Mr Craig Symes v Linfox Armaguard Pty Ltd T/A Linfox Armaguard. [2018] FWC 7142. (U2018/4510). Asbury, DP. 13 December 2018

 

In a matter that could be a script for comedy, except for the serious ramifications, two Armoured Vehicle Operators were dismissed for not following procedures, which led to the loss (and finally recovery) of a cash collection to the value of $58,710.00. This matter relates to one of the AVO’s, Mr Symes.

 

To summarise the events, it seems (to me at least) how such a large amount of money can go missing and not be detected missing until a global audit is undertaken. The backstory:

 

  • The AVO picks up a cash bag from a customer and places in the external “safe” of the van. The AVO inside the van does not have access to the bag until the outside lid is locked. The inside-the-van AVO then collects the cash bag and stores it ready to be taken back to the depot.
  • For some reason, the inside-the-van AVO did not remove the cash bag and it remained in the external safe.
  • You would think by this stage somebody would have noticed that $58k had not made it to the depot for processing. Nope, some two weeks later the van was sent for maintenance.
  • One of the maintenance workers thought he had won lotto and promptly “pocketed” the cash.
  • We have no knowledge on what happened to the maintenance employee but suffice to say the money was recovered.
  • Armaguard concluded it was the AVOs’ fault for not following procedure and dismissed them for failure to follow proper procedure.

 

As we know, a dismissal may be:

  • Harsh – because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
  • Unjust – because the employee was not guilty of the misconduct on which the employer acted; and/or
  • Unreasonable – because it was decided on inferences that could not reasonably have been drawn from the material before the employer.

 

The DP found:

 

  • The conduct was negligent and in some cases careless, and that it contributed to a string of failures in Armaguard’s systems and processes so that the AVO’s were only partially responsible for the series of events involving the consignment going missing and being stolen, and therefore was not of such gravity that it provided a valid reason for dismissal.
  • There may have also been other mitigating factors at play which led to the oversight.
  • The failure to account for the consignment once the AV returned to the Depot was equally a failure of the Despatch Clerk.
  • As the DP put it:

 

“On balance, a series of errors which ensued after the money was left in the transfer safe by Mr Symes and Ms Bedford contributed significantly to the money being stolen. If service and professionalism was lacking in this unfortunate series of events, it was not only due to the conduct of Mr Symes and Ms Bedford and at best they played an equal part in the series of events when considered against the parts played by other managers and employees of Armaguard and the systems failures which occurred”.

  • The DP also considered:
    • Length of service (17 years).
    • Previous unblemished record.
    • Significant impact on the ability to obtain employment in the security industry.
    • Alternatives to dismissal were not considered (eg demotion and retraining).
  • The DP concluding that the dismissal was unfair on the grounds that it was harsh while deserving of censure and disciplinary action, was not of sufficient gravity to warrant dismissal, much less summary dismissal.
  • The DP finding:
    • Reinstatement is the primary remedy for unfair dismissal. Compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate.
    • Armaguard’s loss of trust and confidence in the AVO is not soundly based and that it should not be an impediment to reinstatement.
    • Armaguard was ordered to reinstate the AVO to the position in which he was employed immediately before the dismissal.
    • Continuity of employment and his period of continuous service was to maintained.
    • Lost wages be paid (less 60% for his part in the misconduct).

 

“I have determined to reduce that amount by 60% on account of Mr Symes’ conduct resulting in an amount of $29,037.02. I therefore award an amount for lost remuneration to Mr Symes for his unfair dismissal in the amount of $29,037.02 plus an amount of superannuation of $2,758.51. I have also had regard to the fact that the sum for lost remuneration will be taxed according to law”.

 

Commentary

 

A mistake is just that, a mistake. Despite the cost. There was no malice in the actions. As I was taught: if you ask the question why five times you usually get to the nub of the issue. The FWC found in this matter (my words) the AVO’s to be scapegoats for inadequate or unfulfilled procedures by a number of personnel.

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.