none of the members of the client’s nursing staff who were said to have witnessed the incident gave evidence before the Commission, with the Respondent seeking to rely on their unsworn and untested statements. There was also no direct evidence before me that addressed any alleged reputational damage sustained by the Respondent as a result of the actions of Mr Woods. When questioned in relation to the absence of witnesses, the Respondent’s advocate gave the following explanation:
“I can explain as to why they’re not here, Deputy President. So we – for us to get them here we have to seek permission through the client, Monash Health. Now we sought that permission and unfortunately that permission was not granted and at the same time they have also instructed that the nurses no longer worked at the hospital at the time these proceedings commenced. So we were unable to obtain an official witness statement ...”[11]
I do not consider these explanations are satisfactory. The Respondent could have sought orders from the Commission requiring the attendance of the relevant individuals, having taken steps to try and locate the nurses who no longer work for the client. The submission made by the Respondent that the actions of Mr Woods brought its reputation into disrepute in the eyes of its client lacks credibility in the face of the client’s reported withholding of permission for its nursing staff to attend before the Commission. One would expect that a client apparently so concerned about particular alleged conduct in its workplace might support and facilitate the attendance of the members of its staff who are said to have witnessed the conduct.
Secondly, the video footage relied upon by the Respondent relates to the aftermath of the incident involving the patient and does not capture the incident itself. In addition, it was not possible to test the veracity of the various statements of the patient that were captured in the video footage.
This leaves the account of Mr Gautam that is relied upon by the Respondent, which I am left to assess against the account of Mr Woods.
Mr Gautam described the patient as having approached Mr Woods to look at the name badge on his shirt, which prompted Mr Woods to stand up. He said this is turn resulted in the patient turning to walk away, at which point Mr Woods struck him twice to the back of head.[12] At the hearing, Mr Gautam maintained this account, although he added that Mr Woods struck the patient with his open right hand while he and the patient were facing one another.[13]
In his Form F2 dated 5 April 2024, Mr Woods denied striking the patient’s head as he was walking away (or at all) and he outlined that the patient, after directing abuse:
“… kept coming closer and closer and stood right in front of me while I was sitting he then put his hand out to pull my name badge I pulled it back then he grew a fist in front of me while I was still sitting. He then stretched out to hit me I pushed him away from me then I grabbed him and put him to the ground in a safe manner…”[14]
In his Outline of Argument document filed on 20 May 2024,[15] Mr Woods outlined that he was still seated when the patient walked up and stood right in front of him, stretched his hands and snatched at the name badge and then grew a fist. Mr Woods denied that he struck the patient to the head while the patient was walking away, stating instead that he pushed the patient to the ground to restrain him. Mr Woods also stated that the patient “made a big attempt to attack me, attacked me and tried to walk away.”[16]
I asked Mr Woods about this at the hearing:
“So where is the trying to walk away fit into it, in the second paragraph? ‑Well, he must have moved - he must have moved a few steps away, but that’s when he turned around given, because he didn’t given - didn’t give up. He wanted to hurt me.
Are you saying you pushed him and he turned to walk away from you and then he turned to come back to you? ‑That’s right, just a couple of steps, he tried to come back to me and hit me. That’s when I restrained him. That’s when he walked away, just a couple of steps. I thought he was going, but then he turned around to really hurt me. He had it in for me.
All right. So just so I am clear you say he came towards you, tried to snatch at your badge while you were seated? ‑That’s right.
You stood up because you saw him clench a fist? ‑That’s right, yes.
So you stood up in response to that? ‑Yes, I did.
You pushed him in his chest? ‑I just nudged him away, but he moved a couple of steps, and then he turned around to - - -
When you say he moved a couple of steps once you pushed him did he walk backwards, did he turn around and walk away from you? ‑He walked backwards, he didn’t (indistinct).
He walked backwards a couple of steps - - -? ‑Yes, and that’s when he - - -
- - - and then he came at you again? ‑Yes.
Right. And then you restrain him? ‑That’s right. I got him, I pushed him, I put him on the ground.”[17]
In the course of answering further questions at the hearing from both myself and Mr Morgos for the Respondent, Mr Woods also stated that he pushed the patient in the back. This gave rise to the following exchange:
“THE DEPUTY PRESIDENT: So he’s turned away from you and you pushed him in his back? ‑No, no, when he - when he turned away he kind of - he grew a fist when he turned around back again to hit me. That’s when I grabbed him.
You have been asked a number of questions about did you push him in the back? ‑I did push him in the back, yes.
I am just trying to get an understanding of when it was you pushed him in the back and in what context you pushed him in the back? ‑At the beginning, yes, when he was - - -
At the beginning? ‑Yes. So I pushed him in the front.
Yes? ‑That’s when he took two steps, and then he grow a fist again, and then - and then he turned and that’s when he - I pushed him to get away from him, because he’s right in my face, and then that’s when he grew a fist again to hit me.
So he turned to go away, you pushed him in the back and he turned back around with a fist? ‑That’s right.
And that’s at the point where you’ve restrained him with your left hand, your right arm took him to the floor? ‑Yes, I was scared he was going to hurt me, and I didn’t have any - getting any help from the other guard.”[18]
Mr Woods gave this further account of his physical contact with the patient under questioning from me:
“Let’s break it down. How did you get him? ‑I got him by his hands, and I had my hand under his head, so not to hurt his head, and that’s when I put him on the ground.
Which hand of yours has grabbed his hands? ‑My left hand.
In your left hand you grabbed his two hands? ‑That’s right, both his hands, and I knocked him on the ground.
And with your right hand what did you do? ‑My hand was under his head, as you can see in the video, President.
Right. I can’t see in the video because it’s after the event. You might be doing that while he’s lying on the bean bag, but in the moment I haven’t got video footage of that? ‑So for me not to hurt his head that’s what I did, because I was scared where I might knock him - - -
All right. But just so I am clear you grabbed his hands with your left hand? ‑Yes.
And you say you - - -? ‑My hand was under his neck, right there.
Under his neck. Is that the same movement as grabbing his hands? ‑That’s right. So he probably thought I was hurting him. That’s when he goes I’ve been hurting him. I wasn’t hurting.
Just if you can follow, please. You say you grabbed his hands with your left hand, to restrain him presumably? ‑Yes. I grabbed with my left hand, yes.
Right. And then with your right hand - - -? ‑Yes.
What did you do with your right hand? ‑My right was under - is under his neck. So when I restrain him on the floor I’m not going to hurt his head. I was scared of that.
Yes, I understand that, but did you grab his hands or his head first? ‑I grabbed his hand first, and then my hand went under.
And then what happened? ‑That’s right. And that’s when I put him on the ground.
What sort of a motion is that, putting him on the ground? ‑You restrain someone, because - I’ll be very honest with you, Deputy President - - -
You’re under oath? ‑Yes. At that time AJ never came in, so he only came in after.
No, I am not interested in AJ - - -? ‑Because I was alone. I was alone, yes.
Yes, I understand, but I am wanting to understand the sequence of movement? ‑Yes. Well - -
So you’ve just told me left hand to restrain the arms. Right hand behind the neck? ‑And I just knocked him on the ground.
Knocked him? ‑I just pushed him on the ground, yes.
Stand up and show me that motion? ‑Okay. So when he came towards me I just grabbed his hands, and I put my hand under his head and I just pulled him down. So his body was on my leg at the time. We’re trained to do this.
All right. It’s like a rolling motion, is it? ‑Yes, that’s right, yes. I wasn’t - I had no intention to hurt the guy at all, because, you know, that’s not my - that’s not part of me.
But your intention - - -? ‑Yes, so I’m just like - - -
I want to understand the movement? ‑We grabbed him, and my hand went under his head and I just pulled him down, and that’s when AJ came after that...”[19]
Mr Woods said that he alone took the patient to the ground and it was only at that point that Mr Gautam lent assistance, grabbing the patient’s legs.[20] Mr Woods was, on my observation, an honest and credible witness. He made every effort to give direct answers to an extensive line of questioning regarding the sequence of events, and I am satisfied that they were given to the best of his recollection. There was underlying consistency in the account Mr Woods gave. It was also evident that Mr Woods was very committed to and proud of his work. This was demonstrated by the fact that he is undertaking study in the field of mental health. There was no evidence lead by the Respondent to rebut the evidence Mr Woods gave that he was a well-liked and well-regarded security guard at the client site.
Mr Gautam, on the other hand, gave varying evidence as to what happened next:
In his statement given in the aftermath of the incident, Mr Gautam said that he assisted nursing staff and Mr Woods in placing the patient on the ground;[21]
In his statement dated 14 June 2024,[22] Mr Gautam said that after the patient was struck by Mr Woods, he intervened and grabbed the patient in order to prevent him from responding and in doing so, fell to the ground, injuring his left hand, shoulder and neck;[23] and
In his oral evidence at the hearing, Mr Gautam said he grabbed the patient’s torso from the right-hand side and Mr Woods was involved from the other side, albeit he did not see exactly how. Mr Gautam then said that when he and Mr Woods were on the ground with the patient, he changed his hold and grabbed the patient’s legs.[24]
In addition to these differing accounts, Mr Gautam also raised for the first time on the morning of the hearing that there had been a conversation between himself and Mr Woods prior to the incident. He said that Mr Woods was already angry with the patient and made comments to the effect of “I’ve had enough of him” and “I’m going to teach him a lesson.” I do not, however, find this evidence of Mr Gautam convincing because he did not raise this conversation at all when he spoke to Mr Skeels during the aftermath of the incident and nor did he refer to it when preparing his statement for this unfair dismissal proceeding. Mr Gautam’s explanation for not having raised the conversation until the morning of the hearing was “Like, sometimes you forget things.”[25]
While Mr Woods agreed there had been a conversation between himself and Mr Gautam on the morning of the incident, he denied that it was of the nature described by Mr Gautam. Mr Woods said that the conversation instead covered his suggestion to Mr Gautam that the patient needed to be watched, with a close eye kept on him because Mr Gautam was unfamiliar with the patient and did not regularly work in Ward E. I consider Mr Woods’ explanation to be more compelling than Mr Gautam’s ‘forgotten’ version. I also do not consider Mr Gautam’s claim of having responded to Mr Woods by saying “if there is a requirement then we will do a proper code because we’ve been led by nursing staff”[26] is credible. A review of the evidence persuades me that Mr Gautam was inattentive during the build-up to the incident and was not proactive in the face of the abuse directed at Mr Woods. That Mr Gautam failed to activate his body camera at the time of the incident is evidence of his lack of vigilance and it belies his claim that he had told Mr Woods earlier that if required, they would do a ‘proper code.’
However, Mr Woods and Mr Gautam gave similar accounts regarding the circumstances leading to the patient being taken to ground. There is no dispute that Mr Woods was subjected to unwelcome attention from the patient. In particular, it is not in dispute that the patient directed highly disrespectful and offensive language at Mr Woods and issued a range of disturbing threats. Mr Woods described the patient as verbally aggressive and said that he (the patient) called him horrible and racist names, such as a “black rat”[27] and had told him that he (the patient) was going to get him (Mr Woods). Mr Gautam’s account was particularly explicit. He said the patient called Mr Woods a “black dog”, “a stupid dog” and told Mr Woods that he would “rape” his family.[28]
There is also no dispute that the patient approached Mr Woods and attempted to grab his name badge, that this prompted Mr Woods to stand up, that Mr Woods and the patient were facing one another at this point and that the patient then took some steps backwards. While it may be concluded that these events took place very quickly, I am nonetheless satisfied based on the account of Mr Woods that when the patient turned to move away from him, he pushed the patient in the back in order to move the patient out of his (Mr Woods’) vicinity. It is also clear that when the patient turned back in such a way that he and Mr Woods began to face each other again, the patient ended up on the floor and was restrained. I have also noted that at no stage did Mr Gautam assert that he and a medical staff officer had to pull Mr Woods away from the patient, despite this assertion having been made by the Respondent in the show cause letter dated 6 March 2024.
I have considered that part of Mr Gautam’s testimony which asserts Mr Woods slapped the patient in the back of the head with his open, right hand. While I have not been persuaded that this is what occurred, I nonetheless consider that the motion Mr Gautam described is not entirely inconsistent with the account of Mr Woods. My observations of Mr Woods and Mr Gautam as witnesses, and my consideration of the respective accounts they have given, leads me to prefer the evidence of Mr Woods. In particular, I prefer Mr Woods’ account of the attempt he made to place his open right hand behind the patient’s head in order to cushion it while bringing the patient to the ground in a rolling action using his legs, while simultaneously holding the patient’s wrists together with his left hand. Commencing with the statement he made in the immediate aftermath of the incident, Mr Woods has maintained a broadly consistent account of these particular actions and he demonstrated the particular movements during the hearing. This can be contrasted with three versions describing how the patient was brought to ground that were proffered by Mr Gautam. Ultimately, I consider that the placing of his right hand around the back of the patient’s head would have required Mr Woods to undertake a movement that would closely resemble a swinging motion and that this could conceivably have looked like a slapping motion in the flurry of movement that resulted in the patient being restrained in the floor.
I am satisfied that on 19 February 2024, Mr Woods was required to respond to a very challenging set of circumstances in that he was subjected to a highly offensive and disturbing verbal assault from a challenging patient with mental illness. Mr Woods gave unchallenged evidence that normally there would have only been one member of staff in Ward E but the presence of this particular patient posed a threat that warranted two security staff.[29] While Mr Skeels argued that Mr Woods ought to have walked away from the patient and moved to a different area before the situation escalated and that Mr Woods put the patient and other staff at risk because he stayed in the area and failed to request back-up,[30] I do not consider this was practicable. Having initially subjected Mr Woods to the verbal tirade, the patient lunged at Mr Woods without notice and attempted to snatch his name tag. This sudden movement by the patient prompted an instinctive response from Mr Woods whereby he stood up from a seated position and attempted to move the patient away. Noting the unchallenged evidence from Mr Woods that there was already an additional guard on Ward E, and the speed at which the circumstances escalated without any prior warning, I consider there was no reasonable opportunity for Mr Woods to take the course of action suggested by Mr Skeels. Nor was there sufficient time for Mr Woods to activate his body camera. I am not persuaded by the Respondent’s submission that at the moment the patient turned around, Mr Woods could have asked for back-up or “just let it go.”[31] It was only when he saw the patient turning back towards him with a clenched fist that Mr Woods employed the manoeuvre designed to bring the patient safely to ground. I reject the proposition that in doing so, Mr Woods escalated the matter. I have not been persuaded that the patient sustained any injury of substance and nor do I consider the evidence before the Commission is such that it could be concluded that Mr Gautam suffered injuries for which Mr Woods should be held responsible.
As outlined above, I consider the evidence relied upon by the Respondent to establish a valid reason for the dismissal of Mr Woods relating to his conduct has fallen short of the Briginshaw standard. The evidence before the Commission has not satisfied me that serious misconduct occurred. I have not been persuaded that Mr Woods assaulted the patient in the manner alleged so as to cause a serious and imminent safety risk to the patient, himself or others in Ward E and nor have I been persuaded that the actions of Mr Woods were in breach of the OHS Act. I consider the response of Mr Woods to the very challenging situation that confronted him on 19 February 2024 was, in all the circumstances, appropriate, reasonable, and proportionate. I have not been persuaded that the actions taken by Mr Woods constitute a valid reason for the termination of his employment. The absence of a valid reason for dismissal weighs in favour of a conclusion that the dismissal of Mr Woods was unfair.
Notification of ‘that reason’ – s.387(b)
Consideration of s.387(b) in this matter requires asking whether Mr Woods was notified of ‘that reason’, which is a reference to the valid reason referred to in s 387(a) of the Act. While I have concluded there was no valid reason, I do not consider the fact that Mr Woods was not notified of a valid reason in this case is a factor that weighs in favour of a finding of unfairness because the Respondent notified Mr Woods of the reason it considered was a valid reason for his dismissal.
Opportunity to respond to ‘any reason’ related to the capacity or conduct – ss.387(c)
Mr Woods was given an opportunity to respond to the reason related to conduct that the Respondent gave for his dismissal, albeit I have noted that he was given just one day to respond to the show cause letter.
Any unreasonable refusal by the employer to allow a support person – s.387(d)
There was no refusal by the Respondent to allow Mr Woods to have a support person present to assist at the discussions relating to the dismissal.
Warnings regarding unsatisfactory performance – s.387(e)
The Respondent did not dismiss Mr Woods on the basis of unsatisfactory performance and therefore, this consideration is not a relevant factor in this case.
Impact of the size of the employer on procedures followed – s.387(f) and absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
I have noted the disclosure of the Respondent that it has in excess of 6,000 employees nationally and dedicated human resource managers. I do not consider that ss 387 (f) and (g) are relevant considerations in this case.
Other relevant matters – s.387(h)
Section 387(h) of the Act requires the Commission to take into account any other matters it considers relevant. When engaging with the ‘show cause’ process, Mr Woods put forward the following considerations in support of his contention that his employment should not be terminated: his longstanding service and good conduct; his holding of preferred guard status; his training and work experience at various sites; his flexibility; his experience working in the mental health ward and his almost universal rapport with doctors, nurses, patients and other security guards. Mr Woods expanded on these matters in his oral submissions, referencing the mental health studies he was undertaking at the request of the Respondent and his kindness, empathy, helpfulness and truthfulness at work. Mr Woods also referred to the impact of the dismissal on his well-being and the lack of opportunity to explore new employment prior to being dismissed. Finally, Mr Woods outlined that he requested a transfer to another site as an alternative to termination and this was not considered by the Respondent.
The Respondent submitted that Mr Woods had not addressed any personal or economic impact arising from the dismissal and submitted he had the requisite skills, experience and workplace training to de-escalate matters. The Respondent submitted that notwithstanding the fact that the Applicant had no prior warnings, his summary dismissal was a proportionate penalty in response to his conduct.
I do not, however, consider the dismissal of Mr Woods was a proportionate response to his conduct. When considered within its context, the conduct of Mr Woods was not sufficiently serious as to warrant dismissal. Mr Woods was working in a challenging environment and on the day in question was subjected to vile verbal abuse and an uninvited encroachment of his personal space that caused him to believe that a physical assault was imminent. I consider he took appropriate, reasonable, and proportionate action in response and yet attempted to mitigate the risk of any physical injury to the patient when attempting to subdue him. Mr Woods was a loyal and dedicated employee with nearly eight years of service who took pride in his work and his working relationships. He enjoyed performing his work in a mental health setting to the point where he was undertaking study in that field and he presented with no prior performance or disciplinary issues.
Conclusion
I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[32]
As outlined above at [39], I am not persuaded that the actions taken by Mr Woods on 19 February 2024, when viewed in context, constitute a valid reason for the termination of his employment. Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Woods was unreasonable because there was no valid reason to dismiss him. I also consider the dismissal was harsh because, even if the reason for the dismissal was regarded as valid, the dismissal was disproportionate to what Mr Woods did and does not have regard to his previously unblemished record over nearly eight years, in a challenging employment context. I am therefore satisfied that Mr Woods was unfairly dismissed within the meaning of s.385 of the Act.
Section 390 of the Act provides that, if the Commission is satisfied a person was protected from unfair dismissal and determines that that they were unfairly dismissed, it may order either reinstatement or compensation. Compensation can only be ordered, however, if the Commission is satisfied that reinstatement is ‘inappropriate’ (s.390(3)(a)).
In this case, Mr Woods does not seek reinstatement and in circumstances where reinstatement is not sought, I am satisfied that reinstatement is inappropriate. I must then consider whether an order for the payment of compensation is appropriate in all the circumstances of the case, and if so, what that amount should be. Taking into account my finding that the dismissal was unfair and the reasons for that conclusion I have outlined above, and since I am satisfied an order for reinstatement is inappropriate, I consider that an order for payment of compensation is appropriate in all the circumstances.
Section 392 of the Act sets out the criteria for deciding the amount of compensation but there is currently insufficient material before the Commission to enable me to determine the amount of compensation. As such, the parties will shortly receive a Notice of Listing for a directions hearing at which the further case management of this matter will be discussed. In the meantime, I reiterate that I have determined that Mr Woods was unfairly dismissed.
DEPUTY PRESIDENT
Appearances:
Mr N Woods on his own behalf
Mr C Morgos on behalf of MSS Security Pty Limited
Hearing details:
2024.
Melbourne.
July 4.
Printed by authority of the Commonwealth Government Printer<PR776517>
[1] Exhibit A6, Digital Court Book (DCB) at 18.
[2] Exhibit A4, DCB at 14.
[3] DCB at 490.
[4] Exhibit A3, DCB at 12.
[5] Exhibit A2, DCB at 9.
[6] [2017] FWCFB 4944
[7] Ibid at [15].
[8] Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34.
[9] Ibid, per Dixon J at p.363.
[10] Ibid, per Dixon J at p.362, and Rich J at p.350.
[11] Transcript PN 253.
[12] Exhibit R2 at (23) and (24).
[13] Transcript PN 792-806.
[14] Exhibit A1, DCB at 7.
[15] Exhibit A7, DCB at 19.
[16] Ibid at DCB 22.
[17] Transcript PN 348-357.
[18] Transcript PN 407-413.
[19] Transcript PN 358-380.
[20] Transcript PN 474-477.
[21] DCB at 74.
[22] Exhibit R2, DCB 70.
[23] Ibid at [26], DCB 71.
[24] Transcript PN 839-847.
[25] Transcript PN 914.
[26] Transcript PN 898.
[27] Transcript PN 742.
[28] Annexure A to Exhibit R2, DCB at 73.
[29] Transcript PN 212.
[30] Exhibit R1 at (22) and (23), DCB at 68.
[31] Transcript PN 1188.
[32] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice (1999) 94 FCR 561, [1999] FCA 1836, [6]–[7].
Printed by authority of the Commonwealth Government Printer
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