1. Mr Expetito's private security individual operator licence was cancelled on 19 September 2012. Senior Sergeant Tockok, a delegate of the Chief Commissioner of Victoria Police found that Mr Expetito did not meet the probity conditions set out in the Private Security Act 2004 ("the Act"). He found that Mr Expetito was not a fit and proper person to hold a security licence and that it was not in the public interest for him to do so.
2. In making this decision, Victoria Police did not consult with Mr Expetito. It transpires that he was interstate at the time the matter was being investigated and therefore oblivious as to concerns raised about him.
3. Mr Expetito accordingly applied under section 150(f) of the Act to this tribunal for a review of the decision.
4. The background to the cancellation of Mr Expetito's licence arises from his employment with KPS Security Pty Ltd ("KPS") during August 2011 and September 2011. The CEO of KPS, Ms Rainbow raised concerns about Mr Expetito's suitability to hold a licence. I will group them for the sake of convenience as operational concerns and behavioural concerns:

• That Mr Expetito acted in a threatening and aggressive manner towards the female director of KPS; and
• That Mr Expetito displayed an attitude of disrespect towards the female manager of KPS.

• That Mr Expetito was unable to read a Melways to go from one nominated location to another, despite having stated in his interview that he was able to do so;
• That Mr Expetito refused to attend at a location in response to a monitored alarm.

1. Mr Expetito has a completely different view of his behaviour. He denies that he has done anything to justify the cancellation of his licence - he stated that his employer KPS Security Pty Ltd owes him money and that the allegations made by KPS are in retaliation to him exercising his rights as an employee.
2. Mr Expetito made a complaint to the Australian Human Rights Commission, under the Racial Discrimination Act 1975 (Cth) alleging racial discrimination and racial hatred in employment.[1]
3. He also lodged a complaint with the Fair Work Ombudsman on 29 September 2011.[2]

1. The purpose of the Act as set out in section 1 is to provide for the licensing and registration of participants in the private security industry and to otherwise regulate the private security industry for the purposes of ensuring public safety and peace.
2. Section 50 of the Act gives the Chief Commissioner the power to conduct an Inquiry if satisfied that there are grounds for believing that if the holder of a private security licence applied for a new licence, that he or she would be refused such a licence.
3. Section 25 of the Act then gives guidance in reaching a conclusion on this point. Relevantly the Chief Commissioner is precluded from granting a private security individual operator licence if satisfied that the granting of the licence is not in the public interest; or that the applicant meets the probity requirements set out in subsection (2) which include whether the person is a fit and proper person to hold the licence.
4. In reviewing the decision of the Chief Commissioner, I stand in the shoes of the Commissioner and in forming an opinion as to whether a ground has been made out, I must take into account all relevant material available to me.
5. In determining whether a person is a fit and proper person to hold those licences or whether it is in the public interest that a person hold the licences similar considerations apply. It requires an analysis of the role of a security guard and a crowd controller. The individual must possess the attributes that point to them being able to behave consistently with the role.
6. The licence granted to Mr Expetito permits him to undertake work as a security guard (unarmed) and as a crowd controller. Section 3 of the Act defines the role of each. Essentially crowd controllers maintain order in public places through the screening and monitoring of other persons whilst security guards watch or guard property by patrolling or otherwise monitoring properties.
7. Honesty, integrity and trustworthiness are characteristics which have been identified in previous decisions of this tribunal as being relevant but the facts of each case will require independent analysis as to whether they would lean to findings against an individual holding a security licence.
8. I look then to a consideration of whether Mr Expetito has, by his conduct, done anything which would lead me to form the opinion that he is not a fit and proper person to hold a security licence.

1. Mr Expetito appeared in person. Ms Mauriks appeared on behalf of Victoria Police.
2. I heard evidence at the hearing from the following witnesses:

Mr Expetito; Ms Rainbow; Mr Evans, Client Services Manager with KPS; Mr Ellison, Patrol Manager with KPS; and Mr Singh, Patrol Officer with KPS.

1. I read a statutory declaration from Mohit Soni, Senior Officer with KPS.
2. I was also provided with a Tribunal book containing the decision under review, a summary of the background and other tabbed documents relevant to the decision which was before me.

1. In her letter to Victoria Police dated 19 September 2011, Ms Rainbow wrote:

"On the evening of Friday 16/09/11, I was forced to call the police to attend my business as one of our staff Gabriel Expetito (Security Licence No: 816 345 205) who has been employed as a Patrol Guard for a period of six weeks caused us to terminate his employment immediately due to his erratic behaviour and his refusal to abide by company policy. This started around 17:45 hours.

For the next 2.5hrs 3 different staff members tried to get him to leave the premises, up to the point of Stating Clearly He was "Trespassing", yet all were threatened verbally with violence.

After finally giving up on this process we chose to call the Police to have him removed as a Trespasser, even at this point he threatened to come back with others and "Get Us", stating "he was going to watch these premise's as we have no camera's and he'll be back with friends" Gabriel also stated that we are racist and we do not employ any other nationalities, which is incorrect. As a result of his threat which was so intense, I am now in fear for myself, business premise's and employees welfare.

'You have no camera's in this place, watch yourselves and I'll be back with my friends'

This comment was made at 18:34 Hours in front of 3 staff members.

Since Gabriel's employment we have tried to guide him through the procedures and other staff members have tried to explain and train him, which Gabriel states were all a set up.

I would like to notify LRD that as a member of the Security Industry 'I do not believe this is the kind of person who should hold a Security Licence for any reason What So Ever'! For this reason I strongly recommend that LRD review this persons licence and suitability to hold one in the future."

1. Ms Rainbow gave evidence before me in accordance with the letter. She stated that on 16 September 2011 Mr Expetito attended at her office wishing to speak with her. She asked him to come back later as she was speaking with someone else. When Mr Expetito returned he demanded another vehicle because he said the tyres on his vehicle were flat. Ms Rainbow told Mr Expetito that there was nothing wrong with his car. He became angry and persisted with his demands. In due course she and 2 members of staff looked at the vehicle and assured themselves that it was in fact in good working order. She gave evidence that Mr Expetito was standing over her and intimidating her. She asked him 3 times to go to work. He didn't do so. She then informed him that he would be stood down and wrote him a trespass note. She stated that Mr Expetito wouldn't budge and raised his voice. He did not leave and police were called. Ms Rainbow said that Mr Expetito then made the threats set out in her letter above.
2. Ms Rainbow gave evidence that Mr Expetito called her on the telephone about his pay on 19 September 2011 and made similar threats. She said she "ignored his comments".
3. If I accepted that the above behaviour did occur in the way described, it could readily lead to a conclusion that Mr Expetito was not a fit and proper person to hold a security licence. Aggression and threats of violence against employers and colleagues and erratic work practices may cause concern that it was not in the public interest for Mr Expetito to hold a security licence.
4. I was not however satisfied that the behaviour did occur in the way it was described in the letter and in the evidence given by Ms Rainbow.
5. I formed the conclusion that Ms Rainbow gave exaggerated evidence particularly in relation to the level of fear and intimidation she felt from Mr Expetito.
6. I preferred the evidence of Mr Expetito that his dismissal occurred in the context of his raising pay and vehicle safety concerns. I accepted the denials made by Mr Expetito that he did not threaten Ms Rainbow in the way described by her. I did so for the following reasons:
7. Mr Expetito had genuine concerns that he had not been paid. I accept that he wished to discuss those concerns with Ms Rainbow and that she was not prepared to enter into those discussions with him. Ms Rainbow gave evidence that the afternoon discussion was only about the tyres. I did not accept this. Her own incident notes detail the payroll concerns raised by him. Apparently Mr Expetito has still not been paid despite the interventions of third parties on his behalf.
8. Mr Expetito also raised concerns about the quality of the vehicles he was being asked to drive and that his concerns were genuinely held concerns. Although I heard evidence from Ms Rainbow and other staff that they checked the vehicles, I did not hear any evidence from any expert about the roadworthiness or otherwise of the subject vehicles. I have no idea whether staff members recruited from the foyer to examine the vehicles had any better idea than I would have had about whether the vehicles were fit to drive. It was common ground that Mr Expetito had raised concerns about the vehicle on several occasions prior to the night in question and alleged on this occasion that the tyres had gone flat 3 times on the previous evening.
9. I did not see why Mr Expetito would attend upon Ms Rainbow if there was nothing wrong with his car and nothing wrong with his pay. Nevertheless his concerns were dismissed and he was simply told to get to work.
10. Ms Rainbow stated that Mohnit Soni, Rachpal Singh and William Rainbow were present when the threats were made. Neither Mr Soni nor Mr Rainbow gave evidence before me.
11. I heard evidence from Mr Rachpal Singh. Mr Singh saw Ms Rainbow and Mr Expetito in the office talking when he arrived at work. He had no reason for concern at that stage. In due course he stated that he was asked by Ms Rainbow to look at the tyres. He did so and considered them fine. In due course he went into the office. Mr Expetito was complaining about the cars. Mr Singh said that Mr Expetito was loud, that Ms Rainbow asked him to go to work and to leave the office. He didn't do so and police were called. Although under questioning from Victoria Police, Mr Singh agreed that Ms Rainbow may have been scared, he gave evidence that Mr Expetito did nothing to cause him concern for himself.
12. Significantly, Mr Singh gave evidence that he did not think it was a big/major incident. In his evidence Mr Singh made no reference whatsoever to any threats alleged to have been made by Mr Expetito despite the fact that he made reference to same in his statement.
13. Mr Singh was given opportunities to confirm his statement that threats were made. He did not do so.
14. I was therefore not prepared to place much weight on similar words contained in the statement of Mohnit Soni in light of the adamant denials made by Mr Expetito that no such threats were made.
15. Mr Expetito was not charged with any criminal offences arising from the incident at all. Both KPS and Mr Expetito called the police on the evening in question. Victoria Police did not call any police witnesses, nor was I provided with any police statements.
16. In her letter to Victoria Police Ms Rainbow said that the confrontation on 16 September 2011 lasted for 2.5 hours. From her notes it would appear that from the time Mr Expetito entered Ms Rainbow's office to the time police were called was in fact 40 minutes. In this time payroll discussions, vehicle safety discussions and inspections had all taken place.
17. Ms Rainbow also stated that she made herself a cup of coffee at some stage during the incident. This seemed a most unusual action for someone who was as scared as Ms Rainbow purported to be.
18. The evidence given by Ms Rainbow appeared to be in direct contrast to the perception of others about Mr Expetito. Mr Evans gave evidence that Mr Expetito was viewed by others in the office as a person with a pleasant nature who would talk to anyone.
19. I did not accept Ms Rainbow's uncorroborated evidence about Mr Expetito making subsequent threats to her over the telephone. He has never been questioned by police in relation to any such threats.
20. Ms Rainbow states that she no longer is able to work in her office by herself because of the events of 16 September 2011. Ms Rainbow has taken out an intervention order against Mr Expetito. Victoria Police emphasised that it was not in the public interest for security guards or crowd controllers to have intervention orders placed against them. This fact could have carried some weight but for the circumstances in which the intervention order was obtained. Ms Rainbow did not take out an intervention order in September 2011 when the frightening incidents were said to have occurred. Ms Rainbow did not take out an intervention order during 2012. She took out the intervention order on 18 March 2013. I emphasise that Ms Rainbow has not seen Mr Expetito except on one occasion (in the distance and when he did not see her) since that time.

1. I found Ms Rainbow to be a person of heightened sensitivity about the way in which she is spoken to and regarded by others.
2. Ms Rainbow gave evidence about ongoing disrespect shown to her by Mr Expetito. She was very concerned that Mr Expetito would not "look her in the eye" when she was talking with him. This was a theme throughout her evidence and something she had clearly discussed with other employees.
3. Mr Expetito applied for employment with KPS in July 2011. On 28 July 2011 the CEO, Ms Rainbow and Mr Gary Evans interviewed him. Mr Expetito was the preferred candidate.
4. Each emphasised that during the course of the interview Mr Expetito did not look at Ms Rainbow when she spoke with him. Ms Rainbow said:

"When I speak to someone I expect them to look at me. He looked quickly away."

"He avoided Karen, she is the owner. He answered questions to me, he wouldn't give her the courtesy of eye contact."

1. Ms Rainbow gave evidence that during the interview she asked him to look at her several times.
2. Given that in her statement Ms Rainbow said that "Mr Evans was interviewing the candidates and that she 'sat in'", it may not have been particularly surprising that Mr Expetito's attention was drawn to Mr Evans rather than to Ms Rainbow. Nevertheless she employed him knowing full well that he was a person who did not, for whatever reason, make eye contact with her.
3. Ms Rainbow however persistently emphasised this point as being a key factor against Mr Expetito.
4. It would appear that she drew it to the attention of those around her. Mr Evans did not meet Mr Expetito again until the morning of 16 September 2011. Mr Evans gave evidence that Mr Expetito said "she" had not paid him. Mr Evans told him that "she" had a name and that the difficulties about his pay were all his own fault. He also said:

"Acknowledge her - Ms Rainbow - this is how it works - give her the respect - speak with her like you speak to me."

1. Whilst these issues were clearly very important to Ms Rainbow, I could not make any finding that Mr Expetito's failure to give Ms Rainbow the eye contact she so frequently demanded could amount in any way to adverse findings being made about him. There are numerous reasons including cultural reasons for why people do not make eye contact. I observed during the hearing that Mr Expetito sat with his head bowed throughout the proceeding. He did not make eye contact. I in no way considered this to be a mark of disrespect. It appeared to me that it was simply the way Mr Expetito carries himself. Indeed I accepted Mr Expetito's evidence that he had a good relationship with other people in the business and that he felt Ms Rainbow picked on him.

1. Ms Rainbow gave evidence that there had been a number of concerns raised about Mr Expetito's ability to perform his job as a patrol guard.
2. 8 August 2011 was Mr Expetito's first unaccompanied shift with KPS. Ms Rainbow stated that an alarm response was passed to Mr Expetito by Mr Mohit Soni and that Mr Expetito said "NO I'm not doing this".
3. Mohit Soni who is a patrol officer did not give evidence before me but made a statement dated 10 December 2011 in which he stated that he covered a response when Mr Expetito explained to him that he had had trouble finding the location.
4. Mr Expetito stated that the other officer who also had a set of keys and was much closer to the alarm call out (Mr Expetito was in Bayswater) took the call. He stated that no harm eventuated.
5. Ms Rainbow stated that she brought Mr Expetito into the office for an explanation as to why Mr Expetito failed to respond to the alarm. Ms Rainbow formed the opinion that Mr Expetito was unable to attend because he wasn't capable of looking up a street directory. Ms Rainbow insisted that even if Mr Expetito was a long distance from the alarm, that he should have attended because he was the person who had the keys for that particular premises and given it was the early hours of the morning, Mr Expetito would not have been delayed by traffic. She agreed that another officer attended the alarm.
6. I was told by both Ms Rainbow and Mr Evans that during the course of his interview, Mr Expetito had been asked whether he was able to read a Melways. He stated that although he usually used a GPS, he was nevertheless able to read a map.
7. Nevertheless Mr Evans gave evidence that the situation was addressed and remedied - Mr Expetito was told to request of an operator giving him address details which were not part of his usual route, the spelling of the street name. According to Mr Evans there were not thereafter any further such problems. Mr Evans gave evidence that there were no other difficulties on the job worth pursuing
8. In his statement Mr Soni stated that on another (unspecified) occasion Mr Expetito had demonstrated difficulties finding an alarm response panel and re-arming the panel. In his statement, he said that the client lodged a complaint about Mr Expetito over this matter. Mr Evans however gave evidence that there had been no complaints made by clients about Mr Expetito. Mr Ellison referred to the incident in his evidence before me. Apparently, Mr Expetito sought assistance and such assistance was provided. It did not seem to me that the incident was of any great note.
9. The other operational concerns about Mr Expetito were phrased in the broadest of terms and were almost unanswerable by Mr Expetito. Mr Evans, for example, stated that Mr Expetito didn't fulfil his role as an employee because he didn't ask for help when he needed it. Mr Evans agreed however that no issues other than the map-reading issues were canvassed with Mr Expetito at any time. Mr Evans stated that he did not speak to Mr Expetito about any disciplinary matters because there had been no concerns expressed to him by a client, which was his main concern.
10. Mr David Ellison who is a security patrol officer also identified concerns in a broad way. He made reference to an "insubordinate attitude". When pressed, it did not seem that he had ever had any difficulties with Mr Expetito but that he was also making reference to Mr Expetito not giving Ms Rainbow the respect through eye contact expected of him.
11. Mr Expetito was only employed with KPS for a 6 week period of time. I have no doubt that many new employees experience teething problems. I did not consider that any of the issues identified could lead to a conclusion that Mr Expetito's licence should be cancelled on public interest grounds or on the basis that he is not a fit and proper person to hold a Security licence.

1. I have no doubt that there was a heated discussion between Mr Expetito and Ms Rainbow on 16 September 2011. I have no doubt that Mr Expetito had serious concerns which he felt were not being seriously addressed. Within a very short time of the concerns being raised, Mr Expetito was dismissed.
2. I do not accept however that he made threats of violence against Ms Rainbow.
3. I consider the operational issues raised before me to be matters for further training, not for a finding that Mr Expetito is not a fit and proper person to work as a security guard.
4. I do not consider that Mr Expetito behaved in a manner inconsistent with the responsibilities imposed upon a security guard and a crowd controller.
5. I do not consider that reasonably minded members of the public would consider that Mr Expetito's attempts to place his workplace concerns before his employer should result in him losing his licence.
6. There may be occasions when a workplace dispute will result in a person not retaining his licence. This is not such a case.
7. The decision of the respondent will be set aside.

1. [1] The complaint was ultimately terminated by a delegate of the President of the Commission, on 28 May 2012, there being no reasonable prospect of the matter being able to be settled through conciliation.

2. [2] A finding was made that KPS had contravened workplace laws and was required to pay Mr Expetito. Mr Expetito stated that the cheque he was subsequently sent bounced, and that he has still not been paid.