[2015] FWC 6882

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexander Casper
v
City of Perth
(U2014/13759)

COMMISSIONER WILLIAMS

PERTH, 21 OCTOBER 2015

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application by Mr Alexander Casper (Mr Casper or the applicant) made under section 394 of the Fair Work Act 2009 (the Act). The respondent is the City of Perth (the respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

Background

[3] Mr Casper was employed as a Team leader for the City of Perth car parks up until his termination on 27 October 2014. He was terminated by letter on that date and provided with four weeks payment in lieu of notice. 1 The termination followed an investigation that found Mr Casper had falsified timesheets.

[4] At the hearing of this matter Mr Casper was self-represented however he had been aided in the preparation of his case by lawyers on a pro bono basis. Mr Casper gave evidence on his own behalf and also called evidence from Mr Asghari, Mr Counsel, Mr Bentley, Mr Bruechle, Mr Rasheed, Ms Stockley, Ms Conlan, Mr Ross and Mr Younas.

[5] In addition Mr Casper tended 13 other witness statements from persons the respondent did not seek to cross-examine and who did not attend the hearing. Another witness Mr Ahmed, whom the respondent did wish to cross-examine, did not attend the hearing on the first day nor on the second day and accordingly his statement does not form part of the evidence before the Commission.

[6] The respondent called evidence from Ms Zambotti, Mr Poutula and Mr Abernathy.

Factual findings

[7] I have considered all of the evidence that was before the Commission and make the following findings of fact.

[8] Mr Casper was first employed in May 2006 and in March 2007 was promoted to the position of Car Park Team Leader.

[9] As the Car Park Team Leader Mr Casper’s responsibilities relevantly included supervision and coordination of car park officers and security officers, inspection and monitoring of all car park facilities and managing all aspects of event parking including directional signage.

[10] Mr Casper in his role would be expected to service approximately 33 car parks. Of these approximately 10 have a boom gate controlling entry and exit 2. The majority of the 33 car parks do not have any CCTV monitoring.

[11] The City of Perth provided Mr Casper with a personal digital assistant (PDA). This mobile device includes barcode scanning software which is used by Mr Casper when he enters and exits some City of Perth locations which are identified with a discrete barcode. The PDA also includes a time management system. Team Leaders including Mr Casper provide a PDA record of their daily movements to Mr Poutula by email. The PDA record shows the date, then for various times it shows the location the person was in attendance at with associated barcodes and includes room for notations to be made 3.

[12] The evidence however is that whilst particular locations have a discrete barcode, the Team Leaders including Mr Casper hold a file of generic barcodes which they can scan at any time even though they may not be at the particular location that barcode relates to. These generic barcodes are used by technicians when working on equipment. For example Mr Casper commonly spends time at the Elder Street car park however the fact that his PDA shows he scanned a barcode for the Elder Street car park at any particular time on any particular day does not prove he was at the Elder Street car park at the time the barcode was scanned into the PDA if the particular barcode scanned was the generic barcode rather than one of the specific barcodes which are physically located at the Elder Street car park.

[13] Personal access cards are used throughout the City of Perth’s car parks instead of keys to gain entry through car park doors, into buildings, controlled spaces and to open gates. Mr Casper has a personal access card. The City of Perth retains records of the use of personal access cards identifying the specific location and the date and time a card was used.

[14] PDA records rather than personal access card records are usually used by the City of Perth to confirm the hours Team Leaders have worked.

[15] Mr Casper’s contract of employment provides expressly that hours in excess of the rostered hours are not to be worked without the prior approval of the Manager.

[16] On 13 March 2014 Mr Casper was to attend a training session which commenced at 9.00 a.m. His usual shift for that day was to commence at 11.30 a.m. and consequently Mr Casper was eligible to claim over time for the period between 9.00 a.m. and 11.30 a.m.

[17] Mr Poutula the Principal Operations Coordinator observed Mr Casper was not in attendance when he introduced the facilitator to the staff when the training commenced around 9.10 a.m. At the morning tea break he joined the training participants and noticed Mr Casper was in attendance and was advised by another attendee that Mr Casper had arrived approximately 20 minutes earlier.

[18] Subsequently Mr Casper confirmed the hours he worked that day to Mr Poutula which included his PDA records showing he had scanned the generic Elder Street car park barcode at 9.02 a.m. Mr Casper was effectively claiming to have worked from 9.00 a.m. Further investigation however identified that at 9.23 a.m. Mr Casper used his personal access card to enter the Elder Street car park.

[19] Mr Poutula became concerned because the times and place recorded in Mr Casper’s PDA and the personal access card records and his knowledge of when Mr Casper came to the training session seemed inconsistent.

[20] Mr Poutula raised his concerns with Mr Abernathy the Manager of Parking who instructed him to investigate the matter further and to review the records going back 30 days including CCTV recordings, which are only held for approximately 30 days, access card information and Mr Casper’s PDA information.

[21] That investigation identified that in addition to the 13 March 2014 instance there appeared to be a further four instances of incorrectly claiming time was worked when that was possibly not correct.

[22] The City of Perth was obliged to notify the Crime and Corruption Commission as this appeared to potentially be a reportable offence. On 22 April 2014 the Crime and Corruption Commission advised the City of Perth that they should investigate and report on their findings. Consequently the City of Perth commenced its investigations into the allegations in detail.

[23] The City of Perth Chief Executive Officer agreed that a disciplinary investigation should be commenced and Mr Casper should be advised of this.

[24] Mr Abernathy then attempted to schedule a meeting with Mr Casper for 10 July 2014 and sent an email to Mr Casper stating he needed to inform him that there had been some allegations relating to some timesheets and that he would be stood down on pay for the next two weeks to provide him time to respond. Mr Casper’s attended that meeting accompanied by a representative of the Australian Services Union.

[25] At the meeting Mr Abernathy provided Mr Casper with a letter dated 10 July 2014 that detailed five alleged instances of him falsifying timesheets that were now being investigated. The letter also referred to an email Mr Casper had sent to his Supervisor Mr Poutula on 19 June 2014 where Mr Casper had questioned his Supervisor’s management including allegedly micromanaging and bullying and questioned when his Supervisor started his shifts. The letter asked Mr Casper to explain why he felt this was an appropriate way to address his Supervisor. Mr Abernathy’s letter invited a response to all these matters by 24 July 2014.

[26] At the meeting Mr Abernathy also requested Mr Casper hand in his mobile phone which is the property of the respondent. After he handed the phone back the City of Perth’s information services staff identified that Mr Casper had undertaken a global reset of the phone wiping it clean of all data. The phone consequently contained no phone call records, no email records and no records of SMS messages sent or received.

[27] Mr Casper did not ask the respondent for permission before resetting and deleting all the data from the respondent’s phone.

[28] The respondent submits that Mr Casper’s deletion of all data on the respondent’s mobile phone occurred after he had been given the letter by Mr Abernathy detailing the allegations regarding his timesheets and told that he was stood down 4. The respondent submits this was a deliberate action by Mr Casper to destroy data that would have assisted the respondent in its investigation and it should be inferred this data would have been prejudicial to him.

[29] In his witness statement the applicant says that he reset the respondent’s mobile phone in order to,

“...protect the privacy of personal Gmail and android access to personal home network.

In any event, the default setting of the phone was preset to delete old emails, SMS and call log every three 3-7 days maximum to maintain phone memory capacity so it is illogical to expect that contact records from 7 months earlier would still be on the phone. 5”

[30] Under cross-examination Mr Casper said he reset the phone because,

“...I had personal photos, family photos, personal email, person phone numbers, and personal texts, basically everything in there. So if anybody had got my mobile phone, they would have accessed all of my phone bills, my personal records…

… My private photos of the family, everything.” 6

[31] Mr Casper sought to explain in his evidence that resetting the phone had not deleted text and phone call records which might be relevant to the respondent’s investigations. His evidence was that resetting the phone did not delete any such data because the date of the allegations was many months earlier and “…there is no phone that I have ever used that will retain your collection of texts and records dating back…”for the period which he later agreed was five months. 7

[32] Under cross-examination when asked why he did not simply delete his personal text messages or personal photos Mr Casper did not respond but clouded the issue by referring to his belief about the complexities of deleting a contact number from an android phone which was synced to other devices and the potential for that contact number to disappear from all devices and that in his view this could only be avoided by doing a factory reset of the phone. 8

[33] Having viewed Mr Casper give evidence through the hearing there are real doubts in my view as to his credibility on a number of specific issues. Mr Casper could at times be highly evasive in his answers. Mr Casper regularly attempted to avoid the key issues by responding with highly detailed but largely irrelevant explanations.

[34] Considering his evidence on this particular issue Mr Casper says the reason he needed to take the unusual step of doing a factory reset of the phone, which wiped the phone clean of all data, was to prevent the respondent having access to “…all of... his phone bills, personal records, private photos…everything” as he described it. This however is inconsistent with his other evidence that the phone set up deleted emails, SMS messages and phone call logs at least every seven days. If the respondent’s phone was truly set up to regularly delete data then it had never retained the breadth of personal private data Mr Casper said could only be protected by him doing a factory reset.

[35] Further if the phone was set up to regularly delete data there would be only a few days of personal phone call logs, personal emails or personal SMS messages which Mr Casper could have easily selected and manually deleted without deleting all the data. Similarly deleting his personal photographs would also be a simple process. 9

[36] Further Mr Casper’s evidence was that most of the time he carries two personal phones in addition to his work mobile phone indicating that an amount of personal communication is conducted on these other two phones rather than the City of Perth’s phone. 10

[37] It is a notorious fact that mobile phones of all types have the capacity to store a large amount of data and depending on the volume of emails and messages sent and received this could cover a period of many months or years. Mr Casper generally displayed a sound knowledge of mobile phone technology. I do not accept his evidence as to his belief as to the limited capacity of the phone 11. Further in my view it would be unusual for an employee to set up a work mobile phone to automatically delete records as frequently as Mr Casper said his was. For any number of reasons it is often useful to refer to when phone calls were made or received and to be able to access the content of emails or text messages from past weeks or months. I do not find Mr Casper’s evidence that the phone was set up on this basis credible.

[38] Considering all this evidence I also do not find Mr Casper’s evidence as to why he carried out a factory reset of the respondent’s phone credible.

[39] Before he deleted all the data from the phone he had been advised the previous day the reason he was meeting with Mr Abernathy was to do with allegations about timesheets and he had been told he would be stood down. At the meeting the next day he received the letter that detailed the allegations against him. Accompanying the letter were copies of reports from the City of Perth’s investigation that related to his PDA records, his personal access card usage and CCTV footage. At that point being aware of the nature of the allegations and that the investigations had involved a review of information from these various sources and given Mr Casper has a sound understanding of mobile phone technology it is reasonable to conclude he would have appreciated that the data on the work phone showing the dates and times of phone calls, emails and text messages would potentially be relevant to the City of Perth’s investigation of the allegations made against him.

[40] Considering all of this evidence it is reasonable to infer that Mr Casper did not carry out a factory reset of his phone to protect personal information but rather did this to prevent the respondent accessing records on the mobile phone of emails, phone calls or text messages sent or received which might have been relevant to the investigation of the allegations made against him.

[41] Following the meeting with Mr Abernathy Mr Casper provided a detailed response to the allegations regarding his timesheets. In addition numerous witness statements were provided by Mr Casper in support of his position.

[42] The respondent as part of its investigations undertook further analysis of GPS data, PDA records, CCTV, personal access cards and timesheets as well as the overtime payments that had been made to Mr Casper.

[43] Mr Abernathy then formed the view that an independent investigator should be appointed to carry out an impartial investigation and Ms Zambotti was engaged to do undertake a full investigation on behalf of the City of Perth.

[44] Ms Zambotti’s investigation involved amongst other things interviewing Mr Casper on 22 September 2014 at the office of the Australian Services Union. Mr Casper did not consent to the interview being taped so notes were taken and were drafted into a witness statement for him. This draft was provided to Mr Casper who amended this document and provided this as his witness statement to Ms Zambotti. Interviews were also conducted with Ms Stockley a Carpark Officer, Mr Younas an MSS Mobile Patrol Officer and Mr Ahmed an MSS Mobile Patrol Officer.

[45] On 20 October 2014 Ms Zambotti submitted a report with findings to the City of Perth which found all five allegations had been made out 12.

[46] The body of that report contains a range of material including, emails, still photos taken from CCTV footage, City of Perth personal access card records, Telstra mobile phone records for Mr Casper’s City of Perth phone, mobile phone records provided by MSS Security to the City of Perth for its employees and GPS records provided by MSS Security for the vehicles that had been used respectively by Mr Younas and Mr Ahmed. I accept all of these records are evidence which this Commission can have regard for.

[47] In the wake of the allegations the City of Perth was pursuing against Mr Casper Mr Abernathy directed that an audit be conducted of staff work hours within the Operations area. Mr Poutula wrote a memo dated 18 June 2014 to Mr Abernathy explaining the results of this audit. The memo says that working hours of individual staff were validated against their roster using personal access card information and CCTV footage. The findings were that there was no major variance in staff exit times compared to rostered shift sign off times, where a major variance was considered as the staff exiting the car park 25 minutes or more earlier than the rostered sign off time.

[48] The audit however identified that there is a trend for staff to be commencing their shift earlier than the rostered start time and finishing their shift earlier than the rostered finish time. The audit confirmed that 95% of staff adhere to the shift working hours. The memo advised that for staff who are starting earlier than the shift start times a written instruction will be sent to reinforce they must adhere to the roster 13.

[49] I will now turn to consider the facts relevant to each of the allegations in turn.

18 February 2014

[50] Mr Casper was rostered to work between 1.30 p.m. and 10.30 p.m.

[51] For that day the CCTV shows Mr Casper’s vehicle leaving the Elder Street car park at 9.47 p.m. and Mr Casper’s access card record also shows he exited this car park at this time.

[52] The evidence of Mr Bentley 14, who was working that day at His Majesty’s car park as a Car Park Officer, was that he worked until 10.00 p.m. and had cause to ring Mr Casper at 10.30 p.m. regarding an email he had earlier sent concerning a problem with a car park door. His evidence was that in that conversation Mr Casper advised him that he had arrived at His Majesty’s car park and fixed the fault in the door. He also told Mr Bentley that he was then leaving that car park and continuing to other tasks at Ozone reserve.

[53] The evidence of Mr Bentley proves only that Mr Casper took a phone call from him at 10.30 p.m. Mr Bentley has no direct knowledge of where Mr Casper was when he took the phone call nor where he went afterwards.

[54] The only other evidence as to what Mr Casper did after he left the Elder Street car park at 9.47 p.m. is his own evidence.

[55] Mr Casper in his witness statement does not mention speaking to Mr Bentley on the phone or fixing a faulty door at His Majesty’s car park around 10.30 p.m.

[56] Rather his evidence is that around 10.00 p.m. he left the Elder Street car park in order to verify the deployment of various requirements for a conference which was to occur at the Perth Convention and Exhibition Centre the following day. He also intended to get some dinner as he had not taken his meal break. He by implication suggests he may have visited other car parks which do not have CCTV or other recording mechanisms.

[57] His evidence is that around 10.30 p.m., the time at which his shift was to end, he reviewed his email instructions and then at around 11.00 p.m. arranged some sandbags to be collected and to be left at Ozone reserve. His evidence is that he met the MSS Patrol Officer in the vicinity of Ozone reserve.

[58] As to the absence of any phone records from himself or the MSS patrol officer Mr Ahmed whom Mr Casper says he interacted with that night his explanation is that they often communicated via two-way radios or through their personal mobile phones or using the “Viber” application.

[59] Mr Casper in his evidence referred to using Viber on a number of occasions. Viber is a smart phone application that uses 3G, 4G or Wi-Fi internet connections to make and receive phone calls and messages. The parties were invited to make submissions as to whether or not Viber retained a log of calls made and received. Mr Casper gave evidence that using Viber on a phone means there is no log of calls made however other evidence contradicts this. Information provided by the parties includes links to the Viber website. One of these is set out below:

“Accessing your Viber call history:

Your Viber call history can be found in the Calls tab.
You can delete entries in the history log from this tab.

Accessing your Viber Out call history:

Your Viber Out call history can be found in two places:

1. The Calls tab within the Viber app. You can delete entries in the history log from this tab.
2. The Call History tab in your account on Entries from the call history log cannot be deleted from here.” 15

[60] Clearly there is a historical log of calls on the phone itself in the Viber application. Specifically in Mr Casper’s case any log of Viber calls on his work mobile phone was deleted when he undertook the factory reset which deleted the Viber application, however if he used his private phones at any stage there would have been a Viber call history he could have pointed to if it had supported his explanations for his whereabouts at any time.

[61] The respondent points to some evidence that contradicts Mr Casper’s explanation as to his whereabouts after 9.47 p.m. Firstly the respondent obtained the phone records from Telstra for Mr Casper’s work mobile phone and these do not show any internet access on his phone as would have been recorded if he had reviewed his emails at around 10.30 p.m. as he said he did.

[62] Similarly the records for his work phone do not indicate any communications around this time with the MSS Patrol Officer. It is not at all obvious why the applicant would use his personal phone rather than the work phone supplied however if the applicant had used his personal phone to access emails or contact Mr Ahmed he has had the opportunity to provide any records demonstrating this but has not done so.

[63] Ultimately whilst I have grave doubts about Mr Casper’s evidence as to his activities on this day his evidence is the only positive evidence as to his whereabouts and activities after 9.47 p.m., there is no direct evidence that contradicts this. With some reluctance I accept that on the balance of probabilities he was undertaking his duties through to around 11.00 p.m. that day.

19 February 2014

[64] Mr Casper was rostered to work between 1.30 p.m. and 10.30 p.m.

[65] The records from Mr Casper’s PDA indicates he exited His Majesty’s car park at 8.31 p.m., however Mr Casper’s access card records indicate he exited the Elder Street car park at 8.33 p.m. and CCTV footage for this car park also shows his vehicle leaving at this time.

[66] I am satisfied that the last electronic record of Mr Casper undertaking his duties was timed at 8.33 p.m.

[67] Mr Casper’s evidence was that he left around this time to conduct the rest of his inspections and buy some dinner as he had not taken his paid meal breaks prior to this. After his dinner he says he recalls attending to administrative functions in the Elder Street car park office.

[68] There is no record of him or his vehicle re-entering the Elder Street car park. While the evidence is that the office itself has a manual key rather than an access card there remains the question as the respondent submits as to why Mr Casper would not use the secure parking bay inside Elder Street car park for his vehicle later that evening after he had used it prior to 8.33 p.m. hours?

[69] His evidence is that when doing solo late-night inspections in car parks he does not drive the only work vehicle available to him which is the Operations Cash Transit Van because he views this as involving a heightened risk to him. His evidence is that consequently he uses his own vehicle late at night to undertake his duties. It seems highly unlikely in the circumstances that he would park his personal vehicle which he was using for work purposes on the street rather than more safely and securely inside the Elder Street car park where he says he was working.

[70] His evidence is that around 10.00 p.m. he checked his notes and realised some bays needed to be coned off at Council House for a meeting the next day. He says he also requested the MSS Mobile Patrol to meet him to provide feedback on the Ozone event parking.

[71] There is no record of him contacting or being contacted by the MSS Mobile Patrol.

[72] His evidence was that he coordinated event related instructions with the MSS Mobile Patrol at around 11.15 p.m. He believes he finished his work related tasks around 11.30 p.m.

[73] Again in this instance I have grave doubts about Mr Casper’s evidence as to his activities on this day however his evidence is the only positive evidence as to his whereabouts and activities after 8.33 p.m. and so with some reluctance I accept that on the balance of probabilities he was undertaking his duties through to or after 11.30 p.m. that day.

9 March 2014

[74] Mr Casper was rostered to work between 10.30 a.m. and 6.00 p.m.

[75] CCTV footage and access card records indicate that Mr Casper entered the Elder Street car park at 10.58 a.m.

[76] The respondent submits the evidence supports a conclusion that Mr Casper did not commence work prior to 10.58 a.m.

[77] Mr Casper’s evidence was that on this day he started work around 9.15 a.m. and he checked traffic modifications affecting the Swan River foreshore car parks 16.

[78] His evidence was that he was in communication with the MSS Mobile Patrols including Mr Younus through to 10.00 a.m.

[79] The evidence of Mr Casper and Mr Younus was that they continued to communicate throughout the day including up until 7.00 p.m.

[80] The Telstra phone records for Mr Casper’s work phone show the earliest outgoing phone activity was 10.28 a.m. There is no activity recorded by Telstra on Mr Casper’s work phone anywhere near as late as 7.00 p.m.

[81] The phone records from Mr Younus’s MSS mobile phone do not indicate any phone traffic to Mr Casper’s phone.

[82] Both Mr Casper and Mr Younus in their evidence assert that their communications that morning may have been by two-way radio or personal phones. There is obviously no record of two-way radio interactions and neither Mr Casper nor Mr Younus has provided any record of their personal mobile phone usage to support their evidence.

[83] The evidence of Mr Younus at the hearing of this matter seems inconsistent with the statement he gave during the investigation of this matter to Ms Zambotti where he appears to concede that his contact with Mr Casper may have been not before 10.30 a.m. 17

[84] I note that notwithstanding the Commission’s directions for witnesses to attend in person Mr Younus did not attend the hearing in person but the applicant was granted leave for his evidence to be taken by telephone from an international location. The quality of this experience was poor due to both Mr Younus not having English as his first language and the connection being of low quality which together did disadvantage the respondent in undertaking cross-examination of this witness.

[85] The Telstra records for Mr Casper’s mobile phone indicate that at 10.28 a.m. he was in the vicinity of Bassendean and seven minutes later at 10.35 a.m. he was in the vicinity of Ascot. Both of these areas are outside the geographic area of responsibility of Mr Casper. Bassendean and Ascot are both at least 6 km from the City of Perth.

[86] Mr Casper’s evidence is that he believes that at around 10.30 a.m. he was in the vicinity of East Perth at City of Perth premises 18.

[87] In his submissions Mr Casper argues that attending to inspections in East Perth at this time meant he would have been on his way back to the central business district which is consistent with the mobile signal from his phone being detected through the Ascot Telstra mobile phone tower 19. It is notorious that there are a large number of mobile phone towers throughout the Perth metropolitan area. Ascot is some distance away from the Graham Farmer Freeway and even further away from East Perth the location Mr Casper says he was at. In all probability any mobile phone usage whilst Mr Casper was in East Perth or on the Graham Farmer Freeway would have gone to one of the many other mobile phone towers closer to these locations than a tower in Ascot.

[88] Considering all of this evidence I do not find the evidence of Mr Casper as at all credible in the fact of the evidence s to his mobile phone’s location being in the vicinity of Bassendean and then Ascot. Mr Younus’s evidence was also not credible.

[89] Mr Casper’s evidence was that in total he worked more than one and a half hours beyond his rostered hours. Mr Casper did not claim payment for these overtime hours worked on the Sunday.

[90] I am satisfied that on the balance of probabilities Mr Casper did not commence his duties until 10.58 a.m. and he has wrongly claimed to have commenced work at 10.30 a.m. on this day.

12 March 2014

[91] Mr Casper was rostered to work between 1.30 p.m. and 11.00 p.m.

[92] CCTV footage and access card records indicate that Mr Casper exited the Elder Street car park at 9.09 p.m.

[93] The respondent submits the evidence supports a conclusion that Mr Casper did not work after 9.09 p.m.

[94] Mr Casper’s evidence was that on this day he was performing work duties well before 1.30 p.m. and points to the fact that the phone records for his mobile phone indicate an internet session occurred in the Perth CBD area at 11.44 a.m. 20

[95] Whilst I accept that the mobile phone records do indicate that a mobile phone session occurred at 11.44 a.m. within the Perth CBD there is no evidence as to what this activity involved to confirm that it was work related and the applicant does not provide any other evidence to support his assertion that he had commenced work earlier than the rostered start time. Indeed Mr Casper states that he arrived at the Elder Street car park and parked his vehicle at or around 1.30 p.m. which of course was his rostered time to start work 21.

[96] In response to the respondent’s challenge to Mr Casper that he did not undertake any work duties after he left the Elder Street car park at 9.09 a.m. Mr Casper says that he left the car park in his vehicle to purchase dinner and refreshments for the MSS Guards. His evidence is he believes he may have returned to the outside office at the Elder Street car park to have dinner and finalise some paperwork, however generally his pattern of work when on night shifts involves him departing the Elder Street car park to buy dinner and then to attend to other matters such as bay reservations and event setups for the rest of his shift 22.

[97] Mr Casper’s evidence is also that at around 11.15 p.m. he met with the MSS Mobile Patrol near the Regal Place car park in East Perth to give them the drinks and that around 11.30 p.m. he finished his work related tasks 23.

[98] Mr Casper in his evidence is very specific about his memory of purchasing drinks on this evening for the MSS Guards but then is quite uncertain as to whether or not he then returned to the office at the Elder Street car park or whether he instead carried out other work activities but then surprisingly is he has a very specific memory about later meeting Mr Younus, the Mobile Patrol, at a specific place and a specific time which is after his finish time for the day.

[99] The evidence is that Mr Casper has produced EFTPOS records of other drink purchases he made this day but has no record of the second drink purchases made after 9.09 p.m.

[100] I note that in his response to Mr Abernathy dated 24 July 2014 24 and when interviewed by Ms Zambotti about his whereabouts during this time Mr Casper was specific that he was at the office in the Elder Street car park which is not consistent with the uncertainty he expressed in his evidence before the Commission as to his activities after he had purchased the drinks for the MSS Mobile Patrols.

[101] The CCTV records and access card records indicate that Mr Casper did not return to the Elder Street car park and it would be surprising for him to have left his vehicle outside of that car park if he was indeed doing work in the car park office.

[102] Mr Casper submits that he started work at 11.45 a.m., well before his rostered start time, and worked well after his rostered finish time to 11.30 p.m. which would mean that he worked an additional 2 hours and 15 minutes in addition to his rostered hours but he did not make any claim for these additional hours worked. It seems unlikely that Mr Casper would not claim payment for these hours in this situation.

[103] Considering all of the evidence I find Mr Casper’s evidence as to his activities after 9.09 p.m. is not convincing.

[104] Mr Casper also gives evidence that at around 11.15 p.m. he met up with the MSS Mobile Patrol Mr Younus near the Regal Place car park in East Perth to give them the drinks he had purchased 25.

[105] Mr Younus’s evidence was that he did meet Mr Casper around this time and Mr Casper contacted him to arrange this meeting.

[106] The records show that Mr Casper used his work mobile phone a number of times throughout the day but there is no record of any phone contact between Mr Casper’s work mobile phone and Mr Younus prior to this prearranged meeting they say occurred.

[107] I accept as the respondent submits that Mr Casper’s explanation as to where he and Mr Younus met around 11.15 p.m. has changed from when he spoke to Mr Abernathy, when he spoke to Ms Zambotti and the evidence he gave to the Commission.

[108] Mr Casper has relied upon the evidence of Mr Younus to corroborate his statement that he met him on this day around 11.15 p.m.

[109] Mr Younus’s explanation as to how this meeting with Mr Casper was arranged and where it occurred has also changed over time. It is apparent that when provided with specific information by the respondent such as the absence of phone records that would confirm any phone contact between them and perhaps more importantly GPS records of his location at particular times his statements as to what occurred on this evening have changed to incorporate these objective facts.

[110] Considering all of the evidence of Mr Younus I have not found his evidence as to his interactions with Mr Casper after 9.09 p.m. at all convincing.

[111] My conclusion is that Mr Casper did not meet with Mr Younas after 9.09 p.m.

[112] Considering all of the evidence on the balance of probabilities I am satisfied that Mr Casper did not undertake work duties after 9.09 p.m. and has wrongly claimed that he continued to work through to 11.00 p.m.

13 March 2014

[113] On this day Mr Casper claimed overtime for beginning work at 9.00 a.m.

[114] Mr Casper was to attend group training being held in the training facility at the Elder Street car park, commencing at 9.00 a.m.

[115] CCTV footage and access card records indicate that Mr Casper entered the Elder Street car park at 9.21 a.m.

[116] Mr Casper’s evidence is that from around 8.30 a.m. he was communicating with various staff by phone or two-way radio.

[117] Mr Bruechle, a witness called by the applicant, gave evidence that he communicated with Mr Casper around 8.30 a.m. that morning 26. Under cross examination he repeatedly confirmed that this communication was by two-way radio27. However as Mr Casper at 8.30 a.m. had not yet entered the Elder Street car park office where the two-way radio was stored he could not on the balance of probabilities have communicated with Mr Bruechle in this manner.

[118] Under re-examination by Mr Casper Mr Bruechle confirmed that as at this date he did not have Mr Casper’s work mobile number nor his personal mobile phone number. He then agreed with Mr Casper’s suggestion that there was also an office telephone that could have been used for communication and that it was also possible that Mr Casper rang him on his mobile phone rather than on the two-way radio.

[119] Accepting Mr Bruechle’s evidence at face value it was obviously not normal for him to communicate with Mr Casper by mobile phone given that he did not have Mr Casper’s work or his two personal mobile phone numbers.

[120] In any event the records for Mr Casper’s work mobile phone do not show any calls were made anywhere around 8.30 a.m. indeed the earliest call on his work mobile phone that day was at 10.03 a.m.

[121] Considering this evidence and noting how readily Mr Bruechle changed his evidence when re-examined by Mr Casper as to the medium of their communication I do not find his evidence at all credible.

[122] The evidence of Ms Stockley is that she had a phone conversation with Mr Casper while he was at home around 7.30 a.m. to 8.30 a.m. that morning. Her statement says she believed he had reached the CBD somewhere between 8.30 am and 9.00 a.m. based on the regular communications she had with him. Her statement says that she heard Mobile Officers on the radio acknowledging instructions they had received from Mr Casper around this time.

[123] Ms Stockley’s evidence was not impugned and supports Mr Casper’s explanation of his activities prior to 9.00 a.m. that day.

[124] Considering all the evidence on balance I am satisfied that Mr Casper had commenced his duties at least at 9.00 a.m. on this day and in all probability sometime earlier.

Consideration

[125] The parties have made extensive submissions particularly about the evidence related to each allegation and I will not repeat those submissions here.

[126] Firstly it must be appreciated that the Commission’s role in this matter is not to undertake a review of the investigation conducted by Ms Zambotti or to critique its findings. Rather the Commission is required to form its own conclusions on these matters based on the evidence presented at the hearing. The investigation report and the hearing in this Commission do not have an identical evidentiary base; one example being the fact that Mr Ahmed did not give evidence before the Commission.

[127] I would firstly observe that referring to the allegations as falsification of timesheets is a misnomer; the real complaint is that Mr Casper wrongly claimed payment for time he said he was working when he had not been working.

[128] With respect to the Surveillance Devices Act 1998(WA) and specifically in regards to the respondent’s use of CCTV recordings I agree with the respondent’s submissions that there is no concern with this being used as it was by the respondent because entering and leaving the City of Perth car parks is not a private activity.

[129] The respondent in its submissions sought to persuade the Commission that the evidence supports a conclusion that Mr Casper had colluded with other witnesses to provide evidence refuting the factual basis for some of the allegations. Whilst I have made no finding to this effect as I have said earlier I do have doubts about some of Mr Casper’s evidence. At times I did not find his evidence at all credible nor did I find Mr Younas’s evidence credible.

[130] I have considered Mr Casper’s evidence and submission that the decision to dismiss him was for an ulterior motive and have concluded that whilst there was some previous conflict between Mr Casper and the respondent regarding some occupational health and safety matters there is no basis on which this Commission could conclude that this was the real reason for him being dismissed. The allegations put to Mr Casper all had some substance; they were not fanciful or invented.

[131] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. This is set out below.

“387 Criteria for considering harshness etc.

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.”

Valid reason

[132] I have found that Mr Casper wrongly indicated to his employer that on 9 March 2014 and 12 March 2014 he had worked hours that he had not. Specifically he claimed to have worked respectively 28 minutes and 1 hour and 51 minutes on these days which was not worked.

[133] For both of these days Mr Casper led his employer to believe that he was at work undertaking his duties at times when he was neither in attendance at work nor undertaking any work duties.

[134] I am satisfied that these actions were a valid reason for Mr Casper’s dismissal.

Notification of the reason

[135] Mr Casper was notified of the reason for his dismissal prior to his being dismissed.

Opportunity to respond

[136] The respondent undertook a full investigation and report into the alleged irregularities involving Mr Casper’s and he had a full opportunity to respond to each of those allegations through that process and indeed did so.

Support person

[137] There was no denial for Mr Casper to have a support person present during any of the discussions relating to his dismissal.

Previous warning

[138] Mr Casper was not dismissed for his work performance so this issue is not applicable.

Size of the employer

[139] The employer is a large business and the processes and procedures adopted were appropriate in the circumstances.

Human resource specialists and expertise

[140] The employer does have in-house Human Resource specialists and the processes and procedures adopted reflected this capacity.

Other matters

[141] Mr Casper had been employed for eight years prior to his dismissal and has not received any formal warnings during that time.

[142] It is clear from the evidence that a subsequent audit of other staff’s actual start and finish times compared to their rostered start and finish times identified some variance including some employees who had adopted the practice of commencing work earlier than their rostered start time and leaving earlier than their rostered finish time 28. The evidence does not disclose whether there was any variation for any individual staff member of the magnitude that Mr Casper had committed. The respondent having established these facts however chose not to take any disciplinary action against any staff but rather chose to only reinforce to them their obligations to adhere to their rostered start and finish times. This approach is not consistent with the manner in which the respondent has dealt with Mr Casper.

[143] I accept there is some evidence that on occasions Mr Casper would undertake some duties such as making or receiving phone calls before his rostered shift, for example the evidence of Ms Stockley indicates this occurred on 13 March 2014.

[144] In this case there was a valid reason to dismiss Mr Casper because of the two proven instances of wrongly claiming he had worked when he had not however taking into consideration his length of service, the respondent’s more lenient approach to other staff not working strictly in accordance with their rosters and the fact that on occasions Mr Casper would undertake duties outside of his rostered hours my conclusion is the decision to dismiss him was harsh. Therefore I conclude that Mr Casper’s dismissal was unfair.

[145] I note that had the evidence before the Commission supported a finding that all five allegations of wrongly claiming for time not worked were correct the dismissal would not, in my view, have been unfair.

Remedy

[146] In terms of considering the appropriate remedy the Commission must first consider whether reinstatement is appropriate.

[147] The evidence demonstrates that on two occasions Mr Casper wrongly claimed for hours he had not worked. In addition to these valid reasons for dismissal Mr Casper’s action in resetting his phone as he did, which I have found was deliberately done to prevent the respondent accessing its records as part of its investigation, raises questions about his integrity and supports the respondent’s submission that they have good reason to have lost trust and confidence in him. Considering this and that a central part of Mr Casper’s role is the supervision of others and that his job involves him working autonomously without regular oversight from the respondent it is my conclusion that it would not be appropriate to reinstate Mr Casper.

[148] Section 392 of the Act, set out below, indicates the criteria for deciding the amount of compensation that the Commission may order.

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[149] There is no suggestion that an order of compensation would have a negative impact on the respondent’s viability.

[150] Mr Casper was employed for eight years at the time of his dismissal.

[151] The question of the remuneration Mr Casper would have received had he not been dismissed involves a determination of how long he would have remained in employment but for his dismissal.

[152] Mr Casper’s length of service in isolation would suggest that he would have remained in employment for a substantial period. However because Mr Casper had on two separate occasions wrongly indicated to his employer that he had worked hours that he had not actually worked, had never admitted this was the case and reset his work mobile phone knowing this would inhibit his employer’s investigations it would be expected that if the respondent did not dismiss him it would have taken some form of disciplinary action against him.

[153] In the circumstances here where the respondent did have, as I have found, good reason to have lost trust and confidence in Mr Casper it is likely that he would have at least been demoted from his role as a Team Leader. This would have had a negative impact on Mr Casper in terms of his seniority, his remuneration and is likely to have had a negative impact on his prospects of future advancement. In these changed circumstances I think it is not likely that he would have remained in employment for a substantial period and my decision is that he would have only remained in employment for a further period of four months.

[154] Consequently the remuneration Mr Casper would have received but for his dismissal is the equivalent of four months remuneration.

[155] I am satisfied that Mr Casper’s has made appropriate efforts to mitigate his loss.

[156] Mr Casper’s has provided information regarding monies he has earned from a number of sources since his dismissal however no remuneration was earned during the first four months after the date of his dismissal.

[157] Section 392(3) of the Act requires the Commission to consider whether it is satisfied that any misconduct of Mr Casper contributed to the respondent’s decision to dismiss him and if it did what would be an appropriate reduction in the amount of compensation that would otherwise be ordered.

[158] In this case the two instances where Mr Casper wrongly indicated to his employer he had worked hours which he had not worked was misconduct that did directly contribute to the respondent’s decision to dismiss him; as is plain from the letter of termination. A reduction of 25% due to Mr Casper’s misconduct is appropriate in this case. This reduces the amount of compensation to be ordered to three months remuneration.

[159] Consequently an order will now be issued that the respondent pay to Mr Casper an amount of three months remuneration less appropriate taxation within 28 days.

COMMISSIONER

Appearances:

A Casper on his own behalf.

S. Farrell of the Chamber of Commerce & Industry of Western Australia for the respondent.

Hearing details:

2015.

Perth:

April 30 and May 1.

Final written submissions:

Applicant, 2 June 2015.

Respondent, 18 May 2015.

1 Exhibit A1, Attachment AC22.

2 Transcript at PN1440 to PN1441.

3 Exhibit R6, Attachment PA4.

4 Transcript at PN352.

5 Exhibit A1 at paragraph 307.

6 Transcript at PN352 to PN353.

7 Ibid., at PN364.

8 Ibid., at PN358.

9 Exhibit A1 at paragraph 307.

10 Transcript at PN241.

11 Ibid., at PN361 to PN364.

12 Exhibit R4.

13 Exhibit R6, Attachment PA10.

14 Exhibit A5.

16 Exhibit A1 at paragraph 98.

17 See Exhibit R4, Attachment 9 at page 5.

18 Exhibit A1 at paragraph 104.

19 Applicant’s closing submissions at paragraphs 83 and 84.

20 Exhibit A1 at paragraph 130.

21 Ibid., at paragraph 132.

22 Ibid., at paragraphs 133 and 138.

23 Ibid., at paragraphs 139 and 141.

24 Exhibit R4, Attachment 5.

25 Exhibit A1 at paragraph 139.

26 Exhibit A6.

27 Transcript at PN609 to PN618.

28 Ibid., at PN3320 and PN3328.

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Alexander Casper v City of Perth