Palm v Sydney Night Patrol & Inquiry Co Pty Ltd [2016] FWC 4292 (30 June 2016) [2016] FWC 4292 [Note: An appeal pursuant to s.604 (C2016/4510) was lodged against this decision - refer to Full Bench decisions dated 2 September 2016 [ [2016] FWCFB 5504 ] and 12 December 2016 [ [2016] FWCFB 8664 ] respectively for results of appeal.] FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Julie Palm v Sydney Night Patrol & Inquiry Co. Pty Ltd T/A SNP Security (U2015/13854) DEPUTY PRESIDENT KOVACIC MELBOURNE, 30 JUNE 2016 Application for relief from unfair dismissal - harsh, unjust or unreasonable - dismissal not unfair - application dismissed. [1] Ms Julie Palm (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 27 October 2015 alleging that the termination of her employment by Sydney Night Patrol & Inquiry Co. Pty Ltd T/A SNP Security (SNP - the Respondent) on 14 October 2015 was unfair. [2] The application was heard on 6, 18 and 26 April and 26 May 2016. At the hearing, Mr Rana Abbas appeared with permission for the Applicant, while Mr Nick Chadwick appeared with permission for SNP together with Ms Tammy Iselt, SNP’s Employee Relations Manager. Ms Palm gave evidence on her own behalf, together with Messrs Marfruhur Rahman, Daryoush Zargari, Muhammad Armaghan and Amid Iqbal, all of who were former work colleagues of Ms Palm. Mr Glenn Nelson, SNP’s Aviation Security Manager at Canberra Airport; Mr Troy Boorn-Scott, SNP’s Administration Officer at Canberra Airport; and Mr Saurabh (Sunny) Saxena, a former work colleague of Ms Palm, all gave evidence for the Respondent. In addition, Mr Paulo Platt, a Duty Shift Supervisor (DSS) for SNP at Canberra Airport gave evidence as a result of an order to attend issued by the Commission following an application made by Ms Palm. [3] For the reasons set out below, I have found that Ms Palm’s dismissal was not harsh, unjust or unreasonable. Ms Palm’s application will therefore be dismissed. An Order to that effect will be issued in conjunction with this decision. Background [4] SNP’s role at Canberra Airport is to provide screening of persons and goods entering the departure concourse and checked luggage. Ms Palm had worked in aviation security at Canberra Airport for more than 11 years, commencing initially with the previous security provider at the airport, ISS Security Pty Ltd, and with SNP on 29 November 2010. At the time of her dismissal, Ms Palm was employed as a Team Leader at Canberra Airport. [5] On 11 October 2015 Ms Palm removed a manicure kit from the surrendered items drawer at the screening point and put it into her handbag. It is not disputed that Ms Palm took the manicure kit, though she contends that she did so with the permission of Mr Saxena who she contends was the acting DSS at the time. Both of those contentions are disputed by SNP. [6] On 12 October 2015 Ms Palm was informed that she was stood down with pay while an investigation into the events that occurred on 11 October was undertaken. Later that day Mr Nelson wrote to Ms Palm directing her to attend a meeting on 14 October 2015. The letter stated, inter alia , that: “You are required to attend a meeting at Canberra Airport on 14 October 2015, at 3pm to discuss the following allegations: Your removal of a manicure kit from the surrendered item drawer, at the screening point, and your insertion of this manicure kit into your handbag. This meeting is a formal meeting, and as such, you may wish to bring an independent support person of your choice with you on the day. This meeting could possibly include action up to and including your dismissal if our investigations reveal this to be necessary.” 1 (Emphasis as per original) [7] The Record of Meeting/Counselling/Warning Form of the meeting of 14 October 2015 notes among other things that at the meeting Ms Palm: stated she was “looking at the item. Saurabh Saxena said why do you not take it so I took it”; acknowledged that “nobody is authorised to take anything from the surrendered items bin and that the SOP [Standard Operating Procedure] concerns the cleaners signing off and taking the items for disposal”; was summarily dismissed for serious misconduct with effect from 14 October 2015 due to her “removal of a surrendered item from the surrendered item drawer without authorisation. This is classified as theft”; and produced the manicure set at the meeting. 2 [8] The termination letter sent to Ms Palm on 15 October 2015 read as follows: “I refer to our meeting on the 14 October 2015 that was attended by you, your support person, Marguerite Carroll and myself. During the meeting your actions on 11 October 2015 were discussed. The discussion revolved around the allegation that, on the 11 October 2015, you removed a manicure kit from the surrendered item drawer, at the screening point, and inserted this kit into your handbag. It should be noted that you were provided with the opportunity to provide a written response to the allegation, however, you choose not to do this. At the meeting you advised that you were tired and not thinking, that you were aware of the surrendered items sop and that you understood the process concerning surrendered items. You also produced the manicure kit at the meeting. Your response has been given careful consideration, and it has been concluded that your actions were not in line with SNP’s values or the site standard operating procedures. Your actions are not consistent with the attributes of an SNP employee and are considered serious misconduct. This letter serves as official notice of your termination from SNP Security effective Wednesday, 14 October 2015. As your actions are deemed serious misconduct, no notice will be payable” 3 The Applicant’s case [9] Ms Palm submitted that the characterisation of her conduct as theft was fanciful, spiteful and prejudiced. Ms Palm further submitted that as she returned the manicure kit on 14 October 2014 that SNP had incurred no loss, adding that even if taking the manicure kit was wrong, doing so did not warrant summary dismissal. Ms Palm also contended that SNP did not have regard to her spotless employment record prior to dismissing her. [10] At the hearing, Ms Palm submitted that there was no valid reason for her dismissal, contending that she was under the belief that Mr Saxena was the DSS at the time of the incident and that he had allowed her to take the manicure kit. On the latter point, Ms Palm relied on the evidence of Messrs Iqbal and Rahman who attested that they overheard Mr Saxena say to Ms Palm words to the effect of “it’s a good one, take it”. Ms Palm also questioned aspects of Mr Saxena’s evidence on the issue. Ms Palm further submitted that during her period of employment by SNP she had never seen or been made aware of any definite instructions that surrendered items were not to be taken or used by screening staff. Ms Palm also contended that it was common practice for screening staff at Canberra Airport to use or take surrendered items, highlighting the differential treatment in a case involving Ms Lyn Tutt, a SNP Team leader at the airport. Further, Ms Palm disputed that SNP had established that surrendered items were the property of the Capital Airport Group (CAG), the owners and operators of the Canberra Airport. Finally, Ms Palm submitted that her dismissal was disproportionate to her action in taking the manicure kit. Ms Palm did not seek reinstatement as she had secured another job, seeking instead compensation in lieu of reinstatement. [11] In support of her submissions Ms Palm relied on a number of authorities, including Sharon Kaibel v CKI People Pty Ltd 4 , Construction, Forestry, Mining and Energy Union v MSS Strategic Medical and Rescue 5 , Amalle Halabi v The Star Pty Limited 6 and Ivana Gorlin v HNZ Australia Pty Ltd T/A HNZ Australia 7 . [12] Ms Palm deposed in her witness statement 8 that during her employment with SNP there was never any SOP or memorandum prohibiting Aviation Screening Officers (ASOs) from using or taking home surrendered items, adding that it was common practice for this to occur without any objection from SNP management and that no one had ever been warned or dismissed for doing so. Ms Palm also deposed that DSS Sunny Saxena had said to her “Julie it’s a good one, take it” and that Messrs Iqbal and Rahman had heard Mr Saxena say this. Ms Palm stated that she believed that she had therefore been given permission to take the item and then proceeded to place it in her bag in front of Mr Saxena and in view of the other ASO’s around at the time. Ms Palm also disputed in her witness statement that she acknowledged at the meeting of 14 October 2015 that taking the manicure kit was “a wrong act”. [13] In her oral evidence Ms Palm reiterated key aspects of her witness statement. Ms Palm was also questioned extensively about the events of 11 October 2015 with her cross examination including a viewing of the closed circuit television (CCTV) footage of the incident (these issues are discussed below under the heading disputed issues). Beyond that, Ms Palm attested, inter alia , that: she was familiar with SNP’s Code of Conduct which requires employees to “Behave honestly and with integrity” 9 ; as a Team Leader she was expected to lead by example; she had not seen SNP’s SOP titled “Surrendered Items – CAG – MUT” 10 ; she had a good knowledge of the process relating to surrendered items, stating that at the end of the shift surrendered items were given to the cleaners to take away and dispose of; she took the manicure kit; Mr Saxena filled in as DSS on 11 October 2015 because Mr Platt had the weekend off, though Ms Palm later attested that she was not too sure that Mr Platt did not work on 11 October 2015; Mr Boorn-Scott, who was unwell on 11 October 2015, had given Mr Saxena authority to cover as DSS from the time he commenced work at 11.45am, though Ms Palm later attested that Mr Boorn-Scott was DSS at the time of the incident on 11 October 2015 while maintaining that he had authorised Mr Saxena to run the staff on the floor as DSS; she would not have taken the manicure kit if Mr Saxena had not given approval for her to do so; practice and procedure at Canberra Airport was that staff could not take items from the surrendered items drawer and that it was wrong to do so; paragraph 17 of her witness statement, which stated that it was common practice for this to occur without any objection from SNP management and that no one had been ever been warned or dismissed for doing so, was incorrect; and Mr Nelson had lied in the meeting of 14 October 2015 when he said that he had spoken to Mr Iqbal who had said that he had not seen or heard anything on 11 October 2015, contending that Mr Nelson had not spoken to Mr Iqbal. [14] Both Mr Rahman and Mr Iqbal deposed in their witness statements 11 that they heard DSS Saxena say to Ms Palm “It’s a good one, take it”. Both were also questioned extensively under cross examination about the events of 11 October 2015, with the cross examination including a viewing of the CCTV footage of the incident (as noted above, these issues are discussed below under the heading disputed issues). Beyond that key aspects of their oral evidence is summarised below: Mr Rahman Attested that he did not have a clear recollection of 11 October 2015 or who was the DSS on the morning of 11 October 2015. Stated that on 11 October 2015 Ms Palm said words to the effect “It looks like a nice manicure set”, acknowledging that those words do not appear in his witness statement. Conceded that there was no reference to the words “manicure kit” in his email of 17 October 2015 to Ms Marguerite Carroll 12 , adding that the only reason he sent that email was because Ms Palm had asked him to do so. Indicated that he only became aware that Ms Palm and Mr Saxena had been talking about a manicure kit after 11 October 2015. Stated that he considered Mr Saxena to be DSS on 11 October 2015 as Mr Saxena answered a radio call from him at around 1.00pm just as he was finishing his shift. Mr Iqbal Stated that he did not hear Ms Palm say anything during her conversation with Mr Saxena on 11 October 2015. Attested that he sent his email of 17 October 2015 to Ms Marguerite Carroll 13 after being asked to do so by Ms Palm. Disputed that Mr Nelson had spoken to him about the incident of 11 October 2015 prior to him sending the abovementioned email to Ms Carroll. Agreed that Mr Platt was the DSS on the morning or 11 October 2015 but was unable to say who replaced him as DSS once he finished his shift. [15] Mr Armaghan deposed in his witness statement 14 that at the meeting of 14 October 2015, which he attended as Ms Palm’s support person, he mentioned that it was common practice for screening staff to take surrendered items and that there had never been an issue about that. Mr Armaghan further deposed that in response Mr Nelson asked him to provide evidence of this, with date and times, and that after that he (Mr Armaghan) kept quiet. Mr Armaghan reiterated this in his oral evidence, also attesting that staff were not allowed to take items from the surrendered items drawer and that it would be wrong to take such items home. [16] Mr Zargari deposed in his witness statement 15 that he had seen surrendered items retained for SNP’s operational use, for personal use or used for training purposes, highlighting an incident where a cutlery set had been surrendered and he was told by Mr Nelson to take the cutlery set to the staff room for staff use as it was too good to dispose of. Mr Zargari further deposed that he had never seen any document instructing SNP staff not to remove surrendered items for personal use and that, while he had not done so, he had seen other staff take surrendered items for personal use. Key aspects of Mr Zagari’s oral evidence were that: he disagreed that items were only removed from the surrendered items drawer with CAG’s consent; he agreed that he had not taken anything from the surrendered items drawer as he knew it would be wrong to do so; and while employed by SNP as a Team Leader at Canberra Airport he had been issued with a written warning for not following procedure, adding that while he disagreed with the warning he had signed a document stating that he accepted the warning. The Respondent’s case [17] SNP submitted that Ms Palm’s evidence and the evidence of other witnesses to the incident is not supported by CCTV footage of the incident and that in taking the manicure kit from the surrendered items drawer Ms Palm engaged in theft. SNP contended that Ms Palm’s actions constituted serious misconduct as per regulation 1.07(3) of the Fair Work Regulations 2009 (the FW Regulations). [18] At the hearing, SNP submitted that, based on all the evidence and the submissions, the Commission should dismiss Ms Palm’s application. SNP also submitted that Ms Palm created a trail of lies and deception by, among other things, continually referring to Mr Saxena as the DSS on 11 October 2015 and coordinating other people to support her story. SNP characterised Ms Palm’s case as stating that she took the manicure kit because Mr Saxena told her to do so, contending that that argument must fail for three reasons. Firstly, Mr Saxena denies making the comment attributed to him by Ms Palm; secondly, he was not the DSS on shift at the time; and thirdly, even if Mr Saxena did make the comment, it could not be interpreted as an instruction or as giving Ms Palm the right to take the manicure kit. Beyond this, SNP highlighted a number of inconsistencies between the evidence of Ms Palm, Mr Rahman and Mr Iqbal and the CCTV footage of the incident. [19] In support of its submissions, SNP relied on the following authorities – Putta Ayappagari v Australian Opal Cutters Pty Ltd 16 and Concut Pty Ltd v Worrell 17 (Concut). [20] Mr Nelson set out in his witness statement 18 the series of events leading up to Ms Palm’s dismissal on 14 October 2015. Key aspects of his evidence in that regard were that he: briefed CAG on the incident and Ms Palm being stood down; had spoken to a number of staff as part of the investigation into the incident, including Mr Iqbal whose initial recollection was that nothing significant had occurred on 11 October 2015 but that shortly after 14 October 2015 he recalled that both himself and Mr Rahman had heard Mr Saxena make say words to the effect of “take it Julie”; he also spoke to Mr Rahman on his next rostered shift who advised him that he had heard Mr Saxena say words to the effect of “take it Julie it looks nice”; he also spoke with Ms Slagana Taneska and Ms Rayleen Jordan (the other ASO’s working on 11 October 2015), with neither able to verify that Mr Saxena had told Ms Palm to take the manicure kit; and after the meeting of 14 October 2015 with Ms Palm he discussed the facts, Ms Palm’s explanation and the CCTV footage with both Ms Carroll and Ms Iselt, with the three agreeing that Ms Palm had engaged in serious misconduct and that her employment should be terminated. [21] Mr Nelson in his witness statement also disputed aspects of Ms Palm’s evidence. [22] Key aspects of Mr Nelson’s oral evidence were that: Mr Zargari’s claim that he told Mr Zargari to take a cutlery set to the staff room for staff use was “absolutely untrue” 19 ; there had been no formal complaint against Ms Palm during her period of employment with SNP, though two years ago CAG had raised a significant concern regarding Ms Palm when she was filling the role of relief DSS; Mr Saxena had not brought the incident of 11 October 2015 to his attention because he was acting DSS at the time of the incident; neither he as Aviation Security Manager or a DSS could authorise to gift a surrendered item to an ASO; he could not recall whether he spoke to Mr Iqbal on the afternoon of 12 October or the morning of 13 October 2015; if he was informed that a DSS had either allowed or encouraged an employee to take home an item from the surrendered items drawer, he would investigate the matter; he had conducted random CCTV audits on a daily basis throughout his employment as Aviation Security Manager at Canberra Airport and had never seen any indication of staff taking items from the surrendered items drawer; surrendered items do not belong to SNP but are the property of CAG, with CAG responsible for surrendered items under relevant legislation; he was satisfied that, as a result of training which he conducted, SNP staff were well aware that surrendered items became property of CAG when surrendered; he had considered other forms of disciplinary action against Ms Palm, including giving her a final written warning but because of the severity of the incident he considered Ms Palm’s position as Team Leader no longer tenable; the erosion of trust was also a consideration in deciding to dismiss Ms Palm, adding that as theft had occurred he did not see how he could say to CAG that in future the same would not occur should Ms Palm remain on site; CAG did not inform him that they had lost trust and confidence in Ms Palm; and it would have been for CAG to refer the theft to the Australian Federal Police for investigation, adding that he did not consider doing so. [23] Under cross examination, Mr Nelson was questioned extensively regarding the incident involving Ms Tutt. Among other things, Mr Nelson attested that in that case it was not clear whether the cutlery set, which was one of the two items involved, was a surrendered item or lost property as it had been found on the other side of the screening point. Mr Nelson also attested that at no stage did the item leave the airport precinct and that it had been secured in a storage locker, where it was retrieved by Ms Tutt and Mr Boorn-Scott and subsequently processed. [24] Mr Boorn-Scott stated in his witness statement 20 that he was the DSS on duty between 11.45am and 1.30pm on 11 October 2015, adding that he handed over as DSS to Ms Jintana Muen-Hong at approximately 1.27pm on that day and that Mr Saxena worked as an acting Team Leader from 1.30pm on that day. Mr Boorn-Scott further deposed that on his next shift on 13 October 2015 he was asked by Mr Nelson as to whether he had seen any misbehaviour or anyone take anything from the surrendered items drawer on 11 October 2015, adding that he responded that he had not seen anything happen on the shift. Mr Boorn-Scott also deposed that Mr Nelson had informed him that it had been reported to him by DSS Muen-Hong that Ms Palm had been observed on the CCTV footage taking an item from the surrendered items drawer on 11 October 2015. [25] In his oral evidence Mr Boorn-Scott attested, inter alia , that: he had been instructed by the Aviation Security Manager that surrendered items were the property of CAG, adding that he had not seen anything in writing to that effect from CAG; he had seen memorandums on the issue of surrendered items, highlighting that there also was an SOP on surrendered items; as to the consequences of an SNP employee using or taking a surrendered item, the Employee Handbook states that taking anything that does not belong to you from the worksite will result in action which may include termination of employment; and on 11 October 2015 from 11.45am until he handed over to DSS at around 1.30pm he was the DSS on the shift, with Mr Saxena working as an ASO. [26] Mr Saxena deposed in his witness statement 21 that on 11 October 2015 he had worked as an ASO from 5.00am until 1.30pm and as an acting Team Leader from 1.30pm until 7.00pm. Mr Saxena further deposed that that at about 2.30pm on 11 October he was searching for an item in the surrendered items drawer to test one of his staff (Ms R. Jordan) for X-ray reassignment, adding that he was aware that earlier on the shift a manicure kit had been surrendered by a passenger. Mr Saxena stated that he informed DSS Muen-Hong that the manicure kit was missing from the surrendered items drawer and that after DSS Muen-Hong had checked the drawer both of them went to the administration office to review CCTV footage, with the footage showing that Ms Palm took the surrendered item. Other aspects of Mr Saxena’s witness statement were that: on 12 October 2015 DSS Muen-Hong informed the Administration Officer, Mr Leslie Jordan, about the incident, with Mr Jordan subsequently informing Mr Nelson; also on 12 October 2015 he informed Mr Nelson of the incident; he prepared a handwritten statement regarding the incident and provided it to Mr Nelson on 12 October 2015 22 , with that statement indicating that at no time did he allow Ms Palm to take the surrendered item; Ms Palm had asked him on 11 October 2015 is this all the surrendered items to which he responded yes; and he disputed a number of aspects of Ms Palm’s witness statement. [27] At the hearing Mr Saxena attested among other things that: he did not say to Ms Palm on 11 October 2015 “it’s a good one, take it”; he was not acting DSS on 11 October 2015 (Mr Saxena reiterated this on numerous occasions in the course of his cross examination); surrendered items belong to CAG; SNP had a very clear SOP which state that employees were not able to take things home, adding that it was illegal to do so and that there was no way an employee could ask their supervisor if they could take an item home; and he had written the words “at no time allowed her to take surrendered items” in his written statement of 12 October 2015 because he was aware that Ms Palm had indicated that he had allowed her to take the manicure kit, though he could not recall when he first became aware of Ms Palm’s claim in this regard. Mr Platt’s evidence [28] As previously mentioned, Mr Platt gave evidence as a result of an order to attend issued by the Commission. Key aspects of Mr Platt’s oral evidence were that: to the best of his knowledge he had not seen an SOP or memorandum instructing SNP staff on how to deal with surrendered items and what is/is not allowed in respect of such items, adding that recently an SOP refresh on the matter had been issued by SNP though this was after Ms Palm’s employment had been terminated; without being able to mention specific dates and times, it was common practice for screening staff to use or take surrendered items; he did not think that SNP management or the site manager were aware of this practice or that anybody told them of it; he was involved in an investigation regarding Ms Tutt who had allegedly taken two items from the prohibited area and taken them to the staff room; he understood that Ms Tutt had been cleared of the allegations, adding that she continues to work as a Team Leader at Canberra Airport; he handed over as DSS on 11 October 2015 to Mr Boorn-Scoot who was feeling unwell and understood that Mr Boorn-Scott intended to handover to Mr Saxena as DSS, though he was unable to confirm that this occurred; he was not present at the time of the incident on 11 October 2015; surrendered items were not to be taken out of the surrendered items drawer unless they were to be handed off to the cleaning contractor; it would be wrong to take something out of the surrendered items drawer; he was confused as to why the process adopted regarding Ms Tutt was different when compared to Ms Palm’s case; it would be wrong if Ms Palm had taken an item out of the surrendered items drawer without authorisation and took it home; the extent of his involvement in the Ms Tutt investigation was viewing CCTV footage of the incident; and he was not suggesting that Ms Tutt took something from the surrendered items drawer and took it off site. The CCTV footage [29] An examination of the CCTV footage does not support a number of aspects of the evidence given before the Commission. In particular, the CCTV footage does not support: Ms Palm’s evidence that she placed the manicure kit in her bag in front of Mr Saxena and in view of the other ASO’s around at the time – what the CCTV indicates is that Ms Palm looked up prior to placing the manicure kit in her handbag, Mr Saxena was between 1.5 and 2 metres away from her and that none of the other staff at the screening point were paying any attention to what Ms Palm was doing; and Mr Rahman’s evidence that Ms Palm said words to the effect “it looks like a nice manicure set” and Mr Saxena’s evidence that Ms Palm had asked him whether the manicure kit was all of the surrendered items – it does not appear from the CCTV footage that Ms Palm said anything to anyone prior to placing the manicure kit in her handbag. [30] Further, based on a viewing of the CCTV footage I consider it highly unlikely that either Mr Rahman or Mr Iqbal would have heard whatever it was that Mr Saxena said to Ms Palm when he approached her at the surrendered items drawer. I say this for the following reasons: they are some 2 metres away from where Ms Palm and Mr Saxena are standing; Mr Saxena has his back to them both when he speaks to Ms Palm; Mr Iqbal and Mr Rahman appear to be engaged in a conversation just prior to Mr Rahman departing the scene, with Mr Iqbal looking directly at Mr Rahman; and both Mr Iqbal and Mr Rahman acknowledged that they only sent their respective emails to Ms Carroll after being contacted by Ms Palm and at her request. [31] Accordingly, I have attached no weight to the evidence of Mr Iqbal and Mr Rahman regarding what Mr Saxena said to Ms Palm. The key disputed issues Was Mr Saxena acting as DSS at the time of the incident on 11 October 2015? [32] Mr Saxena was emphatic that he was not acting DSS at the time of the incident on 11 October 2015, despite it being put to him on numerous occasions that he was. On the other hand, Ms Palm, Mr Rahman and Mr Iqbal all gave evidence that Mr Saxena was DSS at the time. Mr Boorn-Scott who commenced that 11.45am as the DSS attested that he handed over to Ms Muen-Hong at 1.27pm on 11 October 2015. Finally, Mr Nelson attested that Mr Saxena was not acting DSS on 11 October 2015. [33] Ms Palm’s evidence on this issue is self-serving. Further, Ms Palm’s initial evidence was that Mr Platt did not work on 11 October 2015, though when shown Mr Platt’s roster for October 2015 23 appeared to accept that he had been on duty on that day. In other words, her evidence is unreliable in this regard. Accordingly, I am reluctant to attach weight to it in the absence of corroborating evidence. Mr Rahman’s evidence is based on a radio call from his post in the checked baggage area, which is in a different part of the airport to the screening point. More particularly, Mr Rahman attested that Mr Saxena answered the radio call which was directed to DSS. Mr Rahman’s evidence was not convincing in that he attested that he made the call to establish whether the person taking over from him had arrived yet earlier he attested that the person normally arrived early. Mr Iqbal was not directly questioned on this issue so the basis on which he formed the view that Mr Saxena was acting DSS is not known. Mr Nelson did not work on 11 October 2015 so his knowledge is arguably second hand. Finally, Mr Boorn-Scott’s evidence was that while he was not on the floor on 11 October 2015 he was the DSS at the time of the incident. In this case, there is no reason for Mr Boorn-Scott to gild the lily as he played no role in the decision to dismiss Ms Palm. [34] For all the above reasons, I prefer Mr Boorn-Scott’s evidence on this issue. This supports a finding that Mr Saxena was not acting DSS on 11 October 2015. Even if he were, drawing on Mr Nelson’s evidence, a DSS cannot authorise an employee to take an item from the surrendered item drawer for personal use. In other words, Ms Palm’s contention that Mr Saxena as DSS told her to take the manicure kit does not justify her action in doing so. Did Mr Saxena say to Ms Palm “It’s a good one take it?” on 11 October 2015? [35] The CCTV footage shows Mr Saxena saying something to Ms Palm when he approaches her at the surrendered items drawer, with that part of the footage taking about 2.5 seconds. However, the CCTV footage is not definitive in terms of what Mr Saxena said. As previously noted, the CCTV footage does not support Mr Saxena’s evidence that Ms Palm had asked him whether the manicure kit was all of the surrendered items. Further, I find it odd that Ms Palm would ask such a question in circumstances where the CCTV footage shows her having just placed a surrendered item in the drawer herself prior to picking up the manicure kit. Finally, Mr Saxena’s comment in his handwritten statement of 12 October 2015 that he “at no time allowed her to take surrendered items” appears to pre-empt Ms Palm’s contention that he authorised her to take the manicure kit. On balance, I cannot be satisfied that Mr Saxena did not say the words. However, even if Mr Saxena did say the words attribute to him, in circumstances where most witnesses in this matter, including Ms Palm, attested that it was wrong to take surrendered items from the surrendered items drawer for personal use, they do not justify Ms Palm taking the manicure kit. Was it common practice for SNP employees to take items from the surrendered items drawer? [36] Mr Armaghan, Mr Zargari and Mr Platt all attested that it was common for employees to either use or take surrendered items for personal use. However, Mr Platt also attested that he did not think that SNP management or the site manager was aware of this practice or that anybody had told them of it. Ms Palm acknowledged that practice and procedure at Canberra Airport was that staff could not take items from the surrendered items drawer and that it was wrong to do so and that her witness statement, which stated that it was common practice for this to occur without any objection from SNP management and that no one had been ever been warned or dismissed for doing so, was incorrect. On the other hand, Mr Nelson’s evidence was that he conducted random CCTV audits on a daily basis throughout the entire time he had been working for SNP at Canberra Airport and had never seen any indication of staff taking items from the surrendered items drawer. [37] Again, on balance, I am unable to come to a definitive view on this issue, though the evidence does support a finding that, if the practice occurred, Mr Nelson was not aware of it and/or had not detected it prior to Ms Palm’s case. In other words, the material before the Commission does not point to SNP implicitly condoning the taking of surrendered items for personal use by its employees. Further, Ms Palm’s evidence that it was not common practice for this to occur and her acknowledgment in cross examination that the taking of items was ‘wrong’ begs the question why she took the manicure kit in the first place. The statutory framework [38] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Ms Palm is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows: “ 385 What is an unfair dismissal A person has been unfairly dismissed if 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. 387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.” [39] There is no dispute that Ms Palm was dismissed, so s.385(a) of the Act is satisfied. Ms Palm contended that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. SNP is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Ms Palm was unfairly dismissed, I must consider whether his dismissal was harsh, unjust or unreasonable as per s.385(b). Was the dismissal harsh, unjust or unreasonable? [40] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately. (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 [41] In Rode v Burwood Mitsubishi (Rode’s Case) 24 a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd . 25 The following is an extract from the Full Bench’s decision in Rode’s Case . “[17] In relation to the meaning of “ valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant: “Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’. In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time 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. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.” [18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a). [19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” [42] SNP submitted that in taking the manicure kit from the surrendered items drawer Ms Palm engaged in theft as surrendered items become the property of CAG when surrendered. The issue of whether surrendered items become the property of CAG was implicitly disputed by Ms Palm, primarily in the questions put to Mr Nelson in cross examination. As previously noted, Mr Nelson attested that CAG was responsible for surrendered items under relevant legislation. Section 12(1)(a) of the Aviation Transport Security Act 2004 (Cth) requires an operator of a security controlled airport such as Canberra Airport to have a transport security program (TSP). Further, Reg 2.20 of the Aviation Transport Security Regulations 2005 sets out what an airport operator’s TSP must contain in the following terms: “REG 2.20 What airport operator's TSP must contain--control of firearms, other weapons and prohibited items (1) The TSP must include: (a) measures to deter unauthorised possession of firearms, other weapons and prohibited items; and (b) procedures for dealing with surrendered firearms, other weapons and prohibited items ; (c) procedures for handling and movement of firearms and other weapons; and (d) procedures for using firearms and other weapons in the airside area or landside security zones; and (e) methods for ensuring that staff who have a need to know are aware of the restrictions on the possession and use of firearms, other weapons and prohibited items within the airport. (2) The airport operator must ensure that procedures in the TSP to handle or transport firearms, other weapons and prohibited items are consistent with relevant Commonwealth, State or Territory laws.” (Underlining added) [43] While CAG’s TSP was not before the Commission, the inference that can reasonably be drawn from the above legislative provisions is that CAG is responsible for any prohibited items surrendered at Canberra Airport’s screening points. That, together with Mr Nelson’s actions in keeping CAG fully abreast of the incident regarding Ms Palm, point to the manicure kit becoming the responsibility/property of CAG once it was surrendered. This in turn supports a finding that Ms Palm’s action in taking the manicure kit constituted theft. [44] The FW Regulations define serious misconduct as follows: “1.07 Meaning of serious misconduct (1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning. (2) … (3) For subregulation (1), conduct that is serious misconduct includes each of the following: (a) the employee, in the course of the employee’s employment, engaging in: (i) theft ; or (ii) fraud; or (iii) assault; (b) …” (Underlining added) [45] Ms Palm’s action in taking the manicure kit therefore also constituted serious misconduct for the purposes of the FW Regulations. [46] I note also that Ms Palm’s conduct in taking the manicure kit contravened SNP’s Code of Conduct which, as previously noted, requires employees to “Behave honestly and with integrity” 26 . [47] Finally, as Justice Kirby observed in Concut : “It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal . Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment.” 27 (Footnotes not included, underlining added) [48] Based on the above analysis, and drawing on the decision in Concut , I am satisfied that there was a valid reason for Ms Palm’s summary dismissal. Drawing on the language in Selvachandran , the reason relied upon by SNP to dismiss Ms Palm was sound, defensible and well founded. (b) Whether the person was notified of that reason [49] It was not disputed that Ms Palm was notified of the reason for her dismissal. This weighs against a finding that her dismissal was harsh, unjust or unreasonable. (c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person [50] It was not disputed that Ms Palm was provided with an opportunity to respond to the allegations of misconduct at the meeting of 14 October 2015. Accordingly, I consider this factor weighs against a finding that the dismissal was harsh, unjust or unreasonable. (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 [51] Ms Palm attended the meeting of 14 October 2015 with Mr Armaghan as her support person. I therefore consider this factor to be a neutral consideration in this matter. (e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal [52] Ms Palm’s dismissal does not relate to unsatisfactory performance. Accordingly, this is not a relevant consideration in this matter. (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 [53] SNP employs more than 2,000 employees. As such, the size of the enterprise is not a relevant consideration in this matter. (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 [54] SNP has a dedicated human resource function. Accordingly, this factor is not a relevant consideration in this matter. (h) Any other matters that FWC considers relevant [55] Ms Palm, relying on Mr Platt’s evidence, contended that she had been treated differently to Ms Tutt. However, under cross examination Mr Nelson provided a detailed explanation of the circumstances in Ms Tutt’s case which was not only credible but also highlighted the differences between that case and Ms Palm’s case. Further, Mr Platt attested that the extent of his involvement in the Ms Tutt investigation was viewing CCTV footage of the incident and that he was not suggesting that Ms Tutt took something from the surrendered items drawer and took it off site. Against that background, I am satisfied that the circumstances in Ms Tutt’s case were quite different to those existing in this case. This does not point to Ms Palm being treated differently from Ms Tutt. Accordingly, I do not consider that incident relevant. [56] Ms Palm also asked several questions as to whether or not SNP had an SOP regarding surrendered items. Based on the material before the Commission, it is clear that: SNP does have an SOP regarding surrendered items 28 ; not all staff are aware of that SOP; and while the SOP states that surrendered items are to disposed of as per the procedure set out in the SOP, the SOP does not explicitly state that employees are not to remove surrendered items; and it is wrong to take surrendered items from the surrendered items drawer for personal use. [57] In circumstances where a number of the witnesses, including Ms Palm, acknowledged that it was wrong to take surrendered items, the absence of an explicit statement to that effect in the SOP regarding surrendered items is not in my view relevant. [58] Ms Palm further submitted that her dismissal was disproportionate to her action in taking the manicure kit. The leading statement of principle regarding the meaning of the expression “harsh, unjust or unreasonable” is the statement in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 29 : “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 .” (Underlining added) [59] As determined above, Ms Palm’s action in taking the manicure kit constituted serious misconduct for the purposes of the FW Regulations. Further, a relevant factor in considering whether or not Ms Palm’s termination was disproportionate to her action in taking the manicure kit is Ms Palm’s role as a Team Leader, a role which Ms Palm accepted required her to lead by example. The Full Bench in Brambleby v Australian Postal Corporation T/A Australia Post (Brambleby) stated that “It is not unreasonable to expect higher standards of supervisory employees …” 30 Against that background, I do not consider Ms Palm’s dismissal disproportionate in the circumstances but consider her role as a Team Leader a relevant consideration in this matter. [60] Finally, there is Ms Palm’s almost six years of service with SNP during which there were no formal complaints against her, though Mr Nelson mentioned in his oral evidence that two years ago CAG had raised a significant concern regarding Ms Palm when she was filling the role of relief DSS. On balance, I consider Ms Palm’s length of service and her employment record to be relevant in this case. [61] In summary, I consider that Ms Palm’s role as a Team Leader, her length of service and her employment record are all relevant considerations in this matter. Conclusion [62] Drawing on the above analysis, I find that there was a valid reason for Ms Palm’s dismissal, that Ms Palm was notified of the reason and given an opportunity to respond, and that Ms Palm’s role as a Team Leader, her length of service and her employment record are relevant considerations in this matter. I further find that the remaining considerations in s.387 are either not relevant or are a neutral consideration in this matter. On balance, I consider that the existence of a valid reason for Ms Palm’s dismissal and her role as a Team leader outweigh the weight to be attached to her length of service and employment record. [63] For all these reasons, I do not consider that Ms Palm’s dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss her application. An order to that effect will be issued in conjunction with this decision. Appearances : R. Abbas for Julie Palm. N. Chadwick for Sydney Night Patrol & Inquiry Co. Pty Ltd T/A SNP Security Hearing details: 2016. Canberra: April 6, 18 and 26. May 26. 1 Form F3 – Employer Response to Unfair Dismissal Application at Attachment C 2 Ibid at Attachment D 3 Ibid at Attachment B 4 [2015] FWC 4220 5 [2014] FWC 4336 6 [2014] FWC 415 7 [2016] FWC 1321 8 Exhibit 1 9 Exhibit 8 at Annexure GN8 10 Ibid at Annexure GN12 11 Exhibits 3 and 6 respectively 12 Exhibit 3 at Attachment A 13 Exhibit 8 at Attachment A 14 Exhibit 5 15 Exhibit 4 16 [2013] FWC 8553 17 [2000] HCA 64 ; (2000) 176 ALR 693 18 Exhibit 8 19 Transcript at PN2560 20 Exhibit 9 21 Exhibit 10 22 Ibid at Annexure SS2 23 Exhibit 2 24 Print R4471 25 (1995) 62 IR 371 26 Exhibit 8 at Annexure GN8 27 [2000] HCA 64 ; (2000) 176 ALR 693 28 Exhibit 8 at Annexure GH12 29 (1995) 185 CLR 410 at p 465-6. 30 [2014] FWCFB 9000 at [89] Printed by authority of the Commonwealth Government Printer <Price code C, PR582216>