Byrne v Bottom Line Risk Pty Ltd [2001] QIRC 75 (2001) 167 QGIG 123

8 June, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 123 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement James Peter Byrne AND Bottom Line Risk Pty Ltd (No. B687 of 2000) COMMISSIONER EDWARDS 29 May 2001 Reinstatement – Termination of Employment – Dismissal – Evidence – Restructuring – Security Licence – Company Policy – Financial Position – Redundancy – Application Dismissed. DECISION Mr James Peter Byrne was employed by Bottom Line Risk Pty Ltd (the Company) from 1 July 1998 to 27 April 2000. It was the view of the Company that as a result of restructuring and operational requirements the position and entitlements could no longer be sustained. The applicant submitted that the reason given by the respondent was not a genuine and valid reason for the termination. On 1 July 1998 the applicant commenced working as Risk Manager in New South Wales and moved to Queensland on his promotion to the position of General Manager, Northern Region. On Wednesday 26 April 2000 the applicant received a handwritten letter from Mr J. Fenech, Office Managing Director directing that he use his annual leave and obtain a Security Licence under the provisions of the Queensland Security Providers Act 1993. The applicant spoke to Mr A. Fenech, General Manager and to Mr P. Davidson, General Manager Operations but it was suggested he speak directly with the Managing Director. As the applicant had been employed by the Company for almost two years without a Licence he was anxious to ascertain why there was such an urgent need for him to obtain a Licence. As a result of telephone calls to the Queensland Office of Fair Trading, Brisbane Security Institute and officers of the Company he ascertained certain facts including procedures for obtaining a Licence. As a result he arranged to attend a Crowd Controller Security Guard Course on Monday 2 May 2000. There were also discussions between Mr Davidson and the applicant regarding time off, holiday leave and a request that the applicant put in writing that he had agreed with the Managing Director to take holidays in June. The discussion for that day concluded with an e-mail from Mr J. Fenech and advice that the applicant was to meet with him on 27 April 2000. -- 1 of 2 -- 124 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 June, 2001 The evidence of both Messrs J. and A. Fenech indicated concern that the Company had not complied with the relevant security legislation concerning the employment of licensed persons. The Company required management to hold licences to enable all employees to perform work of a licensed nature. As such Mr Byrne had performed licensed work even though he was not the holder of a licence. The Commission is not in possession of documentation, but by Exhibit 4 Mr J. Fenech indicated that he received a final warning regarding his employment of “non-licensed” staff. The Commission accepts that it would not be necessary for Mr Bryne to hold a licence to perform all of his duties as General Manager but for the hands on work a licence would be required. It follows that as the Company policy provided, all members of management would be required to perform security officer duties at client properties, Mr Byrne would require a licence. The meeting held on 27 April 2000 was attended by Messrs J.and A. Fenech and Davidson. From the evidence of Mr Byrne it is clear that Mr J. Fenech was adamant no work could be performed by the applicant until he complied with the Company policy on licences. Mr Fenech put the following options, to which I refer to the statement of Mr Bryne:– “. . . • Do the course and then take annual leave until Mr Bryne actually got the licence. • Mr Byrne resign, 4 weeks pay and his accrued leave. The position would be made redundant until the applicant returned. • Do the course and take leave without pay until the licence was obtained. . . .”. Mr Byrne contacted the Queensland Office of Fair Trading on a number of occasions and was advised as follows:– “. . . • That it took 3–4 weeks to process a Security Licence application. • That unless I was actually conducting Crowd Control or Security Guard duties I DID NOT require a security licence. • That unlike NSW there is no Consultants Licence in Queensland. • That the NSW Security Industries Act 1997 was not relevant and did not apply in Queensland. • That BLR Brisbane required a Security Firm Licence. . . . • I had to get a Queensland Crowd Control/Security Guard Licence. • BLR Brisbane had to get a Queensland Security Firm Licence. • BLR Brisbane had to comply with the Security Providers Act 1993.”. The legislative requirements together with the Company policies were considered when the meeting resumed. Mr J. Fenech was adamant that Mr Byrne could not recruit, conduct interviews, and consult etc. until a licence was issued even though certain of the duties to which reference was made are not prescribed by statute. As a result of the lengthy meeting Mr J. Fenech decided that the position of General Manager (Northern Region) would be made redundant. Based on the evidence of Mr Byrne and Mr A. Fenech, together with Exhibit 15, there was no doubt that it was necessary for Mr Fenech to make decisions to ensure that the Company was restored to an acceptable financial position. The material provided by means of Exhibit 15 does not provide an exhaustive outline of the complete financial position. The Commission accepts that the position was of concern and this was also the opinion of Mr Byrne. In evidence, Mr J. Fenech confirmed that as a result of the restructure, but upon obtaining a licence, Mr Bryne would be employed in a new position. The Commission accepts that in view of the financial situation it was not necessary for Mr Fenech to offer Mr Byrne a position of equivalent status to that of General Manager. The Commission heard lengthy evidence in regard to the granting of recreation leave and the timing of such leave. It was the submission of the applicant that the holiday had been arranged with the Company since late 1999 and involved international travel and arrangements with family and friends in the United Kingdom and the Bahamas. It was the submission of the respondent that Mr J. Fenech had been trying to obtain the date from Mr Byrne for some time together with other factors. The Commission is satisfied that even though there was discussion about the holiday, Mr J. Fenech was entitled to make a decision that all managers would require licences to enable them to do the complete range of duties. The time to turn a blind eye to such activities had passed. The trading position of the Company had to be addressed and the restructure of management was most appropriate. The decision was made after a day of lengthy discussions. Unfortunately the decision was not in favour of Mr Byrne who had worked very hard for the Company and had performed work even though he was not licensed. Even so, Mr Byrne was offered employment under the new structure with a commencement date subject to his obtaining a licence. In this decision the Commission has given consideration to all the evidence, exhibits and submissions. In view of the licensing requirements, Company policy and the financial position, the Commission has decided that the redundancy was appropriate in the circumstances. The application is dismissed. I order accordingly. K.L. EDWARDS, Commissioner. Released: 29 May 2001 Appearances:– Mr R. Bryce of Mateside Pty Ltd on behalf of the Applicant. Mr D. Simmons of the Aquitaine Group on behalf of the Respondent. -- 2 of 2 --