100315770

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

 -v-

 CHUBB SECURITY AUSTRALIA PTY LTD

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE  WEDNESDAY, 26 FEBRUARY 2003

CLAIM NO/S M 309 OF 2002

CITATION NO. 2003 WAIRC 07839

_______________________________________________________________________________ 

Representation

Claimant Ms S Northcott of counsel

Respondent Mr J Brits of counsel

_______________________________________________________________________________

Reasons for Decision

Claim

1         By its claim filed 21 November 2002 brought pursuant to the provisions of the Workplace Relations Act 1996 the Claimant alleges that the Respondent has failed to comply with clause 9.1(b) of the Chubb-Westrail Enterprise Bargaining Agreement 2001 (the EBA) and seeks the following:

(a)   An order that the respondent comply with the EBA.

(b)   An order that the respondent pay the employee in accordance with the EBA.

(c)   An order that the respondent pay the employee monies due in the sum of $13,356.63 plus an additional $157.14 per day from 16 January 2003.

(d)   An order that the respondent do pay a penalty of not more than $1000 for each and every breach of the EBA.

(e)   An order that the respondent pay to the claimant union the costs and expenses of and incidental to these proceedings.

(f)     Any other order that the Court deems fit.

2         The Respondent denies that it has breached clause 9.1(b) of the EBA.  It argues that the clause had no application to the particular circumstances surrounding its dealing with its employee, namely Gregory Densley, on 29 August 2002.

Facts

3         The Respondent is, and was at all material times, a corporation carrying on business in the State of Western Australia.  The Claimant alleges in its pleadings that it is a trade union as defined in section 7 of the Industrial Relations Act 1979.  Gregory Densley is a member of the union.  He is, and was at all material times, the employee of the Respondent.  Mr Densley’s conditions of employment were, at the material time, governed by the EBA.

4         Mr Densley is a former police officer from Victoria who gained employment with the Respondent in Western Australia about 7 years ago.  He was engaged as a Service and Security Officer to perform guard duties upon railway property, including metropolitan passenger trains.  He was appointed a “special constable” pursuant to the provisions of the Government Railways Act 1904 and the Police Act 1892 for such purpose.  Mr Densley has an unblemished record and his work performance for the Respondent has been exemplary.

5         On 15 August 2002 Mr Stephen Connell, the Respondent’s Business Manager, Guard Services WA, received a complaint from a female work colleague of Mr Densley concerning an incident that was alleged to have occurred outside of work hours.  In essence, the complainant alleged that Mr Densley had spiked her drink and attempted to rape her.

6         Upon receipt of the complaint Mr Densley was stood down immediately pending investigation.  In effect the provisions of clause 9.1(b) of the EBA were implemented in that Mr Densley was stood down on full pay pending the outcome of the investigation.  The Respondent investigated the matter by speaking to the complainant, Mr Densley and all nominated witnesses.  Mr Densley was interviewed on 19 August 2002 during which he gave his account of what had occurred.  The Respondent continued to investigate the matter until 22 August 2002 at which time the Respondent concluded that it could not determine the matter either one way or the other.  Essentially, the Respondent took the view that, because it was one person’s word against the other, it should not take any action as against Mr Densley.  However, if Mr Densley were to be charged by the police over the matter, his position would be further reviewed.  Mr Connell’s evidence in that regard is that Mr Densley was told that, if he were to be charged by the police, then his position would be no longer tenable and that he would have to go.

7         In order to facilitate Mr Densley’s return to work the Respondent liaised with the complainant.  Following that, Mr Densley was instructed to work out of Joondalup whilst the complainant was to work out of the city.  Essentially the move was aimed at keeping the complainant and Mr Densley apart.  Mr Densley was reinstated with effect on 23 August 2002.  He did not return to work immediately because he had a couple of rostered days off.  Mr Densley eventually returned to work on 25 August 2002.

8         On 28 August 2002 the police interviewed Mr Densley about the complainant’s allegations.  As a consequence he was unable to attend his shift rostered for the same time as the interview.  He informed his employer of that fact.  Upon completion of his interview Mr Densley was charged with indecent dealing.  Following being charged Mr Densley contacted Mr Geoff Braithwaite, his supervisor, who arranged for a work vehicle to pick him up from the police station and convey him home.

9         Mr Densley was not rostered to work on 29 August 2002.  On that day Mr Connell contacted him and asked him to attend a meeting that afternoon.  He was not informed as to reason for the meeting.  Present at that meeting were the Respondent’s representatives namely Mr Connell and Mr Gary Phillips.

10     Mr Densley testified that during the meeting Mr Connell informed him that, by reason of the fact that he had been charged, he could either go on leave, or alternatively, have his services terminated.  Mr Densley protested maintaining that he had done nothing wrong.  He initially refused to go on leave.  As a result of that Mr Connell informed him that his employment was terminated and he should bring back all work issue equipment.  He was also advised that he would be paid out all his entitlements.  Mr Densley thereafter told Mr Connell that although he did not agree with the ultimatum that it might nevertheless be in his best interests to take leave.  His termination was retracted.  Mr Densley was told that he would remain on paid leave until his entitlements ran out and thereafter that he would be on unpaid leave.  Mr Densley testified that he there and then signed a blank annual leave application form to facilitate the payment of his outstanding annual leave entitlements.

11     A discussion then took place between Mr Densley and Mr Connell concerning the amount of time required to resolve the matter.  Mr Connell suggested an approach to the DPP to “have it knocked on the head”.  Mr Densley informed Mr Connell “it doesn’t work that way”.  Mr Densley was told that the Respondent’s actions with respect to him resulted from advice received from its HR Manager.  In response, Mr Densley, made the point that other employees facing a similar predicament to himself had been stood down with pay.  Mr Connell retorted that there had been a different HR Manager at the time that those decisions had been made.

12     The meeting concluded and Mr Densley sought advice from the Claimant union.

13     Mr Connell, on behalf of the Respondent, wrote to Mr Densley by letter dated 29 August 2002 outlining what had transpired at the meeting.  I set out the text of that letter (exhibit 3):

“Dear Greg

Re:    Outcome of Meeting

I refer to the meeting that took place at the Chubb Office, between Stephen Connell, Gary Phillips and you on Thursday the 29th of August 2002.  At this meeting we discussed:

      You had been charged with a criminal offence, by the state police, over an incident that took place outside of work hours, but it involved a security officer who works on the same system.

      You confirmed that this was in fact true and you could not attend your shift the previous day due to being with the police.

Chubb have considered the fact that you have been only charged and not found guilty, but we can not continue to work you at any site in which we hold contracts and we offered you the following:

      To take leave without pay, after your (sic) have used your entitled leave, until the matter is resolved, or

      Terminate your services.

You decided to take the leave without pay until the matter is resolved and will keep Chubb informed of any outcomes or changes in the process.

Sincerely,”

14     On 18 September 2002 Mr Densley was paid out some of his annual leave entitlements.  The balance was eventually paid out on 22 January 2003.  Mr Connell testified that the delay was caused by administrative error.  Mr Densley was paid his “accrued rostered days off” entitlements in November of 2002.  Other than those payments, he has received no other form of payment.

15     On 15 November 2002 Charles Sanders from “Chubb” telephoned Mr Densley to inform him that given that the Respondent had lost its Westrail contract his services would no longer be required.  Mr Sanders informed Mr Densley that he would receive a letter in the mail confirming their discussion however that was never received.

16     In that regard Mr Connell testified that Chubb had been informed in late 2001 that their Westrail contract would be finishing and that the Western Australian Government Railways would be taking over the contract in-house.  They were proposing to recruit and train their own guards.  I infer that Mr Connell may have mistakenly said 2001 instead of 2002.  In any event on 15 October 2002 a letter was sent out to all staff informing them of the situation (see exhibit 8).  Three staff out of about fifty, one of which was Mr Densley, alleged that they did not receive that letter.  On 15 November 2002, by order of the Australian Industrial Relations Commission, all employees were again notified.  Mr Sanders contacted Mr Densley as a result.

17     In the intervening period Mr Andrew Lee, an organiser with the Claimant union, spoke to Mr Densley and thereafter established contact with Mr Connell with respect to the matter.  Mr Lee testified of his discussions with Mr Connell.  Mr Connell informed him that although the Respondent had investigated the incident and Mr Densley had been cleared to return to work Mr Densley knew that the situation would be completely different should he be charged by police.  Mr Lee advised Mr Connell that in his view the EBA provided for paid leave in circumstances where an employee was under suspension as a consequence of being charged with a criminal offence.  He also told Mr Connell that he disagreed with the action taken by the Respondent and asked him to point out the particular provision in the EBA that justified the Respondent’s actions.  Mr Lee took the view that Mr Connell evaded attempting to justify the Respondent’s actions.  Mr Connell for his part reiterated that Mr Densley knew all along that if he were charged he would have to go.

18     On 25 September 2002 Mr Lee, on behalf of the Claimant union, wrote to Mr Connell, as the representative of the Respondent (exhibit 11), indicating that the Claimant believed that the Respondent was in breach of clauses 9.1(b) and 9.2 of the EBA by virtue of its failure to pay Mr Densley during his suspension.

19     On 27 September 2002, by letter incorrectly dated 17 September 2002 (exhibit 12), Mr Connell responded to the Claimant by saying inter alia that the entitlement to be paid whilst stood down was operative only whilst an investigation was in progress.  As the investigation had been finalised the provision was no longer relevant.

20     In response, by letter dated 2 October 2002 (exhibit 13), Mr Lee, on behalf of the Claimant, advised the Respondent that a failure to make payment by Friday, 4 October 2002 would result in prosecution.

21     By letter dated 10 October 2002 (exhibit 14) the Respondent indicated that its position remained the same as outlined in its letter dated 17 September 2002.

Assessment of Witnesses

22     Mr Densley’s evidence, albeit straightforward, appeared to be lacking in detail.  His memory of events was neither comprehensive nor entirely clear.  Often he had to be prompted into remembering matters.  As to Mr Lee’s evidence, it must be said that the same was of little value.  I say that because much of his evidence related to a subjective assessment of what Mr Connell had told him.  When asked to be precise about what had actually been said between himself and Mr Connell during their discussion, the evidence previously given did not accord with what was actually said.  Much of his evidence was subjective and consisted of his perceptions, inferences and conclusions.  His evidence was not objective in my view.  There was an attempt made by him to portray Mr Connell as a person who wilfully and defiantly disregarded the Respondent’s EBA obligations.  Mr Connell, in my view, was the most impressive of the witnesses.  His evidence was straightforward.  He was able to relate with precision the events that occurred.  Where necessary he made admissions.  I prefer his evidence where there is any inconsistency.

Findings

23     I find that the Claimant’s member Mr Densley was stood down on 15 August 2002 pending investigation of serious allegations against him.  I am satisfied that the Respondent complied with clause 9.1(b) of the EBA in that regard.  I am satisfied that the Respondent completed its investigations of the allegations on or about 22 August 2002 and found that Mr Densley should be reinstated, given that the Respondent could not determine whether or not Mr Densley was guilty of serious misconduct.  I accept that Mr Densley was told that if he were to be charged by the police then his position would no longer be tenable.  When the police charged Mr Densley on 28 August 2002 the Respondent considered its position.  It did not further investigate the matter as that had already been done and was complete.  It decided on the strength of the police charge (be it rightly or wrongly) that Mr Densley was guilty of serious misconduct and that he should be terminated.  However, on account of his prior good record the Respondent was prepared to retain him awaiting the outcome of the criminal proceedings brought against him.

Has the Respondent Breached the EBA?

24     Clause 9 of the EBA (exhibit 2) relevantly provides:

9. CODE OF CONDUCT

9.1

(a)   …

(b)   Where an employee is under any investigation for alleged (serious) misconduct and all other disciplinary or performance matters, he/she may be suspended from normal duties, so that an investigation in accordance with these or Westrail procedures can take place.  Such suspension must be on full pay.

(c)   …

25     Clause 9.2 of the EBA provides inter alia:

Serious Misconduct

Cases of serious misconduct, disobedience or serious neglect of duty will be liable to dismissal without notice.  An employee who is charged with such behaviour shall be given the opportunity to respond to such allegation and to have a representative present at such time.

In circumstances where it is determined that dismissal without notice is not appropriate, the employee may be given a final warning that any further case of misconduct, may result in dismissal without notice.  As with the above, the employee shall retain the right to respond to the allegations and have a representative present.

26     The issue to be determined is whether Mr Densley was, on 29 August 2002, suspended so that an investigation could take place.  To support its position the Claimant, to some extent, relies on what Mr Connell said in the third paragraph of his letter dated 17 September 2002 (exhibit 12).  Mr Connell said in that letter:

“Greg was fully aware that if the police were to take action against him in this matter (ie charge him) the Chubb would need to reopen its investigation and reconsider its position.  This did happen, so Chubb have concluded that, because of the seriousness of the charges, we can not work Greg on any site whilst this matter is to be heard by a court.”

27     In my view such statement does no more that to reaffirm that on 29 August 2002 the decision had been made to terminate Mr Densley or, alternatively in view of his previous good work record, to allow him to take leave pending the resolution of the criminal proceedings brought against him.  It is clear that he was not in those circumstances to be under suspension.  The investigation was complete.  The Respondent either rightly or wrongly formed the view that Mr Densley was guilty of serious misconduct.  It reached that conclusion because the police had charged him.  The investigative process was by that stage well and truly over.

28     It is apparent that the provision in clause 9.1(b) relates only to what transpired between 15 and 22 August 2002 inclusive.  It has no application to that which resulted after a decision was made that Mr Densley was guilty of serious misconduct.  By that stage the investigation was complete.  Given that the investigation was complete and a decision had been reached, it cannot be said that Mr Densley was stood down pending investigation.  There was nothing to investigate.  The Respondent had previously investigated the matter and the police likewise had completed their investigation.  They had made a decision that Mr Densley would be charged.  Mr Densley was simply awaiting trial.  In those circumstances it cannot be said that Mr Densley was stood down so that an investigation could take place.

29     The EBA is obviously silent on what is to happen to a person charged with a serious criminal offence awaiting trial.  It is a matter that ought to be addressed by the parties for their mutual benefit.  The situation is not governed by the EBA.

30     In this case the Respondent was put in an invidious position.  Mr Densley was charged with a serious offence of a sexual nature.  The employer could hardly permit him, in the circumstances, to continue in what he was doing.  There were also risks in allowing him to work elsewhere.  Given the nature of the allegations and given that he had been charged, the Respondent decided to terminate Mr Densley’s employment.  That was a decision that it was entitled to make in all of the circumstances.  However, on account of Mr Densley’s excellent work record the Respondent gave him a lifeline pending the determination of the criminal matter.  It kept his job open for him.  I cannot see how the Respondent can be criticised for that.

Result

31     I find that the Claimant has failed to prove, on the balance of probabilities, that there has been a breach of clause 9.1(b) of the EBA.  Given the state of the pleadings, I am not called upon to determine whether or not there has been any other breach of the EBA.

32     The claim ought to be dismissed.

G Cicchini

Industrial Magistrate