Petros Liakimis v Sky City Adelaide Pty Ltd T/A Adelaide Casino
[2021] FWC 1627
•8 APRIL 2021
| [2021] FWC 1627 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Petros Liakimis
v
Sky City Adelaide Pty Ltd T/A Adelaide Casino
(U2020/15697)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 8 APRIL 2021 |
Application for an unfair dismissal remedy – casino security officer – alleged breach of entry rules – alleged breach of access rules – whether valid reason – whether harsh – dismissal harsh on account of summary nature – reinstatement inappropriate – compensation confined to notice period – order made
[1] On 8 December 2020 Petros Liakimis (Mr Liakimis or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Sky City Adelaide Pty Ltd trading as Adelaide Casino (Sky City, the Casino or the Respondent). He claims to have been unfairly dismissed on 19 November 2020.
[2] Mr Liakimis was summarily dismissed. At the date of dismissal he was employed as a ‘Customer Services Officer – Security’.
[3] Mr Liakimis claims his dismissal was harsh, unjust or unreasonable. He seeks an order for reinstatement, with back wages.
[4] Sky City oppose the application. It says it terminated Mr Liakimis on the ground of serious misconduct. It contends the dismissal was neither harsh, unjust or unreasonable, and no issue of remedy arises.
[5] Conciliation by a staff conciliator occurred on 22 December 2020.
[6] On 14 January 2021 I issued directions, including for Member Assisted Conciliation. The matter remained unresolved.
[7] On 12 February 2021, by consent, I granted permission under section 596 of the FW Act for both Mr Liakimis and Sky City to be represented. 1
[8] I heard the matter (merits and remedy) in-person in Adelaide on 15, 16 and 22 March 2021 2. I reserved my decision.
Evidence
[9] The evidence (oral and documentary) was relatively confined to events occurring between October and November 2020.
[10] I issued directions that circulation of two documents concerning management of the Casino’s security operations be restricted. 3 To the extent relevant, I have not made direct reference to them in this decision though each has been relevant to fact-finding. An agreed fact concerning one of those documents was submitted.4
[11] I heard evidence from eight persons:
• Petros Liakimis (Applicant);
• Fiona Rossi (Human Resources Business Partner);
• Craig Timmerman (Security Operations Manager);
• Steve Mibus (formerly Security Shift Manager, now retired);
• Matthew Healey (Security Team Manager);
• Christopher Maguire (Security Team Manager);
• Matthew Sly (Security Team Manager, formerly Senior Security Supervisor); and
• Andrew Riddle (Security Safety Officer).
[12] All witnesses other than Mr Liakimis were called by Sky City.
[13] Though certain alleged conduct is not in dispute, evidentiary disputes exist about background facts. Resolving disputed facts is necessary in determining this matter. I reject Mr Liakimis’s submission that findings of credit need not be made. Issues of credit are relevant because there is conflicting evidence about whether admitted conduct was misconduct or (alternatively) authorised. Credit also impacts findings I make about the mitigation issues and genuineness of expressed remorse.
[14] Where factual matters require determination, I make findings having regard to plausibility, consistency and demeanour of witnesses, and whether corroborative documentary evidence exists that informs content or context.
[15] I make findings on the balance of probabilities, noting that where allegations of a serious nature are made, the Briginshaw 5 standard of proof applies; that is, a reasonable degree of satisfaction needs to exist that conduct did, in fact, occur.
[16] The Commission is not bound by the rules of evidence but they are a sound guide to fact-finding. Both Mr Liakimis and Sky City led evidence containing hearsay and opinion. I do not entirely discard from the record or render inadmissible such evidence. However, I treat statements of opinion as an extension of submissions made. Similarly, I give little (and in some instances) no weight to hearsay evidence particularly where its object is to advance the truth of contested propositions. In those instances, I prefer to rely upon primary evidence or inferences properly drawn from primary evidence.
[17] Mr Liakimis submits that I should draw an adverse inference against Sky City of the Jones v Dunkel 6 kind for failing to call a Security Safety Officer, Justin Speer, as well as two other security officers Smith and Hennessey.
[18] A Jones v Dunkel inference, were it made, does not enable findings to be made that are not otherwise open on the evidence. It simply has the effect of creating an inference that the evidence of a person would not have been helpful to the party that did not call that person. 7 I need not draw that inference as the evidence of the eight witnesses (including the seven called by Sky City) is adequate to make relevant findings of fact, including on disputed matters that may have been the subject of Mr Speer’s evidence.
[19] Similarly, but somewhat more tangential, would have been the evidence of Security Officers Smith and Hennessey. In circumstances where six security officers gave evidence, I make no adverse inference that two officers not centrally involved in relevant events were not called.
[20] A statement of Mr Speer prepared in the course of Sky City’s investigation prior to its decision to dismiss is in evidence. 8 Mr Mibus said that he took that statement from Mr Speer and Ms Rossi gave evidence that Mr Speer’s statement was before her when she recommended dismissal. I have regard to Mr Speer’s statement for a limited purpose only – it is corroboration of Ms Rossi’s evidence that a statement of Mr Speer, amongst other statements, formed part of Sky City’s investigation. It serves no other probative purpose given its prejudicial nature.9 I have no regard to its content. To do so would be unfair to Mr Liakimis, as Mr Speer was not called and the truth of what is stated was not tested. The reasons given for Mr Speer not being called10 do not alter my view. Neither party subpoenaed Mr Speer, which each could have.
[21] It is appropriate to make some general observations on the evidence.
[22] Perhaps somewhat unusually in a conduct-based dismissal such as this, the alleged conduct is largely not in dispute. What is in factual dispute is whether the conduct was misconduct; that is, was it contrary to employment obligations operating at the relevant time or otherwise authorised. Fact-finding as to the rules and whether those rules were known or capable of being known to Mr Liakimis are matters in dispute.
[23] I treat the evidence of Mr Liakimis on these disputed matters with caution. Though he made considerable concessions as to conduct, his evidence was liberally scattered with opinion about authorisation, deflection and assumption. He tended to overstate what he claimed were conversations authorising his conduct, and understated his exposure to what was communicated at shift musters. His evidence about not recalling what was communicated at musters was unconvincing. His concessions, including expressions of remorse, had an air of strategic convenience about them.
[24] Ms Rossi’s evidence, whilst broadly reliable and given conscientiously, is for different reasons also to be approached with a caveat. Her initial recall of the investigation meeting with Mr Liakimis was inexact and required clarification once her handwritten notes were produced. She made concessions but also expressed opinions as to the adequacy of Sky City’s investigation and conclusions drawn.
[25] Mr Timmerman, Mr Healey, Mr Mibus, Mr Maguire, Mr Sly and Mr Riddle gave evidence clearly and, with respect to matters of direct knowledge, can be generally relied upon. Their evidence was largely not embellished or coloured by subjective opinion.
[26] The evidence of Mr Healey and to a lesser extent Mr Sly raised issues in dispute concerning applicable rules. Mr Healey was an impressive witness. He was considered, showed good recall, kept largely to factual matters, and was consistent in cross examination. Mr Sly was credible though accepted that he did not have precise recall of a brief but relevant conversation with Mr Liakimis on 28 October 2020. On that conversation, the evidence of Mr Liakimis is plausible.
[27] On matters of factual dispute, I generally prefer the evidence of Mr Healey, Mr Mibus, Mr Sly, Mr Maguire, Mr Riddle and Mr Timmerman over the evidence of Mr Liakimis.
Facts
[28] I make the following findings.
Background
[29] Sky City operates the Adelaide Casino. The Casino is a public venue with multiple gaming rooms (some restricted to certain guests) across different floors of the Adelaide Railway Station building alongside diverse food, beverage, hospitality and entertainment facilities. It is a regulated business, both in terms of gaming and licensing and, more recently, COVID-19 compliance.
[30] In 2019 the Casino undertook a major building expansion. The new building (EOS), immediately adjoining the existing building, had a significant construction phase.
[31] The Casino continued to operate during construction, save for coronavirus (COVID-19) impacts.
COVID-19 shutdown and re-opening
[32] The advent of the COVID-19 pandemic caused the Casino to close for a three-month period from 23 March 2020 until 29 June 2020. A skeleton staff of essential employees continued to work. Relevantly, that comprised security officers (including Mr Liakimis).
[33] Re-opening after the COVID-19 shutdown occurred only upon approval by South Australian health authorities. To secure that approval, Sky City was required to develop a COVID-19 Safety Plan. Re-opening occurred on the condition that the Casino’s COVID-19 Safety Plan would be implemented and adhered to.
[34] Re-opening the Casino’s operations and venues occurred progressively in the weeks that followed 29 June 2020, consistent with the COVID-19 Safety Plan.
[35] One requirement of the COVID-19 Safety Plan was that, prior to re-opening, all employees complete a COVID-19 e-learning module. The module communicated relevant elements of the Casino’s COVID-19 Safety Plan which had been approved by the State Department of Health.
New building
[36] On 26 October 2020 practical completion of the new EOS building was reached. On that day (at about 4.00pm), the builder handed Sky City keys to the new facility.
[37] Upon practical completion and handover, Sky City came to be in possession of the new building and responsible for it. In practice, certain finishing works on upper floors (above level 2) still needed to be completed by the builder and its contractors. That work was progressively undertaken in the weeks that followed.
[38] The new building was opened to the public and commenced trading from 1 December 2020 (approximately one week after Mr Liakimis was dismissed and five weeks after practical completion).
Mr Liakimis’s employment
[39] Mr Liakimis commenced employment as a security officer with the Adelaide Casino in September 1993. He was a full time employee.
[40] As at the date of dismissal, he had 27 years of service.
[41] His terms and conditions of employment were governed by a relevant enterprise agreement. 11
[42] Mr Liakimis’s job title and work varied somewhat across these 27 years but primarily required the delivery of on-site security services. In recent years, the Casino required security officers to develop a customer service orientation in addition to traditional security duties of monitoring behaviour, dealing with disturbances, controlling access and generally overseeing compliance with Casino rules. The nomenclature ‘Customer Services Officer – Security’ came to replace the former ‘Security Officer’ designation. This nomenclature also distinguished security work from persons responsible primarily for public safety (‘Customer Services Officer – Safety’).
[43] At relevant times in 2020, Mr Liakimis was a ‘Customer Services Officer – Security’. He worked 12-hour shifts.
[44] Mr Liakimis was a uniformed security officer and readily identifiable as such. He did not hold an external security licence as that was not required of the Casino’s internal security staff.
Security operations
[45] Mr Liakimis was one of about forty-five uniformed security officers. He reported to either a Senior Security Supervisor or a Security Team Manager, who in turn reported to the Security Shift Manager or Security Operations Manager (as the position came to be known).
[46] A security control room oversaw the tasking of specific work for security officers on a given shift (about twenty officers per shift), co-ordinated their communication and issued alerts of an operational or emergency nature. A Task Assignment Sheet was prepared by the control room each day. That sheet identified whether and for what period a particular security officer would be posted to a specified task or location. Technology enabled the tracking of security officers whilst on shift. Commonly during shifts a security officer would be tasked for a period to a static post (such as an entrance, an exit, a gaming room or a corridor) and for a different period operate as a ‘free rover’ across designated floors or facilities within the Casino’s geographic area of responsibility.
[47] In advance of each shift, security officers would attend a briefing (called a ‘muster’) convened by that shift’s Senior Security Supervisor or Security Team Manager. At the muster, security officers would be updated on relevant operational and security matters. In the months leading to practical completion, musters commonly updated security officers on issues concerning the COVID-19 Safety Plan (including staff entry), the new building, prospective handover dates, contractor access and the like.
Prior disciplinary issues
[48] In September 2016 Mr Liakimis was disciplined over an alleged integrity check breach whilst overseeing a gaming table. He received a first and final written warning. 12 He disputed the alleged breach, with the assistance of his Union. The Casino reviewed the matter, was satisfied the breach had occurred and rejected the Union’s request to rescind the disciplinary action.13
[49] In November 2017 Mr Liakimis was called into a disciplinary meeting and given a verbal warning for allegedly riding his bicycle in the vestibule area alongside the staff entry and (on another occasion) not fully dismounting from his bicycle. 14 He disputed the alleged breaches (citing the practice of others), with the assistance of his Union.15 The Casino maintained the disciplinary warning but issued a general edict to staff that bike riding in the vestibule area was prohibited.
Completion of e-leaning module prior to re-opening
[50] The mandatory e-leaning module 16 required to be completed by Casino staff before re-opening after the 2020 COVID-19 shutdown was successfully completed by Mr Liakimis on 21 June 2020.
[51] Amongst other matters, the module instructed employees as follows: 17
“Employees should enter their workplace via the normal entry points and must swipe in using the access control systems. Do not tailgate. The access control system will act as a contact tracing log in the event of a request from the Department of Health” (emphasis added).
[52] It continued: 18
“Follow the signs around the workplace. You can’t miss them.”
[53] The module tested an employee’s understanding of its content. One of the questions was “Contact tracing is important for the safety of everyone at Sky City. Which of the following helps us ensure we are contact tracing?” The correct answers were “Swiping through every door, every time” and “Visitor Registers”. The correct responses were annotated as follows: 19
“We need a complete record of where everyone is on site and the areas they have visited...”.
Staff entry upon re-opening
[54] Initially upon re-opening after the COVID-19 shutdown, staff entry and exit locations remained unaltered. Staff were required to use the dedicated staff entrance. New limits, imposed for social distancing purposes, existed on the number of persons using lifts within the staff entrance.
[55] Staff entry and exit through the staff entrance required all staff, including Mr Liakimis, to swipe staff passes across an electronic reader (Cardx) that recorded their entry and exit.
[56] The Casino used these electronic details to ascertain who was in the building, and for contact tracing purposes. Contact tracing capability was a requirement of the approved COVID-19 Safety Plan.
[57] Security officers, including Mr Liakimis from time to time, manned staff entrances and exits.
[58] In the weeks that followed re-opening, overcrowding occurred in the staff entrance due to restricted lift capacity. Casino management responded by opening two new entrances – one for contractors (and gaming staff) and then a dedicated one for gaming staff.
[59] The new entrances did not include a Cardx mechanism to use an electronic reader to swipe staff passes upon entry. Different arrangements applied (a logbook at the contractor entrance and fingerprint scanning at the gaming staff entrance).
[60] Employees other than gaming staff and management (including uniformed security officers) were required to continue to use the pre-existing staff entrance. Senior managers could elect to use the staff entrance or the newly opened entrance for gaming staff.
[61] For reasons set out later in this decision, I find on the balance of probabilities that these rules were communicated to security staff, including Mr Liakimis, at musters.
New building access upon practical completion
[62] In advance of the keys to the new building being handed to Sky City on 26 October 2020, the site was a construction site under the control of the builder. The builder controlled access by its employees and contractors. No Sky City employees or contractors, including its security staff, had access to the new building site except on very limited terms expressly purposed by the builder. For example, on rare occasions as practical completion approached, a senior security manager was required by the builder to enter the construction site to witness the delivery of equipment.
[63] Otherwise Casino security staff (including managers) were not permitted to enter the construction site and did not do so.
[64] For reasons set out later in this decision, I find on the balance of probabilities that this rule was communicated to security staff, including Mr Liakimis, at musters. It was also reflected in signage in areas frequented by security staff 20.
[65] As practical completion approached, Casino management made arrangements as to how it would familiarise security officers with the new building upon practical completion but prior to public opening, and how it would staff relevant entry points (including for the completion of works by contractors). Casino management considered it important that security officers be amongst the first staff provided access given the need to secure the building upon handover and the fact that security staff (managers and officers) could be called to any location within the Casino’s geographical area of responsibility to attend emergency call outs. Familiarisation was considered necessary to ensure safety of security staff as and when entry to the new building was required in the course of duties.
[66] Casino management decided that a familiarisation programme of security staff would commence immediately upon handover. The arrangement was that, upon handover and in the days that followed, a Security Team Manager (or a Senior Security Supervisor) (once they themselves were inducted into the new building) would take a uniformed security officer on an escorted induction tour of the new building as a familiarisation exercise.
[67] For reasons set out later in this decision, I find on the balance of probabilities that this proposed arrangement was communicated to security staff, including Mr Liakimis, at musters prior to the handover, and repeated upon handover.
[68] Unless and until a security officer had completed the escorted tour, the prohibition on their entry to the new building continued to apply.
[69] For reasons set out later in this decision, I find on the balance of probabilities that this rule was communicated to security staff, including Mr Liakimis, at musters prior to the handover, and repeated upon handover.
[70] Immediately upon the 26 October 2020 handover, security managers were escorted by their seniors into the new building, and progressively during shifts over the following days, those managers escorted uniformed security officers on induction tours of the new building.
[71] In practice, because completion works were continuing above level 2 even after handover, initially the tours did not include floors above level 2.
[72] Escorted tours occurred on an ad hoc basis. No sequencing or ordered selection process applied. A security manager on shift would identity a security officer on the floor, approach them, ask if they had had a tour, and if the security officer hadn’t and the manager had time the escorted tour would occur then and there. Security officers taken on an induction tour were generally those performing roving duties. Those on a static post were not taken off static posts.
[73] No record was kept of which officers had or had not been inducted into the new building via an escorted familiarisation tour. It is an agreed fact in these proceedings that:
“The Respondent’s records (howsoever described) of security staff employed by the Respondent who have been inducted into the new “EOS” and gaming room facility which attained practical completion on 26 October 2020 are comprised of and confined to the document comprising exhibit R9. The handwritten numbers shown in the brackets correspond to the relevant security officers’ call sign as identified on the exhibit”.
Entry by Mr Liakimis to the Casino on 20, 21, 23 and 28 October 2020
[74] On 20 October 2020 Mr Liakimis was rostered to work. As usual, he travelled to work on his bicycle. He swiped in at the staff entrance. He immediately (90 seconds later) swiped out. Mr Liakimis then accessed the Casino via the contractor’s entrance.
[75] On 21 October 2020 Mr Liakimis swiped in at the staff entrance. He again immediately swiped out. Mr Liakimis then accessed the Casino via the contractor’s entrance.
[76] On 23 October 2020 Mr Liakimis did not swipe in at the staff entrance. He accessed the Casino via the contractor’s entrance.
[77] On 28 October 2020 21 Mr Liakimis was observed, whilst in uniform and having already commenced his shift, wheeling his bike in the railway station arcade adjoining the Casino. The railway station arcade is public space not forming part of the geographical area of the Casino. Security staff are not tasked to work in that space nor permitted in that space in uniform.
[78] The circumstances relating to entry into the Casino by Mr Liakimis on 20, 21 and 23 October 2020, and the circumstances relating to his presence with his bike in the railway station arcade on 28 October 2020 are considered further in this decision when considering valid reason.
Entry by Mr Liakimis to the new building on 28 October 2020
[79] At about 5.00pm on 28 October 2020, whilst on a shift scheduled to conclude at 6.45pm, Mr Liakimis accessed the new building unaccompanied and inspected the second floor and below.
[80] He was observed doing so by Mr Mibus (a senior security manager) who immediately contacted a team manager on duty (Mr Healey) and asked for a report on whether Mr Liakimis had authority to be in the new building alone and unescorted.
[81] The circumstances relating to entry into the new building by Mr Liakimis on 28 October 2020 are considered further in this decision when considering valid reason.
[82] Mr Healey immediately made enquiries of other mangers. He was advised that authorisation had not been given to Mr Liakimis. He also examined CCTV security vision from the previous week. He formed the view that Mr Liakimis had entered the Casino contrary to rules on three occasions in the previous week, and was in the railway station arcade with his bike whilst on duty on one occasion, also contrary to the rules.
Disciplinary investigation
[83] On 29 October 2020 Mr Healey informed the Casino’s Human Resources Business Partner, Ms Rossi, that Mr Liakimis had accessed the new building without authorisation on 28 October 2020, and had entered the Casino in breach of the COVID-19 Safety Plan on three occasions in the previous week.
[84] Ms Rossi considered the allegations serious. She decided to investigate. She checked records of staff who had completed the e-learning module. She ascertained that Mr Liakimis had done so on 21 June 2020. She then prepared a draft notice of a disciplinary meeting. She gave the draft to Mr Healey who reviewed and then issued the letter 22 (under his hand) to Mr Liakimis later that day.
[85] By letter dated 2 November 2020 Mr Liakimis was informed of the allegations, requested to attend a disciplinary meeting the following day and advised of related rights and obligations. 23 The allegations letter described the alleged conduct as follows:24
“…a breach of procedure, when you entered premises in an unauthorised manner by entering premises scanning in and then scanning out of premises and entering via the contractor’s entrance on concourse on the 20/10/2020. Entering premises via Staff Entrance swiping in and leaving premises back through staff entrance making your way out onto the Railway station concourse and entering via the Contractor’s corridor and using lift 6 on the 21/10/2020. Not scanning in at Staff entrance and entering via the Contractor’s corridor on the 23/10/2020. Entering a restricted area outside of your jurisdiction whilst in uniform to retrieve personal property placing yourself, staff at risk of injury or harm 23/10/2020. When you entered premises scanning in at Staff entrance and leaving back through Staff entrance entering premises via the Contractors Corridor and entering via Lift 6. Security Staff have been advised they are not to enter the New Gaming and Hotel premises unless tasked by the SCC or escorted by the Security Manager, you did not adhere to this request and entered without the knowledge of the SCC and the Security team manager placing yourself and Staff at risk on the 28/10/2020.”
[86] The date and time of the scheduled disciplinary meeting was subsequently extended.
[87] Mr Liakimis attended the disciplinary meeting (investigation interview) in person with a support person (Ms Newman of the United Workers Union by video link) on 18 November 2020. Ms Rossi and Mr Healey attended for the Casino.
[88] A summary record of that meeting is in evidence 25 as well as Ms Rossi’s contemporaneously made handwritten notes26.
[89] Following the meeting, and in view of matters raised by Mr Liakimis, Ms Rossi and Mr Healey decided to obtain statements from Mr Sly, Mr Mibus, Mr Speer, Mr Riddle and Mr Maguire.
[90] The statements were compiled that afternoon and evening. They were examined by Ms Rossi and Mr Healey the following morning. Ms Rossi then discussed them on a number of occasions with her superior (Mr Tannock, General Manager People and Culture). She formed the view that Mr Liakimis had knowingly breached policy and that the breaches were serious. She also formed the view that the statements obtained from other security staff contradicted what Mr Liakimis had asserted the previous day about alleged authorisation or explanations for his conduct, and that Mr Liakimis had not been completely truthful. She also considered that a serious matter.
[91] Ms Rossi concluded that she would recommend summary dismissal for serious misconduct. She made the recommendation to Mr Tannock, who agreed. She then made the recommendation to Mr Krawczyk, General Manager Support Operations. Mr Krawcyzk accepted the recommendation.
[92] A further meeting with Mr Liakimis (and his support person) was convened for that afternoon (dismissal meeting). A snap State-wide COVID-19 lockdown had been announced by the South Australian government. Consequently, the dismissal meeting was convened by phone, not in-person.
[93] At the dismissal meeting Ms Rossi read from a prepared script. A summary record of that meeting is in evidence. 27 Ms Rossi did not pause or invite comment. Neither Mr Liakimis nor his support person interrupted. Ms Rossi concluded (from her script) in the following terms:28
“We have decided to terminate your employment for serious and wilful misconduct. We believe you haven’t been truthful in your responses and we have significant concerns regarding the integrity in the information provided by you. Your responses are inconsistent with the statements provided and we have lost trust and confidence in you. The role of CSO has a huge amount of trust placed in it.
You failed to follow the COVID-19 safety plan, the security services code of conduct, the security geographical areas of responsibility document and the reasonable instruction of the Security leadership team.’
Your employment is terminated effective today, 19 November.”
[94] A letter of termination dated 19 November 2020 was sent. 29
[95] The dismissal was applied summarily. Mr Liakimis cleared his belongings (observing Casino protocols) and left the building. He received no payment in lieu of notice. His accrued entitlements were paid out to that day, 19 November 2020.
[96] Mr Liakimis lodged these proceedings on 8 December 2020 with the assistance of his Union.
Post-dismissal circumstances
[97] Mr Liakimis was shocked by his dismissal. He did not believe that he would be dismissed for doing what he did.
[98] Mr Liakimis did not seek alternate employment for six weeks after dismissal. He decided to wait until Commission conciliation was held (22 December 2020). He believed that it was not worth looking for other work because, according to his own evidence 30, he expected the Casino to have a change of heart in the light of day, and at conciliation, decide to offer him his job back.
[99] Only when this did not occur did Mr Liakimis start to look for work.
[100] Despite having been a security officer for 27 years, Mr Liakimis decided not to apply for any security related jobs. He decided only to apply for jobs in customer service, referencing the customer service component of his security work.
[101] At the date of giving evidence (15 March 2021) Mr Liakimis had not secured alternate employment. He had sent his resume to approximately 47 business seeking a sales role. He had not been interviewed.
Consideration
[102] The issue for determination is simply put: was Mr Liakimis’s dismissal harsh, unjust or unreasonable having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?
[103] No jurisdictional issues arise. Mr Liakimis was protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.
[104] I am under a duty to consider each of the criteria in section 387 of the FW Act 31, and now do so. I take account all of the evidence and submissions before me. I have dealt with each primary submission but not every angle of each submission, not because they have not been considered but because doing so would add excessive length to these reasons.
[105] Section 387 of the FW Act provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid Reason (section 387(a))
[106] An employer must have a valid reason for dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 32 and should not be “capricious, fanciful, spiteful or prejudiced.”33
[107] In a conduct-based dismissal 34 the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the alleged misconduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.35
[108] Where an employee is dismissed for misconduct, as in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the misconduct occurred. 36
[109] I now consider whether, on the evidence before me, the alleged breaches of duty occurred to the standard of proof required and, if so, whether they collectively or individually constitute a valid reason for dismissal.
Failure to use staff entrance into the Casino
[110] Mr Liakimis is said to have breached a rule on three occasions (20, 21 and 23 October 2020) requiring him to only use the official staff entrance as an entry and exit point into the Casino.
[111] I find that Mr Liakimis used the contractor entrance on at least these three occasions in October 2020.
[112] Mr Healey’s evidence 37 was that, using records from the electronic Cardx system, he identified Mr Liakimis using the contractor entrance, not the staff entrance. On the first two of these occasions (20 and 21 October) he used the staff entrance before immediately exiting that entrance, and then using the contractor entrance some distance away. Mr Timmerman’s evidence was that on one occasion on 28 October 2020 he observed Mr Liakimis using the contractor entrance.
[113] Ms Rossi’s evidence 38 was that at the investigation meeting Mr Liakimis accepted he had done so. The typewritten notes of meeting39 and her handwritten notes40 bear this out.
[114] Mr Liakimis’s evidence was that he had done so 41.
[115] I also find on the balance of probabilities that:
• security officers were only permitted to use the staff entrance for entry and exit; and
• security officers were not authorised to use either the vestibule entrance (made available for gaming staff and senior managers) or the contractor entrance.
[116] I also find that Mr Liakimis had not been authorised or permitted, directly or indirectly to enter or exit the Casino other than via the staff entrance.
[117] I am well satisfied not just that Mr Liakimis ought to have known of these entry rules, but that he did in fact know of them. Only months earlier he had completed the e-learning module which stipulated the rule about staff entry and exit. Further, upon the opening of the vestibule entrance, it had been made clear at muster this was for gaming staff and senior managers, not security officers or other staff. A common task of security officers (such as Mr Liakimis) was to be stationed at entry and exit points (including staff and contractor entry points) and oversee those very rules. Mr Liakimis could not have performed his regular duties, which he did, had he not known those rules. I accept the evidence of Mr Healey, Mr Sly and Mr Maguire that the rules, including which categories of staff or contractors were permitted to use which entry and exit points, were the subject of instruction at daily musters. Mr Liakimis attended the musters when on shift.
[118] Were these breaches of entry rules a valid reason for dismissal?
[119] I conclude they were.
[120] The breaches were not a singular incident. They were repeated.
[121] The breaches were not inadvertent. The rules were known and the breaches were deliberate choices made by Mr Liakimis. Mr Liakimis sought no permission to circumvent the rules and had no such permission.
[122] The entry rules were not minor or inconsequential having regard to the Casino’s operations. Aside from the COVID-19 Safety Plan, the Casino, as a regulated and licensed business, had legitimate reasons to control entry and exit of staff and contractors. In the context of the COVID-19 Safety Plan, under which it had an obligation to contact trace those on site should the need arise, its legitimate interest in setting the rules and requiring compliance with them was more acute.
[123] Nor were the entry rules minor or inconsequential having regard to the duties of a security officer. Mr Liakimis was required, in order to perform his regular duties, to know the rules, was stationed at entry and exit points and oversaw rule compliance by staff. His evidence was that his job included: 42
“controlling entry and egress of customers and Contractors at each of the Casino’s entry and egress areas”; and
“having to conduct escorts with staff and contractors into sensitive restricted areas”.
[124] As Mr Sly noted 43, security staff are “staff entrance operators”. It is inconceivable that, being charged with overseeing the rules on a day in-day out basis as they applied to others, that Mr Liakimis did not know the rules.
[125] I do not accept Mr Liakimis’s submission that overcrowding in the staff entrance justified his decision to not use, or to immediately exit, the staff entrance and use the contractor entrance. Whilst it may explain his decision to breach the rules, it does not mitigate the seriousness of the breach:
• it was for management, not Mr Liakimis, to decide if overcrowding warranted a change to rules or practice. Further, on 23 October 2020 Mr Liakimis did not enter the staff entrance at all to form a view about overcrowding; and
• delay in accessing the lift in the staff entrance was a necessary consequence of social distancing controls. This was a reality encountered by employees required to use that entrance. It was not for Mr Liakimis to set himself aside from the obligation to wait his turn for the lift when other staff were required to do so. I prefer the evidence that lift delays were generally in the order of 10 minutes, not up to the 20 to 30 minutes claimed by Mr Liakimis.
[126] Mr Liakimis submits that his use of the contractor entrance was not a valid reason for dismissal because he occasionally observed other employees not using the staff entrance. The evidence of Mr Liakimis on this point was general in nature. It is insufficient to make a finding as to the frequency of non-permitted use by others, whether in fact the entrances used by others were non-permitted (noting that some managers were permitted to use certain other entrances, as well as gaming staff, and staff tasked to do so would not be in breach) and whether, if others did use a non-permitted entrance, it was with disciplinary consequence. The evidence of Mr Mibus was that he had not observed staff using an incorrect entry. 44 The evidence of Mr Maguire and Mr Riddle was that the rule was enforced - where a staff member sought to use a non-permitted entry, they were not authorised to do so and were directed to use the correct entry.45
[127] I do not accept the submission of Mr Liakimis that he did not compromise the Casino’s COVID-19 Safety Plan because other contact tracing mechanisms were used at other entry points. The e-learning module instructed him on the entry he was required to use, and why. No contrary instruction had been provided. The module did not provide him with a work-around option. Mr Liakimis accepted during the investigation that he had not been advised whether fingerprint scanning was being used for contact tracing purposes. That was an assumption he made. At the contractor entrance, contractors were required, upon entry, to handwrite their contact details in a log 46.
[128] The breach of entry rules were, in combination and in context, serious and constituted a valid reason for dismissal.
Being in railway station arcade whilst on duty
[129] This allegation is that on 28 October 2020 Mr Liakimis breached a rule prohibiting a security officer from being in the railway station arcade whilst on duty.
[130] Mr Healey’s evidence 47 was that he observed Mr Liakimis, whilst in uniform and on shift, wheeling his bike in the railway station arcade adjoining the Casino.
[131] Mr Liakimis’s evidence 48 was that he had done so as a short cut to collect his bike, and had been seen by Mr Healey doing so.
[132] Was this breach a valid reason for dismissal?
[133] This was not a trifling breach given Mr Liakimis was on duty and the obligation of security officers (affirmed in 2013 49) was to restrict themselves (whilst at work) to the Casino’s geographic area of responsibility. The railway station arcade is public space not forming part of that geographic area. Mr Liakimis knew that. He also knew that security staff were not permitted in that space in uniform during shift unless specifically tasked. He had not been specifically tasked.
[134] I do not, however, consider this breach, on one occasion, to have been a valid reason for dismissal. It was clearly unwise conduct but more minor in the scale of seriousness. It was a single breach that warranted counselling. Considered in isolation, it did not warrant dismissal.
[135] However, when considered in conjunction with other rule breaches in October 2020, it was an element of collective conduct breaches that formed a valid reason for dismissal.
Unauthorised entry to new building
[136] This allegation is that at about 5.00pm on 28 October 2020 (two days after handover), and whilst on shift, Mr Liakimis accessed the new EOS building unaccompanied and took himself around the second floor and below.
[137] Mr Liakimis accepts that he did so: 50
“My shift was finishing at 6.45pm. Shortly after 5pm I had a chance to have a look around the new hotel and familiarise myself with the layout.”
[138] Mr Liakimis was observed by Mr Mibus (a senior security manager) who immediately contacted a team manager on duty (Mr Healey) and asked for a report on whether Mr Liakimis had authority to be in the new building alone and unescorted.
[139] The allegation of misconduct is multi-faceted.
[140] It is alleged that the conduct involved two breaches of duty – a breach of the rule prohibiting entry without having first had an escorted induction; and abandoning his tasked duties in order to enter and inspect the new building.
[141] Were these breaches a valid reason for dismissal?
[142] A number of related matters relevant to context need to be considered.
The obligation
[143] I have found that, prior to practical completion (4.00pm 26 October 2020), Casino security officers were not permitted to enter the new building as it was a construction site not in the possession of the Casino.
[144] This rule was reflected in signage placed in areas frequented by security staff. The signage included the following: 51
“Unless tasked no one is permitted to enter EOS / Gaming area for any reason unless specifically directed to, not impede works underway.
All Security staff will have the opportunity to walk the space during induction/training being led by Basil, Craig and Steve.
(smaller font) There are no exceptions to this request.”
[145] Mr Liakimis’s evidence was that he had seen the signage in the muster area 52. He accepted that he knew the rule:53
“During the construction phase it was made clear that all staff including security officers were not to enter the area whilst it was under construction.”
“I was generally aware around late October 2020 that escorts were happening through the new build for security staff.”
[146] I have found that as practical completion approached, Casino management made arrangements as to how it would familiarise security officers with the new building – via escorted tours.
[147] Mr Liakimis submitted that upon practical completion the rule changed and that this authorised or explained his conduct.
[148] I do not agree. A circumstance changed after practical completion in that escorted tours commenced as the new premises was transferred to the Casino (and thus within its geographical area of responsibility). However, the rule did not change. The signage remained intact. The rule expressed in the signage contained two elements – a blanket prohibition on entry unless specifically tasked, and an opportunity for access during “induction/training”.
[149] I find that this rule and the intended escorted inductions upon handover were not only apparent from the signage, but also communicated by security managers (team leaders and supervisors) to security officers at musters both before handover and in the days that followed. I am well satisfied on the balance of probabilities that Mr Liakimis attended those musters. 54 I consider Mr Liakimis’s evidence that “I don’t recall how I learned about this”55 to be evasive and implausible.
[150] I find that Mr Liakimis knew on 28 October 2020 that he was not permitted to access the new EOS building without having first had an escorted induction tour by a manager and that this rule had been communicated to him and other uniformed security officers in multiple forms and on more than one occasion.
[151] I do not accept Mr Liakimis’s evidence 56 that this signage became redundant upon handover. Its terms do not indicate that. The signage remained on display after handover. He had not been advised by any person that the signage no longer applied.
Escorted tours after handover
[152] A familiarisation programme commenced immediately upon handover whereby a Security Team Manager (or a Senior Security Supervisor) took a uniformed security officer on an escorted induction tour of the EOS building. This was an ad hoc arrangement without an orderly sequencing or selection process. Escorted tours occurred as and when a manager seized the moment.
[153] Although rostered on 27 October 2020 (the day after handover), Mr Liakimis was not approached that day by a manager for an escorted tour. He noticed some other security officers from amongst those on duty being given escorted tours that day.
[154] In a subsequent casual conversation with other security officers Mr Liakimis heard that security manager (Mr Mibus) had (it was claimed) told some officers that they should familiarise themselves with the new building and that Mr Mibus had disciplined one for not having done so; and (in a separate conversation) that Mr Healey (it was claimed) didn’t want Mr Liakimis in the new building.
[155] Mr Liakimis was rostered on 28 October 2020. Around midday he noticed a manager (Mr Sly) taking two officers into the new building for an escorted tour. He approached Mr Sly. He told Mr Sly that he had worked the day before but had not yet been in. Mr Sly said he would arrange for that to happen. When Mr Sly did not do so then or shortly thereafter, Mr Liakimis suspected that Mr Healey may have instructed Mr Sly not to do so. 57
[156] Mid-afternoon, Mr Liakimis had a brief conversation with a senior manager Mr Timmerman. Mr Timmerman was not a manager conducting tours of uniformed security officers. That was left to managers who reported to Mr Timmerman. Mr Timmerman asked if he (Mr Liakimis) had been in the new building. Mr Liakimis said no. Mr Timmerman said it was important he be shown the new building to become familiar with it in the event of emergency.
[157] Mr Liakimis submits that he was thereby authorised to enter the EOS building unescorted.
[158] I do not agree. There is no sense in which the conversation with Mr Timmerman provided authority to enter in a manner outside the express procedure (an escorted tour by a manager). Mr Timmerman had simply stated that as a security officer it was important that Mr Liakimis become familiar with the new facility. In circumstances where the method of familiarisation upon handover (by escort) was known to Mr Liakimis, and no other method had been advised, there was no reasonable basis on which Mr Liakimis could have believed that Mr Timmerman had given him authority to override established procedure and enter unescorted.
[159] Nor was it reasonable for Mr Liakimis to enter unescorted on a supposition that he was on some black-list devised by Mr Healey or that others had been told by Mr Mibus to “familiarise” themselves with the building and been disciplined for not having done so. At its highest, these conversations were second and third hand hearsay, if not scuttlebutt; an entirely unreliable basis for a security officer to take the rules into their own hand. Mr Liakimis took no steps to speak to either Mr Healey or to Mr Mibus to ascertain the truth of what had been suggested. Had he done so he would have discovered that the disciplinary matter between Mr Mibus and another officer did not concern the new building but an unrelated area (the rose garden).
[160] Indeed, by asking Mr Sly to be “taken through” in their brief lunchtime conversation on 28 October 2020, Mr Liakimis was expressing what he already knew: that accessing the new build required a manager (such as Mr Sly) to escort him. Mr Liakimis conceded this in his evidence: 58
“I thought we were going to be taken on tours”.
[161] Yet hours later Mr Liakimis took himself on an unescorted tour. He did so knowing that was contrary to the rules and did so without authorisation, direct or indirect. He took no steps to follow-up with Mr Sly. 59
[162] Rather than holding a belief, let alone a reasonably held belief, that he had authorisation, the clear inference I draw, including from his evidence 60, is that it was a combination of curiosity and frustration (and not a belief that he had permission) that got the better of Mr Liakimis that afternoon. I conclude that not having heard back from Mr Sly, he chose to inspect the new building unescorted because he was unhappy that others had already been escorted through before him and suspecting that Mr Healey was deliberately making him wait.
[163] The breach was serious, not minor. It was not just a matter of jumping the gun; it was an act of indifference to a mandatory process that had been established by management.
[164] However, the breach was not more than a singular act of misconduct. I agree that it involved non-compliance with two separate obligations: the obligation not to enter unescorted, and the obligation, whilst on shift, to remain on duties tasked. Being absent from his tasked duties was a consequence of Mr Liakimis’s decision to inspect the new building whilst on shift, not a separate act of indifference.
[165] I do not accept Mr Liakimis’s submission that the conduct was excused or mitigated by the theoretical possibility that a security officer could have been called by the control room to an emergency incident in the new building. The evidence before me 61 was that a manager attends such emergencies with a security officer (together or meets them there). If per chance the attending officer had not as yet been taken on a familiarisation tour, the evidence62 is that disciplinary consequences would be unlikley provided the officer took due care.
[166] Nor do I accept the evidence of Mr Liakimis 63 that he was authorised to go into the new building unescorted because he was not specifically told not to do so. He made similar claims with respect to the entry rules64. There are two problems with that evidence. Firstly, I have found that not to be the case. As part of the collective of security officers, he was told, by signage and at musters that the method of permitted entry was escorted entry. Secondly, having been told of the method of permitted entry it is indicative of an indifference to the rule and a lack of insight on his part that Mr Liakimis considered that the absence of a subsequent specific prohibition, including during his exchange with Mr Timmerman about familiarisation, amounted to permission to enter unescorted.
[167] I conclude that the breach of the rule on 28 October 2020 against unescorted entry into the new EOS building was a valid reason for dismissal.
Dishonest answers during the investigation
[168] This allegation is that during the investigation meeting on 18 November 2020 Mr Liakimis gave untruthful information in explanation of his conduct. It is alleged that this was a breach of duty impacting trust and confidence. Ms Rossi’s evidence was that this played a “big part” 65 in the Casino’s decision to dismiss.
[169] This is a serious allegation. As framed by the Casino, it is an allegation of lying to his employer. It is one where the Briginshaw standard of proof applies. What was said is largely not in dispute given Ms Rossi’s handwritten notes and her typed summary of the meeting.
[170] During the investigation meeting Mr Liakimis advanced certain explanations for his conduct:
With respect to the entry breaches:
• that access changed and other (unnamed) security officers use the contractors entrance and this was known to manager Smith;
• that he believed the access rule required scanning in at the staff entrance, and nothing more;
• the lift in the staff entrance was busy when he did so; and
• scanning his ID pass wasn’t necessary for contact tracing because fingerprint scanning was used at other entrances.
With respect to the EOS building breach:
• that Mr Healey had (according to a source Mr Liakimis declined to reveal) threatened to “write-up” (discipline) another officer (Mr Antoniou) for not having familiarisation with the new building;
• that Mr Timmerman had told him to access the new build because there could be a first aid or safety issue requiring attendance;
• that Mr Mibus had told two officers (Speer and Riddle) to familiarise themselves with the new building and go over and do so;
• that he had raised his concern at not having had access with Mr Sly earlier on 28 October 2020; and
• that Mr Maguire had not expressed any concern when Mr Liakimis subsequently told Mr Maguire that he had accessed the EOS building.
[171] Having regard to these explanations, Sky City concluded: 66
“We believe you haven’t been truthful in your responses and we have significant concerns regarding the integrity in the information provided by you. Your responses are inconsistent with the statements provided…”
[172] The object of the investigation meeting was for Mr Liakimis to have an opportunity to provide his explanations. It is unremarkable that he did so. That notwithstanding, what an employee says or does during the course of an investigation is capable of conflicting with their duty of fidelity.
[173] I do not conclude that the explanations proffered were untruthful in the sense of being knowingly false statements.
[174] Sky City was entitled to form a view that the explanations as to entry breaches were unconvincing. However, an unmerited explanation does not make it untruthful.
[175] The explanations concerning his inspection of the EOS building are in a somewhat different category. Mr Liakimis inferred that he had been given authority from certain managers or that his conduct was justified by reference to how managers had handled other situations.
[176] These references were efforts to deflect or mitigate his conduct. In a number of respects what Mr Liakimis claimed involved assumptions not reasonably made. By referring to his discussion with Mr Timmerman (at which he was advised to become familiar with the new building for safety reasons) Mr Liakimis was inferring that a senior manager had given him permission to do what he had done. That was misleading. It was not an innocent misunderstanding. Being advised by Mr Timmerman to “be shown” 67 the new building did not authorise a unilateral decision to take an unescorted tour. By raising the Timmerman conversation and the other hearsay conversations about Mr Mibus, Mr Liakimis sought to deflect the investigation. He gave a misleading impression of permission having been given by persons more senior than Mr Healey.
[177] These defences involved assumptions and reliance on hearsay. Unmerited and misleading though they were, they were not dishonest. What was said about the lunchtime conversation with Mr Sly warranted follow up, but was not incorrect.
[178] Whilst the explanations proffered by Mr Liakimis at the investigation meeting caused Sky City to involve other security officers in the matter to secure their versions of alleged conversations, that is in the nature of a disciplinary investigation. Serious matters were in issue and serious consequences were at stake.
[179] I conclude that whilst the Casino was entitled to conclude (as it did) that the explanations did not mitigate the misconduct, and whilst one explanation was misleading, I do not consider that the defences advanced by Mr Liakimis, considered alone, were a valid reason for dismissal. A key take-out of the investigation meeting ought to have been that whilst Mr Liakimis sought to excuse his conduct and give the misleading impression that he had been given permission, he admitted the conduct – thus making the investigation somewhat less complex.
Conclusion on valid reason
[180] I have found that Mr Liakimis breached entry rules on three occasions and acted contrary to an instruction not to enter the new building unescorted. I have also found a minor breach on one occasion of being outside a permitted area.
[181] Not all rule breaches in a workplace context are valid reasons for dismissal. Section 387(a) of the FW Act concerns itself with a “valid reason for dismissal (emphasis added) not simply a valid reason for disciplinary action.
[182] I have concluded these were breaches of duty to abide by lawful and reasonable directions.
[183] These were multiple failures over multiple days, some more serious than others.
[184] The breaches were not inadvertent or the result of misunderstanding. I have not concluded that these were innocent errors made in good faith.
[185] Whilst the reasons Mr Liakimis chose to break the rules explain his conduct, they do not mitigate the seriousness of having done so. He broke the rules to suit his convenience. He put himself in a position where others had to comply with the rules, but saw fit to apply his own work-arounds if he considered the circumstances warranted. He displayed an indifference to the rules despite working in a regulated environment. I do not accept the submission, urged by his counsel, that it was a proper exercise of his initiative.
[186] When considered in context, including Mr Liakimis’s duties as a security officer, the breaches collectively constituted a valid reason for dismissal. Those duties compelled Mr Liakimis to know the rules and oversee compliance by staff with the very rules he breached.
[187] This conclusion weighs against a finding of unfair dismissal.
Notification of the reason for dismissal (section 387(b))
[188] Mr Liakimis was notified of the reason for dismissal at the conclusion of the meeting with Ms Rossi and Mr Healey on 19 November 2020. He was also notified of the reason for dismissal in the dismissal letter of that date.
[189] Both the dismissal meeting and the dismissal letter refer to alleged breaches of instruction and the COVID-19 Safety Plan. Whilst not particularised in the dismissal letter, these alleged breaches were outlined at the dismissal meeting, during the earlier investigation meeting and in the letter of allegations.
• that dismissal was not a disproportionate response given the overall context; and
• that Mr Liakimis was given an opportunity to respond to the alleged conduct breaches and in doing so misled his employer as to whether he was authorised to enter the EOS building unescorted.
[255] In these circumstances, I conclude that the dismissal is not, considered overall, unjust or unreasonable.
[256] However, for a limited reason I conclude it was harsh.
[257] Not all dismissals, however justifiable, warrant summary dismissal.
[258] Whether Mr Liakimis’s conduct warranted summary dismissal is a relevant matter going to harshness under section 387(h) of the FW Act. 91
[259] It does not automatically follow that an employee’s misconduct or failure of duty warrants summary dismissal. The proportionality of the summary nature of Mr Liakimis’s dismissal must be weighed against the seriousness of his misconduct. 92 Summary dismissal is only available to an employer where the misconduct or failure of duty is of such a nature that it strikes so fundamentally at the heart of the employment relationship that the continuation of employment for any future period of time, no matter how brief, would be incompatible with the contract including the duties of trust and confidence.93 This principle, drawn from the common law, is recognised by the industrial instrument that governed Mr Liakimis’s employment.94
[260] Moreover, where an employer dismisses an employee on notice but not summarily the employer has one of two options; either it can require the employee to work out their notice or (alternatively) pay the employee and amount of notice in lieu.
[261] Some conduct strikes more fundamentally at the employment relationship than other conduct. A fine line exists between misconduct serious enough to constitute a valid reason for dismissal on notice and misconduct so serious as to warrant summary dismissal. Fine though it may be, the line exists and in appropriate cases must be drawn.
[262] This is one such case. Whilst the rule breaches by Mr Liakimis in October 2020 were, in cumulative effect, serious, I consider that summary dismissal was not reasonably open.
[263] I do not consider that Mr Liakimis’s conduct so fundamentally struck at the heart of the employment relationship such that its continuation for any future period was untenable. Whilst the categories of serious misconduct warranting summary dismissal are not closed, his conduct did not involve dishonesty, securing personal advantage, compromise to the Casino’s business or malfeasance. They were a collective of rule breaches reasonably impacting trust and confidence.
[264] Considering the circumstances overall, the dismissal was not unfair but summary dismissal was. The dismissal is harsh on that ground, but that ground only.
Remedy
[265] I now turn to the question of remedy.
[266] Remedies available to the Commission under section 390 of the FW Act are reinstatement (in the same or other position) or (but only if reinstatement is inappropriate) compensation (within statutory limits).
[267] Whether to order a remedy is a discretionary matter.
[268] I consider it appropriate to order a remedy but only on the terms outlined below.
Reinstatement
[269] Mr Liakimis seeks reinstatement. He says that if re-instated he would abide by all rules.
[270] I have concluded that the misconduct was not a singular act, was not inadvertent, was serious and resulted in an objectively found loss of trust and confidence in Mr Liakimis as an employee particularly having regard to his duties as a uniformed security officer. I have also found that Mr Liakimis lacked insight into the nature of his misconduct and the implications that it held for disciplinary response. I have found that his remorse was qualified.
[271] I have also concluded that the dismissal was not unfair; simply that one of the terms under which dismissal occurred (its summary nature) made it harsh.
[272] In these circumstances, it would be inappropriate to order that Mr Liakimis be reinstated to his former position or to an alternate position. No alternate position was advanced.
[273] I conclude that reinstatement is inappropriate.
Compensation
[274] I turn to the issue of compensation. Section 392 of the FW Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[275] I now consider each of the criteria in section 392 of the FW Act.
Viability: section 392(2)(a)
[276] There is no evidence before me to suggest that a compensation order will adversely affect the viability of Sky City.
Length of service: section (section 392(2)(b))
[277] Mr Liakimis had a considerable 27 years of service. That notwithstanding, I have found that his length of service, though not entirely neutral, cuts both ways. For those reasons and in circumstances where his dismissal was not unfair (except for its summary nature), I do not consider it appropriate to order compensation in more than the amount that would have been payable had Mr Liakimis been dismissed on notice.
[278] Had the dismissal been unfair on broader grounds, different considerations would apply. As acknowledged by both counsel in closing submissions, his length of service would have lent itself to a conclusion that, had he not been dismissed, Mr Liakimis would have, in all probability, worked for a substantial future period – all things being equal. However, that is not the basis on which I have found unfairness or consider it appropriate to assess compensation in this matter.
Remuneration that would have been received: section 392(2)(c)
[279] Having regard to his age and years of service, the period of notice required by the industrial instrument that governed Mr Liakimis’s employment would have required five weeks’ notice or payment in lieu. 95 In the circumstances, I consider that to have been a reasonable period of notice prior to dismissal. He would have been remunerated for that period.
Mitigating efforts: section 392(2)(d)
[280] Mr Liakimis did not move swiftly to find alternate work. He chose, for more than six weeks, to take no action to find work believing, unwisely, that the Casino would have second thoughts and offer him back his job.
[281] The absence of mitigation in this period would ordinarily warrant discount of a compensation order. However as the amount of compensation I consider fair to equate to the amount of notice that would have been payable, and as that amount would have been payable irrespective of post-employment mitigation, in this matter I do not consider it appropriate to discount the compensation order on this account. To do so would render an appropriate amount of compensation less than an appropriate sum.
Remuneration earned: section 392(2)(e)
[282] Mr Liakimis earned no income in the compensation period as he was not seeking work nor did he obtain work.
Income likely to be earned: section 392(2)(f)
[283] The period for which I will order compensation (five weeks) does not extend to a period of projected future work. I will make no deduction on this account.
Other matters: section 392(2)(g)
[284] There are no other matters or contingencies that need to be provided for.
Misconduct: section 392(3)
[285] I have found that Mr Liakimis materially contributed to the dismissal by misconduct that lacked insight into his obligations to abide by Casino rules.
[286] This factor would ordinarily warrant some discount of a compensation order. However, as with my consideration of mitigation issues, as the amount of compensation I consider fair equates to the amount of notice that would have been payable, I do not consider it appropriate to discount the compensation order on this account. To do so would render an appropriate amount of compensation less than an appropriate sum.
Shock, Distress: section 392(4)
[287] Mr Liakimis was shocked by his dismissal. That shock, whilst real, was evidence of a lack of insight into the misalignment of his conduct with his obligations as an employee.
[288] Compensation allowable by the FW Act does not include a component for hurt feelings. The compensation order will make no provision for such matters.
Compensation cap: section 392(5)
[289] The amount of compensation I will order does not exceed the six-month compensation cap.
Conclusion on compensation
[290] I consider it appropriate in all the circumstances to make a compensation order. The compensation amount I consider appropriate is an amount equivalent to five weeks pay plus superannuation. I consider a compensation order in that sum to be reasonable as it reflects the basis, no more and no less, on which I have found the dismissal to be harsh.
Conclusion
[291] I find that Mr Petros Liakimis, a person protected from unfair dismissal, was dismissed by Sky City Adelaide Pty Ltd trading as Adelaide Casino on 19 November 2020 and that his dismissal was harsh on the ground that he was dismissed summarily (without notice).
[292] The amount of compensation payable by Sky City under section 392 of the FW Act will be five weeks’ pay (plus superannuation) at the ordinary gross weekly rate of pay applicable to Mr Liakimis at the date of dismissal.
[293] On the materials before me 96 this equates to $5,972.40 (gross) plus 9.5% superannuation ($567.40).
[294] In conjunction with the publication of this decision I order 97 this amount be paid within fourteen (14) days of the date of this decision (by close of business 22 April 2021).
DEPUTY PRESIDENT
Appearances:
Mr P Dean, with permission, and Ms M McCarthy, for Mr Petros Liakimis
Ms K Stewart and Ms D McLachan, with permission, for Sky City Adelaide Pty Ltd T/A Adelaide Casino
Hearing details:
2021
Adelaide (with video connection to Queensland)
15, 16 and 22 March
Final written submissions:
23 March 2021 - Agreed Fact concerning R9 received from Respondent
Printed by authority of the Commonwealth Government Printer
<PR728085>
1 Email ‘Chambers – Anderson DP’ 12 February 2021 10.44am
2 Mr Liakimis appeared by video conference from Queensland
3 R8 and R9 - Directions (transcript) 15 March 2021
4 Agreed fact read into transcript 22 March 2021
5 Briginshaw v Briginshaw (1938) 60 CLR 336
6 (1959) 101 CLR 298
7 Tamayo v Alsco Linen Service Pty Ltd (1997) Print P1859 as cited in Hyde v Serco Australia Pty Limited[2018] FWCFB 3989 at [102]
8 FR6 (unsigned); R13 (signed)
9 Subramaniam v Public Prosecutor [1956] 1 WLR 955 at 970
10 R10 paragraph 26
11 Sky City Adelaide Casino United Voice Enterprise Agreement 2017
12 PL1
13 PL2 and PL3
14 A1 paragraphs 20 to 38
15 PL4
16 FR2
17 FR2 page 12
18 FR2 page 13
19 FR2 page 22
20 R2
21 Mr Timmerman’s evidence was this occurred on 28 October 2020; Mr Liakimis’s evidence was it occurred on 23 October 2020
22 MH1
23 PL5
24 Pl5 and MH1
25 FR3
26 R11
27 FR4
28 FR4 page 2
29 FR5
30 A1 paragraphs 119 to 120; audio transcript 15.03.2021 12.15pm; 12.17pm
31 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
32 ibid
33 ibid
34 except where the Small Business Fair Dismissal Code applies
35 King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]
36 Edwards v Guidice (1999) 94 FCR 561 [6] to [7]
37 R14 paragraph 9
38 R10 paragraph 17.1 and 19.1
39 FR3 page 1
40 R11 pages 1 and 2
41 A1 paragraphs 59 to 61
42 A1 paragraph 7
43 Audio transcript 22.03.2021 1.27pm
44 Audio transcript 16.03.2021 3.33pm
45 R6 paragraph 12; R16 paragraph 8
46 R15 paragraph 10; A2 paragraphs 18 to 19
47 R14 paragraph 5
48 A1 paragraphs 62 to 67
49 R4
50 A1 paragraph 93
51 R2 paragraphs 2, 3 and 4
52 Audio transcript 15.03.2021 10.33am
53 A1 paragraph 76; A2 paragraph 16
54 See for example the evidence of Mr Healey audio transcript 22.03.2021 11.17am; 11.55am
55 A2 paragraph 16; Audio transcript 15.03.2021 11.10am
56 Audio transcript 15.03.2021 11.14am
57 A1 paragraph 90
58 Audio transcript 13.03.2021 11.25am
59 Audio transcript 13.03.2021 11.26am
60 A1 paragraphs 85 to 94
61 Audio transcript 15.03.2021 3.02pm
62 Audio transcript 15.03.2021 3.01pm; 3.05pm
63 For example, A2 paragraph 19; audio transcript 15.03.2021 10.49am, 11.20am; 11.22am
64 Audio transcript 13.03.2021 10.49am, 11.07am and 11.05am: “No-one mentioned anything. If I was doing something wrong I would have expected someone to say something to me…No-one ever mentioned to me at any stage that I was doing the wrong thing and I should not do it.”
65 Audio transcript 16.03.2021 10.33am
66 FR4 page 2
67 R11 page 4
68 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
69 Audio transcript 15.03.2021 10.49pm to 10.50pm
70 R11 pages 1 and 2
71 R11 page 3
72 R11 page 5
73 R11 page 3; FR3 page 2
74 Audio transcript 13.03.2021 11.03am
75 Audio transcript 13.03.2021 10.51am
76 Audio transcript 13.03.2021 11.02am
77 Audio transcript 13.03.2021 11.02am
78 Audio transcript 13.03.2021 11.03am
79 Audio transcript 13.03.2021 11.02am
80 Audio transcript 13.03.2021 11.02am
81 Audio transcript 13.03.2021 12.15pm; 12.26pm
82 Audio transcript 13.03.2021 11.25am
83 For example, Dawson v Qantas Airways Limited[2017] FWCFB 1712 at [48]
84 Jones v Brite Services[2013] FWC 4280 at [24]
85 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]
86 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
87 [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
88 [2013] FWCFB 6191
89 [2011] FWAFB 7498 at 20
90 [2018] FWCFB 1679 at 55
91 Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033 at [34]
92 Johnson v Northwest Supermarkets Pty Ltd[2017] FWCFB 4453 at [5]
93 Rankin v Marine Power InternationalPtyLtd (2001) 107 IR 117; Pastrycooks Employees, Biscuit Makers Employee & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) 35 IR at 70 and Laws v London Chronicle (Indicator Newspapers) Limited 1 WLR [1959] at 698 as cited in Trudi Puszka v Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited [2019] FWC 1132 at [41] – [45]
94 Sky City Adelaide Casino United Voice Union Enterprise Agreement 2017 clause 25.3.5(a)
95 Sky City Adelaide Casino United Voice Union Enterprise Agreement 2017 clause 25.3
96 PL7 Payslip 19/10/2020 to 1/11/2020: fortnightly wage $2,388.96 and $226.95 superannuation
97 PR728086
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