Shane McGrath v Transfield Services Pty Ltd

[2013] FWC 8455

[2013] FWC 8455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane McGrath
v
Transfield Services Pty Ltd
(U2013/6447)

COMMISSIONER BULL SYDNEY, 1 NOVEMBER 2013

Application for unfair dismissal, ex-tempore decision, application dismissed.

[1] This is a decision given extemporaneously on transcript following a hearing in Newcastle on 22 October 2013.

[2] The matter was attempted to be conciliated but has remained unresolved.

Representation

[3] Mr Shane McGrath (the Applicant) was represented by Ms Baker a solicitor. Ms Baker sought permission to appear on behalf of the Applicant pursuant to s.596 of the Fair Work Act 2009 (the Act) and submitted that the Applicant was illiterate and unable to represent himself. Transfield Services Pty Ltd (the Respondent) was represented by its Executive Manager Industrial Relations, Mr Daniel Dal Bon, although not a lawyer or an experienced advocate did not oppose the Applicant’s representative appearing on his behalf. As such, permission was granted for Ms Baker to appear.

[4] The Applicant gave evidence himself but called no other witnesses and for the Respondent Mr Dean Burrows, Employee Relations Advisor, gave evidence. No other evidence was called by the Respondent.

Background

[5] The Applicant was originally employed by the Respondent in March of 2009 as a cleaner and on 24 January 2013, his employment was terminated. The reasons for the Applicant’s termination were provided in writing.

[6] The Applicant was paid three weeks pay in lieu of notice.

[7] The letter of termination dated 24 January 2013 states, amongst other things, that it is necessary to meet the mandatory Security-Clearance requirements for all individual employees working on the Company's NSW schools, TAFE and Whole of Government Facilities Services Contract.

[8] The letter goes on to say:

“Given the circumstances outlined above, and after full consideration of the responses you provided to the Company in today's meeting, the Company has concluded that you are not able to meet the mandatory prerequisite of having a security clearance for working on New South Wales School or Agency Sites that the employment contract must end.

...

Should you in the future obtain the necessary authorisations for employment on the Company's contract sites, then I encourage you to make application for a suitable position within the Company.”

[9] On 27 November 2012, the Respondent received confirmation from New South Wales Public Works Facilities Management (the Department) that the Applicant was not permitted access to any NSW schools or agency contract sites at this time.

Security clearance

[10] The events surrounding the revocation of the Applicant’s security clearance by the Department are as follow.

[11] In October 2012, a sexual-harassment complaint against the Applicant was made by a fellow female cleaner who worked part-time. After undertaking an investigation in respect to the allegations made, which resulted in a final written warning being given to the Applicant, the Respondent became aware of the possibility of criminal convictions against the Applicant having occurred during his employment with the Respondent.

[12] The Respondent has a contract with the New South Wales Public Works Facilities Management (the Department), to provide cleaning to government facilities. These facilities appear to be exclusively government schools.

[13] In Mr Burrows witness statement 1, (who gave evidence on behalf of the Respondent), was an extract of the Respondent's contract with the Department and the relevant clause of that contract is found at 5.7 - Employment Screening for Cleaning Personnel.

[14] The Department in the contract is referred to as "the Principal" and particularly at 5.7.1 the contract states that the Contractor must forward to the Principal a listing of employees/Subcontractors to be screened with a Working With Children and Criminal Records Checks forms signed by the Contractor. It goes on to say:

“The Principal may, without being required to give any reason, direct the Contractor not to engage a particular employee/Subcontractor at a Facility and the Contractor must comply with such direction.

If any person engaged as an employee/Subcontractor by the Contractor is in the opinion of the Principal, guilty of misconduct or in the vicinity of the Site or otherwise is, in the opinion of the Principal, unsuitable to be engaged as an employee/Subcontractor, the Principal may direct the Contractor to no longer engage such person as an employee/Subcontractor and the Contractor must comply with such direction.”

[15] There appears also to be an enterprise agreement covering the work of cleaners, and in particular, the Applicant, in government facilities. That enterprise agreement was referred to by the Applicant. The enterprise agreement is known as the ‘NSW Government Cleaning Contractors Multiple-Enterprise Agreement 2012-2016’ 2 (the Agreement) and there is no dispute that it applies to a number of employers, including the Respondent in this matter. Subclause 2.1 of the Agreement states:

“This Agreement applies to all Employees of the Employer listed at clause 3.3 who work on sites engaged in cleaning services work under the New South Wales Whole of Government Facilities Management Services (Asset Maintenance and Cleaning) 2011-2016 contract or its successors.”

[16] At clause 14 is found a term titled ‘Working with Children and Criminal Records Check’ and 14.1 states:

“All people working in, or seeking to work in, child-related employment must declare whether they are a prohibited person. This includes Employees or prospective Employees.”

[17] Sub clause 14.6 of the Agreement goes on to describe who a prohibited person is, and, finally states:

“Any employee who, at any time, is deemed ineligible to work with children by the governing body, who becomes a prohibited person, will have their employment terminated immediately, without notice. Such a termination will be considered a frustration of the contract of employment and will not be considered a termination at the initiative of the Employer.”

[18] On 26 October 2012, as a result of the possible criminal convictions of the Applicant occurring since his initial employment with the Respondent, the Respondent requested the Applicant to complete a further working-with-children declaration which they would then forward to the Department for their assessment and response.

[19] The Applicant stated in his evidence that he initially refused to complete such a declaration on the basis that he had already completed such a declaration on commencement of employment and that no other employees had been asked to do so. He stated that he only consented to such a request after being told by Mr Burrows that if he did not complete the declaration, then he would be sacked.

[20] In Mr Burrows' evidence he denied any threat of termination was made by himself.

[21] On 1 November 2012, a letter was written to the Applicant which stated again, amongst other things:

“As a consequence of recent discussions with you on 26 October 2012 about your onsite performance and conduct, in which you disclosed personal information relating to a criminal conviction recorded against you post-employment; the Company has found just cause in requesting that you consent to undergo a Security-Clearance Review, as is necessary to meet the mandatory requirements for Security Clearance of all individual employees working in New South Wales Schools, TAFE and Whole of Government Facilities Services Contract.”

[22] The letter goes on to state:

“As you are aware, ongoing maintenance of your security clearance is an express requirement of your contract of employment with the Company as per the following extract.”

[23] The extract reads as follows:

“Security Clearance: This employment offer is subject to a satisfactory security clearance. It is a requirement of your employment that this security clearance is obtained and continues to be maintained. Should your clearance not be obtained and maintained satisfactorily, your employment will be terminated.”

[24] The letter, finally, goes on to say:

“Your failure to comply with this request and obtain a satisfactory Security Clearance will mean that you will not be permitted to return to the workplace and should this situation be ongoing, then the Company will be left with little alternative other than to review your ongoing employment which may include termination.”

[25] I note that the reference to "Security Clearance" in the employment contract was only found in the Applicant’s initial employment contract and a subsequent contract excluded reference in a direct sense to a Security Clearance. However, it made reference to requirements to meet obligations under the contract that the Respondent had with the Department.

[26] The Applicant in his evidence confirmed that he completed the declaration, as requested, although under duress on 5 November 2012.

[27] On 27 November 2012, an email was received from the Manager, Facilities Management of the Department of Public Works which again stated, amongst other things, (addressed to a Ms Daniella Masalkovski for the Respondent):

“Based on the outcome of the risk assessment initiated by you and the applicant in conjunction with the details that you have supplied New South Wales Public Works Facilities Management the applicant is not permitted to access any sites under this contract at this time. We encourage you to discuss this outcome with the applicant. If you or the applicant believe there are additional circumstances to be considered, you may seek a review of this assessment.”

[28] The email went on to advise where any additional information might be sent to. Following that advice from the Department, the Respondent then wrote to the Applicant and advised that as a consequence of his inability to satisfy the Security-Clearance requirements for working on the Company's contract sites and the effect that such a restriction placed on his capacity to work and there being not being other suitable alternate employment available, he was informed that effectively he would be stood down without pay in accordance with sub clause 13.1.5 of the Agreement, which I have referred to previously.

[29] The letter went on to advise that if the Applicant believed there were additional circumstances to be considered by the Department in relation to their determination about his Security-Clearance status, then he should request a review of their assessment detailing any additional information that may assist in the review.

[30] The details of who that correspondence should be addressed to was contained in the correspondence and the letter concluded that subject to the Company not receiving confirmation from the Department prior to 22 January 2013 of the Applicant’s authorisation to access the Company's contract sites, then the Company would be left with little alternative other than to review his ongoing employment, including termination.

[31] The Applicant in his evidence advised that on 17 December 2012, he contacted the Department in writing and had a further telephone conversation where he requested detailed reasons as to why his Security Clearance was revoked and requested a review.

[32] The Applicant submits that since being released from gaol in 2007, after serving a period of five years, he has not been convicted of any offence which in any way would make him a prohibited person, as is defined under section 14.1 of the Agreement.

[33] The Applicant says that after writing to the Department on 17 December 2012, the only response he received was a letter dated 19 December 2012 which states it is sent from a Mr Antony Constantinides, Manager - Facilities Management Unit, New South Wales Public Works Department, where he states to the Applicant, "We are in receipt of your letter of 17 December 2012 requesting further information, we have the following outcomes provided by the NSW Police Force and summarised as follows," and listed beneath is at least 24 court appearances between the dates of 1989 and 2011.

[34] The Applicant in his evidence advised that the three court appearances resulting in the appearance on this document since his employment with the Respondent were convictions for assault but not related to any child offence in any way, the last one being 20 October 2011.

[35] The letter goes on to say, "In the event these court appearances and their outcomes do not relate to you, please contact me." The Applicant did not contest the veracity of the documents sent to him from the Department of Public Works dated 19 December 2012.

[36] The Applicant subsequently advised the Respondent that he had spoken to the Department who had told him that while he was not permitted to work at schools or TAFE's, he could work on other sites under the Respondent’s contract. As a result of that advice, the Respondent sought to confirm that as a fact, confirming whether there had been some change of status from that advised in the email of 27 November 2012, by the Manager - Facilities Management.

[37] On 9 January 2013, an email was sent by the Respondent to the Department requesting confirmation of the details of the Security-Clearance revocation and on the same day a response was received sent by a Ms Yvette Windle who describes herself as an Authorised Person at the Facilities Management Unit, NSW Public Works, being a division of the Department of Finance and Services. Her email states to a Mr Dean Burrows who gave evidence in the case:

“I have again checked our records and they confirm that Mr. McGrath is unable to work under the Government Contract at this time.

A letter was sent from the NSW Public Works to Mr McGrath (registered post) on 19/12/212 outlining the reasons he has been refused clearance. As far as I am aware, there as (sic) been no further correspondence from the applicant.

Antony Constantinides is out of the office today so I will follow up with him tomorrow to confirm this decision.”

[38] Then on 15 January 2013, a further email was sent to Mr Dean Burrows of the Respondent from the Department’s, Mr Antony Constantinides, Manager - Facilities Management, whose email states:

“I suggested to Shane given that you have accepted him as a suitable employee that he discuss with you the opportunities for working at Transfield in other portfolio’s.

I suggested that Shane undertake his own record enquiries if he felt our records did not reflect his alleged history and then write to us for a review.

At this point in time I have no evidence before us that requires a further review of his current status.”

[39] On 22 January 2013, Mr Burrows in his evidence stated that he rang the Applicant and asked if he had been successful in obtaining authorisation to access the Company's contract sites. The Applicant advised him that he had not been successful. He was then advised in accordance with the Company's letter of 10 December 2012, that they would need to commence a review about his suitability for ongoing employment and if he could attend a meeting on 24 January 2013, at which he could bring along a support person.

[40] On 24 January 2013, that meeting was conducted.

[41] The Applicant did not bring a support person. It was explained to him by Mr Burrows that as he still had no authorisation to work on the contract sites and as the Respondent had no further alternate employment opportunities available, he was proposing to terminate his employment. The Applicant was asked for reasons as to why that should not occur but was unable to provide any satisfactory reasons. As such, the Applicant was terminated on 24 January 2013.

[42] The Applicant, in his submissions, argues that he has not failed to satisfy a Security Clearance as per clause 14.1 of the Agreement. The difficulty with this argument is that, based on the employer's submissions and evidence, they did not rely upon section 14.1 of the Agreement for termination of his employment. At no stage did the Respondent or the Department allege that the Applicant was a prohibited person as per 14.3 of the Agreement.

[43] Clause 14.3 of the Agreement describes a prohibited person as someone who has been convicted of:

● a serious sex offence;
● a child-related personal violence offence;
● murder of a child;
● indecency offences punishable by imprisonment of 12 months or more;
● kidnapping (unless the offender is or has been the child's parent or carer);
● offences connected with child prostitution;
● possession, distribution or publication of child pornography; or
● attempted conspiracy or incitement to commit the above offences.

[44] As stated, the Respondent does not rely upon clause 14 to facilitate the termination of the Applicant in this case, even though I do note, which I have referred to earlier, clause 14.6 states: “Any employee who, at any time, is deemed ineligible to work with children by the governing body, or who becomes a prohibited person, will have their employment terminated immediately”, thus there is no necessity to rely on the Applicant being a prohibited person as defined by sub clause 14.3 of the Agreement.

[45] The Applicant argues at sub clause 2.7 of their written submissions that in the absence of any document to the contrary the Department did not fail to clear the Applicant for work at the respective contract sites. This appears completely contrary to the email received by the Respondent on 27 November 2012. Further, this is also contrary to the Department’s clarification on 9 January and 15 January 2013, to the Respondent and contrary to the advice that the Applicant himself received on 19 December 2012, giving the reasons for the revocation of his Security Clearance as a result of his request for those reasons.

[46] It appears that the record of court appearances does not contain the actual offences. Whether that has been whited out or otherwise, I am unclear, but the Applicant himself says, which I accept, that none of those offences have anything to do with child-related convictions, but he does obviously acknowledge that there were three convictions that occurred since his employment with the Respondent.

[47] On that basis it is not abundantly clear to me without further investigation as to what it is that the Department have relied upon to find that the Applicant is unsuitable to be given the necessary Security Clearance to enable him to perform his duties, other than the fact that there were three offences that have occurred since his employment with the Respondent which obviously means he had been working at the Respondent’s sites while those offences have occurred.

[48] I can only go on the advice received from the Department and the email which referred to a risk assessment being undertaken by the Department. It would appear to me that at least one could imply that the three more recent assault convictions have influenced the Department to consider that the Applicant is no longer a suitable person to work at their facilities.

[49] Be that as it may, it is not a decision or determination made by the Respondent the subject of this application. The Applicant clearly has been deemed to be unsuitable to be given a Security Clearance by the Department which is their right under the contract with the Respondent. They have clearly found reasons to justify that conclusion which appears to be related to the offences that the Applicant has committed since his employment with the Respondent.

Conclusion

[50] Under the provisions of the Act I am required to have regard to a number of factors, as s.387 states, in determining whether a dismissal has been harsh, unjust or unfair.

[51] Having had regard to the circumstances I have previously outlined, I find that there was a valid reason for the dismissal, that being that the Applicant was unable to perform the inherent requirements of his position, that is, to clean New South Wales government schools.

[52] As referred to by the Respondent in the matter of Lampton v Ferdy's Haven Alcohol Rehabilitation Aboriginal Corporation T/A Ferdy's Haven 3 where the Senior Deputy President on 28 March 2013, found that an applicant was disqualified from further employment due to certain criminal convictions, I too find that the Applicant has become disqualified from further employment due to the status of his Security Clearance that has been revoked by the Department.

[53] The Applicant submitted that it would be reasonable for him to have been kept on for a further 12 months on pay while another job or alternate position was sought. I do not find that to be a reasonable proposition, nor do I find any authority for any obligation on an employer to undertake such an exercise. There was no cross-examination of Mr Burrows on whether another job could be found.

[54] I accept the evidence of Mr Burrows, which was not contested, that no alternate suitable position was available, leading only to the conclusion that the employment must come to an end. The Respondent’s contract with the Department is one that involved government schools and not schools in the private sector.

[55] The Applicant submitted that there was a degree of procedural unfairness. I do not find that to be the case. The Applicant was at all times notified of the reasons for his dismissal and, indeed, took his own action, albeit unsuccessful, by contacting the Department to overturn those reasons. At all times a support person was allowed to be present during the relevant discussions, but the Applicant declined that opportunity, which is his right.

[56] There is no question of any unsatisfactory performance by the Applicant with the Respondent. The issue relating to a sexual-harassment complaint and final written warning was not a consideration in the termination, although, as I have described earlier, it was indirectly a catalyst to the termination occurring.

[57] The Respondent has stated that it would offer the Applicant further employment if such employment was available and if his Security Clearance status with the Department was restored. That has not occurred to this point in time.

[58] The size of the employer or its human resources management expertise are issues I am required to consider but I do not consider those elements relevant to this dismissal.

[59] In having found that a valid reason for the termination exists and that no other factor has made the dismissal, harsh, unjust or unreasonable, the application is dismissed.

COMMISSIONER

Appearances:

Ms Laura Baker, Solicitor for the Applicant.

Mr Daniel Dal Bon, Executive Manager Industrial Relations for the Respondent.

Hearing details:

2013.

Newcastle:

22 October.

 1   Exhibit R1, witness statement of Mr Dean Burrows at DB9.

 2   AE897916

 3   [2013] FWC 1769

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