Noel Blue v Linfox Armaguard Pty Ltd T/A Armaguard

[2019] FWC 2877

[2019] FWC 2877

The attached document replaces the document previously issued with the above code on 1 May 2019.

An incorrect appearance has been removed.

Edrea Venal

Associate to Senior Deputy President Hamberger

Dated 2 May 2019

[2019] FWC 2877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Noel Blue
v
Linfox Armaguard Pty Ltd T/A Armaguard
(U2018/11486)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 1 MAY 2019

Application for an unfair dismissal remedy – alleged serious misconduct – employee’s actions did not constitute serious misconduct – lack of clear policies – no valid reason for dismissal – dismissal was unfair – reinstatement ordered.

[1] On 7 November 2018, Noel Blue (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of his employment by Linfox Armaguard Pty Ltd (the respondent) on 30 October 2018, for serious misconduct.

[2] The application was heard in Sydney on 28 February, and 3, 4 and 12 April 2019. The applicant was represented by M Gibian SC and the respondent by V Bulut, counsel.

[3] The following witnesses gave evidence on behalf of the applicant:

•  The applicant himself;

•  Darren Antram (Random Support Officer – RSO);

•  Danny Boutros (Senior Road Crew Trainer/RSO); and

•  Mark Greatorix (Senior Trainer/RSO).

[4] The following witnesses gave evidence on behalf of the respondent:

•  Pearl Thompson (HR Operations Manager);

•  Trevor Austin (Security & Risk Coordinator and National Safe Manager, Southern Region Security);

•  Leroy Miller (Security Support Officer – SSO);

•  Gregory Escreet (Operations Manager Security);

•  Benyamin Khandan (Risk & Security Coordinator, Eastern Region Security); and

•  Johann Seyfferdt (Currency Centre Manager, Rosehill Branch).

The evidence

[This part of the decision is redacted because I ordered that much of the evidence in this matter was to be kept confidential pursuant to s.594 of the FW Act.]

Consideration

[5] It is not in dispute that the applicant is a person protected from unfair dismissal. I am satisfied that he is so protected.

[6] Section 385 of the FW Act provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[7] Section 385(a) of the FW Act is satisfied.

[8] Section 385(c) of the FW Act does not apply in this case, as the respondent is not a small business.

[9] Section 385(d) of the FW Act is satisfied. Neither party contended that the applicant had been made redundant.

[10] The only issue left for me to determine under s.385 of the FW Act is whether the applicant’s dismissal was harsh, unjust or unreasonable.

[11] Section 387 of the FW Act provides:

‘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.’

[12] I will deal with each of these factors in turn.

Valid reason: s.387(a)

[13] Refusal to comply with an employer’s directions, policies or procedures can, in certain circumstances, provide a valid reason for dismissing an employee.

[14] However, in this case, there is no evidence that there was any such refusal. If nothing else, this is because of the almost total absence of clear policies or procedures which the applicant can be said to have breached.

[15] For example, one of the grounds referred to in his termination letter upon which the applicant was dismissed was sitting in the respondent’s vehicle for extended periods. Yet the evidence, including that of Mr Boutros and Mr Greatorix, is that there is no clear rule about whether RSOs should exit their vehicle during a service. The evidence is that this is a matter for judgment by the individual RSOs.

[16] Similarly, one of the grounds upon which the applicant was dismissed was that he was observed talking on his personal mobile phone on a number of occasions. Yet there is no published policy, nor any general direction, about the use of mobile phones. The 2014 handbook that contained a complete prohibition on the use of personal mobile phones while on duty is now obsolete, according to the evidence of Mr Khandan (who is responsible for managing RSOs). In any case, the clear evidence is that is expected by managers of the respondent that RSOs will on occasion use their personal mobile phones. The applicant, in particular, is expected to talk to managers and other employees over the phone in relation to his delegate role.

[17] A further ground the respondent relied on to dismiss the applicant was his discussion with an AVO ‘for an extended period of time’. This appears to have been a reference to the applicant’s discussion with Mr Samiakos. How long the discussion actually was is far from clear. More importantly, though, there is simply no policy or direction prohibiting RSOs from holding discussions with AVOs.

[18] A further ‘breach of safety procedures’ relied on by the respondent to terminate the applicant’s employment was that he was unaware that he had been followed by the two black shirts. Yet the evidence is that it is extremely rare for road crew to become aware of the presence of black shirts operating covertly. This could not form the basis for a valid reason for dismissal.

[19] Another factor relied on by the respondent to dismiss the applicant was that his conduct caused a serious and imminent risk to the respondent’s reputation. Such conduct can indeed constitute a valid reason for dismissal. However, there is simply no evidence that any of the conduct of the applicant caused any such risk. The evidence of both Mr Miller and Mr Austin was quite clear: there never was an imminent risk to the health and safety of the road crew on the day in question.

[20] Finally, the applicant was dismissed partly because of his ‘false report’ in his RSO observation sheet. There was no evidence that the respondent ever instructed RSOs on how the report should be completed. The evidence is that RSOs rarely if ever used the reports to indicate non-compliance. Rather, if an RSO thought a road crew member was not performing his role correctly, he would directly bring it to his attention, rather than indicating non-compliance in the report (except perhaps in cases of repeated non-compliance). In this case, there also seems to have been a genuine difference between the applicant and the black shirts about whether Mr Samiakos had in fact failed to follow correct procedures. I am satisfied that the applicant did not deliberately make a false report.

[21] In conclusion, I find that the respondent did not have a valid reason to dismiss the applicant.

[22] I do consider that the black shirts’ report raised genuine issues that needed to be discussed with the applicant. While matters such as whether to remain in the vehicle, whether and when to have discussions with members of the road crew, whether and when to use one’s mobile phone etc. are clearly matters for judgment, Mr Miller and Mr Austin’s report does raise concerns about whether the applicant on the day in question was exercising his judgment in the most appropriate way. This should have led not to the applicant’s immediate dismissal, but to a discussion about the applicant’s performance on the day. The applicant himself conceded that he was not at his best on 17 October 2018. However, any such performance discussion should have occurred with the applicant’s line manager who – one assumes – is well aware of the role of an RSO and how that role should be carried out.

Notification of reason: s.387(b)

[23] I am satisfied that the applicant was generally notified of the reasons that the respondent was considering terminating his employment, either prior to, or during, the meeting that took place on 29 October 2018.

Opportunity to respond: s.387(c)

[24] I am satisfied that the applicant had an opportunity to respond to those reasons at the meeting on 29 October 2018.

Support person: s.387(d)

[25] The applicant was not unreasonably refused access to a support person in the relevant meetings.

Prior warnings: s.387(e)

[26] The applicant’s dismissal was incorrectly treated as a matter of misconduct rather than performance. He had received no prior warnings about any unsatisfactory performance. Indeed, there is nothing to suggest that the respondent had previously had any misgivings about the applicant’s performance.

The impact of the size of the employer’s enterprise and any human resource management specialists: ss.387(f) and 387(g)

[27] Given the large size of the respondent’s business, the procedure it adopted to effect the dismissal of the applicant is very disappointing. The most egregious failure was to treat what was – at most – a performance issue as serious misconduct. It was also wrong not to involve the applicant’s own line manager in deciding how to deal with the issue.

[28] Finally, I note that the respondent had access to dedicated human resource management specialists.

Other relevant matters: s.387(h)

[29] The applicant’s age and his lengthy (and largely unblemished) service with the respondent both add to the harshness of the decision to dismiss him.

[30] In conclusion, I am satisfied that the decision to dismiss the applicant was harsh, unjust and unreasonable.

Remedy

[31] I accept the applicant’s evidence that it would be very difficult for him to find alternative employment at his age that would be commensurate with the position he held with the respondent in terms of earnings. 1

[32] I am satisfied that the applicant has not engaged in any misconduct. While there might be some legitimate issues about the way he performed his job on 18 October 2018, he had never received any warnings about his performance. The applicant also made clear in the meeting on 29 October 2018 that he was quite open to changing the way he performed his role and would be happy to attend retraining.

[33] While Ms Thompson said she did not trust the applicant to come back to his duties, she would, as a senior HR manager based in Melbourne, normally have very little to do with the applicant. By contrast, there is no evidence of any breakdown in trust and confidence between the applicant and those employees of the respondent who would normally deal with him on a day-to-day basis (such as Mr Escreet, Mr Khandan and Mr Seyfferdt) that would prevent the restoration of an effective working relationship.

[34] I consider that it would be appropriate to make orders to maintain the continuity of the applicant’s employment and the period of the applicant’s continuous service with the respondent.

[35] I note that the applicant has not been able to earn any remuneration from employment or other work since his dismissal, despite some efforts on his behalf to obtain alternative employment. Accordingly, I will make an order that the respondent pay to the applicant an amount equal to the remuneration he has lost due to his dismissal.

Conclusion

[36] The attached orders provide for:

a) The reappointment of the applicant to the position in which he was employed by the respondent immediately before his dismissal;

b) The maintenance of the applicant’s continuity of employment;

c) The maintenance of the period of the applicant’s continuous service with the respondent; and

d) The payment by the respondent of an amount equal to the remuneration lost by the applicant because of his dismissal.

[37] The orders provide that the applicant should be reinstated with effect from 14 days of the date of this decision.

[38] I leave it to the good sense of the parties to calculate the exact amount to be paid, and to make all necessary adjustments in relation to any payments already made since the termination. If the parties are unable to agree, they are at liberty to seek a further hearing before the Commission.

SENIOR DEPUTY PRESIDENT

Appearances:

M Gibian SC with L de Plater of the Transport Workers’ Union of Australia for Noel Blue.

V Bulut, counsel, with J O’Neill for Linfox Armaguard Pty Ltd.

Hearing details:

Sydney.

2019.

February 28.

April 3, 4, 12.

<PR707550 >

 1 Exhibit 1 [105].

Printed by authority of the Commonwealth Government Printer