Ngo v MSS Security [1996] IRCA 507

DECISION NO:507/96 CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - SUMMARY DISMISSAL - SERIOUS MISCONDUCT - CONDUCT AND PERFORMANCE - PROCEDURAL FAIRNESS - security guard on final warning dismissed after further incidents - whether misconduct.

Industrial Relations Act 1988 (Cth) ss 170DB, 170DC, 170EA

NGO v MSS SECURITY VI96/1534

Before: MURPHY JR Place: MELBOURNE Date of Hearing: 14 OCTOBER 1996 Date of Judgment: 14 OCTOBER 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI96/1534

BETWEEN:

THAN VAN NGO Applicant

AND

MSS SECURITY Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 14 OCTOBER 1996 MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The application is dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI96/1534

BETWEEN:

THAN VAN NGO Applicant

AND

MSS SECURITY Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 14 OCTOBER 1996 REASONS FOR DECISION Delivered ex tempore - revised from the transcript The applicant was summarily dismissed by the respondent on 15 March 1996. At that time he had been a security guard for the respondent for five years. The circumstances in which he was dismissed were that on 1 March the respondent received from its customer a memorandum about the applicant's activities as a security guard at a site in the western suburbs of Melbourne. The memorandum asked the respondent that the applicant be removed or transferred. The grounds in the memorandum were that, on one occasion, the applicant had refused to do a patrol because his radio battery was flat. On another occasion, the writer of the memorandum, Mr Prowd, had arrived at the site and observed him urinating from the front step of the site shed which also was Mr Prowd's office. The third incident was that, on 16 February, the applicant had left the site half an hour before he was due to finish his security officer duties without advising anyone from the customer. Upon receipt of the memorandum, the respondent invited the applicant to a meeting. It took place on 15 March. The meeting was attended by the applicant, Mr Sandman, the Personnel Services Operations Manager at the time, and Mr Ramsay, who was the Operations Administrator for patrols at the time. Messrs Sandman and Ramsay gave evidence that they advised the applicant of the contents of the memorandum and sought his response. They also contacted the Miscellaneous Workers Union to see whether it wished to participate. As the applicant was not a member of the union, the union did not participate in the meeting. The applicant's response to the matters that were alleged against him was that he first denied that he had failed to do any patrolling, next he admitted the incident regarding the urination but said that there were no toilet facilities available, and thirdly he said that he had been given permission to leave the site. Mr Sandman formed the view that the explanations were unacceptable to him. He consulted the applicant's personnel file which indicated that, on 27 December 1995, the applicant had been given a final warning for sleeping on duty. That warning read: "Any future breaches of standing orders will cause termination of employment". The applicant signed that document. Mr Prowd gave evidence that there were toilet facilities available at the site that were about 200 feet from the guard post. One of them consisted of a porta-loo that was cleaned every week or so, the second consisted of toilets at a nearby premises that were available for the security officers. The porta-loo was passed by the security guard on his hourly rounds. The applicant in cross-examination, admitted that those two toilets were available, but said that on that particular day he was unable to avail himself of those facilities in time. He further said that the porta-loo was unhygienic and he did not use it. In relation to leaving the premises half an hour early on one occasion, the applicant said in his evidence that he had sought and obtained the permission of the respondent's Control Centre before he had done so. The applicant did not raise this as an excuse at the meeting on 15 March. By the time the matter was first raised, the respondent was unable to retrieve tapes of conversations to the Control Centre. The respondent retrieved from its records the Post Daily Report of 16 February which indicated that the applicant has recorded that he signed off duty at 6 am that morning. In his evidence the applicant said he obtained permission to leave from an employee of the customer and he had also obtained permission of the respondent's Control Centre. The respondent's witnesses indicated that it was against its Standing Orders for any security officer to leave before the scheduled expiration of his shift. They further said that it was gross misconduct that he completed the daily report indicating that he has signed off at 6 am when in fact he had left the site at 5.30 am. The issues in this proceeding were first whether the respondent had a valid reason to terminate the applicant's employment. The representative for the respondent, Mr Harvey, said that the respondent had formed the view that the applicant had been guilty of serious misconduct and that this constituted the respondent's valid reason for termination. He referred to the respondent's discipline procedure which provided that the respondent may summarily dismiss employees who have been guilty of acts warranting summary dismissal. He also referred to the Security Officers Handbook that had been issued to the applicant. That handbook refers to a number of types of incidents or conduct that employees are advised will be treated as misconduct and not tolerated. Included in the list is "Leaving your place of duty during shift or prior to be properly relieved". Also included in the list is misbehaving, using insulting remarks to clients or their employees, or using language which by normal standards is offensive. It was put by Mr Harvey that the actions of the applicant in urinating from on the front steps of the site shed constituted serious misconduct that should not and would not be tolerated by employers, and not by the respondent. He referred in cross examination to the provisions of the handbook that indicates that employees of the respondent are provided with uniforms, and that the action of the applicant in doing what he did in his uniform brought into disrepute the respondent. The applicant, in his final submission, said that he felt he had been treated badly by the respondent, that he had worked loyally for a period of five years, and that the respondent should not have terminated his employment. He said he believed he had permission to leave work early on that occasion and did not believe his action in relation to the urination brought the company into discredit. He maintains there were no proper toilet facilities provided. In characterising the applicant's actions, I am satisfied that it is proper to characterise them as serious misconduct. My reasons are their nature, given that the applicant was wearing a uniform and this was referred to in the Handbook. Secondly, the applicant did not raise until later that he had contacted the Control Centre, which indicates the possibility of recent invention. Thirdly, the applicant was on a final warning, which entitled the respondent to treat actions that he took for a reasonable period after that final warning on 27 December, in a more serious light than if that warning had never been given. The applicant committed the two significant breaches of his duty in the middle of February, namely the urination and leaving the post without permission and before he was due to leave. Further he recorded in the Post Daily Report, without recording the notation that he had been, as he had maintained, given permission to leave at 5.30. When all of those matters are combined, I am satisfied that it was appropriate and proper to characterise his actions as serious misconduct. As the respondent has made out that the applicant has been guilty of serious misconduct, that constitutes a valid reason for the termination of his employment. Further, it means that the respondent has also not breached s170DB of the Industrial Relations Act ("the Act") as I am satisfied that the respondent was entitled to summarily dismiss the applicant. He was guilty of misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period (s170DB(1)(b)). I am satisfied that, given the final warning and the two incidents on which the respondent relied in February, the respondent has made out its case under s170DB of the Act. The only other matter argued by the applicant was that the respondent did not give him a proper hearing on 15 March. I am satisfied on the evidence of the respondents witnesses, Mr Sandman and Mr Ramsay, that the applicant was given an opportunity to put his case in relation to the matters and that therefore the respondent has not breached s170DC of the Act. In these circumstances the applicant has not made out any breach of the Act and the application must be dismissed. I certify that this and the preceding five (5) pages are a true copy of the reasons for decision of Judicial Registrar Murphy as recorded in the transcript and revised by the Judicial Registrar.