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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] FWC 105
Decision Date: 1 FEBRUARY 2016

CaseChat Overview and Summary

The case of Vanessa O'Brian v MSS Security Pty Ltd was heard in the Fair Work Commission. Ms O'Brian, an employee of MSS Security Pty Ltd, filed an application for relief from unfair dismissal, arguing that her termination was unjust and contrary to the principles of fairness outlined in the Fair Work Act 2009. The central dispute centred on whether the employer had just cause to terminate Ms O'Brian's employment and whether the process followed was procedurally fair.

The primary legal issue the Commission had to address was whether the termination of Ms O'Brian's employment was justified under the provisions of the Fair Work Act. Specifically, the court needed to determine whether MSS Security Pty Ltd could prove that the dismissal was due to genuine operational reasons or misconduct, and whether Ms O'Brian had been given a fair opportunity to respond to the allegations against her. Additionally, the Commission considered the procedural fairness of the dismissal process, including whether Ms O'Brian had adequate notice and an opportunity to be heard before the decision was made.

In delivering its decision, the Commission carefully examined the evidence provided by both parties. The employer argued that Ms O'Brian's dismissal was due to serious misconduct, including insubordination and breaches of company policy. However, Ms O'Brian contended that the alleged misconduct was either exaggerated or not substantiated, and that the dismissal process was flawed. The Commission found that while there were issues of misconduct, the employer failed to adequately address these concerns in line with procedural fairness. Consequently, the Commission ruled that the dismissal was unfair and ordered that Ms O'Brian be reinstated to her former position or, alternatively, be compensated for the loss of her employment.

The final orders of the Commission included a reinstatement of Ms O'Brian to her previous role at MSS Security Pty Ltd, with back pay for the period of her absence. Alternatively, if reinstatement was not possible, Ms O'Brian was to be awarded compensation equivalent to the lost earnings during that period. This decision underscored the importance of procedural fairness and the necessity for employers to follow due process when terminating employees.

Orders