Piotr Marciniak v Security Protection Services Pty Ltd T/A Security Protection Services
[2010] FWA 144
•13 JANUARY 2010
[2010] FWA 144 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Security Protection Services Pty Ltd T/A Security Protection Services
(U2009/11592)
DEPUTY PRESIDENT LEARY | HOBART, 13 JANUARY 2010 |
Termination of Employment
[1] This is an application by Piotr Marciniak (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his termination of employment by Security Protection Services (the respondent) was unfair.
Procedural matters:
[2] Directions were issued by Fair Work Australia seeking the parties provide written submissions and any witness statements.
[3] The matter was listed for hearing in Hobart on 10 December, 2009. That matter was cancelled as it coincided with dates set by the Federal Magistrate for the hearing of claims by the applicant, and others, alleging underpayment of wages by the respondent, which are being prosecuted by the Fair Work Ombudsman.
[4] The matter was relisted for hearing in Hobart on 8 January, 2010.
[5] The respondent provided the following information by email dated 4 January, 2010:
“I would like to inform you, that I have been advised that the company has ceased trading and is appointing a receiver/manager effective December 22nd.”
[6] The matter was again cancelled as s.440D of the Corporations Act requires that:
“Stay of proceedings
(1) During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:
(a) with the administrator's written consent; or
(b) with the leave of the Court and in accordance with such terms (if any) as the Court imposes.
(2) Subsection (1) does not apply to:
(a) a criminal proceeding; or
(b) a prescribed proceeding.”
[7] The named Receiver advised that the respondent was seeking voluntary liquidation and at the time was still an operating company as no action had been taken to place it into liquidation although it had apparently ceased trading.
[8] On 8 January, 2010, FWA was advised by the named Receiver:
“Neil and Cindy Ruut have been consulting XXXXX XXXX an independent insolvency practitioner, regarding putting the company into liquidation. The company is not in liquidation as yet but we do expect things to progress next week. Therefore the company could well be in liquidation within the week.”
[9] The applicant sought the matter be relisted and it was set down for hearing on Monday 11 January, 2010.
[10] The respondent advised by email dated 8 January, 2010 that:
“I am unable to assist with this notice. Please serve the company directly. I am no longer associated with the company, you will need to forward it directly to the company and the director, which I am not prepared to do on behalf of the commission or the applicant or notify the company of its receipt.”
[11] And further:
“For clarification, you will need to serve the companies registered office, the fax number you have on file is my personal fax and I will not be notifying the company in relation to any correspondence as a non related party.”
[12] The notice of listing was served on the respondent at the Company’s registered office address, as found in the Australian Securities and Investment Commission (ASIC) register, and signed for on behalf of the respondent at that address.
[13] I am satisfied that the notice of listing was properly served on the respondent.
[14] Nonetheless I note that the Form F3 named Mr Ruut, in the Respondent (Employer) Details section, as the contact person in respect to the application and the contact information, namely fax, phone, mobile and email, were the contacts used by FWA to advise of the process of the application. At no time did Mr Ruut advise he was not the ‘contact’ person or that he “was not associated with the company”.
[15] At the hearing on 11 January, Mr Ruut appeared as the advocate and announced he was representing the respondent.
The termination:
[16] The applicant said that he was terminated by the respondent for allegedly watching TV whilst on duty as a security guard on Saturday 15 August, 2009. He denied the allegation. The termination was effected by letter handed to the applicant at the completion of his shift on Sunday 16 August, 2009.
[17] The applicant completed his shift on Saturday 15 August and worked his rostered shift on Sunday 16 August. On the Sunday the respondent provided a roster for the following week which provided work for one day only with the comment that “No shifts past Monday can be confirmed due to operational issues at this time. Updated rosters will be issued Monday morning.” The applicant was not rostered to work Monday 17 August.
[18] The applicant said he queried the roster change and confirmed with the respondent that he was not required for the one day rostered shift on Monday 17 August, 2009.
[19] The respondent provides security services to Incat Tasmania Pty Limited.
[20] The employees are party to a collective agreement titled the SPT Australian Workplace Agreement (the Agreement) which the respondent said was approved by the Workplace Authority on 24 December, 2007.
[21] The Agreement provides that employees will “…be required to meet organisation standards on all occasions. This may include organisation standards regarding job performance, customer service standards, appearance and grooming, emergency procedures, anti-discrimination, occupational health and safety, prohibition of alcohol or illegal drug consumption and a smoke free workplace.”
[22] The respondent’s Business Operations & Policy Manual provides:
“Watching TV on Duty:
Security officers are forbidden at all times to have on site, TV sets. The use of TV sets on duty compromises our client’s security through in attentiveness on the part of the security officer.
Watching TV while on duty will result in immediate dismissal without notice.”
[23] The applicant said that on 10 August, 2009, he had signed an affidavit and made a statement to the Ombudsman in respect to claims alleging underpayment of entitlements by the respondent. It is unclear as to the relevance of the statement as the applicant did not appear to argue that he was being victimised.
[24] The applicant submitted that he was working with a casual security guard who had a personal TV and was watching an AFL game on Saturday 15 August, 2009, the applicant said he was not watching the TV and the other employee supported his claim and provided a statement saying that the applicant had not been watching the TV. The respondent came into the security office and accused both employees of watching TV whilst on duty, further the respondent claimed that the applicant and the other employee both admitted to so doing.
[25] The applicant denied that he was watching TV or that he admitted to doing so and the statement of the other employee supports his submission. The statement was unsworn and the author was not called to provide evidence. The respondent rejected the statement.
[26] The applicant did not deny that he had warned the other employee that the respondent was approaching and he (the applicant) placed the TV aerial in his own locker. The TV was not playing when Mr Ruut entered the security office.
[27] The submissions are contradictory and provided little assistance as to what in fact took place in the security office on the day in question however the submissions of the applicant are consistent and are supported, albeit by an unsworn statement. Both parties provided copious documentation, much of it the same documents, and the difference between them relates to whether the applicant was or was not watching TV in the security office on 15 August, 2009.
[28] As further support for his claim alleging unfair dismissal the applicant alleged that other employees had breached policy but had not been terminated. Without any evidence this claim cannot be accepted although the respondent did not absolutely deny the submission.
[29] In accord with the relevant provisions of the Act I address the following considerations:
[30] S.387 of the Act provides:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
S.387(a):
[31] The applicant said, and his submission was supported by the other guard on duty at the time, that he was not watching the TV although it was conceded that the casual guard was doing so, that person has not been offered any further work by the respondent. The respondent said in his written submission that “It is not possible to be within the confines of the security office and not participate with or not be aware of an employee who may be watching TV.”
[32] The security office is a small area and the applicant said he was not watching the TV; the fact that it was playing in the area does not indicate that the applicant was in fact watching it. Further there is some question as to whether the respondent actually saw the guards watching the TV as they say it was off when Mr Ruut arrived into the office and Mr Ruut acknowledged that the TV aerial was in the applicant’s locker which would support the guards’ version of the incident.
[33] There needs to be some element of intent for an employee to be terminated for misconduct and the fact that the TV was playing does not prove that the applicant was watching it and therefore breaching policy. I reject the submission of the respondent that the fact that the TV was on in the security office supported his claim that the applicant was watching it and therefore in breach of policy.
[34] I do not accept that to be “aware of an employee who may be watching TV” is a breach of policy, as was submitted by the respondent. In any case the termination was effected as it was alleged that the applicant was “observed watching TV”. The policy clearly states that an employee can be terminated immediately without notice for “watching TV.” The other guard was in breach as he had a personal TV set on the premises which is “forbidden”.
[35] The respondent claimed that the applicant had “admitted to a breach of procedures on 15 August”, this is denied by the applicant. And further the respondent claims that the applicant has “reaffirmed this breach in his subsequent application” for unfair dismissal and again in his application prepared for arbitration. I am unable to find any such concession by the applicant in any of the submissions provided by him.
[36] I am not satisfied that there was a valid reason for the termination of the applicant.
S.387(b)(c)(d) and (e):
[37] The applicant was advised of the reason for termination but was given little or no opportunity to respond to the allegations made by the respondent other than at the time of the incident. His responses were not accepted or, it seems, considered by the respondent. He finished his shift and worked a full shift the following day at the end of which he was informed he would not be working the next day (Monday).
[38] The Agreement requires in general terms that a roster will be provided “at least seven days prior to commencement of the roster” and that “unforseen circumstances” require 24 hours notice of a change of roster but such time can be waived “provided agreement is reached between the employer and the employee concerned.” The Agreement also provides that “The employer recognises the importance of ensuring that any changes to a roster are effectively communicated to employees.”
[39] The applicant did not make any reference to seeking the assistance of a support person but the process undertaken by the employer would have denied him that opportunity.
[40] The applicant is aware of and familiar with the policies of the respondent in respect to the bringing of a TV set onto the client’s premises however he challenges the consistency of the respondent’s application of the policy. No evidence was provided in respect to that issue.
S387(f)(g) and (h):
[41] The respondent is a small employer with some 8.84 Equivalent Fulltime employees. It is presumed that the respondent does not have a dedicated human resource specialist but reference was made to contact with a legal adviser.
[42] The workplace agreement provides a dispute settlement procedure which does not apply to “a matter relating to the actual or threatened termination of employment of the employee.” The termination provision talks only about summary dismissal for breach of policy.
[43] The relationship between the employee and Mr Ruut, as the employer, is toxic and they can barely speak civilly to each other despite the fact they have worked together over a period of some 12 years (although the actual period would appear to be disputed). A dedicated human resource specialist would not have assisted in the process, which took place over a weekend, and the relationship was doomed in any case.
[44] Mr Ruut is familiar with proceedings in industrial tribunals having defended a number of claims in the Tasmanian Industrial Commission (TIC) alleging underpayment of wages.
[45] Taking into account the relevant consideration of the legislation I am of the view that the dismissal was harsh, unjust, unreasonable and unfair and the process followed by the respondent lacked procedural fairness. I also take into account the submission of the applicant that he would have left the services of the employer in due course but presumably at a time of his own choosing.
[46] It is arguable that the applicant is entitled to notice of four weeks as prescribed in the Agreement. The alleged breach of policy, which I do not accept happened, prescribes that termination be “immediate”, this did not occur and the termination was eventually effected by letter dated 16 August, 2009, accordingly it is my view that the applicant is at least entitled to payment in lieu of notice in accord with the Agreement.
[47] I therefore determine that in settlement of this application the respondent be required to pay the applicant a payment equal to four weeks pay as compensation in lieu of reinstatement. Reinstatement was not sought, was opposed by the respondent and is impracticable as the respondent has ceased trading under the current name and the Director, Cindy Rutt, has advised by letter dated 10 January, 2010, that “all employees were terminated” effective 20 December, 2009, and that the company will “..on Wednesday 13 January, 2010, at 10.30am be placed into formal liquidation.”
[48] The respondent agreed to provide the applicant with a Certificate of Service and I would expect him to do so as soon as possible.
[49] An order reflecting the terms of this decision is attached.
DEPUTY PRESIDENT
Appearances:
Mr P Marciniak, applicant
Mr N Ruut, Respondent
Hearing details:
11 January 2010, Hobart
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