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Introduction

What happens when security guards do not follow their procedural requirements. According to the Fair Work Commission (and obviously their ex-employer) this is grounds for a valid and fair dismissal. This is case FOR ensuring that proper, enforceable operating procedures are in place.

Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc8010.htm

Background

The applicant worked as a Security Officer at an inner-city public housing estate site for around eight years. The security services are undertaken by private security firms; with the current contractor having gained the contract from April 2018. The applicant had worked in the security industry for fourteen years and claims that he has never had any performance issues raised with him in that time.

It put in evidence that the inner-city public housing estate site is “high-risk” because of some of the issues that can arise is evidently a large one, with several different buildings extending over a large area, and that the contract requires the security firm to conduct regular foot patrols. These are to be carried out in pairs and require extensive checking of the various facilities on site. The Security Officers are also required to maintain radio contact with the Control Room at all times. They are also required to maintain a detailed and comprehensive written record of all patrols, and any interactions and incidents that occur during the course of each shift. The site also has a specific patrol schedule that outlines the patrols to be performed during each shift.

The new contractor was first alerted to some of the issues at the site following complaints passed on to the client from residents at the site, who were concerned that they were not seeing regular visible security patrols during the course of each evening. The Commissioner finding this unusual:

“It could perhaps have been expected that after taking over the contract at the site [the new contractor] would have carried out a thorough review of the operations at the site with all stakeholders as a matter of priority in order to determine whether there were any particular issues that needed to be addressed”.

The dismissal

The applicant was one of three employees to have had their employment terminated, and the most senior employee at the site, being the Supervisor, resigned.

I a nutshell, the applicant was dismissed taking excessive breaks and failing to perform patrols, as required< specifically, he:

  • Failed to ensure shift staff were following the site instructions and duty orders. On the night in question he was acting as the on-site Supervisor on the evening in question. The applicant denied this, stating that he had been following the directions of his Supervisor during the course of the shift.
  • Failed to ensure patrols were completed correctly.
  • Failed to ensure that his shift break times were adhered to. It was indicated that the applicant taking breaks in excess of four hours during the course of a single shift.
  • Failed to conduct the services in accordance with the client’s instructions. The Supervisor had attempted to contact the applicant by radio about a noise complaint during the course of his fourth patrol that evening but had been unable to contact him. He had therefore been required to send two other Security Officers to investigate the complaint.
  • Was sleeping in his vehicle during the course of his shift.

Most concerning

Most concerning was the fact that:

  • Three Security Officers taking a break at the same time when only a single unit should have been taking a break at any one time.
  • Security Officers splitting up during their foot patrols, apparently to enable them to be completed more quickly. This practice was in breach of policy, which requires that the Security Officers always remain in pairs during their patrols and maintain radio contact with the Control Room at all times. Mr Mohamed also provided evidence

Fair Work Commission’s role

It has also well established that the Commission’s role in dealing with an unfair dismissal application is not to stand in the shoes of the employer, and to then decide whether the decision made by the employer was the same one that would have been made by the Commission in the same circumstances. Its role is, instead, to determine whether, on the basis of the available evidence, the circumstances that existed at the time can be said to have justified the decision to terminate the employee.

The Fair Work Commission’s findings

Despite the applicant denying the allegations made about him or suggests in the alternative that he was simply acting in accordance with the direction of his Supervisor, who ultimately had responsibility for what occurred at the site during the course of each shift.

“However, I am not necessarily satisfied that this provides an adequate defence in circumstances where employees might be knowingly colluding to avoid carrying out their required work functions. He also claims that the fact that English is not his first language caused some confusion in terms of the responses that he provided at different times during the course of the investigation”.

The Commissioner being satisfied that the extended breaks taken by the employees, including the applicant, can be said to constitute serious misconduct.

Fair Work Commission’s comments about the security company

The site being protected is a potentially dangerous worksite. The actions of the Security Officers at the site had the potential to put at risk the safety of the employees at the site, as well is the residents. The new contractor can take no credit for allowing the situation to exist for as long as it did, although it is acknowledged that it did eventually take action to establish what was actually occurring at the site after it became aware of concerns from its client and residents at the site about what was occurring. I am accordingly satisfied that despite some of the shortcomings in its investigations the new contractor had a valid reason to dismiss the applicant on grounds of serious misconduct in the sense that the reason was sound, defensible and well founded.

Fair Work Commission’s Conclusion

The Commissioner dismissed the application as it was not satisfied that the applicant can be said to have been unfairly dismissed in the sense that his dismissal was harsh, unjust or unreasonable.

“In coming to this decision, I have had particular regard to the conclusions reached in regard to the issue of ‘valid reason.’”