John v The Star Pty Ltd [2014] FWC 543: Too Quick With Summary Dismissal

The common law and various statutory regimes, including the current Fair Work Act 2009 (Cth), have long distinguished summary dismissal from dismissal with notice. Summary dismissal is generally reserved for circumstances where an employer believes that an employee committed an act of serious misconduct. See Matthew John v The Star Pty Limited [2014] FWC 543.

Background

Prior to the incident that led to his dismissal, the applicant had been employed as a Security Officer at The Star Casino (the casino) for about five years. On the evening of 27 April 2013, the applicant was assigned to work a part of his shift as a member of the “Welcome Team” at the Harbour Side entrance to the casino.

Those assigned to the Welcome Team were required to greet patrons as they entered the casino premises and vet potential patrons to ensure that they were not underage or intoxicated. Late that night, Ms L, a 17 year old girl, attempted to gain entry to the casino. She had obtained the Learner Drivers Licence of an 18 year old friend. Ms L presented this ID to the applicant upon request. The applicant gave it a brief inspection and then waved Ms L through. Ms L subsequently sought entry to a nightclub inside the casino, where it was discovered that she was a minor. She was immediately ejected from the casino.

A review of CCTV footage identified the applicant as the Security Officer responsible for permitting Ms L’s initial entry to the casino. The applicant was asked to make a written statement at around 4am on 28 April 2013 and was suspended from duty with pay, pending the employer’s further investigation.

On 2 May 2013, a disciplinary meeting was held. The applicant attended the meeting accompanied by a union representative. The applicant was questioned about the incident and was then shown the CCTV footage for the first time. Upon viewing the CCTV footage, the applicant admitted he had made an inadequate inspection of the identification produced by Ms L. In his defence, the applicant said that he had been stressed and distracted at the time. He said that there were not enough Security Officers at the Harbour Side entrance on that night and that his requests for additional staff had been declined.

After a short break, the meeting resumed and the applicant was told that his employment was summarily terminated for failing to conduct a proper ID check, which included that he “failed to look at the female and vet the ID”. The applicant filed a claim for unfair dismissal. A few days after he filed his claim (some 22 days after he had been verbally advised that his employment had been terminated), the applicant received a letter entitled “Immediate termination of your employment”. The letter included reasons for his dismissal.

The Commissioner’s Decision

Commissioner Cambridge found that the dismissal was harsh, unjust and unreasonable. The applicant had been summarily dismissed for an act of alleged gross negligence. Commissioner Cambridge found that the applicant’s failure to properly vet Ms L’s ID did not constitute gross negligence which might justify summary dismissal. To do so, the employer needed to show that the applicant’s conduct was a grave, serious or significant departure from the standard of care which should have been exercised and that it caused substantial loss to the employer. While the employer was fined $5,000 by the regulator for Ms L’s admission to the casino, Commissioner Cambridge concluded that the applicant’s conduct did not meet this threshold.

The Commissioner found that the employer adopted:

when forming its view of his conduct. Commissioner Cambridge noted that other security officers featured in the CCTV footage were checking IDs with the same haste as the applicant and that the entrance appeared disorganised and understaffed. The employer could not establish any clearly articulated standard procedure that was required of Security Officers when conducting an ID check. Commissioner Cambridge concluded that the standards applied by the employer to the applicant in respect of his ID check of Ms L were “unspecified, unrealistic and unreasonable”.

The Commissioner found that the letter of dismissal included a number of factual errors. It incorrectly identified the time of the incident, the type of ID that had been presented and the relevant duties of the applicant on the night. The letter also asserted that the applicant had "failed to even look at the patron’s face" when in fact the CCTV footage confirmed that he did look directly at Ms L’s face as she approached the entry to the casino. In addition, the employer suggested that the photo on the ID presented to the applicant bore “no resemblance” to the appearance of Ms L. Commissioner Cambridge concluded that such an assertion “would, at best, be disingenuous”.

The procedure the employer adopted that ultimately led to the applicant’s dismissal was also found to include significant deficiencies. The applicant had been required to respond to the allegations at the time that the details of those allegations were first made known to him. Without advance notice he had no opportunity to carefully consider his response. Furthermore, the employer had failed to provide written notification of the reasons for dismissal within an acceptable time after the dismissal.

Conclusion

Commissioner Cambridge concluded that summary dismissal in this instance was:

The Commissioner confirmed that the dismissal was harsh, unjust and unreasonable and ordered the reinstatement of the applicant.

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Article from justitia.com.au 

Matthew John v The Star Pty Limited [2014] FWC 543