Troy Fenton v Divadeus Pty Ltd T/A Makesafe Security Solutions

[2013] FWC 5639

[2013] FWC 5639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Fenton
v
Divadeus Pty Ltd T/A Makesafe Security Solutions
(U2013/7903)

COMMISSIONER WILSON MELBOURNE, 23 AUGUST 2013

Application for relief from unfair dismissal.

[1] This matter is an application by Mr Troy Fenton (the Applicant) seeking a declaration that his termination of employment by Divadeus Pty Ltd trading as Makesafe Security Solutions (“Makesafe”) was harsh, unjust or unreasonable.

PRELIMINARY ISSUE

[2] For the reasons I set out below, I have found that Mr Fenton was dismissed from his employment on 26 February 2013. This is also the date on which his dismissal took effect.

[3] For the reason that my finding about the date on which the dismissal took effect is different to the date shown on the initiating Application for Unfair Dismissal Remedy and the Employer’s Response, it is necessary to consider whether an extension of time should be granted to the Applicant for the making of an application. Unfortunately, the question only arose after the hearing of evidence and submissions when I raised it with the parties.

[4] Mr Fenton’s application to the Fair Work Commission is date-stamped 26 March 2013. However, an application relating to a date of dismissal with effect of 26 February 2013 would ordinarily need to have been made no later than 19 March 2013.

[5] Mr David McNamara, owner and Managing Director of Makesafe sent Mr Fenton a letter dated 22 March 2013, 1 which said:

“[t]his letter is to give you notice that your employment with Makesafe Security Solutions was terminated with immediate effect on 5 March 2013.”

[6] The letter then went on to say that Makesafe;

“is terminating your employment because you have engaged in the following misconduct ...”

[7] The letter set out 3 particulars of the alleged misconduct, and indicated that a Separation Certificate was forwarded to Mr Fenton on 13 March 2013 immediately following a final payment to him. The Employment Separation Certificate is dated 13 March 2013 and refers to the “date employment ceased” as being 26 February 2013, and indicates the “reason for separation” was “misconduct as an employee”. 2

[8] Having identified that an extension of time may be required for this matter to continue, I contacted the parties to seek their views, firstly about whether they considered the question of an extension of time required consideration by me, and if so, to ascertain their views about whether an extension of time should be granted.

[9] Mr Dircks, the Applicant’s representative, while not explicitly agreeing that an extension of time required consideration by me, indicated he sought an extension of time under s.394 of the Fair Work Act 2009 (the Act) and provided short reasons for the request. He provided some limited additional material for consideration by me of this question, the provision of which was not objected to by the Respondent. Mr Dircks indicated he was prepared for the issue to be determined by me on the papers.

[10] Ms Brooks, solicitor for Makesafe, also did not explicitly agree that the question of an extension of time required determination; however she put forward submissions that an extension should not be granted. Makesafe also indicated it did not require a hearing on the subject.

[11] Because Mr Fenton’s dismissal took effect on 26 February 2013, and because s.394(2) of the Act requires an application for unfair dismissal to be made within 21 days after the dismissal took effect, I consider it necessary to consider and determine whether I should allow a further period for the making of an application by Mr Fenton.

[12] The capacity of the Fair Work Commission to extend the time for making an unfair dismissal application is set out within s.394 of the Act, which reads as follows;

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[13] Under the Act, the Commission may extend the time period for lodging an unfair dismissal application only if the Commission is satisfied there are exceptional circumstances for not lodging the application on time. The Full Bench has held that “exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare”. 3

[14] In my consideration I must have regard to the statutory criteria set out in s.394. I am required to consider all of the criteria, which I now do.

(a) the reason for the delay;

[15] I find the reason for the delay was Mr Fenton’s reliance on the communication from the employer which stated a termination date of 5 March 2013.

[16] I take into account that Mr Fenton had some expectation at 26 February (albeit a limited one) that Makesafe might be persuaded to reconsider its decision to dismiss 4. I also take into account that the Applicant communicated with Makesafe after the dismissal about the circumstances of his termination. Amongst other things, Makesafe’s Finance and Administration Manager suggested to Mr Fenton he may have resigned. On 5 March 2013, Mr Fenton put to that person he had not resigned and that he sought a “written confirmation, stating dismissal, as required by law”, which the Finance and Administration Manager agreed to provide (also on 5 March)5.

(b) whether the person first became aware of the dismissal after it had taken effect;

[17] For the reasons articulated by me below, I do not find that Mr Fenton became aware of the dismissal after it had taken effect. However, I do find that as at 5 March 2013 Mr Fenton was waiting for confirmation of the dismissal. Conflicting confirmation about the actual date of termination was subsequently received by Mr Fenton through two sources; the Employment Separation Certificate, which refers to a termination date of 26 February 2013, and the letter from Mr McNamara dated 22 March 2013, which refers to a termination “with immediate effect on 5 March 2013”.

(c) any action taken by the person to dispute the dismissal;

[18] The information provided by the Applicant in relation to the question of an extension of time (which consists of an email chain between the Applicant and the company’s Finance and Administration Manager) indicates that in the period between 28 February and 19 March Mr Fenton disputed the reasons the company had put forward for his dismissal and some of the other material the employer had provided after the dismissal. While Mr Fenton did not, in those emails, say that he was considering making an application for an unfair dismissal remedy, I am satisfied that a reasonable person would have apprehended that Mr Fenton disputed what the company had to say about the dismissal. On 19 March he said he had been advised that an earlier communication from the company was not “viable legally” and that it was “libelous and dishonest” and that the author would be “liable for the defamation contained therein”. In his email of 19 March, the Applicant referred to himself being under “severe emotional and financial distress”, which echoed similar statements he had made to Makesafe on 11 March and 5 March.

(d) prejudice to the employer (including prejudice caused by the delay);

[19] The Applicant has submitted to me, and I find, that “there has been no previous objection by the respondent and the matter has been heard in relation to merit before the issue of late lodgement ... arose”. 6

[20] Because the question of whether there was a delay in making an application for unfair dismissal was not ascertained until after the hearing had finished, the employer has already been put to the task of defending the claim. As a result, I consider there has been no additional prejudice to the employer occasioned by the delay and there will be no further prejudice occasioned if I grant an extension of time to the Applicant.

(e) the merits of the application

[21] The merits of Mr Fenton’s application are considered by me in detail further in this decision and I take into account my findings in that regard in relation to the question of granting an extension of time to the Applicant for the making of an application.

(f) fairness as between the person and other persons in a similar position

[22] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal parties who might be involved in an extension of time application. The Applicant submits, and I concur, that this is an unusual circumstance in that the issue arose after the hearing had concluded. As a result, I do not consider my consideration of an extension of time for the making of an application to have any material effect on the question of fairness as between Mr Fenton and other persons in a similar position.

[23] In considering the above matters, I am satisfied there are exceptional circumstances associated with this matter that warrant an exercise of discretion on my part in granting an extension of time for the making of an application for an unfair dismissal remedy. The exceptional circumstances to which I refer are the reasons for the delay, together with the actions of the employer since the date on which the dismissal took effect.

[24] I regard the reasons for the delay, set out above, to be out of the ordinary course; unusual; special, or uncommon. I take into account that while Mr Fenton did not work after 26 February 2013, he was in dialogue with the employer about his departure, and he only received important clarification of his circumstances with the provision of the Employer Separation Certificate (dated 13 March) and the letter from Mr McNamara (dated 22 March). I take into account as well that Mr Fenton’s post-dismissal communication with his former employer would have provided an insight to them that he did not agree with what had occurred and intended to hold them to account. In forming my view, I also take into account the actions of the employer since the application for unfair dismissal was known. While the employer is capably represented by a solicitor who has professionally advanced her client’s interests in the hearing, there has not been an objection raised by her client about the status of the application being in or out of time until I raised the matter with the parties after the merits hearing had concluded.

[25] For the above reasons I consider it appropriate to extend the period of time which Mr Fenton may have to make an application for unfair dismissal until 26 March 2013. An order to this effect will be issued by me at the same time as this decision.

[26] I turn now to consider the merits of the application.

BACKGROUND

[27] Mr Fenton worked for Makesafe as a security guard/concierge and was employed on a full time basis from 11 March 2012. He came to be employed because he had been recommended to Makesafe by a training academy he had attended.

[28] His duties were substantially, but not wholly, performed at a particular residential building in Southbank, Melbourne (“the Southbank building”). He contends that the basis of his employment was to perform work at the Southbank building and not elsewhere (which is disputed by Makesafe) although he did, from time to time, undertake overtime shifts at other sites.

[29] The circumstances of Mr Fenton’s dismissal surround events that mainly took place in the Southbank building on Monday 25 February 2013 with consequential investigation and decision making on 26 February 2013 or later.

[30] Makesafe say that Mr Fenton was dismissed for misconduct occasioned in the events on 25 February 2013. Makesafe does not rely on any other aspect of Mr Fenton’s work performance to justify termination.

[31] The evidence in this matter consists of evidence from five people, together with a limited amount of other material introduced in submissions. Each of the witness statements was subject to identification to me by the representatives of those parts which were agreed or disagreed between the parties, and which parts were agreed but should be disregarded. I am grateful to the parties for their assistance in agreeing those parts of the statements which could be relied upon by me without the need for extensive evidence. Such process is consistent with the grant of permission for appearance to the representatives for the reason they could assist with the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[32] The people who submitted witness statements and/or gave oral evidence in the proceedings were;

• Troy Fenton, the Applicant;



• David McNamara, Makesafe owner and Managing Director;



• Michael Robinson, security guard employed by Makesafe;



• Luke Starecki, Makesafe Operations Manager; and



• Wayne Greer, building manager with the Southbank building (noting that while Mr Greer’s witness statement was admitted in abridged form to the evidence, he was not called to give oral evidence).

[33] The evidence demonstrates that Mr Fenton was told by Makesafe’s Operations Manager, Mr Luke Starecki during 25 February that he was no longer going to work in the Southbank building. 7 A complaint had been made by Mr Greer to Mr Starecki about Mr Fenton and the building manager made it plain that Mr Fenton was no longer welcome to work there.8 The reasons for the building manager’s decision are not directly relevant to the issues in these proceedings. Mr Fenton was not happy with the decision. He had worked in the building for some time; enjoyed working there; considered many of the tenants to be friends; and had one friend in particular, with whom he had formed a strong relationship (“the close friend”).

[34] Mr Starecki had told Mr Fenton that he wasn’t being dismissed, and that his employment would be relocated to another building nearby. Mr Fenton appears not to have agreed to the move, at least initially.

[35] Mr Robinson was rostered that afternoon as the security guard at the Southbank building. At the start of the shift he was told by the building manager, Mr Greer, that Mr Fenton would no longer be working at the Southbank building. While the precise things that were said in that conversation are in dispute, it is evident that Mr Robinson knew from the conversation that Mr Fenton would not be working at the site again.

[36] An altercation ensued between Mr Fenton and Mr Robinson, the details of which are discussed further in this decision.

[37] The altercation required the involvement of Mr Starecki, that day and at least the next by telephone. It also required the involvement of Mr McNamara, again on 25 February and subsequently when Mr McNamara instructed Mr Starecki to dismiss Mr Fenton from employment. Mr McNamara was the person who made the decision to dismiss Mr Fenton, however his involvement in the events was indirect.

[38] There are significant factual differences between the evidence of Mr Fenton and Mr Robinson, and that between Mr Fenton and Mr Starecki. The differences go firstly to what happened on the evening of 25 February and secondly to how those events were investigated.

[39] Where there are conflicts in their respective evidence, I prefer Mr Robinson’s evidence to Mr Fenton. Mr Robinson was very clear in his evidence with cogent recollection of events. He was mostly consistent in his answers when challenged during cross-examination. While there were aspects of his evidence that showed he did not have a clear recollection of the sequence in which events occurred, or had neglected to report some issues at the time, his evidence is generally more credible than Mr Fenton’s on critical issues. In contrast, Mr Fenton’s evidence was at times self-justifying, or self-serving, or both. He appeared to still be offended by his treatment by Makesafe and that appears to have coloured his evidence.

[40] In relation to the conflicts in evidence between Mr Fenton and Mr Starecki, I find that Mr Starecki’s evidence was generally poor and difficult to rely upon. When he could not recall what was said or done, he made assumptions which coloured important evidence. His recollection of conversations and the time of those conversations was poor. However, on some key matters his evidence was consistent with what was said by Mr Robinson or Mr McNamara. Because of the difficulties with both Mr Fenton’s and Mr Starecki’s evidence, I do not prefer either in generality and instead I have looked, as far as is possible, to those matters which are agreed upon, or which are determined by other evidence.

[41] Having made these observations, I find the following in relation to the morning, afternoon and evening of 25 February 2013;

• Mr Fenton was told by Mr Starecki in the morning of 25 February that he would no longer be working at the Southbank building and that he was to be moved to another building. 9



• Mr Starecki’s evidence is that Mr Fenton did not agree to move to the other building, and requested two weeks leave from Mr Starecki. Mr Fenton was unhappy at what he was told by Mr Starecki. 10 While I prefer Mr Starecki’s evidence to Mr Fenton’s on these items, part of the agreed statements in Mr Fenton’s witness statement is that he called Mr Starecki at 3pm and told him he would accept being moved to another building.11



• Sometime during the afternoon, Mr Fenton came to the Southbank building. He was not rostered for work and was there for the purposes of visiting his close friend.



• Mr Robinson had commenced his shift earlier, but was not present in the foyer when Mr Fenton arrived.



• Mr Robinson returned to the foyer at around 6pm 12 and saw Mr Fenton standing behind the front desk speaking with a resident and looking at either, or both, the logbook or communication book. He saw that Mr Fenton was there with a resident of the Southbank building. Mr Fenton says, and I accept, that at that time he had not read anything about himself in the books. When he saw what Mr Fenton was doing, Mr Robinson closed the book that was being inspected and removed both the logbook and communication book from the desk.13 With the exception of what Mr Fenton read (which is not in dispute with Mr Robinson’s evidence), I prefer Mr Robinson’s evidence on these matters.



• Neither Mr Fenton or the resident moved from the foyer immediately. Mr Robinson heard Mr Fenton say to the resident that he had been fired and that he would like her to sign a small book he was holding and write something about his good standing as a guard at the Southbank building. Residents came and went through the foyer. Mr Fenton approached several residents to tell them he had been fired and to request they sign his book. Mr Robinson heard Mr Fenton say to the residents he would use this to protest his situation. I prefer Mr Robinson’s evidence on these matters.



• Mr Robinson attempted to contact Makesafe’s control room about the situation, but was not able to do so. Instead he spoke with the building manager, Mr Greer. 14 As a consequence Mr Robinson told Mr Fenton he had every right to be there as a visitor of his good friend. Both Mr Robinson and Mr Fenton remained in the foyer, although they were some distance apart, with Mr Robinson behind the desk and Mr Fenton on a couch.

• With the situation unresolved, Mr Robinson made contact with Mr Starecki. Mr Robinson also spoke to Mr Fenton and requested he leave the lobby or the police would be called. 15 Mr Fenton did not leave when requested. I prefer Mr Robinson’s evidence on this matter.



• Mr Starecki instructed the Makesafe control room to request attendance by the police, which was done. 16 At a later time, but not too much later since the police had not attended by that time, Mr Starecki asked the Makesafe control room to ask the police to not attend. As a consequence, the police did not attend.



• Mr Starecki told Mr Robinson that Mr Fenton was allowed to remain in the foyer as long as he did not harass residents or staff or touch the Makesafe equipment 17.



• In response to Mr Robinson’s reference to calling the police, Mr Fenton said he knew his rights and that he would refuse to leave. He went upstairs at 18:13 hours and by that time had three signatures of residents in his book. 18 He came back down to the foyer and when no-one was present was verbally abusive of Mr Robinson. He called Mr Robinson “a fat cunt, a thief, a loser and unskilled labour”,19 he made gestures at Mr Robinson20 and did not leave when he was asked, or when Mr Robinson said he would call the police if Mr Fenton did not leave.21 I prefer Mr Robinson’s evidence on these matters.

[42] Mr Robinson finished his shift at 6am on 26 February 2013 and at 7.27am sent an email to Mr Greer and Mr Starecki that reported on the events of the previous evening.

[43] On 26 February 2013, Mr McNamara arrived at work and saw notes about the events from the control room operator. Later, when Mr Starecki arrived at work, they discussed what had happened and what should be done. The sum total of what they had to consider were the control room operator’s notes and the content of the phone calls from the previous night (involving Mr Robinson, Mr Starecki, Mr Greer and the Makesafe control room). The email from Mr Robinson is said by Mr McNamara to not have arrived when they discussed the events 22, although I note the information contained in the email attached to Mr Robinson’s statement indicates it was sent at 7.27am.

[44] While the evidence indicates there are security surveillance cameras in the Southbank building, it was put by Mr Starecki that the equipment is unreliable since it quickly records over events; while he tried to obtain video footage, it was not available 23. When this was established by him, or whether this was established on or after 26 February, was not disclosed to the hearing.

[45] While there was a discussion about the events, there was not an investigation as such. Mr McNamara’s evidence is that he was concerned about what had occurred. It had the potential to cause embarrassment to his client, and thereby his company; he was concerned about the threatening conduct of Mr Fenton to another employee; and there might be embarrassment to the Southbank building tenants, who ultimately make a decision about the building’s security provider 24. The evidence indicates that Mr McNamara quickly formed a view about the seriousness of the situation. In his evidence, he said the following at the end of his discussion with Mr Starecki;

“I then instructed Mr Starecki to contact Mr Fenton, ask him if he understood the seriousness of the situation and whether he denied any of the events of the previous evening and if there were no denials, then he should terminate his employment.” 25

[46] While Mr Starecki and Mr Fenton agreed that a discussion took place, their evidence about the number of conversations, content, time and duration is significantly apart. Notwithstanding these differences, I find there was at least one substantive conversation in which Mr Starecki put to Mr Fenton that he was to be dismissed and that he indicated the generality of why that was to occur, which was Mr Fenton’s conduct the previous night. I was invited to find that Mr Starecki did this for the purposes of eliciting Mr Fenton’s response. On the state of the evidence before me I cannot make such a finding, and instead I find that while Mr Starecki told Mr Fenton that he was to be dismissed and that he indicated the generality of why that was to occur, he did not meaningfully enquire as to Mr Fenton’s defence, if he enquired at all.

[47] I also find that Makesafe, before making a decision that Mr Fenton’s conduct amounted to reasons for dismissal, failed to investigate his conduct or the reasons why it had occurred and failed to seek out alternative evidence (other than establishing whether video evidence was available, which is referred to above, as is a note about there being no evidence on when this fact was established).

LEGISLATION

[48] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is 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.

CONSIDERATION

[49] I turn to considering each of the legislative criteria in order to ascertain whether Mr Fenton’s dismissal was harsh, unjust or unreasonable.

(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)

[50] Makesafe submit there were three elements in the events of 25 February 2013 that combined to form a valid reason – the potential reputational damage from the events; the verbal abuse of another staff member; and acting in breach of his employment obligations by looking at the logbook or communications book while off-duty.

[51] In this case, which involves Makesafe relying upon the conduct of Mr Fenton for its decision to dismiss him, I must be satisfied the conduct occurred. A mere suspicion of the conduct does not amount to a valid reason. There is, instead, a need for me to find on the balance of probabilities from the evidence before the Commission that the conduct occurred.

[52] I have referred to Mr Fenton’s conduct above and am satisfied on the balance of probabilities the conduct occurred. I find there was potential reputational damage of a significant level from the events, caused by Mr Fenton. The actions which had the potential to cause reputational damage were his approaches to residents about his change in employment status and his request for their support, as well as his examination of the logbook or communications book in front of a Southbank building resident. Both had the potential to diminish the standing of Makesafe in front of residents. Mr Greer was concerned about the behaviour and discussed his concerns about this with Mr Starecki. When he heard of the events, Mr McNamara was very concerned. These actions had the potential to adversely affect Makesafe’s reputation. Mr Fenton’s actions were deliberate and wilful and intended to embarrass Makesafe or the Southbank building or both.

[53] I have found above there was verbal abuse by Mr Fenton of Mr Robinson. This was unprovoked and would render unworkable any future interaction between the two (noting that Mr Fenton was to be moved away from the Southbank building). Once known to other employees, and especially those likely to work with Mr Fenton, his abuse of another employee is likely to have made the prospect of continuing positive staff relationships problematic.

[54] While there is insufficient material before me to make a finding that looking at the logbook or communications book while off-duty was in breach of any explicit employment obligation on Mr Fenton, whether in the form of the staff handbook, or the applicable collective agreement, it amounted to an attempt to access information that was not publicly available. It showed an intention on the part of Mr Fenton to seek for his own use information that might be contained within the property of Makesafe. As he was in the foyer that night as a private citizen he had no right to access the books or the information they might contain.

[55] Mr Fenton argues that his employment contract entitled him to work exclusively at the Southbank building. This is intended to explain his unhappiness at being moved to another building and to excuse what he did on the evening of 25 February. I do not accept these propositions. While much was made about whether or not he had received a copy of the staff handbook (and I make no finding about whether he did or not), there is insufficient evidence to conclude that Mr Fenton had an entitlement to work exclusively at the Southbank building. Mr Fenton knew Mr Robinson had been removed from one building to another, 26 which demonstrates Mr Fenton was aware security guards at Makesafe could be moved. In any event, Mr Fenton contends as part of the agreed elements of his witness statement that he had accepted at about 3pm on 25 February a move to another building.27 He may have been unhappy at being relocated, but that does not ameliorate his behaviour, or excuse what happened in the evening.

[56] I am satisfied that the effect of Mr Fenton’s behaviour was misconduct. I am satisfied that Mr Fenton’s behaviour was wilful and deliberate and that it was inconsistent with the continuation of his employment contract. He was speaking with residents not for the purposes of validating what he perceived as their friendship, or to obtain best-wishes or references for future work, but to use their comments in later representations to Makesafe or the Southbank building. His abuse of a staff member was not provoked and was for the purposes of forcefully expressing his displeasure at was happening to him. The examination of the logbook or the communications book, or both, was a deliberate action which would inevitably call into question the trust Makesafe would have to have in Mr Fenton. He was indicating that he was prepared to use materials from his employment for his own benefit.

[57] While Mr Fenton was not on duty at the time, he was in premises associated with his employer. His own evidence includes that he was known to building residents as being associated with Makesafe and the Southbank building. Makesafe submits, and I accept, that Mr Fenton’s actions had the likelihood of negatively affecting the views of residents about Makesafe and the Southbank building. His actions had the probability of affecting how the building owner viewed the performance and capability of its contractor, Makesafe.

[58] The Australian Industrial Relations Commission has held that actions outside of work, but associated with work, can amount to misconduct if they meet certain tests;

“It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited,:

• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or



• the conduct damages the employer’s interests; or



• the conduct is incompatible with the employee’s duty as an employee.




In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee”. 28

[59] I am satisfied on the balance of probabilities that Mr Fenton’s actions outside of work were associated with work and can and do amount to misconduct. The actions viewed objectively were likely to cause serious damage to the relationship between the employer and employee because of how they had the potential to damage the relationship between Makesafe and its client. This means the actions had the potential to damage the employer’s interests. Finally, I am satisfied that Mr Fenton’s conduct was incompatible with his duty as an employee.

[60] Taken collectively, the three behaviours I have referred to (potential reputational damage; verbal abuse of another staff member; and looking at the logbook or communications book while off-duty) amount to misconduct, and as a result, I find there was a valid reason for the dismissal of Mr Fenton, which related to his conduct.

(b) whether the person was notified of that reason

[61] While Mr Fenton was notified of why he was dismissed, the circumstances of the notification are that, on the balance of probabilities, he was told he was going to be dismissed first and then told why, in the course of a brief conversation which did not allow him an opportunity to respond to the reason identified.

[62] I have already made the point that Mr Starecki’s evidence is poor, and it is especially poor on the subject of what he said to Mr Fenton in the conversations they had on 26 February. Notwithstanding, I am satisfied that Mr Starecki told Mr Fenton he was going to be dismissed because of his behaviour the previous day and that this would be a decision of Mr McNamara; that he told Mr Fenton about those events in general, but not specific terms.

[63] Notification, to be sufficient, for the purposes of this section requires notification of the reason for decision before the decision to dismiss was made in order the person may respond to the allegations. 29

[64] I find therefore, that Mr Fenton was not notified of the reason for dismissal to the standard required by this section.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[65] I am also satisfied that Mr Fenton did not have an adequate opportunity to inquire about, or test the detail of what was said to him, or to provide his response to what Mr Starecki had to say. While this is so, I am also satisfied that Mr Fenton enquired of Mr Starecki about whether Mr McNamara might be persuaded not to dismiss him and that while Mr Starecki undertook to put this to Mr McNamara he said to Mr Fenton words that indicated a change of heart by Mr McNamara was unlikely.

[66] I find there was insufficient opportunity for Mr Fenton to respond to the reasons given for his dismissal.

(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;

[67] There is no evidence that Mr Fenton was offered an opportunity to have a support person present during these meetings; and also there is no evidence that Mr Fenton requested to have a support person present.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;

[68] I find that Mr Fenton’s dismissal arose out of his conduct and not unsatisfactory performance.

(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

[69] The evidence is that Makesafe is not a small business employer, within the meaning of the Act. The company has about 140 to 150 employees, most of whom are security guards; only a handful of employees are in managerial or administrative roles. Makesafe does not have a human resource manager employed within the company.

[70] The size of the employer’s enterprise appears to have impacted upon the decision to terminate Mr Fenton’s employment, and especially in its failure to either conduct a meaningful investigation of the events; to put the findings of the investigation to Mr Fenton; and to allow him to respond.

(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;

[71] Makesafe failed to objectively investigate the events of 25 February or to put the results of the investigation to Mr Fenton in a way that he might have meaningfully responded before a decision to dismiss was made.

[72] Makesafe does not have a human resource manager employed within the company. Access to proper human resource management advice may well have assisted the company to avoid the findings I have made about the company’s failure to investigate or to allow Mr Fenton to respond.

[73] I find the absence of dedicated human resource management specialists or expertise in the enterprise impacted on the decision making by Makesafe, firstly as to how to investigate the allegations about Mr Fenton’s behaviour and secondly in relation to how the company should have put those allegations to Mr Fenton in a manner that allowed him to respond.

(h) any other matters that the FWC considers relevant.

[74] I do not consider there to be other matters relevant to a decision by me about whether Mr Fenton was dismissed in a manner that was harsh, unjust or unreasonable.

[75] After taking into account my findings on each of the above matters, I find there was a valid reason for Mr Fenton’s dismissal, but that his dismissal was unreasonable. As a result, I find Mr Fenton was unfairly dismissed.

REMEDY

[76] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows;

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

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.

[77] Pursuant to subsection 390(3) of the Act, an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[78] I have found that Mr Fenton was dismissed as a result of his conduct on 25 February 2013. The aggregate of the three causative factors I have identified (the potential reputational damage from the events; the verbal abuse of another staff member; and acting in breach of his employment obligations by looking at the logbook or communications book while off-duty) amounts to misconduct. The misconduct was a valid reason for Mr Fenton’s dismissal.

[79] Makesafe argue that Mr Fenton should not be reinstated to his employment and because there was a valid reason for his dismissal which was misconduct, I am satisfied that reinstatement of Mr Fenton is inappropriate. I am, however, satisfied that an order for payment of compensation is appropriate in all the circumstances of the case.

[80] As referred to above, in determining an amount of compensation for Mr Fenton, s.392 of the Act requires me to take into account all the circumstances of the case including the following seven nominated criteria, which I now consider in detail.

(a) the effect of the order on the viability of the employer’s enterprise

[81] Makesafe argued in submissions that the profit margins are low in the industry in which the employer works and that as a result an order at the upper-end of the allowable scale, as proposed by the Applicant, would cause difficulty and that a payment-plan would need to be considered. Makesafe did not argue that an order of compensation would affect the ongoing viability of their business.

[82] I find the order I propose will not affect the viability of the employer’s enterprise.

(b) the length of the person’s service with the employer

[83] At the date on which Mr Fenton was told he would be dismissed, 26 February 2013, he had been employed by the company for just over 11 months.

[84] I find Mr Fenton’s length of service with Makesafe does not require an adjustment to be made to the order I propose.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[85] My findings made so far include that there was a valid reason for Mr Fenton’s dismissal, but that the investigation of the circumstances surrounding the reasons, together with the employer’s failure to allow Mr Fenton an opportunity to respond before Makesafe made a decision to dismiss him, made his dismissal on 26 February 2013 unfair.

[86] While the defects in the procedures followed by the company are serious, they could have been remedied with attention to some basic corrective actions on the part of the company. In particular, the company could have avoided the failures I have identified had instead:

• Mr Fenton not been dismissed on 26 February 2013;



• Makesafe then undertaken a fair, proper and rigorous investigation of the events of 25 February and Mr Fenton’s behaviour; and



• Makesafe then allowed Mr Fenton an opportunity to respond to the allegations.

[87] I am of the view that had Makesafe implemented steps such as those referred to above, Mr Fenton’s employment would not have continued beyond the date of termination referred to in Mr McNamara’s letter, namely 22 March 2013.

[88] As a result, I am satisfied the remuneration Mr Fenton would have received, or would have been likely to receive, if he had not been dismissed on 26 February is the equivalent of four weeks’ wages. Mr Fenton’s average gross earnings to 23 February 2013 were $1054.15 per week. 30

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[89] Mr Fenton’s evidence is that he has applied for numerous security guard jobs and that he has been unsuccessful in all applications to the date of the hearing, although he did not provide details of the applications he has made. I am satisfied that Mr Fenton has made reasonable efforts to mitigate his loss suffered because of his dismissal.

(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

[90] Mr Fenton’s evidence is that he has not received any remuneration since his dismissal from any sources.

(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

[91] Because of the proximity of the date of this decision to the date I propose to order compensation, I am satisfied there is no adjustment that needs to be made to the proposed order for compensation for this factor.

(g) any other matter that the FWC considers relevant.

[92] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

CONCLUSION AND ORDERS

[93] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unreasonable within the meaning of the Act.

[94] I find that reinstatement is not an appropriate remedy in this case.

[95] I find that compensation is appropriate.

[96] The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5). 31

[97] In relation to the matter of contingencies, I find there are none that ought be taken into account in this matter.

[98] Having regard to the considerations established by s.392 of the Act, and the criteria established by the FWC, I find that compensation should comprise a payment by the respondent to the applicant calculated as follows:

Assessment of remuneration lost:	4 WEEKS PROJECTED LOST INCOME AT THE RATE OF $1054.15 PER WEEK	$4,216.60
Employer superannuation contribution on above	9%	$379.49
LESS:	Monies earned since dismissal	$0
LESS:	Contingencies	$0
TOTAL	$4,596.09

[99] The above amount does not exceed the compensation cap applying at the time of dismissal.

[100] The compensation payment of $4,596.09 will be taxed by the employer according to law, and is to be made within 14 days of this decision.

[101] An order to the above effect has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr G Dircks for Mr Fenton

Ms C Brooks, solicitor, for Divadeus Pty Ltd trading as Makesafe Security Solutions

Hearing details:

2013.

Melbourne:

August 8 and 9.

 1   The letter was included in the Applicant’s Form F2 Application for Unfair Dismissal Remedy

 2   The Employment Separation Certificate was included in the Statement of Troy Fenton

 3   Nulty v Blue Star Group Pty Ltd, [2011] FWAFB 975, at [13]

 4   Transcript, PN263 and PN875

 5   Applicant’s Post-hearing submissions, 13 August 2013

 6   Applicant’s Post-hearing submissions, 13 August 2013

 7   Statement of Luke Starecki, para 26

 8   Statement of Wayne Greer, para 16

 9   Statement of Troy Fenton, para 19

 10   Transcript, PN836

 11   Statement of Troy Fenton, para 31

 12   Statement of Michael Robinson, para 18

 13   Statement of Michael Robinson, para 19 and Attachment A

 14   Statement of Michael Robinson, para 23

 15   Statement of Michael Robinson, Attachment A

 16   Makesafe Outline of Submissions, Attachment A, which contain uncontested transcripts of phone calls on this subject

 17   Transcript, PN845 and PN1016

 18   Statement of Michael Robinson, Attachment A

 19   Statement of Michael Robinson, Attachment A

 20   Transcript, PN664

 21   Transcript, PN662

 22   Transcript, PN545

 23   Transcript, PN1042

 24   Transcript, PN543

 25   Transcript, PN545

 26   Transcript, PN321

 27   Statement of Troy Fenton, para 31

 28   Rose v Telstra Corporation Ltd (unreported, AIRC, Ross VP, 4 December 1998) Print Q9292

 29   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [70]‒[73]

 30   Witness Statement of Troy Fenton, para 3.

 31   See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

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