Nenad Grubisic v Chubb Security Services Limited
[2011] FWA 4322
•21 JULY 2011
[2011] FWA 4322 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nenad Grubisic
v
Chubb Security Services Limited
(U2011/5257)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 21 JULY 2011 |
Dismissal of union delegate - valid reason - dismissal not unfair
[1] On 18 February 2011 Mr.Nenad Grubisic filed an application under s.394 of the Fair Work Act 2009 (‘the Act’) against Chubb Security Services Limited for an unfair dismissal remedy for his dismissal on 7 February 2011. This was a summary dismissal.
The matter was conciliated and no settlement was reached. The matter was set down for arbitration before me, and pursuant to s.399 the matter was heard by hearing given the decision of the parties to cross examine witnesses. Written submissions and witness statements were filed:
Nenad Grubisic
Goce Avromoski
Clyde Hugh Bainbridge-Robb
Adam Joseph Scott Dalrymple
Emmanuel Spiteri
David Dalziell
Brian David Wright
[2] I have had regard to all the submissions and evidence.
Valid Reason - Section 387(a)
[3] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 1 , in relation to s.170DE of the Industrial Relations Act 1988. He said:
“Section 170DE(1) refers to a `valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is” `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s170DC.”
[4] This decision continues to be of relevance and continues to be applied.
First Incident of 23 August 2010
[5] Mr.Wright gave evidence that Mr.Grubisic attended work on 23 August 2010. Mr.Wright said that he saw Mr.Grubisic arguing with Mr.Montalto in relation to going to work. He said that he questioned Mr.Grubisic on being late for work and not starting work, which was delaying the truck. Mr.Wright spoke to Mr.Grubisic about his appearance. He said that his appearance was ‘scruffy ... not up to standard in that he was unshaven and his uniform was untidy with the buttons open. Mr.Grubisic was loud and did not want to listen to anything I said. He said ‘what are you going to do about it, sack me’. When instructed to leave the office and go to his truck to commence work Mr.Grubisic ‘continued to speak in a disrespectful manner and was argumentative. I told Mr.Grubisic to either start work or hand his gun in and go home. Mr.Grubisic again responded with ‘are you going to sack me?’. He then left despatch making a disparaging remark to me, saying ‘you’re nothing but a bloody wuss.’ He went out to the yard and got in the passenger seat of the coin truck where the other two crew were waiting.’ At 9.05 am the truck still had not left, and Mr.Wright asked why, and Mr.Montalto made a gesture towards Mr.Grubisic. Mr.Grubisic was on the mobile phone 2.
[6] Mr.Grubisic gave evidence that Mr.Wright said to him on 23 August 2010 3:
‘put your gun in and go home or get out in the truck’. Wright was very agitated. He was waving his arms around like a windmill. I said to Wright that I was in uniform and here to work. He said ‘no you don’t, you just want to root the company’. I found Wright’s behaviour very unreasonable and improper in the circumstances. I spoke to David Parish for approximately half an hour on this ...’
[7] Both Mr.Wright and Mr.Grubisic were cross examined 4. Mr.Wright denied the windmill allegations and denied making the statements attributed to him5. I found Mr.Wright to be a witness of credibility and I prefer his evidence to that given by Mr.Grubisic where it is inconsistent. I find that Mr.Grubisic said the words that Mr.Wright claimed that he said, and was not dressed for work. In my view Mr.Grubisic showed disrespect and defiance of the authority of the employer6, was late for work, delayed the truck and the commencement of the work of the truck and its team, and was not properly dressed for work. Viewed in context these are valid reasons for termination of employment. Such conduct is not appropriate even if it is the first day back at work after an industrial dispute, and notwithstanding the various issues between Mr.Grubisic and the employer.
Second Incident of 23 August 2010
[8] A Mr.Len Sumpter prepared an audit record 7 which purported to record the events that occurred when the Chubb Security truck containing Mr.Grubisic and other members of the team arrived at the Commonwealth Bank of Australia at Smith Street Collingwood. Mr.Grubisic is recorded as being the escort. It records the escort as not having his gun hand free. An email from Mr.Sumpter to Chubb dated 23 August 2010 states that Mr.Grubisic was ‘talking on the phone and loading the trolley with one hand (no gun hand free).’ This refers to the coin trolley which was then pushed into the bank, emptied, and then taken out again8. A second email from Mr.Sumpter to Chubb9 records a conversation between Mr.Grubisic and Mr.Sumpter as follows:
‘He [Mr.Grubisic] stated to me that he was on the phone talking union business; I said to him that he was still on the phone while loading the trolley (no gun hand free) and while he entered the CBA branch.
His answer to me was he could not terminate the call, as he was talking to the union.’
[9] This tribunal is not bound by the rules of evidence, although those rules are given due weight in decisions. In any event, such documents would appear to fall within the scope of matters that may be admitted pursuant to s.69 of the Evidence Act 1995 (Cth.) as evidence of facts: ASIC v Macdonald (No. 3) [2008] NSWSC 1099 at 39 and 41, and Blomfield v Nationwide News Pty Ltd (No. 2) [2009] NSWSC 978.
[10] Such evidence should be treated with due weight, but in the circumstances of this case I accept that these exhibits contain relevant and useful evidence of the facts recorded in those documents which I am prepared to give weight to. The evidence given by Mr.Grubisic on this issue was not satisfactory. Mr.Grubisic prepared two witness statements but did not deal with this issue in either. I was then informed at the start of proceedings that it was contended that Mr.Grubisic used a mobile phone for no more than 30 seconds while on the street 10. Mr.Grubisic gave oral evidence to that effect, and also appeared to concede that he was talking on the phone for some time before alighting from the truck11.
[11] However, Mr.Bainbridge-Robb gave evidence 12 that Mr.Grubisic met with him on 24 January 2011 and put a different explanation. There was no mention of talking for a limited period of no more than 30 seconds while alighted from the truck and on the pavement. Rather he records Mr.Grubisic responding as follows:
‘Mr.Grubisic claimed that there was no issue with his being on the phone and that it was common practice. I disputed this and again stated that this conduct was unacceptable.’
[12] I did not find Mr.Grubisic’s evidence on most issues to be credible where that evidence might not assist him. I do not accept Mr.Grubisic’s evidence that he was only on the phone for 30 seconds while standing on the pavement outside the truck.
[13] The Chubb Cash in Transit Armoured Vehicle Operators (AVO) Handbook 13 provides:
‘Personal mobile phones are not to be used whilst you are actively performing cash in transit transactions.’
[14] Mr.Grubisic was aware of the handbook and its contents 14 and as a union delegate who repeatedly raised and extensively debated issues of policy with the employer he was well informed about Chubb policies and practices. Mr.Grubisic denied that this handbook was raised and discussed by Mr.Wright on 12 April 2010 at a toolbox meeting15. However, I prefer the evidence of Mr.Bainbridge-Robb, who gave evidence that Chubb policies regarding the use of company mobile phones were well known to guards including Mr.Grubisic, and that it was discussed as an agenda item at a toolbox meeting that he conducted at Kensington depot on 12 April 2010, which he said was attended by Mr.Grubisic16.
[15] I do not accept the evidence given by Mr.Avromoski that talking on the mobile phone is common practice amongst Chubb employees, except to the extent that a phone may need to be used on some occasions in order to obtain codes to access automatic tellers 17. I also note that Mr.Avromoski accepted that using a mobile phone during a cash delivery was dangerous and increased risks:
‘You would accept, wouldn’t you, that if you were on the phone whilst in the middle of a cash transit job that you are at a significantly increased risk of a hold-up?---Yes.’
[16] I also note that Mr.Dalrymple gave evidence that a mobile phone is not to be used during a cash transaction 18. He also would not make or prolong a call during a transaction19. I accept the evidence of Mr.Wright that for example crews were instructed not to answer the phone if they were completing a transaction, and employees were not reprimanded for not answering the phone during a transaction, contrary to the evidence given by Mr.Avramoski20. I accept the evidence of Mr.Wright in his comments to similar effect in relation to Mr.Dalrymple’s evidence21. Overall I prefer the evidence of Mr.Wright and Mr.Bainbridge-Robb where it is inconsistent with the evidence given by Mr.Grubisic, Mr.Avramoski, or Mr.Dalrymple.
[17] Even if Mr.Grubisic was not on the phone with the union but with Comcare 22, that was still not a call from Chubb which conceivably must be answered given its source. It is a call made or answered during a period of some danger and risk for Chubb and its employees, namely delivery of cash by hand to a bank. Such phone calls are in breach of reasonable and lawful employer directions.
[18] I find that Mr.Grubisic was talking on the mobile phone while outside the truck during a cash delivery to the Commonwealth Bank in Smith Street Collingwood on 23 August 2010 and that this was in breach of reasonable and lawful company policy and directions contained in the Chubb Cash in Transit Armoured Vehicle Operators Handbook: see R v Darling Island Stevedoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan 23 per Dixon J, and Woolworths Ltd v. Brown24. I do not accept that this was for a period as brief as 30 seconds. It was for a longer period, and most likely a substantially longer period.
[19] This is an important issue because the result was that Mr.Grubisic did not have his gun hand free. Instead he had one hand on a cash trolley and in the other hand held a mobile phone. The security cash transit business by its very nature is a dangerous business, involving the guarding of cash against robbery and violence. That is why guards carry guns, why security trucks are armoured, why a number of operators operate the vans, why there is an organised allocation of work between the guards involving guarding and transport and keeping watch, and so on. These are obvious features of the business. Mr.Grubisic as escort needed to have his gun hand free. Even if he was not the escort he should not have been distracted and had his hands and attention occupied with a mobile phone. Any employee who conducts himself in that way disregards safety and the purpose of the Chubb security business. I find that this constitutes a valid reason for termination of employment, and one which is serious in its nature. It is not a technical or minor act of misconduct.
[20] I note that the applicant asked that I draw a Jones v. Dunkel 25regarding the alleged failure of Chubb to call a number of witnesses. I accept the submission of Chubb that the absence of these witnesses was explained26.
The Context of These Valid Reasons for Termination
[21] Mr.Bainbridge-Robb gave evidence that he had regard for earlier written warnings as part of the background. He said that:
‘they showed an escalating pattern of behaviour. Mr.Grubisic’s behaviour had reached the point of displaying flagrant disregard for company policies, basic safety procedures, and the authority and directions of management. His behaviour was detrimental to the business and to the safety of his fellow employees.’ 27
[22] It is not in dispute that Mr.Grubisic was warned on 21 June 2010 28 for breaching an instruction to attend on 11 June 2010 the Kensington Branch of Chubb for the purpose of determining his medical ability to wear protective body armour (PBA). The issue of wearing PBA had been the subject of an ongoing industrial disagreement involving a number of tribunal matters and discussions between Mr.Grubisic and Chubb, and many other discussions elsewhere.
[23] Mr.Grubisic was also warned on 21 July 2010 29 for failing to attend on 10 July 2010 for a complete measuring and fitting of PBA.
[24] He was given a third and final warning on 18 October 2010 30 for failing to attend work on 23 July 2010, after a memorandum was issued to all Kensington employees that no leave or RDOs would be approved for that day because of the operational requirements of the business.
[25] In relation to the first warning, on 27 May 2010 Mr. Grubisic issued a Provisional Improvement Notice (PIN) under the Occupational Health and Safety Act which related to the alleged failure of Chubb to consult with their employees regarding the implementation of PBA. Nothing in that PIN appears to in any way prevent the carrying out of the Chubb direction that Mr.Grubisic attend to have a medical examination regarding his ability to wear PBA. Comcare found that there was no breach of health and safety legislation 31.
[26] In relation to the second warning, the PIN had been lifted by the time of the second warning 32. On 25 June 2010 Comcare cancelled the PIN issued by Mr.Grubisic after investigating the issues raised in it and finding that it had no basis, because Chubb had as a matter of fact taken reasonably practicable steps to consult with its employees in relation to the introduction of PBA at the Chubb Kensington depot33.
[27] Mr.Grubisic explained his refusals as follows 34.:
‘Why did you refuse to be measured?---First of all, I had no knowledge that I was going to be measured that day. Secondly, I was in the middle of lunch break - approached by an employee who I didn’t even know if he was qualified to measured up PBA. Also, as I said, my understanding was that, prior to being measured up for the PBA, you were required to be medically - undertake a medical examination to deem that you were medically fit, to then proceed with the next stage of implementation of PBA.
Did you ultimately get measured for the body armour?---Yes, I did, yes, I did, but the next time I was - - -
Can you recall the date?---The next time I was directed to be measured up for personal body armour was at the end of my shift on 22 September. Again I was given no notification of - - -
Stop, thank you. On 22 September had you had the medical?---No, I had not.
Did you ask about the medical?---I did explain that I hadn’t undertaken a medical yet, that I haven’t been rebooked to do the medical, but it didn’t have any impact
Was it ever rebooked?---No, I was never rescheduled to undertake a medical examination.’
[28] Firstly, I accept the evidence of Mr.Bainbridge-Robb that it is not the policy of Chubb to require a medical examination before a fitting of PBA 35.
[29] Secondly, Mr.Wright gave evidence that Mr.Grubisic simply refused to attend to be fitted, evidence which I accept 36:
‘Do you recall having a conversation with Mr Avramoski and Mr Grubisic on the afternoon of 23 June at the end of the 48-hour period?---I do.
Do you remember what the subject of that conversation was?---I believe the subject matter of the conversation was attending a member in relation to PBA and responding to the warning letter at which I had had not response.
Do you recall what you asked of them?---I asked them simply to respond to the request for the direction at the bottom of the letter which was 48 hours response of, “Are you going to attend are you not?”
Do you recall what the response from Mr Grubisic and Mr Avramoski was? -The response was no, they weren’t going to attend, or they would not attend.’
[30] In my view no convincing reason has been advanced for Mr.Grubisic’s failure to attend the medical examination or fitting. Both the first and second written warnings appear to be justified.
[31] The third warning raised the issue of interpretation of a clause of the agreement relating to the taking of RDOs. In my view Mr.Grubisic was again deliberately defiant in his conduct. The company had made clear its view that no RDOs should be taken, yet Mr.Grubisic chose to defy that expressed wish. It is consistent with a defiant pattern of conduct, and a consistent refusal to accept employer requests, directions and requirements.
[32] This defiant pattern of conduct is relevant to an evaluation of the seriousness of the valid reasons for termination of employment which I have found to exist.
Trade Union Membership and Activities
[33] Mr.Grubisic contended that he was ‘targeted by management because of his role as a union workplace delegate and OHS representative who persisted in representing AVOs with respect to safety concerns about the implementation of the PBA, and the 2 man crew and guard sites issues.’ 37 In my view on the material before me this submission is without foundation. Mr.Grubisic was an employee and as such was required to conduct himself in accordance with the reasonable and lawful directions and policies of his employer. He failed to do so. I have summarised the instances of those failures. None of that evidence or other evidence before me discloses the targeting of Mr.Grubisic for his union activities. If it did I would have reached a different conclusion to the one I have reached in this decision.
Notified of that reason - Section 387(b)
[34] Mr.Grubisic was notified of a number of allegations by letter on 18 October 2010 38, including lateness on 23 August, delaying the truck leaving the depot on that day, and talking on the mobile phone at Smith Street Collingwood.
An opportunity to respond - Section 387(c)
[35] Mr.Grubisic was given an opportunity to respond in that letter. He was requested to respond by 20 October. However, Mr.Grubisic was unfit for work until 17 January 2011. He was given further time to respond, this time by 19 January 2011. He sent an email dated 18 January, time was again extended until 24 January. Chubb received a letter of response from Mr.Grubisic’s solicitors dated 21 January 2011. Chubb met with Mr.Grubisic on 24 January 2011. Mr.Grubisic responded to allegations at that meeting. A further meeting was held on 7 February with Mr.Grubisic and Mr.Bainbridge-Robb 39.
Unreasonable refusal to allow her to have a support person - Section 387(d)
[36] Mr.Grubisic had a support person present at the various meetings.
Unsatisfactory performance - Section 387(e)
[37] Termination was on the grounds of misconduct, not unsatisfactory performance.
Size of business - Section 387(f)
[38] The business is of a size that should mean that it follows appropriate procedures
Other matters
[39] I have taken all submissions and material put into account.
Conclusion
[40] The termination of Mr.Grubisic’s employment was not harsh, unjust or unreasonable. He was afforded a fair go all round. An order dismissing the application is published with my decision, in PR512341.
DEPUTY PRESIDENT
Appearances:
Ms K Cochrane of Counsel for the applicant
Mr M Follett of Counsel for the respondent
Hearing details:
2011
Melbourne
8 June
9 June
Final written submissions:
2011
16 June
20 June
1 (1995) 62 IR 371 at 373
2 Exhibit C7, witness statement of Brian Wright, paragraphs 36-44.
3 Exhibit G1, witness statement of Grubisic, paragraph 35
4 PN832-837
5 Exhibit C7, paragraph 61
6 Pepper v. Webb [1969] I WLR 514
7 Exhibit C10
8 Exhibit C9
9 Exhibit C4
10 PN34-42
11 PN856
12 Exhibit C2, paragraph 22(b)
13 Exhibit C1, paragraph 7.12
14 Mr.Grubisic evidence PN550-554
15 PN610
16 Exhibit C7, paragraphs 48
17 PN1059-1064
18 PN1263
19 PN1292-1293
20 Exhibit C7, paragraph 62
21 Exhibit C7, paragraph 63
22 PN789-799
23 (1938) 60 CLR 601 at 621
24 (2005) 145 IR 285 at 293-297
25 (1959) 101 CLR 298
26 Submissions of the Respondent in Reply, paragraph 8
27 Exhibit C2, paragraph 35
28 Exhibit C2, CBR4
29 Exhibit C2, CBR5
30 Exhibit C2, CBR3
31 Exhibit C2, paragraph 46
32 PN355
33 Exhibit C3
34 PN356-361
35 PN1649
36 PN1824-1827
37 Applicant’s Closing Submission, 16 June 2011, p.3
38 Exhibit C2, CBR6
39 Exhibit C2, paragraphs 49-55; Exhibit C2, paragraphs 8-41
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