Peter Zidov v ISS Security Pty Ltd
[2018] FWC 4346
•31 JULY 2018
| [2018] FWC 4346 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Zidov
v
ISS Security Pty Ltd
(U2018/4348)
| COMMISSIONER PLATT | ADELAIDE, 31 JULY 2018 |
Application for an unfair dismissal remedy – application dismissed.
Summary
On 26 April 2018, Mr Zidov lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) seeking a remedy for an alleged unfair dismissal by his former employer ISS Facility Services Australia T/A ISS Facility Services which took effect on 20 April 2018.
The reason for the dismissal was an alleged failure to comply with the airport passenger screening processes. In order to protect the integrity of the airport screening processes I have made an order (by consent) pursuant to s.594 of the Act that all evidence and documentary material (including CCTV footage) that discloses the airport’s security requirements and/or processes remain confidential.
On 24 July 2018, the Respondent requested that the name of the employer be varied. Mr Zidov consented to this request. Pursuant to s.586 of the Act I amended the name of the employer to ISS Security Pty Ltd (ISS).
Mr Zidov filed a written outline of submissions and a witness statement in support of his position.
ISS filed a written outline of submissions and a witness statement of Mr Markus Bucy, formerly employed by ISS as the Security Program Manager at Adelaide Airport, and the witness statement of Mr Simon Venour, ISS Head of Operations at Adelaide Airport.
The matter was arbitrated on 24 July 2018. Mr Lawrie (Transport Workers' Union), represented Mr Zidov and Mr Moore (ISS General Counsel), represented ISS.
There was no dispute that Mr Zidov was protected from unfair dismissal at the relevant time pursuant to s.382 of the Act.
The following facts were not dispute:
· ISS is contracted to provide security services to Adelaide Airport Limited (AAL) at Adelaide Airport.
· Mr Zidov has been employed as a full-time Aviation Protection Officer (APO) since 2006 and performed various passenger security screening services.
· At around 7:00am on 13 March 2018, Mr Zidov commenced duties in Lane 2 of the Walk Through Metal Detector (WTMD).
· ISS’ WTMD processes are required to meet the requirements of Aviation Screening Notice 2013 section 3.05 (2)(a).
· The relevant ISS procedure is documented in SOP 005 – WTMD (10 November 2016). The requirement of this procedure that is in issue is that the APO must “ensure that they are in a position where they can see and hear all alarms and observe the person passing through the WTMD”[1]. This procedure also identifies the risks of non-compliance.
· On 27 March 2018 Mr Markus Bucy (ISS Security Program Manager) received the results of a Passenger Screening Audit conducted by AAL which included an alleged non-conformance in the screening process. The audit report alleged that the on 13 March 2018 the APO on Lane 2 of the WTMD was not visually monitoring passengers entering the WTMD.
· Mr Bucy validated the audit finding by reviewing some CCTV footage held by AAL and determined that the APO was Mr Zidov.
· On 16 April 2018 a meeting was held between Mr Bucy, Mr Zidov, a TWU representative and Mr Venour.
· Mr Zidov was issued with a written warning over the WTMD incident.
· Mr Zidov had previously received written warnings for lateness on 17 August 2016, using his mobile phone whilst on screening duty on 30 June 2017 and a final warning for attending work under the influence of alcohol on 20 September 2017.
· Mr Zidov had also received a number of verbal warnings which included an allegation of non-compliance with Explosive Trace Detection processes on 14 November 2017.
· On 20 April 2018 Mr Zidov attended a further meeting with a TWU representative about the matter and his employment was terminated, as a result of a consideration of the WTMD incident and his antecedents.
· No allegations of procedural unfairness are made.
The facts that are in dispute relate to the time when Mr Zidov became responsible for Lane 2 of the WTMD, whether he met the requirements to observe as contained in the ISS procedure, and whether the dismissal was harsh unjust or unreasonable.
There was no dispute that if Mr Zidov did not meet the procedural requirements then that would represent a valid reason for the dismissal.
Mr Zidov contended that that the dismissal was unfair as the final warning required him to comply with his improvement plan (in respect of which no allegation of non-compliance was made) and not to repeat the offence (which Mr Zidov contended meant a further alcohol related offence).
ISS contended that the requirement to observe required Mr Zidov to “watch carefully and attentively”, which he did not do, and that the reference to “repeat of offence” in the final warning issued in September 2017 referred to the offences described in the warning which included “Violation of company value, ‘Violation of Company Policies’” and “Violation of safety rules”.
I now turn to the evidence given in respect of the issues in dispute.
Evidence
Mr Zidov’s witness evidence on the issues in dispute is relevantly summarised as follows:
· On 13 March 2018, Mr Zidov commenced his rostered shift at 5:00am at the main screening point. The main screening point consists of 5 x-rays and WTMD lanes.
· At around 7:00am on 13 March 2018, Mr Zidov was performing the duties of a bag loader when he was directed by his Team Leader to change positions.
· Mr Zidov proceeded to the WTMD in Lane 2 to commence his duties.
· Upon arriving at the Lane 2 WTMD, Mr Zidov engaged with a female APO who was in position to conduct a handover. The female APO spoke with Mr Zidov about an incident that had occurred earlier in the APO’s shift. Mr Zidov stated that the handover lasted for around 10-15 seconds.
· Mr Zidov maintains that the female APO whom he took over duties from was responsible for observing the passengers walking through the WTMD until he relieved her from those responsibilities.
· Upon assuming control of Lane 2, Mr Zidov contends that no passengers traversed through the WTMD without being subject to proper observation.
· The alleged incident which occurred on 13 March 2018 was not brought to Mr Zidov’s attention until 15 April 2018 by way of an email attaching a letter which indicated that Mr Venour wanted to discuss a concern regarding alleged unprofessional conduct at the primary position on 13 March 2018.
· On 16 April 2018 Mr Zidov attended a meeting with his Union representative, Mr Venour and Mr Bucy. At the meeting, Mr Bucy formally put the allegation to Mr Zidov.
· Mr Zidov requested to view the relevant CCTV footage. This request was denied by Mr Venour and Mr Bucy.
· At this meeting Mr Zidov was formally stood down until an investigation could be completed.
· On 20 April 2018 Mr Zidov attended a second meeting and he was accompanied by his support person.
· Mr Venour indicated that Mr Zidov’s employment was being terminated and he was provided with a termination letter.
· On 28 June 2018 Mr Zidov viewed the relevant CCTV footage of the incident for the first time which occurred on 13 March 2018. Mr Zidov asserts that he observed himself walking toward the primary position and relieving the female APO and engaging in a short exchange. The footage also showed Mr Zidov engaging with another male APO. It was explained to Mr Zidov that 3 passengers traversed through the WTMD unobserved. Mr Zidov asserted that the footage also revealed that he had instructed a passenger to walk back through the WTMD after an alarm had sounded. Mr Zidov argued that if he had been distracted from his duties, that passenger would not have been instructed to walk back through the WTMD.
· Mr Zidov contends that the allegations that he was distracted from his duties on 13 March 2018 are not substantiated.
Markus Bucy
Mr Bucy’s evidence is summarised as follows:
· Mr Bucy was employed by ISS as a Security Program Manager at Adelaide Airport. In this role he oversaw the security program of ISS.
· On 27 March 2018 Mr Bucy attended a meeting with AAL in relation the results of the Passenger Screening Audit. The audit report identified a number of non-conformance issues through a review of CCTV footage. One of the non-conformance issues identified was the failure of an APO on Lane 2 of the WTMD to visually monitor passengers traversing through due to that APO being engaged in a conversation with another APO between 7:00am to 7:04am.
· Mr Bucy identified from the CCTV footage that the APO involved was Mr Zidov.
· On 16 April 2018, Mr Bucy attended a meeting with Mr Venour, Mr Zidov and Mr Zidov’s Union representative.
· Mr Bucy asked Mr Zidov whether he recalled the incident on 13 March 2018 and Mr Zidov advised that he did. Mr Bucy also asked whether Mr Zidov knew of the requirements of controlling the WTMD, to which Mr Zidov said he did.
· Mr Bucy then asked Mr Zidov if he could provide an explanation for the incident and Mr Zidov replied that he was distracted and could have handled the situation better.
Simon Venour
Mr Venour’s evidence is summarised as follows:
· Mr Venour is employed by ISS as the Head of Operations at Adelaide Airport.
· On 16 April 2018 Mr Venour attended a meeting with Mr Bucy, Mr Zidov and Mr Zidov’s Union representative.
· Mr Bucy explained the findings of the audit report to Mr Zidov and asked Mr Zidov if he recalled the incident and he indicated that he had been distracted that day.
· Mr Zidov identified to Mr Bucy the correct procedure for controlling the WTMD and was unable to provide a suitable explanation for his failure to comply with standard procedure.
· Mr Zidov’s Union representative asked to view the CCTV footage and it was explained that the footage belonged to AAL and that ISS could not access it.
· Mr Venour reviewed the performance history of Mr Zidov and confirmed that he was on his final warning.
· Mr Venour determined on the basis of Mr Zidov’s non-conformance in a heightened security environment, alongside the need to comply with AAL’s screening service and Mr Zidov’s considerable history of non-compliance with company policies was a valid basis to terminate his employment.
· On 20 April 2018, Mr Venour and Mr Bucy met with Mr Zidov and his support person to advise of the outcome of the investigation which was also outlined in the termination letter of the same date.
The Commission was requested by ISS to require AAL to provide CCTV footage in the screening areas recorded between 7:00am and 7:04am on 13 March 2018. AAL provided colour CCTV footage of Lane 2. During the Hearing it became apparent there was footage recorded from at least one other vantage point. It was this footage that had previously been shown to ISS and Mr Zidov. AAL advised that whilst there were additional cameras in that area, CCTV footage was destroyed after 60 days and the footage supplied was the only footage currently held.
Mr Zidov asserts that the other camera footage shows the WTMD machine and more favourably records his conduct in observing passengers walk through the screening point.
Whilst it would have been preferable for ISS to secure all footage, particularly in light of this application being filed prior to the expiry of the 60 days holding period, the only footage I have is that which has been supplied by AAL.
The CCTV footage was played numerous times during the Hearing and all witness commented on what they believed it to have shown. I have reviewed the footage numerous times in reaching my factual conclusions detailed below.
The footage supplied is of good quality is appears to have been recorded from a position slightly to the east of the Lane 2 WTMD machine. Whilst it does not show the WTMD machine in front of Mr Zidov, passengers can be seen as they walk out of the metal detector and there is evidence that the distance between the metal detector and entering the field of view of the camera is about 1-2 metres.
The CCTV footage shows the interaction between Mr Zidov and the female APO he replaced and then a discussion between Mr Zidov and a male APO who is observing the WTMD adjacent to Lane 2.
Having assumed control of the Lane 2 position (after the female APO left) Mr Zidov appears to be standing in line with a face on to the metal detector. He is having an active and animated discussion with the adjacent male APO. His body moves considerably. On a number of occasions his head moves east approximately 45 degrees from a centreline between him and the metal detector towards the adjacent male APO. On another occasions Mr Zidov turns towards the west where the x-ray machine is located. During these times a number of persons walk through the metal detector whilst Mr Zidov’s head is not facing towards the machine.
By contrast the adjacent male APO’s head remains fixed facing the metal detector whilst he is talking to Mr Zidov. The adjacent male APO is almost like a Grenadier Guard.
In cross-examination Mr Bucy conceded he did not know where Mr Zidov would have been looking, this is a reasonable concession. It may have been possible that Ms Zidov could see the passengers walking through the metal detector in his peripheral vision, but the CCTV footage makes clear that his entire attention was not focussed on observing passengers walking through the metal detector.
Mr Bucy and Mr Venour asked me to contrast the method in which the other APO’s observed the metal detector and contrast that to Mr Zidov. There is a considerable difference between Mr Zidov’s male adjacent counterpart previously described and the female that later replaced him in the adjacent lane (albeit she stands further back).
Mr Zidov accepted that he could have improved his approach when his conduct was contrasted against his adjacent male counterpart.
The potential impact of a failure of Mr Zidov to properly observe passengers about to enter the sterile area of the Adelaide Airport are obvious and present a risk to airline passenger safety.
As to the impact of the previous disciplinary history, ISS contends that Mr Zidov repeatedly breached company policy (which is described as an ‘Offence’ in all of the written warnings) and this event was yet another example of such a breach. Mr Zidov contends that he met the requirement of his improvement plan, imposed as a result of his attendance at work under the influence of alcohol and that he had not completed a like offence.
Findings
I find that Mr Zidov’s conduct as indicated on the CCTV footage and in accordance with the evidence given by Mr Bucy and Mr Venour of the initial footage they viewed does not meet the requirements of ISS Standard Operating Procedure.
I accept that the word observe means to “watch carefully and attentively” as contained in the Oxford Dictionary.
A review of the CCTV footage alone, acknowledging the possibility of an unfavourable camera angle, clearly shows that Mr Zidov was not carefully and attentively watching passengers traverse through the metal detector for the entire period between 7.00am and 7.04 am. That is not to say Mr Zidov did not properly observe all of the passengers who passed through.
In respect to the characterisation of this breach, I find that Mr Zidov breached the requirement of an important procedure (or policy in ISS terms) and that Mr Zidov had breached the same procedure in April 2017 and received a written warning for same on 30 June 2017. In addition Mr Zidov was subject to a final written warning issued six months prior to the date of this event.
Was the dismissal harsh, unjust or unreasonable?
Pursuant to s.387 of the Act, 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.
Valid reason - s.387(a)
Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd[2] which requires the reason for termination to be “sound, defensible or well founded.”
I have found that Mr Zidov breached the requirement of the screening procedure in that he did not observe persons passing through the WTMD. Whilst it did not have a consequence in this matter, this conduct presented a serious security risk.
I find that ISS had a valid reason to dismiss Mr Zidov.
Notification of valid reason - s.387(b)
Mr Zidov was advised of the reasons for his dismissal on 20 April 2018.
Opportunity to respond - s.387(c)
Mr Zidov had an opportunity to respond to the reason for dismissal on 16 April 2018 (as it related to the incident) and 20 April 2018 (as it related to ISS decision to dismiss).
Any unreasonable refusal by the employer to allow Mr Zidov have a support person present to assist at any discussions relating to dismissal - s.387(d)
Mr Zidov had a support person and/or representative during the disciplinary process.
Warnings relative to unsatisfactory performance - s.387(e)
There were numerous prior warnings. It was not disputed that Mr Zidov was verbally counselled regarding lateness, a failure to comply with procedures for Electronic Trace Detection, in addition he was given a written warning in August 2016 regarding lateness (I accept that Mr Zidov disputed any evidence of alcohol contributing to this event), and on 30 June 2017 for using his mobile phone whilst performing screening duties, and a final written warning on 20 September 2017 for attending work under the influence of alcohol. I accept that the written warnings have a consistent thread of failing to follow procedures which all impact on the integrity of the work performed.
Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)
ISS is a large business with dedicated internal HR support.
Other matters considered relevant - s.387(h)
I have considered the circumstances of ISS and the requirements to meet the security standards imposed upon it in the execution of is obligations to AAL. I have also considered the impact of the dismissal on Mr Zidov, the loss of income and its financial impact, his inability to secure alternative employment, his length of service and age.
Conclusion
The Explanatory Memorandum to the Act[3] explains the approach of the Commission in considering the elements of section 387:
“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”
In Byrne and Frew v Australian Airlines Pty Ltd,[4] the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Zidov’s employment was not harsh, unjust or unreasonable.
The application is dismissed.
A copy of the Order[5] reflecting my decision will be issued today.
COMMISSIONER
Appearances:
E Lawrie on behalf of the Applicant.
J Moore on behalf of the Respondent.
Hearing details:
2018.
Adelaide.
24 July 2018.
<PR609248>
[1] Exhibit A2 – Adelaide Airport Limited and ISS Facility Services Standard Operating Procedures (pages 1, 2, 12 and 13).
[2] (1995) 62 IR 371 at 373.
[3] Explanatory Memorandum to the Fair Work Bill 2008.
[4] Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24.
[5] PR609244.
Printed by authority of the Commonwealth Government Printer
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