T11918
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 James Dean Pisoni and Dyson Corporate Security Pty Ltd
Industrial dispute - alleged unfair termination of employment - application dismissed REASON FOR DECISION [1] On 1 February 2005, James Dean Pisoni (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Dyson Corporate Security Pty Ltd, ABN 41 079 409 126, ACN 079 409 126 (the respondent), arising out of his alleged unfair termination of employment; and alleged breach of award or registered agreement. [2] The President convened a hearing at the Supreme Court, Cameron Street, Launceston, Tasmania on Friday, 18 February 2005 at 9.15 am. [3] That hearing dealt with the alleged breach of award or registered agreement on that day. The parties settled that part of the application and requested an Order be issued with their consent. Finalising that part of the application, an Order by Consent was issued by the Commission on 21 February 2005. [4] The Order by Consent also advised the parties that a further hearing to deal with the alleged unfair termination of employment of the applicant would be held at the Magistrates Court, 19 King Edward Street, Ulverstone, Tasmania on Thursday, 21 April 2004 at 11.30 am. Subsequently, at the request the respondent's agent, the hearing date was changed to 4 May 2005. [5] I now deal with the alleged unfair termination of employment component of the application. [6] From the time sheets supplied with the application, the applicant commenced employment with the respondent on the 23 November 2004 with an induction to the role of security guard at the North West Regional Hospital's, Mersey Campus. [7] On 23 January 2005 it is alleged the applicant was responsible for a serious breach of procedure, which occurred at the place of work. [8] By letter of 25 January 2005 and further, in a meeting on 31 January, the applicant was given the opportunity to explain his position on the allegations. [9] The applicant's responses did not satisfy the management of the respondent. [10] At the conclusion of the meeting on 31 January 2005 the applicant was dismissed with two weeks notice. LIST OF WITNESSES WHO GAVE EVIDENCE James Dean Pisoni THRESHOLD MATTERS [11] At the outset of the hearing Ms Middleton, for the respondent, raised an issue she wished to be considered as a threshold matter. She asserted the intent of the respondent to terminate the applicant's employment was overtaken by the applicant walking out of his job on 31 January 2005. It follows, she asserted, the employer has " no claim to answer". [12] At a meeting earlier in the day of 31 January 2005, Mr Dyson informed the applicant his employment was terminated. However, the applicant was given two weeks' notice with the expectation, from the respondent, this time would be worked out. [13] Later that same day the applicant telephoned Mr Dyson to inform him that he, the applicant, would be handing in his uniform and leaving. [14] A letter dated 1 February 2005 was sent from the respondent to the applicant confirming the termination of his employment on 31 January 2005. [15] The employer must instigate termination. In this case the applicant's employment was unequivocally terminated by Mr Dyson earlier on 31 January, and confirmed in writing the next day. Two weeks' notice was afforded the applicant, which he did not complete. [16] The instigation of termination of employment had taken place. The applicant's subsequent actions were post that event. The effect of his action had no impact on the actual termination of employment. However, it did have the effect on the applicant of his losing two weeks' wages and the possible forfeiture of one week's wages as prescribed in s.13 of the Security Industry Award. The respondent did not raise this latter matter. [17] I find the respondent, the circumstances of which are the basis for the instant application, terminated the applicant's employment. BACKGROUND [18] The applicant chose to represent himself. In a bid to ensure the fairest outcome, during the conduct of the hearing I afforded him considerable leeway on procedural matters. I acknowledge support for this process from Ms Middleton for the respondent. DETAILS OF THE CASE PUT BY THE APPLICANT [19] The applicant asserted that on 26 or 27 January 2005, he received a letter asking him to explain himself with regards to: an alleged failure on his part, to lock down the hospital on the 23 January 2005; and further, for being absent from his designated post at a critical time. [20] Exhibit R.6, a letter dated 25 January 2005, from the respondent to the applicant requesting an explanation. [21] As requested the applicant responded in writing, by facsimile, to the letter. Subsequently, Mr Dyson made it clear to Mr Pisoni his response was not satisfactory. [22] Mr Dyson called a meeting for 27 January 2005, part of which was to be dedicated to addressing the issue. The applicant declared his unavailability on that day, for family reasons. The respondent rescheduled the meeting for Monday, 31 January 2005. [23] The applicant asserted, at the end of that meeting, Mr Dyson said words to the effect: "... you are fired, I am dissatisfied with your response. ..." 1 [24] The applicant also asserted Mr Dyson exhibited intimidating behaviour towards him. Mr McDonald, who was present at the meeting, contradicted his assertion. [25] The applicant also asserted Mr Dyson informed him:
[26] The applicant initially, in his written response, denied not locking down the hospital at the required time nor could he recall being met by Mr Scott at the security level, some distance from where he should have been stationed. However, later under cross-examination he did acknowledge meeting Mr Scott and Mr Tauti on the security level. [27] From Mr Dyson's evidence:
[28] And, under cross examination, the applicant related:
[29] The applicant claimed he was about, performing the lockdown procedure at the critical time, around 9.00 pm. He cited the correlation between the information in the logbook and the data logger readout supporting this.
[30] In his written response6 to Mr Dyson the applicant stated: "... lockdown was done at 20:30". He also asserted the "allegation ( I understand this to mean both failing to lock down and being away from Accident & Emergency (A&E) at 8:30pm) is fabricated" and "The liar needs to be reprimanded". [31] He also espoused the entitlement to a 20 minute break after 4 hours should "someone" be upstairs at that time.
[32] The applicant asserted that it was not uncommon for doors that had been locked during lock-down, to be unlocked soon after by hospital staff.
[33] The applicant asserted he was unaware of his impending dismissal.
[34] However, in the letter10 dated 25 January 2005, sent by Mr Dyson to the applicant, it states in the first paragraph:
[35] The applicant gave no reason for his contradictory interpretation of Mr Dyson's letter. [36] The applicant acknowledged the importance of following the lockdown procedure: "... Especially night shift, very important, yes." 11 [37] To this end, it was drawn to the Commission's attention the applicant had written a procedure which was displayed in a prominent place in the hospital, part of which emphasized the importance of proper lockdown. This unauthorized procedure was the subject of one of a number of complaints against the applicant, for failing to adhere to the "chain of command" and procedures. [38] The applicant asserted the induction to the job did not cover a number of aspects of the work for which he was being criticised. However, he did admit throughout his time at the hospital there was a continual flow of information. He also confirmed there was regular and ongoing training. [39] The applicant denied having been given warnings or counseling with regard to a number of failures in procedures, for which he was blamed, leading up to his dismissal. [40] In summary, the applicant denied he did not perform the lockdown at 20.30. He claimed, any doors, which were found unlocked, had been rendered such after he locked them. After an initial denial, he acknowledged he had encountered a fellow employee at around 9.00 pm on the third level, the security administration level. DETAILS OF THE CASE PUT BY THE RESPONDENT [41] The respondent asserted the applicant's employment was terminated as a result of his failure to conduct a proper, critical lockdown procedure on 23 January 2005. That failure compromised the integrity of the security at the Mersey Campus of the North Western Regional Hospital. [42] The respondent elaborated on the criticality of the lockdown being carried out properly, and the subsequent positioning of the security guard at the foyer of the A&E department. To this end, Mr Dyson and the witnesses from the site for the respondent confirmed this. [43] The respondent asserted, the security criteria were devised by the hospital administration and reflects hospital management's requirements of the security company in an operational sense. The respondent also stressed the potential impact to the continuance of the contract with Mersey from failure to adhere to the set security criteria. [44] The respondent acknowledged, that Mr Pisoni had been sent a letter on 25 January 2005 requesting a written response to the allegations. The respondent also acknowledged the response was unacceptable. [45] The respondent requested a face-to-face meeting. At that meeting it was agreed the applicant's employment was terminated with two weeks notice. [46] Mr Dyson, Mr Burgess, Mr Scott and Mr McDonald all asserted lockdown should be conducted by 20.30, and the security guard on duty was to base himself at the A&E foyer from 20.30 pm until 5.00 am. [47] Mr Scott and Mr Tauti confirmed they entered the building through the A&E foyer, progressed through the building, and continued on to a number of floors unimpeded. [48] In Mr Scott's evidence he indicated:
[49] Mr Burgess asserted that, even if one gained access through the A&E doors one could not go beyond the foyer unless the doors to the rest of the area were unlocked too. [50] It was asserted by Mr Dyson, Mr Burgess, Mr Scott and Mr McDonald, lockdowns were to be specifically documented in the logbook as confirmation of successful execution. The applicant, in his evidence, made light of this requirement and confirmed he did not always comply. [51] Mr McDonald asserted with regards to log sheets, "... the guards document everything ...". 13 [52] Mr McDonald also asserted the applicant's regular, vague comments in the log sheets were not acceptable. [53] Witnesses for the respondent emphasized the importance and criticality of correctly executing the lockdown process. However, during cross-examination the applicant attempted to downplay the importance of the 20.30 hrs lockdown, contradicting his earlier position. [54] Both Mr Dyson and Mr McDonald asserted the applicant became aggressive at the meeting on 31 January 2005. Mr McDonald asserted the applicant was evasive and would "just not answer" the accusations. [55] Mr Burgess confirmed that hospital staff could unlock some doors. However, he also asserted hospital staff had protocols for manipulating these doors after lockdown. [56] Mr Scott asserted, although it's possible to unlock the doors from the inside after lockdown time, there should be no people in those areas. [57] Mr Dyson's position, with regards to doors being unlocked after lockdown by persons other than the security guards, he insisted it was still the guard's responsibility to ensure that did not happen. [58] The witnesses concurred, finding unlocked doors after lockdown was not a common occurrence as asserted by the applicant. [59] The respondent alleged the applicant failed to follow a number of important operational procedures. This failure, it is asserted, impacted on the effectiveness of the service provided by the respondent to the client. [60] It was asserted, by those witnesses senior in the organization, that the applicant had been given guidance and verbal warnings on a number of occasions for failure to adhere to procedures. Mr Dyson also wrote to the applicant requesting him to follow the "... chain of command ..."14 as a result of a particular flaunting of protocol. [61] All the respondent's witnesses asserted that the respondent had a strict process of induction for employees on new jobs, both general and site specific, during which all the operational procedures were highlighted. It was further asserted, like all security guards employed at Mersey, the applicant had had the benefit of this induction. [62] As an example, Mr Scott asserted:
[63] Mr McDonald asserted he spoke to all the guards at the induction, along with Andrew Groves from the hospital, on the hospital's expectation. [64] It was asserted that there was always a copy of all the procedures on site. [65] It was asserted by Mr Scott, and confirmed by other witnesses, that each site is issued with company handbook of policies and procedures. [66] Under cross-examination these assertions were contradicted by the applicant, who claimed most policies and procedures were communicated on the run, not in the initial induction. [67] Mr Burgess asserted he had to speak to the applicant regarding adherence to the chain of command and following procedures. Mr McDonald supported this assertion. [68] Mr Dyson, and other witnesses, refuted the applicant's assertion that the information gleaned for the log sheet and the data logger would support his claim to have conducted the lockdown. [69] Mr Dyson explained the function and operation of the data logger, and illustrated that the data logger does not indicate the lockdown had been carried out. In discussion, the data logger read-out stated:
[70] And transcript at paragraphs 932 to 937:
FINDINGS [71] There is no argument that Mr Dyson informed the applicant on 31 January 2005 that his employment was to be terminated, with two weeks notice. The threshold matter raised by the respondent, and dismissed, does not change that. [72] From evidence, it appears the correct and complete execution of the lockdown procedure at 20.30 hrs was fundamental and critical to providing a secure environment for the hospital, it's employees, patients and visitors. The attendance of the security guard at the A&E foyer from 20.30 until 5.30 also appears critical, for the secure operation of that area after hours. [73] In evidence it was confirmed, both verbally and in a document authored by the applicant, that he was aware of the criticality of executing the lockdown procedure. Although in further evidence, he downplayed the importance of the activity in contradiction of his own evidence and that of others. [74] The seriousness of failing to secure the hospital was demonstrated graphically by the actions of the management of Dyson Security. As each in the chain of command became aware of the incident of 23 January 2005, they passed the information on to the next senior person, and then on to Mr Dyson in a very short space of time. This action was not contrived, but reflected the criticality of the incident. [75] The evidence of Mr Scott and Mr Tauti, in establishing that the hospital was not appropriately locked down, and that the applicant was located at the Security area, well away from his designated post, was convincing. The applicant's denials and contradictions in the face of such evidence reflect the lack of credibility of his evidence. [76] The applicant's assertion that the specific lock-down doors are "regularly" opened by hospital staff, in evidence, is somewhat exaggerated. This assertion did not offer a reason why a significant segment of the hospital had been discovered to be unlocked on the evening in question. [77] The allegations of the applicant's persistent failure to adhere to the various operational protocols, I believe, are founded on fact. Although not cited in the instant application as a reason for dismissal, the applicant's denial of being aware of both these protocols and of being censured over his behaviour, despite the considerable body of evidence against him, puts further doubt on the credibility of his evidence. [78] I am convinced the respondent has an effective induction program at the North West Regional Hospital, Mersey Campus for its security personnel. I am further convinced, the applicant was well aware of the various protocols he was expected to observe. [79] The applicant was given the opportunity to provide Mr Dyson with a written response to the serious allegations against him. It was made clear to him the dire nature of the allegations and the importance of his response to his ongoing employment. The applicant chose to deny the allegations, despite the evidence against him. The nature of his response was not satisfactory to Mr Dyson. [80] The applicant's assertion, he was unaware he was about to be fired is inconceivable given the contents of the letter from Mr Dyson of 25 January 2005.17 [81] The applicant was given a further opportunity to explain himself on 31 January 2005, at a face-to-face meeting with Mr Dyson. A meeting which, despite the seriousness of the issue, had been rescheduled to suit the applicant's personal circumstances. It is evident the applicant was evasive and would not directly respond to the questioning. He obviously failed to allay Mr Dyson's concerns. Mr Dyson declared he had no confidence in the applicant performing his role as a security guard effectively. [82] The applicant was not summarily dismissed. His employment was terminated with two week's notice. He chose not to avail himself of the notice period. [83] The seriousness of the applicant's failure to adequately carry out his duties, both to the security of the hospital and to the credibility of the business, has been well established. [84] I conclude, the process Mr Dyson followed afforded the applicant a fair opportunity to explain his actions and to convince Mr Dyson of his ongoing credibility. It was the applicant's decision not to take advantage of this opportunity. FINDING [85] I find that Dyson Corporate Security Pty Ltd did not unfairly dismiss the applicant, Mr James Dean Pisoni. [86] The application is dismissed, and I so Order. James P McAlpine Appearances: Date and place of hearing: 1 Transcript, para 209 |