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A martial arts instructor sacked for using his mobile phone while conducting classes has won a $7000 payout as a result of small business fair dismissal procedures not being followed, in a case that also involved “illegally obtained” CCTV footage.

The Fair Work Commission ruled that the sacking of Saar Markovitch from the Krav Maga Defence Institute in Sydney’s Eastern Suburbs last year was “unnecessarily harsh” and that while the instructor was sacked for a valid reason, the dismissal was unfair because relevant procedures were not followed.

The case is also significant for raising “new and novel issues” around workplace surveillance, with the Commission noting that it is “not bound by the strict rules” of the Evidence Act and may consider any material in deciding a case - even if it has been “obtained illegally”.

Markovitch worked at the Krav Maga Defence Institute, owned by Ron Engleman, which has gyms in Surry Hills, Bondi Junction and Caringbah, for nearly three years and was manager of the Bondi gym from February 2017 until May last year.

The pair had both served together in the Israeli army, with Engleman having sponsored Markovitch to come to Australia on a 457 visa to teach the popular self-defence discipline.

In May last year, Engleman used his mobile phone to access CCTV footage from cameras that had recently been installed in the Bondi gym and noticed Markovitch using his phone when he should have been supervising classes.

After inspecting earlier footage, Engleman noted that Markovitch spent a substantial amount of his working time sitting at the reception desk using his phone, which he felt posed a safety risk to clients and warranted dismissal.

Having been confronted about his phone use, Markovitch was urged to sign a prepared resignation letter and was then dismissed, effective as of 21st May 2018.

Markovitch later retracted the letter, saying it had been given to him under duress, and lodged an unfair dismissal claim in June last year.

Ruling on the matter this week, Fair Work Commissioner Ian Cambridge said there was a valid reason for the dismissal based on the worker's mobile phone use which might distract him from direct supervision.

However, Commissioner Cambridge ruled that small business fair dismissal procedures were not followed with Engleman not providing a proper opportunity for the worker to respond or explain his conduct or to have a support person present when he was asked to resign.

The summary dismissal, as opposed to a dismissal with notice, also contributed to the finding that the sacking was harsh and unreasonable.

CCTV footage as the basis for dismissal
Engleman’s use of CCTV footage as evidence for the dismissal has been the subject of considerable legal wrangling, and is a matter that employers should be aware of.

Under the NSW Workplace Surveillance Act, employees must be given written notice 14 days prior to any surveillance commencing, any cameras must be clearly visible and there must be signs notifying employees that they may be under surveillance.

Initially, Fair Work Commissioner Bernie Riordan refused to allow the CCTV footage as evidence as it had been illegally obtained.

However, following an appeal by Engleman, Commissioner Riordan’s decision was quashed with the Full Bench of the Fair Work Commission, advising that the employer “had a belief on reasonable grounds that the respondent’s conduct was sufficiently serious to justify immediate dismissal.

“Rather, it appears the Commissioner considered and answered a different question - namely, whether the CCTV footage had been obtained illegally under the Workplace Surveillance Act.”

The Full Bench of the Fair Work Commission considered the issue of when illegally obtained workplace surveillance becomes evidence in a case which, it advised, raises "new and novel issues in the Commission’s unfair dismissal jurisdiction.”

Commissioner Cambridge's ruling from this week also advised that “although there was valid reason”, Markovitch’s summary dismissal as opposed to dismissal with notice was “unnecessarily harsh”.

In his decision, Cambridge advised “the applicant made further submissions which sought to re-agitate the alleged illegality of the use of the CCTV footage from the Bondi gym.

“The submissions made by the applicant acknowledged that his conduct, as was established by the CCTV footage, was something that he was ashamed of. However, according to the applicant, the employer consistently broke the law in the way in which that conduct was identified and subsequently used by Mr Engleman.”

He found that text messages from Engleman encouraging Markovitch to continue working in the gym for a further two weeks until he returned to Israel “clearly demonstrated that he did not genuinely believe that the applicant’s conduct was sufficiently serious to justify immediate dismissal”.

In a series of texts on 21st May 2018,  Engleman wrote, “We continue forward, stay busy. Dedicate yourself to leave a good legacy here. Focus on the positive. Soon you will be in Israel with the family. There you can take care of your wounds. Now there is work to do.”

The ruling advised that the sacking therefore did not comply with Small Business Fair Dismissal Code, Cambridge said, and Engleman “adopted an unreasonable process including the absence of a proper opportunity for the applicant to be heard before the decision to dismiss was made”.

Markovitch, who has since started coaching at X Fighting gym in Bondi Junction, was awarded compensation of $6924, equal to six weeks pay.

Leading law firm Lander and Rogers have issued an advisory note on the case.

Click here to view Lander and Rogers advice.

Images: Krav Maga instructor Saar Markovitch. Source @saarkravmaga/Instagram

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