United Voice v Brisbane Executive Security Teams

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNITED VOICE v BRISBANE EXECUTIVE SECURITY TEAMS & ANOR

[2018] FCCA 3935

Catchwords:
INDUSTRIAL LAW – adverse action – allegation of serious misconduct – coincidentally at time when union began to represent applicant – employer discharge of onus –application dismissed.

Legislation:

Fair Work Act 2009 (Cth), s.340, s.346, s.361, s.550

Applicant:

UNITED VOICE

First Respondent:

BRISBANE EXECUTIVE SECURITY TEAMS PTY LTD

Second Respondent:

ANTHONY JAMES THOMAS

File Number:

BRG 80 of 2017

Judgment of:

Judge Vasta

Hearing date:

6, 7, 8 November 2018

Date of Last Submission:

8 November 2018

Delivered at:

Brisbane

Delivered on:

8 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr . Reed

Solicitors for the Applicant:

United Voice

Counsel for the Respondents:

Ms S. Mackie

Solicitors for the Respondents:

HR Law

ORDERS

That the Applications filed 30 January 2017 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 80 of 2017

UNITED VOICE

Applicant

And

BRISBANE EXECUTIV ESECURITY TEAMS PTY LTD

First Respondent

And

ANTHONY JAMES THOMAS

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

At first glance, depending on which way you look at it, this matter appeared to be either a case of remarkable co-incidences or a very dark and sinister conspiracy.
Brisbane Executive Security Teams Proprietary Limited and its associated company Best Security began operating in 2008. This company provides crowd-controllers to licensed venues.
The company was able to pay its employees, not according to the Award, but according to a collective agreement. That agreement is the Brisbane Executive Securities Agreement that was signed in 2007.
It does seem, that the agreement was signed before the company actually began its operations, and the agreement was signed by someone in management of whom I have had no evidence, but it was signed on behalf of the employees by Donna Dunn, who did give evidence before me.
It does seem strange to me, that Donna Dunn would sign on behalf of employees, because even though she was an employee of another company, she was not, it would seem, an employee of the company at that stage, that is Best Securities (“Best”); and she is the effective sister in law of Anthony James Thomas, the Second Respondent, who is the sole director and guiding mind of Best.
There has been no evidence as to what, if any, amendments have been made to that agreement since 2007. However, Ms Dunn testified that workers were better off under the agreement than with the Award back in 2007. She did, however, agree with some evidence in the affidavit of Mr Marks that would suggest that conditions under the agreement had fallen behind the Award by 2016. Nevertheless, it was a valid agreement, and persons who were employed by Best were lawfully paid under that agreement.
Mitchell Laidley started working for Best around 29 August 2014. He was a casual employee, and he would be assigned licensed venues, pubs and clubs in which to act as a crowd-controller by Best.
About two years after he began employment with Best, he was persuaded by Jane Cartwright, a union-organiser with United Voice, to join the union. He had voiced to Ms Cartwright some concerns that he was being paid less than he should have and wanted to have Ms Cartwright investigate whether he was being underpaid as against the Award.
To cut a long story short, the union made its investigations and came to the conclusion that the agreement meant that Mr Laidley was worse off under the agreement than he would have been, if he were being employed under the Award. Because the agreement was not one that was made with United Voice as a party, the union had no standing to apply to the fair-work commission to have the agreement terminated.
The union told Mr Laidley that he would have to be the person to go to the Fair Work Commission to apply for that termination; the union could back him and they could represent him, however, the action would have to be commenced by him.
Of course, at this time no one within the Best organisation knew that these machinations were going on.
Then came the incidents of 8 October 2016. That evening Mr Laidley was rostered to work at the Regatta Hotel. There were other security staff rostered. However, the two crowd-controllers of interest were Mr Laidley and Jordan Cowan. Jordan Cowan was rostered upstairs for a function, whereas Mr Laidley was rostered in the courtyard and walrus bar. This meant that Mr Laidley had somewhat of a roving commission, whereas other crowd-controllers were in effect at static points.
On Monday, 10 October 2015, Mr Thomas received an email from Mr Robert Brady, who is in effect the manager of the Regatta Hotel. What that email did was forward a number of other emails that had been given to Mr Brady by his employees as a summary of what had occurred on that night, 8 October. The relevant parts of this email from the manager, Kara M, were these.
We had some guests from the event this evening who were refused service at the bar. One lady got rather annoyed that we were giving so many people waters. This lady proceeded to get into an argument with Alesha regarding our discretion with RSA, in this conversation had delightfully called Alesha a lot of not very polite words – Alesha then informed her that she would not be served more alcohol (she was told twice) – She was then later served at the bar (miscommunication with bar staff) – Alesha took the beverage off her at which point she demanded a refund, which was refused. She has essentially said that she will be taking the issue further by making a formal complaint. Jamie is aware of the situation and supported Alesha’s decision.
There seems to be a reference to Jeremy Wallwork, who was the manager from Best who was there that night.
I have spoken to Jeremy regarding this however – tonight Jordan, our security assigned to level one – took it upon himself to tell the function that they would have to vacate the room at 12, which neither Alesha or I had asked him to do – nor had Jeremy. I believe Alesha also had concerns regarding him talking to the host about a guest that was cut off, instead of speaking to Alesha.
I had issues also when it came to people who are being refused service upstairs going down stairs – as Alesha was in the bar, and I floating on the floor – I was letting security know as people were heading downstairs – there were a few in particular I had said needed to be removed from the venue – however when I went down stairs at the end of the night there were some still there – one particular person who had been refused service was in courtyard with a drink in her hand. This person had been pointed to security as they were heading down the stairs and I had said she needed to be escorted off the premises. As the police were in the venue when I spotted her I waited until after they left to speak to Jamie. I am really unhappy about this. This girl was refused service and was not only still in the venue but had been served. It makes us look incompetent and like we don’t support each other. I feel like I relied on security to pass on information and they didn’t pull through.
For obvious reasons we had some unhappy guests. Most were happy with the night and our host was lovely and exceptionally pleased. She supported all decisions made by staff in regards to RSA.
She then had a postscript to this and said:
As I was leaving Alesha text me and asked me to add that a male from the event this evening abused her on her way out this evening and also chased her out of the venue and her abused her again on the way to her car after she asked Jordan to evict him.
I have no further information regarding this. Sorry.
Then she gave other information not relevant to this matter. Sharnie Cocks had been the recipient of those emails, and she wrote to Mr Brady and said:
Hi Rob,
I just wanted to flag the below incidents that occurred during the evening on Saturday 8^th October, 2016. This was the only event we had on Saturday and communication between the different departments should not have been a problem given this was a quieter night in functions. I have highlighted the handover notes girls sent through to me regarding refusal of service in functions and them being served in bar areas downstairs. Additionally, both Kara and Alesha informed security of guests needing to be removed from the venue at midnight when guests were walking down to the public bar areas. The security did not remove these guests from the venue earlier in the evening when advised and as a result of this Alesha was harassed when leaving and walking to her car. I have spoken with Alesha this morning and she is still very upset trying to talk about what had happened. She said she was cornered by the male into a wall of gaming room while being abused. The male was then removed. She then proceeded to walk out and was chased to her car by this male. She said this was the most scared she had ever been and there were no security guards present at this time.
Are we able to chat further about this and look at guards that were on this evening and why they did not follow the Function Supervisors instructions to remove these guests earlier in the evening? There was nothing reported in the security book. Was there anything further I need to do in support of Alesha?
Thanks Rob.
Mr Brady forwarded that message to Mr Thomas. Mr Thomas replied.
Hi Rob
Thanks for your email. I will look into it and get back to you when I have something. Do you have any idea which guards were involved? I have also CC Donna from HR in as well.
Thanks
That email was sent to Ms Donna Dunn, who is, as I have previously said an employee, but the HR manager of Best Security. She said that after receiving this she made the call to Jeremy Wallbank, the supervisor. She said she told him about the fact that the complaint had been made and that she needed to speak to the guards who were positioned in the upstairs function room and the courtyard bar. She was informed that Jordan was in the upstairs function room and Mr Laidley was in the courtyard bar and walrus club.
At about 3.30 pm that day she had a meeting with Kylie Bullen. Kylie Bullen is the client-service manager and she had been the on-call manager. It is usual for Ms Dunn to speak to, and have meetings with, the on-call managers on the Monday after the weekend to discuss issues that require attention.
She did discuss with Ms Bullen the email that she had received from Mr Brady that had been forwarded on to her from Mr Thomas. She then told Kylie Bullen the names of employees that she needed to meet with, which included Mitchell Laidley and Jordan Cohen. She told Ms Bullen to call them into a meeting with HR and left that with Ms Bullen to do.
Later on that day, at about 4.08 pm, Ms Dunn notified Mr Thomas of those matters and told him that she had found out that the guards were Mitchell and Jordan. Mr Thomas gave her a direction to contact the two of them first thing in the morning and ask them to come in for a meeting; she could do that easily because the two of them were required to come in at 6.00pm for training; so she could ask them to come in at 5.30pm that day.
The next morning, Ms Dunn received the supervisor’s report from Mr Wallbank. It gave ratings out of five for the persons who were on duty. All of the guards that were on duty received scores of four out of five, with the exception of Mr Laidley, who received a mark of three out of five with a notation, “average performance, not following directions from Managers.”
Even though Mr Cowan received a score of four out of five, there was also the same notation, “average performance, not following directions from Managers”. In summary Mr Wallbank had written this.
Manager Scott Vickers not impressed with Mitch and Jordan, they seemed to be avoiding dealing with removing intoxicated patrons, and not following his directions.
Mr Thomas then had a conversation with Mr Brady. During that phone conversation, Mr Thomas told Mr Brady that the two guards were Jordan in the function room and Mitchell Laidley in the walrus club and courtyard bar, and that Donna Dunn was going to meet with them that night in the office.
During that conversation, Mr Brady said that he wanted Mitch Laidley marked as “NTR”, meaning “never to return”. He said that he could not have his staff feeling unsafe because a guard had not followed directions. Mr Thomas told Mr Brady that he would take Mr Laidley out of the venue.
Mr Brady did not want the same marking of NTR to be given to Jordan. Ms Dunn had made contact with Mr Laidley and with Jordan Cowan and had arranged to meet them. However, she had not informed Ms Bullen that she had done this nor had she rescinded the order to Ms Bullen.
Those conversations that then occurred firstly with Jordan and then with Mitchell Laidley were subject of contemporaneous notes that were taken by Ms Dunn.
With regard to the matters with Jordan, Ms Dunn asked him to explain himself with regard to some of the complaints. When it came to the complaint of there being a few guests in particular that management at Regatta had said needed to be removed from the venue, however, were still downstairs at the end of the night, Jordan Cowan’s response was that he was the only guard in the function room. At one stage he did radio through to Jeremy, the supervisor, to tell him that the guest coming down stairs from the function needed to leave the venue. He also followed a particular group of people to the walrus club and told Mitch Laidley (who was the door guard at the time) that they were not allowed in. Jeremy Wallbank asked for an explanation and when Jordan provided him with one, the venue manager, Scott Vickers, came over the radio and said that those particular patrons were allowed in and they would be assessed on a case-by-case basis.
Mr Cowan is also noted as saying that he then went to the main bar and spoke to someone called Nicola in the courtyard bar and spoke to someone called Ryan and pointed out some guests from the function that needed to be refused service; two females, one in a red dress and one in a tight white dress, and a male in a black suit and white shirt.
With regard to the interview that Ms Dunn had with Mitchell Laidley, she has noted that she advised Mr Laidley that they had received a complaint from the Regatta about not removing function guests when asked to, which resulted in one of the female bar staff being harassed and abused by a male patron. Mr Laidley said that he was the guard allocated the courtyard bar and the walrus club, as there were only about 15 people in the walrus club, he was roving in between the two.
Her notation is that he said that he recalled Jordan, who was positioned upstairs, at the function, calling through a Code Green, which is “intox removal”, from the function. Those guests were refused entry and argued and wanted to speak to a supervisor so he, Mr Laidley, called for Jeremy Wallbank, the supervisor.
They waited for Jeremy to arrive, at which time Mr Laidley left and continued his walk through the walrus club. He said that he did hear Scott, the venue-manager, allow them entry over the radio. Mr Laidley admitted that there was an issue on his part with the supervisor, Kara, calling a Code Green for a male that was coming down stairs from the function. Mr Laidley said that before he could reach him he went back upstairs again.
Ms Dunn asked Mr Laidley if he made a call over the radio to inform Jordan that the person was coming back upstairs or Jeremy, the supervisor, to advise that he needed to send someone upstairs. Mr Laidley said that he did not.
Ms Dunn has noted that she advised that Mr Laidley should have made that call because he was the one who had a visual on the patron and, as an intoxicated removal had been called by a manager, he needed to be removed and should not have been allowed to go upstairs again. Mr Laidley said that the male came back down stairs about 30 minutes later.
Mr Laidley said that he monitored him for about 10 minutes. He said that Kara, the supervisor who had called the Code Green, saw the male was still there and asked Mr Laidley to remove him again and Mr Laidley said he did remove him at this time.
The meeting ended with Ms Dunn saying to Mr Laidley that she would have to discuss this with Tony Thomas and would contact him later in the week to discuss further.
Mr Thomas came to the office and saw that Mr Laidley was meeting with Ms Dunn, but he did not interrupt. After that meeting had finished, he conducted training with Jordan and Mitchell Laidley, amongst others, but did not mention anything about the incident to them.
At 9.00am the next morning, 12 October 2016, Ms Dunn and Mr Thomas had a meeting. Ms Dunn had printed out the entries from the feedback register for both Jordan Cowan and Mitchell Laidley and had referred to the notes of the meeting that she had had with Mitchell and Jordan the previous day. Mr Thomas informed her that he had spoken to Rob Brady the previous day and that Mr Brady had said that he did not want Mitchell to return to the venue.
Given that, a never-to-return (NTR) notice was made. Ms Dunn and Mr Thomas gave evidence that they both then looked through the history of employment of Mr Laidley. They noted that he had commenced employment on 26 August 2014, that he had worked at 37 venues and that he currently had NTR notices from about a quarter of the venues at which he worked. They noted that this was very high for a guard, especially when the NTR notices related to performance or behaviour.
The notations that they saw on the screen included matters such as Fitzy’s, Loganholme, reported not doing as required by a venue and was on his phone watching Youtube; Cannon Hill Tavern, getting too friendly with patrons; Capalaba Sports Club, harassment of some of the female members; Regatta Hotel, which is the incident that we have spoken about; the Alexandra Hills hotel, not checking ID; Birdie’s, only did one shift and they did not want him to return. Empire and Family reported that Mr Laidley was lazy and disrespectful at the Empire.
Given this history, Mr Thomas made a decision that Mitchell Laidley should be given a show-cause notice. Mr Thomas instructed Ms Dunn to suspend Mr Laidley until he could provide a response to the show-cause notice. Mr Thomas then told Ms Dunn that Mr Laidley could be put on shift until she had had an opportunity to draft and issue the show-cause notice but it was important that Mr Laidley be informed that he was not to go back to the Regatta Hotel.
It seems that on the Tuesday (11 October), Mr Laidley had already been sent his rosters, which had him working at the Regatta Hotel that following weekend of 14, 15 and 16 October 2016.
After that meeting with Mr Thomas, Ms Dunn was busy for the rest of the day, conducting interviews and inductions.
At about 1.00pm Mr Brady had a face-to-face-contact meeting with Mr Thomas. At this meeting there were a number of issues discussed regarding security at the Regatta Hotel, but Mr Brady asked Mr Thomas to confirm that the company had taken Mr Laidley out of rostering for the venue, and Mr Thomas assured Mr Brady that this had occurred. Mr Thomas also made a notation of this particular event. That has also been corroborated by Mr Brady, who has given evidence here today.
Meanwhile, the union was still readying its action to apply to terminate the agreement. It was now ready to commence this action on behalf of Mr Laidley. At 3.22 pm on Wednesday 12 October, Mr Marks, from the union, caused the application documents to be served on Best by email. The email address that it was served to was [email protected].

The evidence before me is that while this email address is a generic address, it is able to be used by persons who send out automated emails such as rosters. However, the identity of those persons is never revealed unless it is either Mr Thomas or Ms Dunn who were sending out such automated email notices. If it is either of those, then the footer at the end of the email will disclose that it is either from Ms Dunn or from Mr Thomas. However, the evidence before me is that any email that is sent to that address goes straight to the inbox of Donna Dunn and to no one else.
If an email appears in her inbox, Ms Dunn does not have the capacity to find out whether the email was sent to her direct email address of DDunn@bestsecurity or whether it was an email that was sent to [email protected]
This meant that the email was sent to the inbox of Donna Dunn at 3.22pm. Some 23 minutes later, at 3.45 pm, Ms Bullen notified Mr Laidley as per the direction that had been given to her by Donna Dunn on the Monday.
She said that she told Mr Laidley words to the effect, “I have been asked to get you into the office for a meeting with HR”. She said that in the end, Mr Laidley asked her what it was about and she said that she did not know, that it was with HR. She said that Mr Mitchell said that he could make it into the office about 4.30- 5.00pm; but said that he had already met with Donna the night before. Ms Bullen said that she did not know that and she said that she would speak to Ms Dunn but not to worry about the meeting until or unless she called him back.
Ms Bullen said that she then went to the training room to speak to Ms Dunn, who was still doing her inductions and interviews. She told Ms Dunn that she had rung Mr Laidley and that Mr Laidley had told her that he had already had a meeting with Ms Dunn. Ms Dunn then apologised to Ms Bullen and said that she was really sorry that she had not told her. Ms Bullen said that Ms Dunn told her that she had met with Mitchell and with Jordan already so that she could cross them off her list, which she did.
Mr Laidley has a totally different recollection. In his affidavit, filed 25 January 2018, he said that he received a telephone call from Ms Bullen. At paragraph 40:
KB:Hi, Mitch., Tony needs you to come into the office for a chat with him”,
ML: “Oh okay about what?”
KB: “I don’t know. I’m just the messenger”
ML: “When does he want me to come in?”
KB:“As soon as possible”
ML: “When would that be?”
KB: “Can you come in today at 4.30 pm?”
ML: “I can do that”
He said that he understood that Tony was Mr Thomas. He said that a few minutes after Ms Bullen’s call, he phoned Ms Cartwright the union-organiser to tell her that he had been called into a meeting with Mr Thomas. He said Ms Cartwright said that he should only attend the meeting with a union representation.
He said that he then called Ms Bullen back. At Paragraph 44 he said this:
ML: “Is it possible, to postpone the meeting with Tony today, because I need to arrange a union rep to attend the meeting with me”
KB: “I will check with Tony and get back with you”
ML: “Okay, that’s fine”.
He said that he was not contacted again.
But that is not the only version of this event that Mr Laidley has given. In exhibit 1 to these proceedings, which was the form F8, which was the general-protections application before the Fair Work Commission, Mr Laidley said this:
7. At approximately 3.45 pm on 12 October 2016, “Kylie: a representative of the First Respondent, contacted the Employee by telephone requesting his immediate attendance at a one-on-one meeting with the Second Respondent
8. The Employee enquired of “Kylie” what the meeting was about. “Kylie” would not tell him what the subject matter of the meeting was.
9. The Employee inquired if the subject matter of the meeting was the application to terminate the agreement and that he would need his union representative with him at the meeting.
10. At no stage, during the conversation was the Employee told, that his performance or conduct was being investigated, that he may be suspended without pay, or his employment may be terminated.
11. The meeting was postponed but the Employee was not contacted further in relation to the meeting or requested to attend any other meeting.
The big differences here is that the Applicant is saying that there was only one phone call and was also saying that he asked if the application (that had been served at 3.22pm by email), was the reason for the meeting. Now, that certainly was a different version, but then, when the reply to the defence was filed in this Court on 10 April 2017, the reply noted at paragraph 1:
(b)     says that Mr Laidley was told by Ms Bullen that the meeting was to be a one-on-one meeting with the second respondent;
(d)     says that Mr Laidley asked Ms Bullen what the meeting was about;
(e)     says that Ms Bullen refused to tell Mr Laidley what the meeting was about;
The reply further says at paragraph 2:
… the applicant admits, during the conversation with Ms Bullen Mr Laidley did not refer specifically to the application to terminate the agreement, but says that Mr Laidley did state to Ms Bullen that he wanted a representative of the applicant to be present at this meeting with the second respondent.
Again, in this reply there was only one phone call spoken about, and whilst the Applicant had previously said in the form F8 that the phone call involved him talking about the application, he specifically admitted that it had not.
It would seem that this must be the case, because whilst the email was sent at 3.22pm, there is no evidence from anyone that, when this was done, that the union, United Voice, contacted Mr Laidley and told him that it had been served.
So there are the three different versions from Mr Laidley as against what Ms Bullen has said. The three different versions make it very difficult, to accept what Mr Laidley is now saying had occurred. His version, in this Court, was that there were two phone calls.
Ms Bullen no longer works for Best Security and can be seen to have “no skin in the game”. However, she is consistent that this is what had occurred. That is, that she made only one phone call and that she did not mention anything about a meeting with Mr Thomas.
That is consistent with the evidence that it is not her position to arrange meetings for Mr Thomas. Her position is to arrange meetings with HR and, specifically, Ms Dunn. She has never made or arranged a meeting for Mr Thomas. It was also instructive, that it was not suggested to her that Mr Thomas had actually told her to get Mr Laidley to come in for a meeting with Mr Thomas, just simply that this was what she had said.
The complicating factor in all of this is that Mr Laidley did contact Ms Cartwright at 3.50pm. He told Ms Cartwright that he had just been called into an urgent meeting with Mr Thomas. Ms Cartwright contacted Mr Marks and repeated this information. Mr Marks told her to tell Mr Laidley that he should not attend the meeting without a union representative. Ms Cartwright contacted Mr Laidley and told him not to attend any meeting with Mr Thomas without a union representative.
If there were two phone calls, then this would be the sort of matter that would fit right in with it. However, on two occasions Mr Laidley had said that there was only one phone call, and had in fact said that he had already, off his own bat, said that he was not going to attend a meeting without the union representative. Thus there was no need for any phone call to Ms Cartwright for this reason.
Whilst this whole situation does seem puzzling, I do accept the evidence of Ms Cartwright that Mr Laidley did say to her that he had been asked to come into a meeting with Mr Thomas. However, I also accept the evidence of Ms Bullen that she did not say anything about coming into a meeting with Mr Thomas.
As the arbiter of fact, whilst I need not find any explanation for this, it does seem to me, that the explanation is fairly easily ascertained. That is because looking at the notation of Ms Dunn at the end of her notes seen at DD05, the last thing that she said to Mr Laidley was that she would have to discuss this with Tony Thomas and would contact him later in the week to discuss further. Here he was now getting the call later in the week, albeit less than 24 hours later.
It is the only plausible explanation. Mr Laidley, having gotten a phone call from Ms Bullen and knowing that he had admitted that he had been derelict in his duty, knew that there would be consequences. Knowing that Ms Dunn said that she would have to discuss the matter with Mr Thomas and get back to him, he has simply assumed that the phone call from Ms Bullen was to get him into a meeting with Mr Thomas.
It is because he knew that he would be in trouble that is the reason that he phoned Ms Cartwright. From Ms Cartwright’s point of view, she had not been told about any of the goings-on with regard to the Regatta Hotel; and not surprisingly given that the email was sent at 3.22pm, having a phone call less than half an hour later from Mr Laidley, she has assumed that this must be about the application to terminate the agreement. It seems to me, this is the only sensible way in which to make sense of these events.
As I say, there is no evidence that Mr Laidley knew that the union had only just served the application on Best Security, and the only time that such a circumstance existed was specifically withdrawn in the defence that was filed on 10 April 2017.
Ms Dunn returned to her desk at about 5.00pm and opened the email from the union. She said that she had a cursory perusal of the document and then called Mr Thomas. Mr Thomas testified that he did not understand what the document was about and thinks that he gave Ms Dunn instructions there and then to forward the matter to the solicitors, but that it could have happened the following Monday.
In any event, he was not particularly concerned because he was going to be away for the next few days – the Thursday, Friday and the Saturday; and whatever the email was about could wait until the following Monday.
The evidence shows to me that on Friday, 14 October 2016, Ms Dunn started to draft the show-cause notice. According to the directions she was given not to suspend Mr Laidley until he had been given the show-cause notice, she then sent him a new roster about 40 minutes later. This new roster took him off the Regatta Hotel and instead had him working on the Friday and Saturday nights at the Lord Stanley Hotel.
On Monday, 17 October 2016, Mr Thomas and Ms Dunn had a meeting where the draft show-cause notice was completed. It was then sent to Mr Laidley. The draft show-cause notice is exhibit DD12 to Ms Dunn’s affidavit. It reads as follow:
SUBJECT: SHOW CAUSE NOTICE TO Mitchell Robert James LAIDLEY
We take this opportunity to give you 14 days to provide information as to why your employment should not be terminated.
Most recently you have been spoken about your performance at the Regatta Hotel on October 8, 2016. A complaint was received by us from the Venue and on October 11, 2016, you provided Donna Dunn with a version of events.
You stated that you were the guard allocated to Courtyard Bar and Walrus Club. As there only about 15 people in Walrus Club you were roving between the 2. You said that a Manager called a Code Green (intox removal) for a male that was coming down stairs from the function. However before you could reach him, he went back upstairs again. You were asked if you made a radio call to your Supervisor to ensure the Manager’s instruction of removing this male were met. You said you did not make that call.
The male ended up coming back down stairs about 30 minutes later. You then decided to monitor the male for approximately 10 minutes. Even though 40 minutes earlier you were given a clear direction to remove the male. The Manager again saw the male and asked you to remove the male immediately – this time you followed direction.
By your own admission you did not follow a lawful direction given to you by a Venue Manager. Your inability to follow a lawful direction of a Venue Manager puts everyone at risk. It is a direct breach of BEST Standard Operating Procedures and could further result in injury to this patron or other patrons at his hand. Further, legal action could result in a form of criminal or civil action against the Venue and/or BEST.
This is not an isolated issue Mitch, hence why you have been offered the opportunity to show cause as to why you should remain employed. At this time it is appropriate to terminate your employment.
We take this opportunity to outline past issues that have been discussed with you.
The Capalaba Sports Club and the Alexandra Hills Hotel incident were both mentioned. Another incident in the Valley was mentioned. The notice then read:
Further on 9 occasions in 2016 alone, you have been late to shift, citing reasons from, roadworks, misreading your roster even though it is verbally confirmed and email to you, your car wouldn’t start, you needed to get fuel, you couldn’t find a park.
If you do not provide a reason that is acceptable to me by October 31, 2016, your employment will be terminated.
Given the nature of the conduct, we have decided to temporarily suspend you from active shifts until you have had the chance to respond to this Show Cause Notice.
After this was concluded, Ms Dunn and Mr Taylor have testified that they then spoke about the application. Mr Thomas said that, if he had not before, he gave the direction that the matter be sent to the solicitors. He said he still did not truly understand what the application was about.
On Wednesday, 19 October 2016, the union sent an email to Ms Dunn. It read this:
Dear Mr Thomas,
Re: Mitchell Laidley – threat to terminate employment and suspension
I confirm that United Voice acts for our member Mitchell Laidley.
We refer to your undated letter sent to our member by email on 17 October 2016, requesting that he show cause for why his employment should not be terminated.
We note you have suspended our member from duty without pay and threatened to terminate his employment. We further note your actions arise five days after our member filed and served on you an application to terminate the company’s pre-2009 collective agreement.
We have carefully reviewed the allegations set out in your letter and stress that you have no basis to suspend our member from duty, or threaten to terminate his employment in the circumstances. Importantly, we have serious concerns your actions are for prohibited reasons that are likely in contravention of the General Protections provisions of the Fair Work Act 2009 (Cth).
Further, we do not believe you have the right to suspend our member in any event.
Taking into account the above, we expect written confirmation from you that your threat to terminate our member’s employment has been withdrawn and the suspension from active shifts lifted, with back pay for any shifts not worked while suspended by 12.00pm on Wednesday, 26 October 2016.
Should we not receive written confirmation by then, we will initiate proceedings without further notice to you and we reserve the rights of the union and our member accordingly.
Ms Dunn replied on 26 October 2016 saying this:
Good afternoon Evanna,
I refer to your letter dated October 19, 2016, in response to the show cause notice that was sent to Mitchell Laidley on October 17, 2016.
In our letter we offered Mitch the opportunity to state why he should remain employed. We have received no proper response to the particulars of the matters we have raised in the show cause notice.
Your accusation that this has been orchestrated because you filed an application to terminate our agreement is denied. The incident involving Mitch at the Regatta Hotel occurred on October 8, 2016, Mitch provided his version of events to us on October 11, 2016, in which he clearly admits to not following a Manager’s direction to remove a patron. We had no knowledge of the application until after this incident.
In those circumstances we have made the decision to terminate Mitch’s employment effective immediately.
The union wrote back, saying on 27 October 2016:
Dear Mr Thomas,
Re – Mitchell Laidley – threat to terminate employment and suspension
We acknowledge receipt of the email sent on your behalf by Donna Dunn, Managing Director, on 26 October 2016 at 3.57pm, to our Administrative Assistant, Ms Evanna Beljak, in reference to our previous correspondence and the show cause notice issued to our member, Mitchell Laidley on 17 October 2016.
We are in the process of assisting our member in his reply to the show cause notice due on or before 31 October 2016.
We note your statement to the effect our member’s employment has been terminated. We’ve discussed this with our member who confirms he has no knowledge of his employment having been terminated.
Can you please confirm with our member whether his employment has been terminated and whether you still require the response?
Please note, in the event our member has been terminated, we intend to issue legal proceedings as foreshadowed in our correspondence to you dated 19 October 2016.
The reply from Ms Dunn was on 27 October 2016, saying that:
Good afternoon Evanna,
We refer to your email of today’s date and confirm that the letter of termination has now been sent directly to Mitchell as well.
We took your correspondence of 19 October 2016 to be Mitchell’s response to the Show Cause Notice. We were unaware that you proposed to send anything further on his behalf.
If you wish to make a further response, then we are happy to give consideration to it, provided we receive it by no later than 31 October 2016.
On 31 October 2016 the union sent this to Best:
Dear Mr Thomas,
Re: Response to show cause and dismissal of Mr. Laidley
Please find attached by way of service:
1. Form F8 – General Protections Application [which is exhibit 1] 2. Show Cause Response.
Please note we reserve our rights and our member’s rights to bring an application against Brisbane Executive Security Teams Pty Ltd, and its agents, for breaches of the Brisbane Executive Security Team Pty Ltd Collective Agreement 2007, including your failure to comply with Clause 4.3
Those are the facts of the matter. There had been many arguments made. The application by the Union is that the Court declare that Best Security and Mr Thomas by virtue of s.550 of the Fair Work Act 2009 (Cth) (“the Act”) have contravened s.340 and s.346 of the Act.
That is, that adverse action has been taken against Mr Laidley because he has exercised a workplace right or engaged in a lawful industrial activity. The workplace right is that he has filed a Fair Work Commission application. The industrial activity is that he has sought the Union to represent him in that application. The adverse action is that he was suspended on 17 October 2016.
I have come to the view that there was further adverse action in that he was dismissed on 27 October 2016.
When one looks at the way in which the correspondence that I have just gone through was sent, it is clear, that the suspension began on 17 October 2016. The response by the Union to that was that, if the suspension is not withdrawn, then they will initiate proceedings on Wednesday, 26 October 2016, at 12.00pm.
In those circumstances, without anything further, it was quite proper of the employers, to treat that as the response to the show-cause notice. Given that the Union had imposed a dead line of 12.00pm on Wednesday, 26 October, it would seem, that that was the date that everyone was working to.
The Union made no more contact with the employer, and the employer stuck to their guns; that the employee Mitchell Laidley had to respond to the show-cause notice. After the dead line had passed, at 3.57pm on 26 October 2016, it was reasonable that the employer treated what the employee had sent, through his Union, as being the response and made the decision there and then to terminate the employment.

There was nothing from the Union to say that they were going to answer the show cause notice at all. The decision was made then to terminate his employment immediately. However, that was not communicated to the employee and was only communicated to the Union. That decision was communicated then on the 26 October 2016.
Whilst it was said to the Union that Best would consider a response to the show-cause notice, there was nothing in the letter that was sent on 27 October 2016 to say that the decision to terminate had either been rescinded or suspended pending receipt of that submission. It was as if they were not truly expecting the submission.
The response by the Union was to launch action for general protections because of a dismissal, but just to satisfy everything, they still gave the response to the show-cause notice.
Having given that response to the show-cause notice, there was no reply by the company. It seems to me, that really looking at what had happened and actually having a look at the show-cause notice, that it was not particularly genuine in any event. It seems to me, that I should treat the dismissal as occurring on 27 October 2016, which would be another aspect of the adverse action.
The question is did the adverse action occur because of the actions of Mr Laidley in filing the application, and then choosing the United Voice Union to represent him at the Fair-Work Commission. It seems to me, that those are really the only proper ways to look at this evidence and marry that up with s.340 and s.346 of the Act.
Those allegations having been made, it is then encumbent upon the First Respondent, Brisbane Security Teams Proprietary Limited, to negative or discharge the onus.
What is said by the Applicant is that the timing is just too coincidental. The Applicant has urged upon me to reject the evidence of Ms Dunn that she did not open the email until 5.00pm. They have also urged me, though I am not too sure on what basis, to find that the email address [email protected] was also able to be accessed by Mr Thomas; not only was it able to be accessed by Mr Thomas, it actually was accessed by Mr Thomas.
The Applicants have urged me to find, as inherently incredible, the evidence of Mr Thomas that he did not understand the nature of the application that was brought and, certainly, to reject any evidence, that he had given, as to not having such understanding as at 17 October 2016, when he made the decision to suspend Mr Laidley, and certainly by 27 October 2016, when he made the decision to terminate the employment.
The Applicant also urges me to find that the outrage over what had occurred at the Regatta Hotel was confected rage.
The submissions are helpful, and it is never for the Applicant, to have to prove their case here. The question is can I reject this evidence. As the authorities say, what is needed is, simply, the explanation given by the decision-maker.
The explanation given by the decision-maker here is that the incident at the Regatta Hotel was serious, that it was another in a number of NTRs given to this employee and that enough was enough and something had to be done. The evidence of the decision-maker was that he was justified in dismissing the employee there and then, yet he still chose to simply suspend and give him an opportunity to answer the allegations.
Whilst I have accepted the majority of what the Applicant has said about the general matters, when it comes to this question of his explanation as to what occurred in the interviews on 11 October 2016, I have come to the view that he was being dishonest when he wrote the affidavit that he had put in this Court.
He was given a number of opportunities to tell this Court what it was out of those notes of Ms Dunn that he agreed with, and what he did not agree with. Whilst he changed his mind a few times, he eventually settled on these two particular matters as being matters that he disputed.
Number one, that he was advised that there was a complaint from the venue about what had happened. Secondly, that Ms Dunn had advised him that he should have called in what had happened because he had a visual on the patron.
In his form F8 and his affidavit, Mr Laidley says that he did recall receiving a Code Green but he did not see any patron at all that matched the Code Green; no one had appeared and, after keeping his eyes peeled for someone and no one appearing, he just got on with his job.
I find that version is dishonest. It was clear that what he said to Ms Dunn was that he did receive the Code Green for a male that was coming down stairs from the function; and that, before he could reach him, that person went back upstairs again. In evidence before me, Mr Laidley admitted that this was correct. He was given a number of opportunities to say something different, and he did not say that this was incorrect.
But it does not make sense for anything else to have happened other than this being what had occurred. One has to look at it in context. If it was that a Code Green was called, Mr Laidley saw the person come down the stairs and then, as it were, saw him retreat and go straight back upstairs. In that situation, it was incumbent upon Mr Laidley to actually do something about that. This is the reason that his conduct has been seen so seriously.
Whilst there has been an attempt to try and minimise the conduct and to compare and contrast it with that of Mr Cowan, such attempts are somewhat disingenuous. Mr Brady, who gave evidence, and who has absolutely no interest in the outcome here and who was very honest, explained that a security officer who ignores a Code Green commits, as he is concerned, a very serious breach and a dereliction of duty.
He, Mr Brady, did not want Mr Laidley coming back to his hotel. He knew what Mr Laidley had done and had received a number of reports. He knew what Mr Jordan Cowan had done, and yet his express instructions were that Mr Laidley was not to return to the hotel. Mr Laidley knew that that was a very serious dereliction of duty. That is why he had tried to deny it to start with, but it also explains his reaction when, having had that second phone call to come in to see HR, that is why he knew that he would be in trouble because of the very serious nature of this breach.
I am satisfied that Ms Dunn and Mr Thomas did not receive the email from the Union until after they had made the decision that a show-cause notice had to be given.
I watched the evidence of Mr Thomas very, very closely. I can describe him very generally as unsophisticated. He was unsophisticated, but he was very honest. His description of what he understood about the industrial documents and agreements was, in my view, a truthful explanation by him. He still gave explanations that were totally consistent with that. It is clear to me, he still actually does not understand what is actually happening with regard to this case.
I accept his evidence that the fact that there had been an action launched by United Voice on behalf of Mitchell Laidley and Mitchell Laidley having taken that action, played absolutely no part in his decision to suspend, and then ultimately dismiss, Mitchell Laidley.
With respect to contravention under s.346 of the Act, the allegation that Mr Thomas was taking adverse action because Mitchell Laidley was choosing United Voice to represent him, I also accept the evidence of Mr Thomas that he has absolutely nothing against United Voice; that he had been a member of that Union for 10 years himself and has no axe to grind against the Union.
Having accepted that evidence, he has, and the company has, discharged their onus pursuant to s.361of the Act.
I therefore dismiss the application.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 18 April 2019

[2018] FCCA 3935

8 November 2018

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