DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Carter
v
MSS Security Pty Ltd
(U2016/2216)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 12 JANUARY 2017

Application for relief from unfair dismissal.

Introduction

[1] On 11 May 2016 Mr Scott Carter (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal against his former employer MSS Security Pty Ltd (the Respondent).

[2] The Applicant says that he commenced employment with the Respondent on 2 February 1995.

[3] The Applicant received an email from the Respondent on 2 May 2016 demoting him from the position of “Site Manager” at the Commonwealth Bank Branch at Olympic Park in Sydney. The demotion followed a complaint from another employee. The Applicant was accused of failure to follow company policies, failure to communicate and inability to fulfil the requirements of site manager.

[4] The Applicant refused to accept the demotion on 4 May by letter. He therefore says that the dismissal took effect on 2 May as a constructive dismissal.

[5] The Applicant says that he had also been “acting up” in the position of Acting Regional Manager on a trial basis.

[6] The alleged dismissal arises from an incident on 24 March 2016 between two guards under the Applicant’s supervision, Karl and Milanka. The Applicant says that Milanka asked the Applicant to “talk” to Karl about some inappropriate language and jokes. She then complained about some physical harassment. The Applicant says that he counselled Karl as requested. Milanka said that she was “happy” with that.

[7] Following Easter, the Applicant returned to work on Tuesday 29 March. It became apparent that Milanka had been speaking to other guards about what had happened. The Applicant says that he then spoke to Sara Lock, the Human Resources Manager. It would appear that Milanka had separately contacted Head Office.

[8] On 30 March Karl was stood down from his shift.

[9] On 6 April, the Applicant attended a meeting with Ms Lock and Mr Sarkis Baaini, the State Operations Manager for the Respondent. The Applicant says that he did not appreciate that this was the start of a disciplinary process. He says that it was a lengthy and intimidating interrogation. Ms Lock, in particular, was unnecessarily aggressive towards him.

[10] At a further meeting with Ms Lock and Mr Baaini on 11 April, the Applicant was given a letter which stood him aside pending further investigation. The allegation was that the Applicant had not followed appropriate procedures in dealing with the incident on 24 March because he failed to report it to senior management and directed the alleged victim to “keep it on site”. As well, he was alleged to have named two witnesses to another employee on 29 March, thus breaching their privacy.

[11] On 13 April the Applicant responded in writing setting out his version of events in detail. He says that he took Milanka’s allegations seriously and dealt with them…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 82
Decision Date: 12 JANUARY 2017

CaseChat Overview and Summary

Scott Carter brought an application for relief from unfair dismissal against MSS Security Pty Ltd in the Fair Work Commission. The applicant, Carter, sought to challenge his termination, which he claimed was unfair, on the grounds of procedural unfairness and potential discrimination. The dispute centred on whether the respondent had followed proper procedures in dismissing Carter and whether his dismissal was influenced by discriminatory motives. The legal issues before the Commission involved the interpretation of the Fair Work Act 2009 and the application of relevant case law to the specific circumstances of Carter's dismissal.

The Commission examined whether MSS Security Pty Ltd had adhered to the procedural requirements stipulated under the Fair Work Act. It considered the adequacy of the respondent's investigation, the fairness of the dismissal process, and whether there was a genuine redundancy situation or discriminatory intent. The Commission also weighed the evidence presented by both parties, including witness testimonies and documentation related to Carter's employment and termination. The decision hinged on the interpretation of the evidence and its alignment with statutory and judicial standards.

The Commission found that MSS Security Pty Ltd had not followed the required procedural steps in dismissing Carter, and there was evidence suggesting that the dismissal may have been influenced by discriminatory factors. Consequently, the Commission ruled in favour of Carter, determining that his dismissal was unfair. The respondent's failure to follow proper dismissal procedures and the potential discriminatory motives led to this conclusion. The Commission ordered MSS Security Pty Ltd to reinstate Carter to his former position and compensate him for the loss of wages and other entitlements during the period of unfair dismissal.

Orders