1
Fair Work Act 2009
s.394—Unfair dismissal
Neil Emery
v
City of Stirling
(U2018/2882)
DEPUTY PRESIDENT BINET PERTH, 11 OCTOBER 2018
Application for an unfair dismissal remedy – application dismissed.
Introduction
[1] Mr Neil Emery (Mr Emery) has made an application (Application) to the Fair Work
Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) for a
remedy in respect of his dismissal by City of Stirling (City) from his employment with the
City as a Security Patrol Office.
[2] On 28 March 2018, the City filed a response to the Application noting that it had no
jurisdictional objections to the Application.
[3] On 18 April 2018, the Application was listed for conciliation before a FWC staff
conciliator, but remained unresolved at the end of the conciliation. The parties subsequently
attended a conciliation conference before me and following that conference engaged in
settlement negotiations. Those negotiations were ultimately unsuccessful and the Application
was listed for a hearing on 26 June 2018.
[4] Directions requiring the filing of materials were issued to the parties on 7 June 2018
(Directions).
[5] Mr Emery was directed to file his materials with the FWC by close of business,
Thursday 14 June 2018. Mr Emery did not file any materials or request an extension within
which to file his materials prior to their due date. After close of business on 14 June 2018, the
City was invited to apply to have Mr Emery’s application dismissed pursuant to section 399A
of the FW Act.
[6] On 15 June 2018, Chambers received an application filed by Mr Emery’s
representative requesting that the hearing on 26 June 2018 be adjourned, that the Directions
issued on 7 June 2018 be vacated and that there be no order dismissing Mr Emery’s
application for an unfair dismissal remedy.
[2018] FWC 4303 [ [Note: This decision has been quashed - refer to Full
Bench decision dated 20 June 2019 [2019] FWCFB 4015]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb4015.htm
[2018] FWC 4303
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[7] On 18 June 2018, in light of Mr Emery’s request for an adjournment and in the
absence of the City making an application for the matter to be dismissed or making any
submissions objecting to the request for an adjournment, an extension was granted to
Mr Emery to file material with the FWC.
[8] Taking into account the parties’ circumstances, and their wishes, it was determined
that a determinative conference rather than a hearing would be the most effective and efficient
way to determine the matter. The Application was relisted for a determinative conference on
Monday 16 July 2018 (Determinative Conference). Amended directions were issued to the
parties which inter alia invited the parties to make submissions whether the FWC should grant
permission pursuant to section 596 of the FW Act for the parties to be represented by a lawyer
or paid agent.
[9] Section 596 of the FW Act provides as follows:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may
be represented in a matter before the FWC (including by making an
application or submission to the FWC on behalf of the person) by a lawyer
or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer
or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking
into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because
the person is unable to represent himself, herself or itself effectively;
or
(c) it would be unfair not to allow the person to be represented taking
into account fairness between the person and other persons in the
same matter.”
[10] Workclaims Australia submitted on behalf of Mr Emery that permission should be
granted for Mr Emery to be represented on the grounds that there were complex factual and
legal issues in dispute and therefore the granting of leave to be represented would enable the
matter to be dealt with more efficiently. It was also submitted on Mr Emery’s behalf that he
was unable to properly represent himself given a need for a forensic examination of the
evidence and of the security legislation referred to in his letter of dismissal. It was also
asserted that it was unfair to deny Mr Emery permission to be represented because the City
has a dedicated human resource department and is represented by a national law firm.
[11] HWL Ebsworth submitted on behalf of the City that granting permission for the City
to be represented would enable the matter to be dealt with more efficiently because the FWC
[2018] FWC 4303
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would be assisted by a forensic cross-examination of the evidence; irrelevant issues would be
more readily identified; and relevant precedents could be drawn to the FWC’s attention. It
was submitted on behalf of the City that the City was unable to represent itself effectively
because although the City had personnel experience in human resource management, those
personnel had only limited advocacy experience, and none of the City’s personnel had
necessary legal experience regarding issues of statutory interpretation. It was also submitted
that as a matter of fairness between the parties leave to be represented should be granted to the
City in the event that leave was granted to Mr Emery to be represented by his chosen
representative.
[12] In Warrell v Fair Work Australia1 the Federal Court held that,
“[24] A decision to grant or refuse “permission” for a party to be represented by “a
lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural
decision. It is a decision which may fundamentally change the dynamics and manner in
which a hearing is conducted. It is apparent from the very terms of s 596 that a party
“in a matter before FWA” must normally appear on his own behalf. That normal
position may only be departed from where an application for permission has been
made and resolved in accordance with law, namely where only one or other of the
requirements imposed by s 596(2) have been taken into account and considered. The
constraints imposed by s 596(2) upon the discretionary power to grant permission
reinforce the legislative intent that the granting of permission is far from a mere
“formal” act to be acceded to upon the mere making of a request. Even if a request for
representation is made, permission may be granted “only if” one or other of the
requirements in s 596(2) is satisfied. Even if one or other of those requirements is
satisfied, the satisfaction of any requirement is but the condition precedent to the
subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant
permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to
(c) thus need not of itself dictate that the discretion is automatically to be exercised in
favour of granting “permission”.
[13] I note that involvement of representatives in the matter prior to the Determinative
Conference had not enabled the matter to be dealt with more efficiently. In fact the
proceedings were delayed by the failure of Mr Emery’s representative to file Mr Emery’s
materials in accordance with the Directions or seek an extension to do so before the due date
of those materials. I also note that in evidence tendered in these proceedings asserted that he
had a sound knowledge of the relevant security statutes.2 I also note that both Mr Emery and
the City had the assistance of their respective representatives who prepared and filed outlines
of submissions and closing submissions on their behalves. I have taken into account the
limited advocacy experience of the City’s personnel. Having had the opportunity to observe
the parties during conciliation and having considered the submissions of the parties, I was not
satisfied that I should exercise my discretion to grant leave to be represented to either Mr
Emery or to the City.
[14] At the Determinative Conference Mr Emery represented himself and gave evidence on
his own behalf. He did not call any other witnesses. He was provided with a checklist of
statutory elements of an unfair dismissal claim to assist him in presenting his case.
[2018] FWC 4303
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[15] At the Determinative Conference, Ms Natalia Smith, Manager Human Resources,
appeared on behalf of the City and called four witnesses as follows:
Ms Nicole Maree Fairman – Senior Security Officer (Ms Fairman).
Ms Claire Louise Nobbs – Human Resources Advisor (Ms Nobbs)
Mr Adrian Edward Beard – Community Safety Operations Co-Ordinator (Mr
Beard)
Mr Trevor Charles Holland – Director Community Development (Mr Holland)
[16] Final written submissions were subsequently filed on behalf of Mr Emery on 2 August
2018 and on behalf of the City on 16 August 2018.
Background
[17] Mr Emery commenced employment with the City as a Security Patrol Officer on 15
June 2005.3
[18] Mr Emery has over thirty years’ experience in the security and law enforcement
industry.4 According to his Curriculum Vitae he has the following qualifications:
Certificate of Trade Studies
Australian Protective Service Recruit Course
Counter Terrorist First Response Course
Certificate in Municipal Law Enforcement A & B
Certificate III in Security Operations and Investigations (Local Government)
Certificate III in Security PRS30103
Firearms, Baton and Handcuff Certified
In his own words he possesses: “A sound knowledge and understanding of laws,
legislation…”.5
[19] On 30 April 2008 he was promoted to the position of Team Leader.6 As a team leader
he was responsible for the supervision of four Security Patrol Officers.7
[20] At the time of Mr Emery’s dismissal, the City employed 20 permanent full time
Security Patrol Officers. The team of 20 is operationally divided into teams of four, each with
a Team Leader (Security Team). The Security Patrol Officers employed by the City include
Mr Carlo Cappa (Mr Cappa) and Mr Terry Almond (Mr Almond). Mr Cappa is the Team
Leader of the team Mr Almond is allocated to.
[21] As the Senior Security Officer of Community Safety for the City, Ms Fairman is
responsible for the management of the City’s security teams. Ms Fairman commenced her
employment with the City in 2015. Her prior work history includes 25 years in the WA
Police Force.8
[22] Ms Fairman reports to Mr Beard. As the Community Safety Operations Coordinator,
Mr Beard provides operational oversight of the City’s Security, Ranger, and Security Systems
Teams and of the Animal Care Facility. He has been employed by the City since 2017. Prior
[2018] FWC 4303
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to his employment with the City he was engaged in security and military roles including as
the Officer in Charge of the Military Police in Perth.9
[23] In July 2017, Mr Beard prepared a Field Officers Operations Manual, which set out
the operational requirements and restrictions for members of the Ranger and Security Teams
(Operations Manual). The Operations Manual was provided to the members of the Security
Team on a number of occasions. Mr Emery last acknowledged receipt of the Operations
Manual on 19 September 2017.10
[24] Mr Beard reports to the Manager of Community Safety, being Mr Laurie Crouch (Mr
Crouch). Mr Crouch reports to Mr Holland. Prior to his appointment as Director of
Community Development, Mr Holland was the City’s Personnel Management Executive and
armed with this experience he has oversight of disciplinary processes within the areas of the
City’s operations for which he is responsible.11
[25] It was a term of Mr Emery’s contract of employment that he obtain and maintain a
licence (Security Licence) as a security officer pursuant to the Security Related Activities
(Control) Act 1996 (WA) (Security Act).12
[26] Mr Emery’s current Security Licence is due to expire on 26 October 2018 and is
numbered SGO8253 (Security Licence SGO8253).13
[27] It is a condition of Mr Emery’s Security Licence SGO8253 that he only possess or
carry a baton whilst performing licenced duties if endorsed to do so. His Security Licence
SGO8253 is endorsed with the following words:
“You are only authorised to possess or carry a firearm or baton whilst performing
licensed duties if you hold the appropriate endorsement…”14
[28] None of the City’s security officers including Mr Emery are authorised to possess or
carry a baton while performing their duties for the City.15
[29] Mr Emery says that around 4pm on 15 January 2018 he found a baton in the carpark at
the Joondalup Shopping Centre. Mr Emery was not on duty at the time he says he found the
baton and the Joondalup Shopping Centre is not within the City’s municipal boundaries.16
[30] Mr Emery says that he was concerned that the baton could be dangerous in the wrong
hands so he says that he picked it up and placed it in the centre console of his private vehicle
with the intention of handing it in to the WA Police. He says that he did not immediately
deliver it to the WA Police because he needed to return home to care for his adult son who is
disabled and was due to return home at 4.30pm from a day out with his carer.17
[31] At 7pm on 15 January 2018 Mr Emery commenced a rostered shift at the City. He
drove to work in his private vehicle in which he says the baton sat in the centre console. He
parked the vehicle in the staff carpark at the City’s depot.18
[32] Mr Emery was rostered to finish the shift at 7am on 16 January 2018.19 Mr Emery
returned to the depot at 6.30am. He says that he was suffering from a headache so he went to
[2018] FWC 4303
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his private vehicle to get some pain medication. He says that he saw the baton in the console
and remembered that his vehicle was due to be serviced so he put the baton in his work bag.
He says that he then returned to his work vehicle with his work bag to complete his
paperwork. He surmises that the baton fell out of his workbag while he was rummaging in his
workbag while in the work vehicle.20
[33] On or about 18 January 2018 the baton was discovered in vehicle U533 by another
Security Patrol Officer, Mr Almond.21
[34] On 22 January 2018, the City located the baton in Mr Emery’s locker, after its
presence was reported by Mr Almond.22 According to Ms Fairman, an investigation on
22 January 2018 revealed that Mr Almond discovered the baton in a pouch in the driver’s side
storage compartment of the vehicle and that he had asked his Team Leader, Mr Cappa, if he
knew who the baton belonged to. 23 In a statement prepared on 6 February 2017, Mr Almond
says that Mr Cappa told him ‘yeah that is Neil’s’.24
[35] According to Ms Fairman, when questioned on 22 January 2018, Mr Cappa admitted
that he took possession of the baton and placed it in the locker of the person it belonged to
and told that person that they should take the baton home. Ms Fairman says that Mr Cappa
initially refused to identify the person to whom the baton belonged and offered to resign
rather than ‘dob’. She says Mr Cappa admitted that he had done the wrong thing in failing to
report the baton, but that it was not safe while on duty, so he understood why an officer might
feel it necessary to carry a baton. According to Ms Fairman, Mr Cappa told her he did not
want to reveal the identity of the owner of the baton because that individual had looked out
for him since Mr Cappa started employment with the City.25
[36] Later on the same day, Mr Cappa agreed to identify to whom the baton belonged. He
prepared and signed a witness statement in which he says that after taking the baton from
Mr Almond, he called Mr Emery and told Mr Emery that he should not have the baton with
him and that he could get in trouble. In his statement, Mr Cappa says that he asked Mr Emery
what he wanted him to do with the baton and that he was told by Mr Emery to put it in Mr
Emery’s locker.26
[37] At the start of his shift on 25 January 2018, Mr Emery was suspended on full pay
pending an investigation.27 He was handed a letter dated 23 January 2018 confirming in
writing his suspension while the City investigated an allegation that he had committed
misconduct (Suspension Letter).28
[38] Mr Beard informed Mr Emery that he would need to hand in his uniform and keys.
Mr Beard says that Mr Emery responded with words to the effect of: “I don’t have any
fucking keys, why would I”. When he offered to follow Mr Emery home to collect his
uniform from him Mr Beard says that Mr Emery said words to the effect of: “No you’re not
fucking following me, that’s not happening.”29
[39] The City witnesses say that Mr Emery was aware that removal of an officer’s uniform
and other City property when an officer was suspended was routine practice because Mr
Emery had recently been involved in the disciplinary investigation into one of his team
members.30
[2018] FWC 4303
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[40] Later the same day a letter dated 23 January 2018 was delivered to Mr Emery at his
home inviting him to attend an investigation meeting to be held on 29 January 2018, in order
to respond to the allegation that he had committed misconduct by having an extendable baton
in his possession whilst on duty (Allegation Letter). The Allegation Letter asserted that the
baton had been found in his work vehicle on 20 January 2018 and transferred to his locker
later the same day by a work colleague. The Allegation Letter asserted that the alleged
conduct was in breach of:
Code of Conduct
Operations Manual
Section 26 of the Security Act
Conditions of his Security Licence SGO8253.
Attached to the Allegation Letter was a copy of the Code of Conduct and the City’s Employee
Discipline Management Practice. 31
[41] The Allegation Letter invited Mr Emery to bring a support person to the investigation
meeting and offered him access to the employee assistance program should he require it.32
[42] On 29 January 2018 Mr Emery attended an investigation meeting with Ms Fairman,
Mr Beard and Mr Crouch (First Investigation Meeting). Mr Emery was accompanied to the
meeting by his support person Ms Gaye Boland, a union delegate.33
[43] The discussions held during the First Investigation Meeting were captured in minutes
of the meeting. During the meeting, Mr Emery admitted that he had found a baton at the
Joondalup Shopping Centre basement carpark between 2.30pm and 4pm on 15 January 2018.
He explained that the baton had fallen from his work bag into the work vehicle. Mr Emery
admitted that he believed that Mr Cappa had located the baton in Mr Emery’s work vehicle.
Mr Emery initially told the investigators that he had asked Mr Cappa to put the baton in Mr
Cappa’s vehicle until he could collect the baton and take it to the police; and claimed that he
was unaware that Mr Cappa had put the baton in Mr Emery’s locker. Later during the First
Investigation Meeting, Mr Emery told the investigators that he had initially told Mr Cappa to
put the baton in Mr Emery’s locker and then subsequently instructed Mr Cappa to keep the
baton in Mr Cappa’s vehicle until he could collect it from Mr Cappa. Mr Emery admitted that
he was aware that he was not endorsed to carry a baton. He told the investigators that he did
not notify the City that he had the baton because he did not believe it was relevant to the City.
To the suggestion that Mr Cappa said to Mr Emery that ‘You shouldn’t have it with you at
work and you can get in trouble for it’ and that Mr Emery had agreed with Mr Cappa’s
statement and undertaken to get rid of the baton on his next shift, Mr Emery replied ‘No,
that’s not correct.’34
[44] Ms Fairman says that Mr Emery behaved arrogantly at the meeting. She said she
doubted the veracity of his explanation that the baton fell out of his bag by accident. Based
on her familiarity with batons gained during her lengthy employment as a Police Officer she
asserts that because the baton was heavy it would make a noise if it fell and that the change in
the weight of the bag would be noticeable.35 Mr Beard says that he also doubted the veracity
of Mr Emery’s explanation because as a Security Officer, he would have had ample
[2018] FWC 4303
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opportunities during the course of his shift on 15 January 2018/16 January 2018 to deliver the
baton to the Police.36
[45] On 15 February 2018, Mr Emery attended a second investigation meeting with Ms
Fairman, Mr Beard and Ms Nobbs (Second Investigation Meeting). Mr Emery was again
accompanied by his support person Ms Boland. At that meeting, Mr Emery was presented
with a copy of the minutes of the First Investigation Meeting. He reviewed and signed the
minutes confirming that they were correct. According to the minutes, during the Second
Investigation Meeting Mr Emery confirmed that the Joondalup Police Station was only a
kilometre from where he found the baton. Mr Emery also indicated that he did not believe it
was necessary to inform the City that he was in possession of a prohibited weapon because he
did not intend for the baton to fall from him bag. The evidence reveals that Mr Emery was
shown extracts from the Security Act, Weapons Act 1999 (WA) (Weapons Act) and the
Weapons Regulations 1999 (WA) (Weapons Regulations) and asked if he believed he had
committed an offence under any of those Acts or Regulations. According to the meeting
minutes, Mr Emery told the investigators that he did not believe that his possession of the
baton constituted an offence. 37
[46] It is Ms Nobbs’ evidence that Mr Emery displayed a lack of contrition or remorse
during the Disciplinary Meeting, insisted that he had done nothing wrong and gave the
impression that he was annoyed about being required to undergo a disciplinary process.38
She also says that his explanations as to how the baton ended up in the vehicle and why he
had not taken the baton to the Police in a timely manner was unconvincing. Given his role as
a Team Leader, this was of considerable concern to the City.39
[47] Mr Beard says that Mr Emery was arrogant and dismissive in refusing to admit that he
had done anything wrong and in asserting that he had spoken to his lawyer and that the City
could not take any action against him.40
[48] On 2 March 2018, the City invited Mr Emery to attend a further meeting on
6 March 2018 (Invitation to Disciplinary Meeting).41 At that meeting Mr Emery, who was
again accompanied by his union delegate and support person Ms Boland, was presented with
a copy of the minutes of the Second Investigation Meeting. He reviewed the minutes and
made some minor modifications before signing the minutes confirming that, subject to the
modifications, the meeting minutes were accurate.42 He was then asked several questions
about his conduct and invited to provide any further information relevant to the City’s
consideration of appropriate disciplinary action. According to the City’s witnesses, he did not
provide any new information and was informed that the City had decided to terminate his
employment. The City confirmed this decision in writing later the same day (Letter of
Termination).43
[49] Mr Emery was paid five weeks pay in lieu of notice.44
[50] According to the Letter of Termination the reason for Mr Emery’s dismissal was the
City’s conclusion that he had committed misconduct by carrying and possessing an
extendable baton and had thereby failed to comply with:
[2018] FWC 4303
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a. the conditions of his Security Officers Licence;
b. the Operations Manual;
c. section 6 of the Weapons Act; and
d. section 26 of the Security Act; and
e. clause 9(2) of the Security and Related Activities (Control) Regulations 1997
(WA) (Security Regulations). 45
[51] Mr Emery submits he was unfairly dismissed and seeks an order that he be reinstated,
an order for continuity of service and an order for payment of lost wages from the date of
dismissal on 6 March 2018 until the date of reinstatement.46
Is Mr Emery protected from unfair dismissal?
[52] Section 396 of the FW Act requires that the FWC decide four preliminary issues
before considering the merits of an application for unfair dismissal:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair
Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[53] The parties agreed and I am satisfied that the Application was made within the 21 day
period required by subsection 394(2) of the FW Act. The parties agreed and I am satisfied that
the Small Business Fair Dismissal Code, which applies to employers of fewer than 15
employees, does not apply to Mr Emery’s dismissal. There is no assertion that Mr Emery’s
dismissal involved redundancy.47
[54] Section 382 of the FW Act sets out the circumstances that must exist for Mr Emery to
be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
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(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in
accordance with the regulations, is less than the high income
threshold.”
[55] The parties agreed and I am satisfied that Mr Emery has completed the minimum
employment period, is covered by the City of Stirling Inside Workforce 2013 Agreement and
that his annual rate of earnings is less than the high income threshold.48 Consequently, I am
satisfied Mr Emery was protected from unfair dismissal.
Was Mr Emery’s dismissal unfair?
[56] Section 385 of the FW Act sets out the circumstances in which a dismissal will be
considered unfair:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal
Code: see section 388.”
[57] It is not contested, and I am satisfied, that Mr Emery was dismissed for the purposes of
section 385(a) of the FW Act and that his dismissal was not a case of genuine redundancy, nor
subject to the Small Business Fair Dismissal Code.
Was Mr Emery’s dismissal harsh, unjust or unreasonable?
[58] The criteria for assessing whether a dismissal was harsh, unjust or unreasonable is set
out at section 387 of the FW Act:
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“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[59] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465
by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[60] The requirement to be reasonable must be applied in a practical common-sense way to
ensure that the employer and employee are each treated fairly.49
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[61] To determine whether Mr Emery’s dismissal was, in the circumstances, harsh, unjust
or unreasonable, it is necessary to consider each of the criteria set out in section 387 of the
FW Act.
Was there a valid reason for Mr Emery’s dismissal?
[62] An employer must have a valid reason for the dismissal of an employee protected from
unfair dismissal, although it need not be the reason given to the employee at the time of the
dismissal.50 The reasons should be ‘sound, defensible and well founded’51 and should not be
‘capricious, fanciful, spiteful or prejudiced.’52 The reason must be valid in the context of the
employee’s capacity or conduct, or based upon the operational requirements of the employer’s
business.53
[63] The City rely on the following reasons for Mr Emery’s dismissal:
Mr Emery engaged in misconduct by being in possession of a prohibited weapon
while performing his duties.
He left the weapon in one of the City’s vehicles.
When the weapon was found he asked another employee to put the weapon in his
locker.
[64] Mr Emery denies that a valid reason existed for his dismissal. Although leave was not
granted for Mr Emery to be represented at the Determinative Conference, Mr Emery’s Outline
of Submissions was prepared and filed on his behalf by Mr Patrick Mullally of Workclaims
Australia (Mr Mullally). Mr Mullally is an experienced industrial agent who represented
Mr Emery at the prior conciliation conferences and in the subsequent settlement negotiations
with the City. At the Determinative Conference Mr Emery tendered the Outline of
Submissions prepared by Mr Mullally (marked as Exhibit A3). Mr Emery was invited to
expand upon the Outline of Submissions, but did not do so.54 In the Outline of Submissions
and at the Determinative Conference, it was asserted that there was no sound or defensible
reason for Mr Emery’s dismissal because Mr Emery did not ‘possess’ the baton while
performing his duties, rather an innocent accident occurred when the baton fell from his bag
and into his work vehicle shortly before he concluded his shift.55
“20. The applicant submits that there was no valid reason for the dismissal. The
respondent formed the view that he carried and possessed the baton during the
performance of his duties and this was not the case. He found the baton while off duty
shortly before he was due to start a night shift, removed it from the public space where
it was in the Joondalup Shopping Centre car park and it accidently fell from his bag
into the work vehicle at the end of his shift in the early morning of the following day.
21. The City found that this was misconduct when clearly it was an innocent accident
on the applicant's part that the baton fell from his bag into the vehicle. This was not a
reason for dismissal which was sound and defensible which it has to be if the respond
is to successfully defend its decision to dismiss the applicant. Absent a valid reason
the dismissal will be unfair.”
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[65] As an afterthought, in the Closing Submissions that were prepared and filed by
Mr Mullally after the Determinative Conference concluded, Mr Mullally sought to raise a raft
of other challenges to the validity of the City’s reasons for dismissing Mr Emery that were not
raised by Mr Emery in the course of the investigation, in the materials filed prior to the
Determinative Conference or in submissions or cross-examination during the course of the
Determinative Conference.
[66] In summary, the additional grounds upon which it is asserted in the Applicant’s
Closing Submissions that the City did not have a valid reason for Mr Emery’s dismissal are
that:
Mr Emery did not breach Security Licence SGO8253 because the licence only
prohibits him carrying a baton while he is performing ‘licensed duties’ and that he
was not performing licensed duties at the time he says the baton fell into his work
vehicle.
Mr Emery did not breach section 6 of the Weapons Act because there is no evidence
before the FWC that the baton Mr Emery found was a prohibited weapon for the
purposes of the Weapons Act. If Mr Emery did breach section 6 of the Weapons
Act, then he has a defence to that breach. Namely, that he intended to deliver the
baton to a member of the Police Force.
Mr Emery did not breach section 26 of the Security Act because he was not engaged
in activities authorised by his Security Licence at the time the baton fell into his
work vehicle.
Mr Emery did not breach section 9(2) of Division 2 of Schedule 1 of the Security
Regulations because he was not performing any licensed activity for the purposes of
the Security Regulations at the time the baton fell into his work vehicle.
Mr Emery did not breach the Operations Manual because provision 11.2 which states
that: ‘Field Officers are not licensed to carry items such as batons, capsicum spray,
handcuffs for prohibited items’ is descriptive of law rather than a condition of
employment.
[67] Section 6(1) of the Weapons Act makes it an offence to carry or possess a prohibited
weapon.56 A prohibited weapon is defined in the Weapons Regulations to include an
extendable baton. An extendable baton is defined in Schedule 1 of the Weapons Regulations
as:
“A baton made or modified so that the length of the baton extends by gravity or
centrifugal force or by any pressure applied to a button, spring or device in or attached
to the handle of the baton.”
[68] In the Applicant’s Closing Submissions, it is asserted that there is no evidence before
the FWC to determine that the baton Mr Emery located was an extendable baton and therefore
a prohibited weapon for the purposes of the Weapons Act.
[69] However the Summary of Agreed Facts states that:
“Mr Emery alleges he located an expandable baton (Baton) on 15 January 2018 at the
Joondalup shopping centre sometime between the hours of 14:30 and 16:00.”57
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[70] The Summary of Agreed Facts was filed in accordance with paragraph 14 of the
Amended Directions which stated that:
“… The Agreed Statement of Facts should identify the facts in agreement, and
separately, those facts in dispute which require resolution in the determination of the
Application. Having been admitted into evidence, it is not necessary for those facts to
be adduced as part of the Hearing.”
[71] That it was not contested by Mr Emery that the baton was an expandable baton is
consistent with the evidence with respect to the investigation and the conduct of the
Determinative Conference.58 There is no evidence that Mr Emery asserted during the
investigation that the baton he located was not a prohibited weapon or that the baton located
in his locker was not the baton he says dropped from his work bag. Mr Emery was
specifically invited during the investigation to explain why he asserted that his conduct did
not breach the Weapons Act, the Security Act or the Weapons Regulations and there is no
evidence that he asserted that the baton was not a prohibited weapon.59
[72] Mr Emery also did not assert that the baton was not a prohibited weapon during the
proceedings, prior to the filing of his Closing Submissions.
[73] At the outset of the Determinative Conference I reminded the parties that:
“Helpfully you have both worked together to produce a summary of agreed facts.
Those things I now presume to be factual and uncontested and I will rely on those for
my decision.”60
[74] During the Determinative Conference, Mr Emery did not cross-examine any of the
City’s witnesses as to their evidence that the baton was a prohibited weapon, possession of
which constituted a breach of section 6 of the Weapons Act.61
[75] Even if the baton Mr Emery had in his possession was not a prohibited weapon, a non-
extendable baton is a controlled weapon for the purposes of the Weapons Act. It is an offence
under section 7 of the Weapons Act to carry or possess a controlled weapon without lawful
excuse.62
“7. Controlled weapons
(1) Except as provided in section 10, a person who, without a lawful excuse, carries or
possesses a controlled weapon commits an offence.
Penalty: $4 000 or imprisonment for one year.
(2) Except as provided in section 10, a person who has a lawful excuse to carry or
possess a controlled weapon commits an offence if the person carries or possesses
it in a manner that could reasonably be expected to cause someone —
(a) to be injured or disabled; or
[2018] FWC 4303
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(b) to fear that someone will be injured or disabled.
Penalty: $4 000 or imprisonment for one year.
(3) In this section a lawful excuse to carry or possess a controlled weapon does not
include the excuse that the weapon is carried or possessed for defence.
(4) Subsection (3) does not apply to a controlled weapon of a kind prescribed for the
purposes of this subsection as long as it is carried or possessed in such
circumstances, if any, as the regulations may prescribe.
(5) Regulations under subsection (4) may apply generally or to a particular person or
class of persons.
[76] Section 26 of the Security Act only provides a lawful excuse for a Security Officer to
possess a baton if the officer’s Security Licence is endorsed to permit such possession.
Section 26 of the Security Act provides that a security officer’s Security Licence does not
authorise the holder to be in possession of a baton while engaged in activities authorised by
the Security Licence, unless the Security Licence is endorsed to permit such possession.
“26. Security officers, possession of batons
(1) Except as provided in this section, a security officer’s licence does not authorise
the holder to be in possession of a baton while engaged in activities authorised by
the licence.
(2) The holder of a security officer’s licence may, subject to this section, be in
possession of a baton while engaged in activities authorised by the licence if —
(a) his or her licence is endorsed under subsection (3) to permit such
possession; and
(b) the baton is of a type approved by the Commissioner by order published in
the Gazette.
(3) A security officer’s licence may be endorsed by a licensing officer to permit the
security officer to be in possession of a baton while engaged in activities
authorised by the licence.
(4) An endorsement under subsection (3) may be made on the issue of a security
officer’s licence or on an application under regulations referred to in
subsection (6).
(5) Without limiting section 62 a licensing officer may make an endorsement under
subsection (3) subject to any condition or restriction.
[2018] FWC 4303
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(6) Regulations made under section 94 may make provision for and in respect of
applications for an endorsement under this section.”
[77] Section 9 of Division 2 of Schedule 1 of the Security Regulations also only provides a
lawful excuse for a Security Officer to possess a baton if the Security Officers’ Security
Licence is endorsed to permit such possession. Relevantly clause 9(3) of Section 9 of
Division 2 of Schedule 1 of the Security Relegations expressly prohibits a security officer
being in possession of any other weapon (prohibited or controlled) while performing any
licensed activity.
“9. Carrying of weapons
(1) A security officer must not be in possession of a firearm while performing any
licensed activity unless the firearm was provided to the security officer by the
security agent for the purpose of performing that activity.
(2) A security officer must not be in possession of a baton while performing any
licensed activity unless —
(a) the security officer’s licence is endorsed under section 26; and
(b) the baton is of a type approved by the Commissioner under
section 26(2)(b).
(3) A security officer must not be in possession of any other weapon while performing
any licensed activity.”
[78] Mr Emery’s Security Licence provides that:
“Your Security Officer’s licence, as defined in section 12 of the Security and Related
Activities (Control) Act 1996 authorises you to guard, watch and protect any property
on behalf of a licensed Security Agent.
…
You are only authorised to possess or carry a firearm or baton whilst performing
licensed duties if you hold the appropriate endorsement …”63
[79] Mr Emery concedes that he did not hold the appropriate endorsement. However, in the
Applicant’s Closing Submissions it is submitted that at the time Mr Emery says that the baton
fell into his work vehicle he was not performing ‘licensed duties’ for the purposes of his
Security Licence, ‘licensed activities’ for the purposes of section 9(2) of Division 2 of
Schedule 1 of the Security Regulations, or ‘activities authorised by the licence’ for the
purposes of section 26 of the Security Act.
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[80] Section 12(1) of the Security Act defines a security officer as:
“A security officer is a person who for remuneration watches, guards or protects any
property.”
[81] On his own admission, at the time he says that the baton fell into his work vehicle, Mr
Emery was performing the following tasks:
“I returned to the depot at about 6:30am on the morning of the 16th January 2018. It
was part of my role to confer with my team members, sign off on their reports,
complete my own report and prepare for handover. I was doing this at the depot after I
returned ...”64
[82] Recording intelligence and arranging surveillance is an intrinsic part of guarding,
watching and protecting property and I am satisfied that the duties that Mr Emery says that he
was performing are within the duties of a Security Officer as contemplated by Mr Emery’s
Security Licence and by the Security Act. Even if the artificially narrow definition of duties
relied on by Mr Emery is accepted, neither the Security Act nor Mr Emery’s Security Licence
which is issued pursuant to the Security Act authorise Mr Emery to carry a prohibited weapon
or a controlled weapon when he is not performing his duties as a licensed Security Officer.
[83] In his Closing Submissions it is submitted that, even if Mr Emery’s possession of the
baton would otherwise constitute an offence under section 6(1) of the Weapons Act, pursuant
to section 6(2) of the Weapons Act, he did not commit an offence because he carried or
possessed the baton only so as to deliver it into the custody of a member of the Police Force
or an employee of the Police Service.
“6. Prohibited weapons
(1) Except as provided in subsections (2) and (3) and section 10, a person who –
(a) brings or sends a prohibited weapon into the State;
(b) carries or possesses a prohibited weapon;
(c) purchases, sells or supplies a prohibited weapon; or
(d) manufactures a prohibited weapon,
Or attempts to do any of those things, commits an offence.
Penalty: $8 000 or imprisonment for 2 years.
(2) A person does not commit an offence under subsection (1)(b) if the person carries
or possesses the prohibited weapon only so as to deliver it into the custody of –
(a) a member of the Police Force; or
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(b) an employee in the Police Service.
…”
[84] It is an agreed fact that Mr Emery alleges that he found the baton between 2:30pm and
4pm on Monday 15 January 2018.65 His evidence is that he arrived home just after 4pm.
Therefore he must have located the baton sometime before 4pm. He says he was required to
be home by 4.30pm to meet his disabled son and his carer.66 In the Second Investigation
Meeting, Mr Emery admitted that there is a Police Station within one kilometre of the
Joondalup Shopping Centre.67
[85] Mr Emery did not take the baton immediately to the Police Station even though the
Police Station was located within 1km of the Shopping Centre. Given he acknowledged that
he may have found the baton as early as 2:30pm and his son was not due home until 4.30pm,
handing the baton in immediately does not appear to have been an unrealistic option.
[86] Mr Emery did not commence work until 7pm on 15 January 2018 but provides no
explanation as to why he did not hand the baton in on his way to work.
[87] Nor does Mr Emery provide any explanation why he did not hand the baton in during
the course of his shift between 15 January 2018 and 16 January 2018.
[88] Mr Emery concluded his shift at 7am on Tuesday 16 January 2018 and sometime
between Wednesday 18 January 2018 and 25 January 2018 he travelled to the south west on
holiday.68 He provides no explanation as to why he did not make arrangements to hand the
baton in before his departure or to any police station on route to his destination given that he
presumed the baton was still in his work bag.
[89] Mr Emery’s evidence is that the earliest he would have handed the baton in was
24 January 2018 when he says he intended to attend the Joondalup Court House.69 I note that
the email from his real estate agent which he relies on as evidence that he intended to attend
the Court House on that date states that his real estate agent intends to attend the Court house
on his behalf:
“Please find attached the Court Authority Form.
Please sign and return ASAP so I can attend court on your behalf.”70
I also note that Mr Emery told the investigators at the Second Investigation Meeting that the
relevant court date was to occur on 29 January 2018.71
[90] Mr Emery did not retrieve the baton from his locker to deliver it to the police at that
court date. The Court date had passed by the time that Mr Emery returned to work on
25 January 2018 and was suspended. Given that Mr Emery did not avail himself of numerous
opportunities to deliver the baton to the custody of the WA Police Force, it is not clear that he
was in possession of the weapon only so as to deliver it into the custody of the WA Police
Force.
[2018] FWC 4303
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[91] Finally, in his Closing Submissions at paragraph 118, it is submitted that Mr Emery
did not breach the Operations Manual because provision 11.2 which states that: ‘Field
Officers are not licensed to carry items such as batons, capsicum spray, handcuffs for
prohibited items’72 is descriptive of law rather than a condition of employment.
[92] Mr Emery signed an acknowledgment of the Operations Manual on 19 September
2017.73
[93] I am satisfied that doing something, which an employee is specifically instructed by
his employer that they are not authorised by law to do, might reasonably form the grounds for
the taking of disciplinary action against the employee. This is so irrespective of whether the
employer’s policies, by which the employee has agreed to be bound by, are expressed in a
descriptive or proscriptive manner.
[94] The measure for determining whether the reason for termination for Mr Emery’s
dismissal was valid is an objective one. The reason must be: ‘…defensible on an objective
analysis of the relevant facts …’74 The FWC is not to: ‘… stand in the shoes of the
employer…’ and determine whether or not the decision made by the employer was a decision
that would be made by the FWC. Rather it is for the FWC to assess whether the City had a
valid reason for Mr Emery’s dismissal connected with Mr Emery’s conduct.75
[95] While it is necessary to determine that the conduct relied on occurred as a necessary
step in the process of determining whether a valid reason existed, it is not the role of the FWC
in unfair dismissal proceedings to purport to determine whether an individual’s actions
involve breaches of legislation attracting criminal sanctions.76
[96] On his own admission Mr Emery:
a. Acquired an extendable baton on 15 January 2018 which he was aware should be
handed in to the WA Police because it was dangerous.
b. He made no effort to have the baton handed to the WA Police between
15 January 2018 and 25 January 2018 when he was made aware that his employer had
taken possession of the baton.
c. The earliest time he would have handed in the baton was 24 January 2018 but he did
not do so.
d. He had the baton in his possession during his shift on 16 January 2018 while
undertaking duties for which he was employed by the City as a Security Guard.
e. He was not authorised to have the baton with him while working (or, it would appear,
at any other time).
f. He instructed a colleague to place the baton in his locker rather than hand it into the
WA Police.
[97] Mr Emery has not provided an adequate explanation as to why he did not hand in the
baton or arrange for the baton to be handed in to the WA Police between 15 January 2018 and
25 January 2018 when he discovered the baton was in his employer’s possession.
[98] Mr Holland gave evidence that the City was only the second local government to offer
security services and that the service is highly valued by the City’s residents. According to
[2018] FWC 4303
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Mr Holland the service relies for its success on a close working relationship with the WA
Police. A relationship which Mr Holland says would be damaged by a finding of serious
misconduct on the part of one of the City’s Security Officers.
[99] Mr Emery is an experienced and qualified Security Officer and should be aware of the
statutory regime in which he has performed his duties for the City for 12 years. He is a Team
Leader responsible for supervision and management of a team of Security Patrol Officers.
Due to rostering arrangements and his personal circumstances he operates his team semi-
autonomously.77 During the investigation and since, Mr Emery has shown no remorse or
contrition for his conduct. There is therefore a potential risk that Mr Emery would undertake
or permit conduct which could expose himself, his colleagues and/or his employer to breaches
of the statutory regime governing the delivery of security services in Western Australia.
[100] In light of all of the above circumstances, I am satisfied that there were valid reasons
for Mr Emery’s dismissal.
Was Mr Emery notified of the reason for his dismissal? (s.387(b))
[101] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made,78 in explicit terms,79 and in plain and clear
terms.80 In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151, a Full Bench of
the Australian Industrial Relations Commission, dealing with a similar provision of the
Workplace Relations Act 1996 (Cth), stated that:
“As a matter of logic procedural fairness would require that an employee be notified of
a valid reason for their termination before any decision is taken to terminate their
employment in order to provide them with an opportunity to respond to the reason
identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it
was sufficient to notify employees and give them an opportunity to respond after a
decision had been taken to terminate their employment. Much like shutting the stable
door after the horse has bolted.”
[102] The reasons why Mr Emery was dismissed were set out in the Termination Letter as
follows:
“As a result of the investigations that have taken place, the City reached the conclusion
that you engaged in misconduct and has therefore decided to terminate your
employment. The misconduct relates to the carrying and possession of an extendable
baton without endorsement and not following Western Australian legalisation (sic) that
must be complied with under your Security Officers License and the City’s internal
policy requirements:
The conditions and requirements of your Security Officers Licence, number
SG08253, as provided to you in writing by the WA Police
Weapons Act 1999, s 6 – Prohibited Weapons
Security Related Activities (Control) Act 1996 Part 3 Division 3 section 26
Security and Related Activities (Control) Regulations 1997 Schedule 1 Division 2
Clause 9(2)
[2018] FWC 4303
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Field Operations Manual (recently acknowledged on 19 September 2018)”
[103] Mr Emery asserts that at no time during the investigation was the allegation that he
breached the Weapons Act raised with him.81
[104] The minutes of the Second Investigation Meeting reveal that Mr Emery was shown a
copy of an extract of the Weapons Act at the Second Investigation Meeting and asked whether
he believed his conduct constituted an offence. According to the minutes, Mr Emery
indicated that he believed his conduct did not constitute an offence.82
[105] Mr Emery was subsequently provided with a copy of the minutes of the Second
Investigation Meeting. He made various corrections to unrelated parts of the minutes and
then signed an acknowledgement that the minutes were: ‘…a true and accurate record of the
issues discussed at the meeting.’83
[106] I am satisfied that the alleged breach of the Weapons Act, along with the other reasons
for which he was dismissed, were raised with Mr Emery before his dismissal.
[107] I therefore find that Mr Emery was notified of the reasons for his dismissal.
Was Mr Emery provided with an opportunity to respond to reasons for his dismissal?
(s.387(c))
[108] An employee protected from unfair dismissal must be provided with an opportunity to
respond to any reason for dismissal relating to the conduct or capacity of the person. This
criterion is to be applied in a common-sense way to ensure the employee is treated fairly and
should not be burdened with formality.84
[109] Mr Emery claims that the allegations which subsequently formed the reasons for his
dismissal were never put to him in writing and that the failure to put the allegations in writing
resulted in him not having an opportunity to respond to the reasons for which he was
ultimately dismissed.85
[110] The Suspension Letter set out the allegations of misconduct as follows:86
“Our specific concerns relate to an alleged incident of serious misconduct where it is
alleged that you have been in possession of an extendable baton whilst on duty. This
baton was found in the “alpha one” work vehicle on 20th January 2018. This vehicle
was allocated to you on your last shift the 15th January, a nightshift finishing at 0700
on 16th January. The baton was later transferred to your locker on 20th January 2018 by
another staff member.
The alleged behaviour is in breach of the following organisational policies, manual
and legal requirements:
Code of Conduct
Field Officers Operations Manual
Security Related Activities (Control) Act 1996 Part 3 Division 3 section 26
[2018] FWC 4303
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The conditions and requirements of your Security Officers Licence, number
SG08253, as provided to you in writing by the WA Police.”
[111] The Allegation Letter set out the allegations of misconduct as follows:87
“Our specific concerns relate to an alleged incident of misconduct on 16 January 2018
where you were in possession of a baton and subsequently left that baton in a city
vehicle. Subsequently, the baton was moved by another staff member to your locker on
your behalf.
The alleged behaviour is in breach of the following policy and legal requirements:
Code of Conduct
Field Officers Operations Manual
Security Related Activities (Control) Act 1996 Part 3 Division 3 section 26
The conditions and requirements of your Security Officers Licence, number
SG08253, as provided to you in writing by the WA Police.”
[112] The Invitation to the Disciplinary Meeting set out the allegations of misconduct as
follows:88
“Our specific concerns relate to an alleged incident of serious misconduct where it is
alleged that you have been in possession of an extendable baton whilst on duty.
The alleged behaviour is in breach of the following policy:
Code of Conduct
Field Officers Operations Manual Clause 11.2
Security Related Activities (Control) Act 1996 Part 3 Division 3 section 26
The conditions and requirements of your Security Officers Licence, number
SG08253, as provided to you in writing by the WA Police.”
[113] There is no specific statutory requirement that allegations of misconduct be put in
writing. I am satisfied that the City notified Mr Emery of the allegations of misconduct in a
fulsome manner on multiple occasions such that Mr Emery had an opportunity to respond to
the reasons for which he was ultimately dismissed.
[114] Mr Emery also submits that he was not given an opportunity to respond to the reasons
for his dismissal because he did not have an opportunity to respond in writing to the
allegations of misconduct and the opportunity given to him at the meetings with his employer
to respond orally was deficient because he was limited to responding to scripted questions
posed by the investigators.89
[115] Mr Emery acknowledges that he attended meetings with his employer on
29 January 2018, 15 February 2018 and 6 March 2018 at which the allegations of misconduct
which led to his dismissal were discussed.90
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[116] Minutes were taken at each of the First Investigation Meeting and the Second
Investigation Meeting and provided to Mr Emery at the following meeting (Disciplinary
Meeting) to confirm their accuracy. The minutes of the Investigation meetings and the
minutes of the Disciplinary Meeting reveal that the City had prepared a script of questions in
order to clarify information it believed it needed to obtain to make an assessment of the
allegations of misconduct levelled against Mr Emery. But the evidence of the City’s
witnesses and a review of the minutes of the respective meetings also reveal that Mr Emery
was also invited to provide any additional information he believed was relevant. For example
he was asked the following questions:
Are there any other circumstances we need to be aware of or should take into
consideration with regard to this incident?
Do you have any questions for us at this time?
Do you require clarification on anything we have discussed today?
[117] The Minutes also provided space for Mr Emery to make any notes and invited him to
attach any additional notes.91 Mr Emery conceded he could have added notes or attached
additional materials to the minutes but chose not to do so.92
[118] Mr Emery was accompanied by his union delegate, Ms Boland, to all three meetings.
The unchallenged evidence of the City is that Ms Boland is proactive in contemporaneously
raising with the City any concerns about procedural fairness during investigations conducted
by the City. 93 There is no assertion made by Mr Emery that Ms Boland had any concerns that
Mr Emery had not been afforded procedural fairness. I note that Mr Emery chose not to call
Ms Boland as a witness.
[119] There is no statutory requirement that an employee must be provided with an
opportunity to provide a written witness statement or some other written response to
allegations levelled against them. In fact the relevant authorities make it clear that the
requirement to provide employees with an opportunity to respond to the reasons for their
dismissal should not be burdened with formality. I am satisfied that Mr Emery was provided
with multiple opportunities both orally and in writing to respond to the allegations which
subsequently formed the grounds for his dismissal.
[120] Mr Emery also asserts that he did not have an opportunity to respond to the reasons for
his dismissal which relate to statutory breaches because the questions about the relevant
legislation were confusing and should have been put to him in writing in order for him to
properly respond.
[121] The minutes of the Second Disciplinary Meeting94 record that:
“Neil was shown the Security and Related Activities (Control) Act 1996 – Section
26
Neil: Yes I understand this.
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Neil was then shown the Schedule 1 Weapons Act and Offences of the Weapons
Act pertaining to being in possession of a baton. Neil acknowledged these
sections.
Adrian: Read 1 & 2 then I will ask you a question.
Q: Do you feel you have committed and (sic) offence under the weapons act?
Neil: No
Q: Do you want to expand on why you think this is not an offence?
Neil: What do you mean?
Q: Why do you think this, do you want to elaborate?
Neil: It was to go to Police and wasn’t meant to land in the hands of anyone else.
Adrian: Neil do you want copies of the Act and Regs?
Break to discuss
Adrian then further tried to discuss the weapons act and advised Neil that he feels that
his understanding of the seriousness of this legislation is lacking and tried to explain
the difference between carry and possess, however Neil interrupted by saying.
Neil: I have been in law enforcement for over 30 years, I understand the law. I’ve
spoken to my lawyer and he even stated that it [handwritten strikethrough by Mr
Emery] would have no bearing in court. There is no offense on the grounds that I
was going to hand it in. [handwritten note added by Mr Emery: IS NOT AN
OFFENCE TO FIND A NEW WEAPON]. I was going to go to court on the 29th and
I was going to hand it in then. It was inconvenient I would hand it in when
convenient.
Claire Q: When did you speak to a lawyer?
Neil: Yeah on the 24th, Stephen Edwards.”
[122] The minutes of the Disciplinary Meeting are consistent with the evidence of Mr Beard
and reveal that Mr Emery was presented with copies of the relevant statutory provisions
before being invited to comment on whether he believed his conduct consisted an offence
under the relevant Act. He was then encouraged to expand on his response. As would be
expected given the seniority of his position, his training and his experience, he informed the
investigators that he understood the relevant laws. Furthermore, he indicated that he had
specifically obtained legal advice in relation to whether his conduct amounted to a statutory
breach.95 I am therefore satisfied that Mr Emery had an adequate opportunity to respond to
the reasons for his dismissal which related to statutory breaches.
[2018] FWC 4303
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[123] I find that Mr Emery was given an opportunity to respond to the reasons for his
dismissal.
Was Mr Emery unreasonably refused a support person? (s.387(d))
[124] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, the employer should not unreasonably
refuse that person being present. There is however, no positive obligation on an employer to
offer an employee the opportunity to have a support person.96
[125] Mr Emery concedes that he was not refused a support person.97
[126] I find the City did not unreasonably refuse to allow Mr Emery to have a support
person present at discussions relating to the dismissal.
Was Mr Emery given warnings regarding unsatisfactory performance? (s.387(e))
[127] Where an employee protected from unfair dismissal is dismissed for the reason of
unsatisfactory performance, the employer should warn the employee about the unsatisfactory
performance before the dismissal. Unsatisfactory performance is more likely to relate to an
employee’s capacity than their conduct.98
[128] Mr Emery says that his dismissal related to the performance of his duties and therefore
the City should have provided him with warnings regarding his performance prior to his
dismissal.99 I am satisfied that reasons for Mr Emery’s dismissal are more accurately
characterised as relating to his conduct rather than his capacity to perform his duties. The
reason for his dismissal was that possession of a baton was categorically not part of his duties.
I am satisfied that Mr Emery was dismissed for misconduct and not for unsatisfactory
performance. I have therefore treated this criterion as neutral.
What is the impact of the size of the City and the presence or absence of dedicated
human resources management specialist/expertise on the procedures followed? (s.387(f)
and s.387(g))?
[129] The City acknowledged that it had the appropriate expertise and resources to ensure
that Mr Emery’s dismissal occurred for valid reasons and was conducted in a procedurally fair
manner. The City submitted that it followed best practice in its dealings with Mr Emery.100
[130] I am satisfied that the City had dedicated human resource expertise available to it and
that the size of the City’s enterprise did not impact on the procedures followed in effecting the
dismissal.
Are there any other relevant matters? (s.387(h))?
[131] Section 387(h) provides the Commission with a broad scope to consider any other
matters it considers relevant to the determination of whether the dismissal of Mr Emery was
harsh, unjust or unreasonable.
[2018] FWC 4303
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[132] Mr Emery submits that it is relevant to determination of whether his dismissal was
harsh, unjust or unreasonable that the baton came to be in his possession because he
performed his civic duty to ensure a dangerous weapon did not fall into the wrong hands. He
submits that his dismissal in these circumstances was disproportionate given his unblemished
career of 12 years with the City. He also says that the impact on the dismissal is harsh given
his age and its financial impact on his family which includes an adult disabled son.101
[133] The evidence is that his service was not entirely unblemished. Mr Emery had been
issued with a counselling note in December 2016 which he refused to sign. Ms Fairman, his
supervisor, gave evidence that she undertook informal counselling of Mr Emery in
March 2017 and that she intended to undertake further counselling of Mr Emery in early 2018
had he not been dismissed.102 Mr Beard tendered evidence of informal counselling of Mr
Emery in October 2017 and gave evidence of his intention to issue Mr Emery with a formal
counselling note had the events of his dismissal not overtaken the performance management
process that Mr Beard had commenced.103 Mr Emery contests that these performance issues
were validly raised. However, even if these issues are not taken into account, the seriousness
of the conduct for which Mr Emery was dismissed in light of his supervisory responsibilities
weighs heavily against his period of service.
[134] The City’s witnesses gave evidence that consideration was given to Mr Emery’s length
of service when determining the appropriate disciplinary consequences.104
[135] Mr Emery has had a lengthy period of employment with the City. The duration of his
employment is however a double-edged sword. His length of service is relevant to the
harshness of his dismissal. However, the experience and knowledge he ought to have
acquired during a period of employment of this duration should have led him to make better
decisions in relation to his handling of the baton. Furthermore, the seniority which he gained
during this period of employment makes his conduct more serious.
[136] The City say that Mr Emery did not raise his age or his financial circumstances when
invited on multiple occasions to provide information during the course of the investigation
and that these are matters which the City would have taken into account when determining
what disciplinary action was appropriate.
[137] It appears from the evidence tendered by Mr Emery that he has applied for a number
of alternative positions since his dismissal. As at the date of the Determinative Conference,
he had not been successful in obtaining alternative employment. This may be a function of
his age or the current state of the job market. For roles for which experience and knowledge
are key elements, his age may well be an asset for those roles. For roles with more physical
components his age will most probably be a negative factor.
[138] In upholding the dismissal of 54 year old applicant with service of 23 years, Vice
President Lawler noted:
“It is relevant that the Applicant was 54 years of age at the time of the dismissal, and
had worked with the Respondent and its predecessor for some 23 years. The personal
and economic consequences of his termination were potentially devastating. Relatively
advanced age and long service can render harsh a termination that would not be harsh
[2018] FWC 4303
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in the case of identical conduct by a younger person with relatively short service.
Nevertheless, age and length of service simply remain a factor to be taken to account
in considering whether the termination was harsh, unjust or unreasonable and in
applying the principle of a "fair go all round".105
[139] I am not satisfied that, taking into account all the circumstances, Mr Emery’s age,
family circumstances or the financial impact of his dismissal make his dismissal harsh, unjust
or unreasonable.
[140] In his Closing Submissions, it was submitted on Mr Emery’s behalf that documents
produced in accordance with Orders for Production revealed a more favourable disciplinary
treatment of Mr Cappa (who had placed the baton in Mr Emery’s locker) as compared to
Mr Emery and that this is a matter which I should take into account in determining whether
the dismissal of Mr Emery was harsh, unjust or unreasonable. The Closing Submissions
acknowledge that the City’s witnesses provided an explanation for the differential treatment
but that documents which were produced but not tendered reveal that the circumstances were
the same. It is submitted on Mr Emery’s behalf that I should have regard to those materials
notwithstanding they were not tendered because Mr Emery was unaware he should tender
them because he was not granted leave to represented.106
[141] I note that at the outset of the Determinative Conference I informed the parties that:
“When I mark a document, I give it a number and then you should write that number on
the document so that when we refer to the document in the course of the hearing, we
can be sure what document we are talking about. So, unless I mark a document, it's
not something I am going to rely on in evidence in my decision writing. So, if I miss a
document and I don't give it a number and you want it to be considered as part of my
decision-making process, you need to let me know, okay?”107
[142] I have reviewed the materials produced in accordance with the Orders for Production
and I am satisfied that even if they had been tendered, that an explanation exists for the
differential treatment.
[143] The advancement of a claim that a dismissal is harsh, unjust or unreasonable as a
consequence of differential treatment between an applicant and other employees involved in
the same incident must be approached with caution.
“In particular, it is important that the Commission be satisfied that the cases which are
advanced as comparable cases in which there was no termination are in truth properly
comparable: the Commission must ensure that it is comparing ‘apples with apples’.”108
[144] Mr Cappa was contrite when his involvement in the incident was raised with him. He
initially offered to resign. The City suggested that he instead participate in an investigation
which on all accounts he did willingly, notwithstanding his initial reluctance to ‘dob on a
mate’. Mr Cappa acknowledged that his failure to report the presence of the baton to
management was inappropriate, and also said that he would handle the same situation
differently in the future. Mr Cappa was ultimately given a first and final warning and
[2018] FWC 4303
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demoted as a Team Leader.109 I am not satisfied that the treatment of Mr Cappa as compared
to Mr Emery is such as to render Mr Emery’s dismissal harsh, unjust or unreasonable.
Conclusion
[145] Having considered each of the matters specified in s.387, I am not satisfied the
dismissal of Mr Emery was harsh, unjust or unreasonable. Accordingly, I find the Applicant’s
dismissal was not unfair.
[146] An order to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Neil Emery on his own behalf.
Ms Natalia Smith for the Respondent.
Hearing details:
2018.
Perth:
July 16.
Final written submissions:
Applicant, 2 August 2018.
Respondent, 16 August 2018.
Printed by authority of the Commonwealth Government Printer
PR609192
1 [2013] FCA 291.
2 Exhibit A4 at Attachment NE1.
3 Exhibit A1 at [1]; Exhibit A2 at Document 1.
THE FAIR WORK ORK COMMISSION 1 THE
[2018] FWC 4303
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4 Exhibit A4 at Attachment NE1.
5 Exhibit A4 at Attachment NE1.
6 Exhibit A1 at [4].
7 Exhibit A4 at [4].
8 Exhibit R3 at [1]–[3].
9 Exhibit R4 at [1]–[8].
10 Exhibit R4 at [13] and Attachment AEB-1.
11 Exhibit R5 at [1]–[4] and [10].
12 Exhibit A1 at [5]; Exhibit A2 at Documents 1 and 2.
13 Exhibit A2 at Document 3.
14 Exhibit A2 at Document 3.
15 Exhibit A1 at [6]–[8]; Exhibit A2 at Document 3.
16 Exhibit A1 at [11]–[12].
17 Exhibit A4 at [11]–[12].
18 Ibid at [14].
19 Exhibit A1 at [13].
20 Exhibit A2 at Document 9; Exhibit A4 at [18]–[20].
21 Exhibit A1 at [16].
22 Exhibit A1 at [17] and Exhibit R2 at [57].
23 Exhibit R3 at [42]–[70] and Attachments NMF2, 4 and 5.
24 Exhibit R3 at Attachment NMF-10.
25 Exhibit R3 at [42]–[70] and Attachments NMF2, 4 and 5.
26 Exhibit R3 at Attachment NMF-5.
27 Exhibit A1 at [18].
28 Exhibit A1 at [18; Exhibit A2 at Document 7.
29 Exhibit R4 at [60].
30 Ibid at [61].
31 Exhibit A1 at [19]; Exhibit A2 at Document 8; Exhibit A4 at 25.
32 Exhibit A1 at [19]; Exhibit A2 at Document 8.
33 Exhibit A1 at [20]; Exhibit R2 at [30].
34 Exhibit A2 at Document 9.
35 Exhibit R3 at [94]–[95].
36 Exhibit R4 at [70].
37 Exhibit A1 at [22]–[23]; Exhibit A2 at Document 10; Exhibit R4 at [77].
38 Exhibit R2 at [34].
39 Ibid at [35]–[42].
40 Exhibit R4 at [79].
41 Exhibit A2 at Document 12.
42 Exhibit A1 at [24]–[26]; Exhibit A2 at Document 13.
43 Exhibit A1 at [24]–[26]; Exhibit A2 at Document 14, Exhibit R2 at [49]–[52].
44 Exhibit R2 at [53].
45 Exhibit A2 at Document 14.
46 Exhibit A3 at [2].
47 Exhibit R1 at [24].
48 Exhibit A4 at [36]; Exhibit R1 at [23].
[2018] FWC 4303
30
49 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
50 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
51 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
52 Ibid.
53 Miller v University of New South Wales (2003) 132 FCR 147 at [13].
54 Transcript at PN17.
55 Exhibit A3 at [21].
56 With the exceptions set out in s.6(2)&(3) and s.10 which other than s.6(2) are not relevant in this case.
57 Exhibit A1 at [11].
58 See Exhibit R3 at Attachment NMF-4, which is the contemporaneous incident report prepared by Ms Fairman on 22
January 2018. See also Exhibit R3 at Attachment NMF-2, which is a signed statement of Mr Almond.
59 Exhibit R4 at [77] and Attachment AEB10; Exhibit A2 at Document 10.
60 Transcript at PN13.
61 Exhibit R3 at [56]–[58].
62 Weapons Act 1999 (WA) s.7(1).
63 Exhibit A4 at NE2.
64 Exhibit A4 at [16].
65 Exhibit A1 at [11].
66 Exhibit A4 at [12].
67 Exhibit A2 at Document 10.
68 Exhibit A4 at [22].
69 Ibid.
70 Exhibit A4 at Attachment NE4.
71 Exhibit A2 at Document 10
72 Exhibit R4 at Attachment AEB-1.
73 Ibid.
74 Rode v Burwood Mitsubishi (Unreported, AIRCFB, Ross VP, Polities SDP, Foggo C, 11 May 1999) Print R4471 at [19]).
75 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
76 Smith v Linfox Armaguard Pty Ltd [2004] NSWIRC 1060 at page 7.
77 Exhibit R3 at [16]-[26].
78 Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].
79 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].
80 Previsic v Australian Quarantine Inspection Services (Print Q3730).
81 Exhibit A3 at [22].
82 Exhibit A2 at Document 13.
83 Ibid.
84 RMIT v Asher (2010) 194 IR 1, 14–15.
85 Exhibit A4 at [28].
86 Exhibit A2 at Document 7.
87 Exhibit A2 at Document 8.
88 Exhibit A2 at Document 12.
89 Exhibit A4 at [28]; Applicant’s Closing Submissions at [130]–[132].
90 Exhibit A4 at [27]–[32]; Transcript at PN37–38.
91 Exhibit A2 at Document 11 and Document 13, Exhibit R4 at [65], [75] and [82].
92 Transcript PN40.
[2018] FWC 4303
31
93 Exhibit R2 at [30].
94 Exhibit A2 at Document 13.
95 Exhibit A2 at Document 13; Exhibit R4 at [79].
96 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
97 Exhibit A3 at [27]; Applicant’s Closing Submissions at [133].
98 Annetta v Ansett Australia Ltd (2000) 98 IR 233, at 237.
99 Exhibit A3 at [28]; Applicant’s Closing Submissions at [134].
100 Exhibit R1 at [86]–[93].
101 Exhibit A3 at [32]
102 Exhibit R3 at [28]–[41].
103 Exhibit R4 at Attachment AEB-3 & AEB-4.
104 Exhibit R2 at [38]; Exhibit R5 at [34].
105 Sexton v Pacific National (ACT) Pty Ltd (Print 931440) at [30].
106 Applicant’s Closing Submissions at [137]–[143].
107 Transcript at PN14.
108 Sexton v Pacific National (ACT) Pty Ltd (Print 931440) at [36].
109 Exhibit R4 at [93]–[95]; Exhibit R3 at [63]–[65].
