Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed.

[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.

[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:

(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 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 Australia[1] 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.

[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.

[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 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 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]

[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 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:

1. the conditions of his Security Officers Licence;

2. the Operations Manual;

3. section 6 of the Weapons Act; and

4. 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]

[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:

(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.

[56] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:

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:

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]

[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."

[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]

[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]

(1) Except as provided in section 10, a person who, without a lawful excuse, carries or possesses a controlled weapon commits an offence.

(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

• (b) to fear that someone will be injured or disabled.

(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.

(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.

(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.

(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.

[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.

(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.

(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

• (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 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.

[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:

1. Acquired an extendable baton on 15 January 2018 which he was aware should be handed in to the WA Police because it was dangerous.

2. 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.

3. The earliest time he would have handed in the baton was 24 January 2018 but he did not do so.

4. 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.

5. He was not authorised to have the baton with him while working (or, it would appear, at any other time).

6. 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 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)
• 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
• 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]

[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 Meeting[94] record that:

"Neil was shown the Security and Related Activities (Control) Act 1996 - Section 26

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?

Q: Do you want to expand on why you think this is not an offence?

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?

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.

[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.

[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.

[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 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 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.

[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.

[1] [2013] FCA 291.

[3] Exhibit A1 at [1]; Exhibit A2 at Document 1.

[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.

[15] Exhibit A1 at [6]-[8]; Exhibit A2 at Document 3.

[20] Exhibit A2 at Document 9; Exhibit A4 at [18]-[20].

[22] Exhibit A1 at [17] and Exhibit R2 at [57].

[23] Exhibit R3 at [42]-[70] and Attachments NMF2, 4 and 5.

[25] Exhibit R3 at [42]-[70] and Attachments NMF2, 4 and 5.

[28] Exhibit A1 at [18; Exhibit A2 at Document 7.

[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].

[37] Exhibit A1 at [22]-[23]; Exhibit A2 at Document 10; Exhibit R4 at [77].

[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].

[48] Exhibit A4 at [36]; Exhibit R1 at [23].

[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.

[53] Miller v University of New South Wales [2003] FCA 180; (2003) 132 FCR 147 at [13].

[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.

[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.

[62] Weapons Act 1999 (WA) s.7(1).

[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.

[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).

[84] RMIT v Asher (2010) 194 IR 1, 14-15.

[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].

[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].

[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].

[108] Sexton v Pacific National (ACT) Pty Ltd (Print 931440) at [36].

[109] Exhibit R4 at [93]-[95]; Exhibit R3 at [63]-[65].

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