Vanessa O'Brian v MSS Security Pty Ltd

[2016] FWC 105

[2016] FWC 105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vanessa O’Brian
v
MSS Security Pty Ltd
(U2015/5198)

COMMISSIONER BOOTH BRISBANE, 1 FEBRUARY 2016

Application for relief from unfair dismissal - arbitration.

[1] Ms Vanessa O’Brian (the Applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy following her dismissal from her position with MSS Security Pty Ltd (MSS) as a full-time security officer on 20 April 2015. MSS has a contract for security services with Qantas at the Brisbane airport including the domestic security screening and access control to the Q Catering facility. The Applicant had worked for MSS at the Q Catering facility since January 2013.

[2] In these proceedings the Applicant was represented by Mr Heffernan, and Ms Jansen, who is the HR Manager at MSS, conducted the matter on behalf of MSS.

[3] The security requirements for the Q Catering facility include monitoring and control of access to the building and access and control to the “airside” section, the secure part of the building, access to which requires a person to hold a valid Aviation Security Identity Card (ASIC).

[4] On 27 March 2015, the Applicant incorrectly ticked a box on a checklist that a contractor’s ASIC was valid when it had expired, and that she had intermittently left her post. MSS considered these incidents to be security breaches for which she was properly trained. It described the ASIC error as a severe and high risk for MSS¹ and dismissed the Applicant, submitting² there was a valid reason for its decision, specifically that MSS had properly trained their staff and a zero tolerance policy towards such breaches was in place and had been communicated to staff. It was further submitted that the Applicant was provided with procedural fairness and natural justice in the dismissal.

[5] The Applicant admitted the breach, but submitted it was an unintentional error and that her termination was a disproportionate response and one inconsistent with the treatment of other employees. She further submitted that MSS did not take into consideration that on the day in question she was ill.

Circumstances leading to the dismissal

[6] Following the incident on 27 March 2015 MSS conducted an investigation, and on 30 March 2015 wrote to the Applicant referring to ‘allegations regarding your serious misconduct and non-compliance of the required process of ASIC/VIC verification at an Enhanced Inspection Area (EIA)’.

[7] Two allegations were detailed:

1. Friday 27th of March 2015. Whilst performing the relevant ASIC checks, a person was permitted into the security restricted area with an expired ASIC. (The ASIC check incident);
2. Friday 27th of March 2015. Whilst rostered to perform EIA duties, the EIA point was unattended intermittently. On one occasion, it is noted that a person presents to enter the SRA and fills out his own details on the ASIC check sheet. You are then noted to exit the office and tend to the person at the EIA. (The EIA point incident).

[8] The letter then sets out the MSS’s view of this alleged conduct:

The alleged conduct set out above, if substantiated, is in breach of your obligations as an employee of MSS Security. If substantiated you are in breach of the following company policies and procedures and legislation:

1. MSS Security Code of Ethics
2. Employee Standing Instructions - 1.1 Obeying Standing Instructions and Orders
3. Employee Standing Instructions- 1.6 Attitude and Conduct
4. Employee Standing Instructions - 1.28 Falsifying Records and Reports
5. MSS Security letter of offer - Serious Misconduct
6. Aviation Transport Security Regulations.

[9] Ultimately MSS did not rely on allegations 4 and 5, namely falsification of records and serious misconduct, in response to the Applicant’s response to the show cause letter.

[10] The parties prepared a statement of facts. The facts that were agreed included the following:

The Applicant:

• was employed full-time as a security officer



• was assessed as competent, including assessment at the ASIC competency



• was assigned to work at the Q Catering facility, Brisbane airport



• had successfully undertaken various Enhanced Air Side Inspection Assessment (EIA) training



• completed the fit for work training in November 2013 and 2014

Events of 27 March 2015:

• the Applicant attended work from 0500 to 1430



• completed the ASIC Checklist Form and ticks the box ‘ASIC expiry’ for one particular contractor’s entry



• the contractor proceeded to the secure air side section of the building

Subsequent to that incident the parties agree that:

• MSS commenced an investigation, obtained statements and reviewed CCTV footage;



• MSS provided the Applicant with a letter of allegation;



• the Applicant disputed some of the contents of that letter;



• she responded to letter of allegation stating:

a. she was unwell on the day in question;
b. she did not recall permitting a person into the air side area with an expired ASIC;
c. the EIA point was unattended intermittently because of the cold conditions in the building;
d. she was unsure how she had breached the policies and procedures outlined in the letter of allegation.

• a further letter from MSS clarified the alleged breaches;



• on 7 April 2015 the Applicant attended a meeting at the Brisbane airport domestic terminal with a support person, viewed the CCTV footage but provided no further responses;



• MSS gave the Applicant a show cause letter;



• MSS further investigated the details following the Applicant’s response including the following matters:

a. the temperature of the area at Q Catering;
b. previous staff requests for jumpers or jackets;
c. ability to cover the shift after the Applicant called in sick;
d. clarification of the details of the incident.

• on 9 April 2015 the Applicant was given a further opportunity to provide further comments, advised of termination of employment and provided with a letter of termination; and



• the Applicant was paid outstanding entitlements including 2 weeks’ payment in lieu of notice.

The Applicant’s case

[11] The Applicant’s case is that dismissal was excessive in the circumstances. She admitted the error on the ASIC check and that she had received training for this role. She says that it was an act of negligence but not so serious as to warrant termination.³ She disputed leaving her post as alleged.

[12] Mr Heffernan submitted on the Applicant’s behalf that a first and final warning was an appropriate alternative to dismissal and that the Applicant should be reinstated with continuity. Further alternatives put to the Commission included moving the Applicant to another area in the airport such as screening or other sites, including non-aviation sites.

Vanessa O’Brian

[13] The Applicant admitted to the inaccurate completion of the checklist. She was sick with a cold and had bought and took ‘flu tablets on the day.

[14] The Applicant denied the EIA incident, which allegedly took place earlier than the ASIC incident. In particular, she says she was not speaking to the contractor for 9 minutes as alleged, and that in any case she could see people coming in and out. At the time of this alleged incident occurred she was cold because of conditions in the building.

[15] In cross-examination she agreed an employee might be dismissed for a security breach⁴ and that she knew of one employee who had been dismissed for security breaches at the EIA⁵.

[16] She had earlier sought leave for 27 March, but that was refused by Ms Roberts. When she was ill that day, she was worried that calling in sick would be seen as an abuse of sick leave. She also admitted that that she had called in sick on some 20 occasions in her 2 years at MSS.

Terrie McLean

[17] Ms McLean was the Applicant’s support person in the disciplinary proceedings and is a union delegate. She did not witness the incidents but gave evidence of the subsequent process.

[18] On the EIA incident her evidence was that the Applicant did not converse with a contractor for approximately 9 minutes on her view of the CCTV. It was her conclusion that the Applicant appeared to be pre-occupied with some task on the office computer.⁶

[19] She described the investigation of the incidents as ‘fairly standard’.⁷

[20] She could not recall any zero tolerance policy being communicated to employees at Q Catering.⁸

Renae Taylor

[21] Ms Taylor, a colleague of the Applicant, was on duty on the day in question. She gave evidence of telephone calls she received on that day from Ms Roberts. Her evidence was to the effect that, in her view, opinions had firmed against the Applicant and that she would not be treated fairly for making a mistake.

MSS’s case

[22] MSS stated the reasons for termination as “…a breach of the EIA point by a person with an expired ASIC and leaving the EIA unmanned [sic].”⁹

[23] MSS submits that the evidence of the EIA incident is unchallenged by the Applicant and supported by the CCTV footage.

Mark Cachia

[24] Mr Cachia is MSS General Manager Aviation based in Sydney. He made a statement and was cross-examined.

[25] His statement included evidence about global and national threats in aviation over recent years, and the consequent importance placed on security and safety. MSS is contracted with its clients (in this case Qantas’ catering arm) to provide services that might challenge and prevent access by persons without appropriate identification.

[26] A security breach is reported to the client, and investigated by MSS. The usual course is for a letter of allegation to issue to the relevant employee who is then given an opportunity to provide their recollection of events. Once the employee responds, MSS makes a decision on a case-by-case basis.

[27] Mr Cachia considered that the Applicant was negligent in her duties; and that she knew the requirements for allowing access only to visitors or employees with appropriate identification through her years of experience and training as an aviation protection officer.

[28] Mr Cachia noted when he first started as general manager failure to complete the 5 point check was considered a training issue. In his view this was insufficient. He stated that some 12 months after winning the Brisbane contract MSS put into place “that anybody … that failed to check the five point check” would be terminated.¹⁰ He described the training provided.¹¹

[29] Under cross-examination he confirmed what had been said in evidence earlier that after 12 months, the failure to properly complete an ASIC would result in termination.¹² He agreed however that not every breach resulted in termination: “it depends on the circumstances”.¹³

[30] Mr Cachia said MSS did not publicise that breach of the policy could lead to termination. He had advised employees of the seriousness of breaches by way of notices and training. Employees had a period of time to make sure they were doing everything right but this did not include that failure to do so could lead to termination. This is because he considered that every case is different,¹⁴ consistent with his case-by-case approach.

Cindy Roberts

[31] Ms Roberts provided a statement and was cross-examined. She is the Operations Manager at the Brisbane domestic terminal. Ms Roberts’ role when a breach occurs is to review CCTV footage, compile a report based around the facts of the CCTV footage and also obtain reports from any other persons that were present or involved and report to her manager.¹⁵

[32] Her evidence was that she refused leave to the Applicant on the day of the incident because the leave application was not made prior to the shift being issued, some 7 days beforehand. The leave could not be accommodated at short notice.¹⁶

[33] Ms Roberts’ written evidence was as follows:

“Previous to 5 December 2014 the EIA door was an ongoing area of concern following several security breaches, numerous corrective actions were implemented, including the introduction of a new EIA assessment Q&A, providing the ASIC checklist for assistance with reconciling information. However failures continued to occur. As a result of this a zero tolerance was put into place and communicated to employees about 5 December 2014.”17

[34] Ms Roberts stated she was not involved in decision making, but as investigator of the incident and assisted Ms Jansen and Mr Grasso with their inquiries in making their decision.

[35] In examination-in-chief Ms Jansen indicated that she delivered the training program herself via a PowerPoint presentation, she then did the assessments and signed off with staff. She had developed the checklist and outline of procedures as to what to do with an ASIC that was tampered with or had expired.

[36] Under cross-examination, Ms Roberts conceded there was no specific written statement referring to zero tolerance, and she could not recall how that policy was communicated. Ms Roberts could not recall if the zero tolerance policy had been put to the Applicant.¹⁸

[37] Ms Roberts’ evidence was that 2 other employees were terminated after similar security breaches.

[38] Under cross-examination Mr Heffernan put to Ms Roberts various other employees who had not lost their positions:

So why is it then all of those people, including ones that are an identical scenario to Vanessa, why did they keep their job?--- As I said, after multiple failures on the door we radically change the processes by developing new training tools which weren’t there beforehand.19

Ben Powell

[39] Mr Powell’s evidence was that the termination occurred on the basis of the seriousness of the security breach.²⁰

[40] Mr Powell explained the general MSS process as follows. After he is made aware of a security breach he makes an immediate assessment of the seriousness of the breach and communicates the details to Ms Jansen and Mr Grasso who makes a decision on the outcome.

[41] His evidence was that some security breaches have resulted in termination of employment, and in some circumstances, where the investigation has found the MSS’ processes were at fault or contributed to the breach, retraining has occurred.

[42] In final submissions, Ms Jansen submitted as follows:

“In the Applicant’s show cause written response, she states “I have to concede that I probably was in breach of the employee’s standing instructions 1.1, Obeying Standing Instructions and Orders”. We therefore submit that the respondent does have a policy which communicates and allows for the termination of employment in these circumstances where the Applicant has breached the standing orders.

The evidence of every one of the Applicant’s witnesses was that they understood the seriousness of security breach and that the potential that such a failure could result in the dismissal of the employee responsible.”21

Legislative Provisions and Relevant Case Law

[43] A person is unfairly dismissed if the Commission is satisfied the dismissal was harsh, unjust or unreasonable.

[44] It is the Applicant’s case that the dismissal was both harsh and unjust.

[45] In Byrne v Australian Airlines Ltd²² (Byrne) the High Court considered that a termination would be harsh because of the consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.

[46] Byrne is also authority that dismissal can, for example. be harsh but not unjust or unreasonable.

[47] ‘Unjust’ applies when an employee is not guilty of the misconduct alleged. This is not the case here, at least as it applies to the ASIC check incident because of the Applicant’s admission.

[48] The Applicant cited Matthew John v The Star Pty Limited²³ (Matthew John) in which a casino worker allowed an underage patron access to a casino. Mr Heffernan referred to the fact that such an act of negligence would not be gross negligence warranting dismissal, but negligence that should warrant a final warning. In particular he referred to the fact that in Matthew John, Commissioner Cambridge noted:

“…the decision to dismiss the applicant was a completely disproportionate overreaction to the negligent action of the applicant. The decision to dismiss was taken without any fair and balanced apportioning of fault. The applicant admitted fault on his part for what was a serious error, which justified appropriate warning and coaching rather than dismissal.”24

[49] MSS submits that these facts differ from those cases where there was insufficient evidence to substantiate a negligent act.²⁵

[50] There is no dispute between the parties that the Applicant failed to meet an important requirement of her role, namely the thorough checking of an ASIC’s validity. The Applicant denies that she was negligent with regard to the EIA point incident.

[51] Notwithstanding that the Applicant referred to the admitted failure as a mistake, oversight or a single error, MSS submits:

“Whatever label the applicant wishes to apply, the single uncontested fact is that the applicant was negligent in the performance of her duties, resulting in a failure to prevent a security breach at her EIA point. As such the respondent submits that there was a valid reason for the dismissal and this is not contested.”

[52] On the question of training and assistance MSS in final submissions noted:

“The applicant was negligent in fulfilling her duties despite her competence and the checklist provided to her to assist her in ensuring the correct and thorough checking of an ASIC.”

Was the dismissal unfair?

[53] The Applicant submitted that the dismissal was unfair in the terms of s.385(b). In the parties’ submissions and the evidence, the Commission must take into account the factors stated in s.387 in considering whether the dismissal was harsh, unjust or unreasonable.

Valid reason

[54] The Commission must be satisfied that the employment was terminated for a valid reason by reference to the Commission’s assessment of the factual circumstances, and not by reference to whether the employer has a legal right to terminate the employment.²⁶ The reason must be “sound, defensible or well founded” and cannot be “capricious, fanciful, spiteful or prejudiced”.²⁷

[55] Rode v Burwood Mitsubishi held under the equivalent provision of the Workplace Relations Act 1996 that:

.... in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.28

[56] In Miller v University of New South Wales the Full Court of the Federal Court of Australiaconsidered the same provision. Gray J said:

If the “valid reason” contemplated by s 170CG(3)(a) of the WR Act involved no more than an inquiry into the legal rights of the parties, in most cases it would be a short inquiry. It would be answered by saying that the employer had a right to dismiss the employee on notice and had exercised that right. The provision refers to a “valid reason” in another sense altogether. The reason must be related to the capacity or conduct of the employee, or to the employer’s operational requirements. What is sought is not the existence of a legal entitlement to terminate the employment, but the existence of a reason for the exercise of that right that is related to the factual situation. The validity is not to be judged by reference to legal entitlements, but to the Commission’s assessment of the factual circumstances as to what the employee is capable of doing or has or has done, or as to what the employer requires in order to continue its activities. (Underlining added)29

[57] Justice Gray indicated at paragraph 15 that it is open to the Commission to determine that there was no valid reason for the termination of employment, even if the employer had a legal right to terminate the employment.

[58] That is, in this matter, what is required is an assessment of the factual circumstances as to what the Applicant actually did. Even the existence of a legal right to terminate employment is not sufficient to lead to the conclusion that there is a valid reason for the termination.

[59] While the Commission must be satisfied that the termination of an employee was for a valid reason it is not the Commission’s role to stand in the shoes of the employer.

[60] In this matter the Applicant admitted to failure to check and thereby committed a security breach. MSS was entitled to take the breach seriously.

[61] It is not so clear exactly what happened prior to this incident. MSS submits that the evidence of the EIA incident is unchallenged by the Applicant. Ms Robert’s statement is that:-

“…It has been observed during reviewing of CCTV footage that APO Vanessa O’Brian is not stationed at the EAI point as per SOP, rather she is in the control room/admin office at the same time APO Paul Harris is. At all times (1) APO is to be at the EAI checkpoint and (1) in the control room.”  30

[62] The evidence of Ms McLean was that the CCTV footage appeared to indicate that the Applicant was preoccupied with some task on the computer at the time. Further Ms McLean disputes that the Applicant conversed with a contractor for 9 minutes.

[63] The full CCTV footage was not in evidence. I am prepared to accept Ms Roberts’ evidence of the CCTV footage (without audio recording) that the Applicant does not appear to be stationed at the EIA Point. I am not prepared to conclude about what she was doing, the length of time or to whom she spoke during that time. Not only are these matters disputed by the Applicant, Ms McLean also concluded differently to Ms Roberts. I found Ms McLean’s evidence to be precise and carefully observed. 31 To the extent that her evidence differed from Ms Roberts, I prefer the evidence of Ms McLean.

[64] I have therefore concluded that the Applicant was not stationed at the EIA point for all at least some of the relevant time. However given the dispute about how long this occurred and what happened, the evidence is insufficient to find that the EIA point incident has been established. I would add that for reasons given below concerning the establishment of a zero tolerance policy, even if this allegation had been established on the facts, my conclusion would not alter.

[65] Much of the evidence dealt with the measures put in place to ensure these types of breaches did not occur. Ms Roberts’ evidence indicated that there had been PowerPoint presentations and the development of a new checklist. Prior to December 2014 and the implementation of these new measures there had been a significant number of mistakes. It was Ms Roberts’ evidence that a zero tolerance policy was put in place as a result.

[66] She says that this was communicated to employees, but the overwhelming evidence from both parties’ witnesses was that there was no written or oral communication of the zero tolerance policy, and no one could say that the Applicant personally had been told of the policy.

[67] It would seem that employees were meant to understand that such a policy existed from the fact of training and a general awareness that at least 1 employee had been dismissed in similar circumstances.

[68] However, the approach of MSS was premised on a policy that had not been raised or communicated meaningfully with its employees.

[69] Such a policy, where an omission or negligent act that is not deliberate can result in termination is indeed unusual. MSS explained that in its business the stakes are so high that such a policy must exist. It is not for the Commission nor the Applicant to say otherwise: it is a matter for MSS. I note here that MSS, despite the assertion of zero tolerance also asserts each case will be assessed on its circumstances.

[70] What is a matter for the Commission is whether this Applicant’s dismissal, on an objective analysis of the facts, including whether the zero tolerance policy had been communicated, was for a valid reason?³²

[71] MSS’s reliance on standing instruction 1.1 does not assist its case. This is because these standing instructions are unchanged from before the zero tolerance policy. Before December 2014 a breach of the standing instructions generally did not result in termination, however after that date, MSS submits termination was possible. Mr Cachia said in this case it was inevitable. If so, such a significant policy, such as the zero tolerance policy, cannot be left for employees to conclude from events such as a PowerPoint training, a check list and the fact that at least 1 employee had been dismissed.

[72] Termination in these circumstances is not defensible or justifiable on an objective analysis of the facts understood by employees at the time the decision was made. A zero tolerance policy, carrying with it the very real prospect of dismissal for a single breach, requires unequivocal communication to employees. There was no evidence that this was done. That senior managers knew of the policy is no substitute.

[73] The Applicant argued that her illness explained and excused her error. It is not necessary to determine if her illness was a contributing factor given my earlier conclusion that the EIA point incident has not been established . However, as part of communicating the zero tolerance policy, MSS may wish to advise employees that, from MSS’ point of view, illness may not be an acceptable reason or excuse for a mistake by an employee.

[74] It is apparent that the training MSS described was sufficient to ensure this employee did her job properly. However in the circumstances, the seriousness of the consequences and the nature of the omission render the decision to terminate disproportionate to the conduct and therefore there was not a valid reason to terminate the Applicant’s employment.

Notice of reason

[75] MSS submits that the Applicant was advised at each stage of the allegations, the reason for the investigation, including clarification of these reasons and a preliminary outcome via a show cause.

[76] MSS acted on the Applicant’s response to the show cause, and accepted the allegations were ones of misconduct rather than serious misconduct.

[77] In my view MSS did provide notification of its reasons for dismissal before the decision to terminate. These were in explicit and clear terms.

[78] However, I do make one comment about the initial allegation of serious misconduct and fraud. It seems that it should have been obvious, even before the employee response, that the acts of negligence relied on could not sustain these serious allegations. This tends to a conclusion that the investigation and the disciplinary process were designed with termination in mind, although I do not base my decision on this matter.

Opportunity to respond

[79] The Applicant was given an opportunity to respond in writing, and did so. MSS accepted and acted on elements of the response to adjust the allegations.

Support person

[80] The union delegate, Ms McLean, was a support person throughout the disciplinary proceedings.

Unsatisfactory performance

[81] There was no issue of the Applicant’s prior performance.

Any other relevant matters

[82] Sections 387(f) and (g) are not relevant in the circumstances.

[83] Mr Heffernan brought to the Commission’s attention a number of examples of employees who he says were not dismissed in similar or comparable circumstances. There was evidence that 2 other employees had been terminated.

[84] MSS says the non-termination decisions predated the zero tolerance policy. My conclusion on differential treatment is that it may well be that MSS has now a consistent policy. The difficulty with this case however is that the policy change to zero tolerance had not been communicated clearly and unequivocally to employees.

Conclusion

[85] I conclude that the change by MSS to the zero tolerance policy for act of negligence was not communicated clearly and unequivocally. As a result the dismissal was harsh and unreasonable.

Remedy

[86] Under the Fair Work Act 2009, reinstatement is considered the primary remedy and compensation must not be ordered unless reinstatement is inappropriate.

[87] The Applicant sought reinstatement with continuity maintained. She argued there was no evidence that supported a claim of loss of trust and confidence.

[88] MSS submitted that it had lost trust and confidence in the Applicant because of her “haphazard” attitude to her duties. If compensation was ordered, it argued that it should be reduced for misconduct although no amount was suggested. It was not submitted that there was no suitable position for her to undertake.

[89] In deciding whether reinstatement is appropriate, the Full Bench in I.W. McLauchlan v Australia Meat Holdings Pty Ltd³³ (McLauchlan) held that the observations set out in Perkins v Grace Worldwide (Aus) Pty Ltd³⁴ (Perkins) are relevant as to whether the question of reinstatement is appropriate in a particular case.

[90] In Perkins the Full Court of the Industrial Relations Court said:

‘‘…we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.”

[91] In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter the Full Bench observed that:

An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.35

[92] In this matter MSS have brought no particular evidence as to why or how trust and confidence is lost in the Applicant to the extent that the employment relationship could not be re-established. Assertions of a loss of trust and confidence are easily made but there must be grounds for such a statement. In this case there are not convincing grounds.

[93] I do not consider that MSS has provided a sound and rational basis for its claim of a loss of trust and confidence. The Applicant’s conduct was admitted. There is no evidence that she failed to take instruction or has otherwise failed to fulfil her duties. I am confident that this incident will serve as an acute reminder to her to undertake her duties with greater care and maintain her post properly at all times.

[94] I find that reinstatement is an appropriate remedy in all the current circumstances.

[95] Where an applicant is reinstated, under s.391(2) of the Act the Commission may also, where appropriate, make an order to maintain continuity of employment. In order to maintain continuity it requires the exercise of discretion which is separate from the decision to reinstate an employee.

[96] In Kenley v JB Hi Fi³⁶ it was held that an order to provide for continuity of employment provides a benefit that is prospective. That is, it ensures that the period between dismissal and reinstatement is taken into account in determining any entitlement to service related benefits³⁷. Having concluded that this dismissal was unfair, it would seem appropriate that continuity of employment be maintained in addition to reinstatement to ensure that any entitlements accrued prior to termination will not be forfeited.

[97] The Applicant seeks payment of lost pay. Such an order can be made where there has been an order for reinstatement. However, there is no right to lost pay.

[98] That is, a lost pay order may only be made where the Commission “considers it appropriate to do so” and is therefore discretionary in nature. In significant number of cases the Commission has declined to make lost pay orders³⁸ even though reinstatement has been ordered.

[99] In considering exercising my discretion I have considered that:-

• The Applicant breached safety requirements in a sensitive part of an airport; and



• She was properly trained for the work.

[100] In the circumstances of this case, because the conduct admitted to, while not warranting dismissal, was a significant breach of safety requirements in a sensitive part of an airport, I do not intend to make any order pursuant to s.391(3) for payment of remuneration lost between the date of termination and reinstatement.³⁹ I have also taken into consideration the extensive training given to the Applicant to ensure that these safety breaches did not occur.

[101] Orders will issue for the Applicant’s reinstatement to her former position, or to another position on terms and conditions no less favourable with effect from the date of this decision; and restoration of continuity.

COMMISSIONER

Appearances:

Mr M Heffernan for the Applicant.

Ms R Jansen for MSS Security Pty Ltd.

Hearing details:

2015.

Brisbane:

14 and 15 December.

1 Transcript dated 15 December 2015 at PN1569.

2 MSS’ Submissions 20 July 2015.

3 Transcript dated 14 December 2015 at PN34.

4 Transcript dated 14 December 2015 at PN143.

5 Transcript dated 14 December 2015 at PN144.

6 Statement of Ms MT McLean (undated).

7 Transcript dated 14 December 2015 at PN343.

8 Statement Ms MT McLean at paragraph 11.

9 Transcript dated 15 December at PN1577.

10 Transcript dated 14 December 2015 at PN551.

11 See Transcript dated 14 December 2015 at PN712 which details the various training including a PowerPoint presentation which talked about Enhanced Airside Inspection.

12 Transcript dated 14 December 2015 at PN 597.

13 Transcript dated 14 December 2015 at PN 709.

14 Transcript dated 14 December 2015 at PN 821- 822.

15 Transcript dated 14 December 2015 at PN848.

16 Transcript dated 14 December 2015 at PN869.

17 Statement of Ms C Roberts at paragraph 10.

18 Transcript dated 14 December 2015 at PN956.

19 Transcript dated 14 December 2015 at PN1033. See also PN1023-PN1047.

20 Statement of Mr B Powell at paragraph 8.

21 Transcript dated 15 December 2015 at PN1648-9.

22 (1995) 185 CLR 410.

23 [2014] FWC 543

24 Transcript dated 15 December 2015 at PN1512.

25 Kenny v BHP Coal Pty Ltd [2015] FWC 4231

26 Miller v University of New South Wales (2003) 132 FCR 147 at paragraph 13; Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685

27 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373 ; [1995] IRCA 333

28 R4471 [19].

29 (2003) 132 FCR 147 at paragraph 13.

 30   MSS’s Submissions at Appendix 4 – Other Relevant Information

 31   Transcript dated 14 December 2015 at PN381-2.

32 compare Mahoney v Bechtel Construction (Australia) Pty Ltd [2014] FWC 2756; Kenny v BHP Coal Pty Ltd[2015] FWC 4231

33 (1988) 84 IR 1

34 (1997) 72 IR 186

35 [2014] FWCFB 7198 [27].

36 S7235

37 S7235 [27]

38 Regional Express Holdings Ltd t/a Rex Airlines v Richards[2010] FWAFB 8753.

39 see Millington v Traders International Pty Ltd[2014] FWCFB 888 [73].

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