Babis Lagos v Community College Gippsland Ltd
[2013] FWC 5496
•27 AUGUST 2013
[2013] FWC 5496 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Babis Lagos
v
Community College Gippsland Ltd
(U2013/1232)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 27 AUGUST 2013 |
Application for relief from unfair dismissal - summary dismissal - alleged fraudulent conduct in assessment of student - alleged false claim of qualifications in a curriculum vitae - alleged failure to ensure a course is loaded on to computer - alleged failure to perform assessment of students - procedural issues.
Introduction
[1] On 16 April 2013 Mr Babis Lagos filed an application under s.394 of the Fair Work Act 2009 (‘the Act’) against Community College Gippsland Ltd for an unfair dismissal remedy. He was summarily dismissed without notice on 27 March 2012.
[2] The matter was conciliated and no settlement was reached. Pursuant to s.596(1)(a) I granted permission for the parties to be represented by a lawyer, because it would enable the matter to be dealt with more efficiently, given the complexity of the matter. It is agreed by the parties, and I am satisfied, that the jurisdictional requirements of s.396 are met. The matter was set down for arbitration before me. Pursuant to s.399 the matter was heard by hearing given the decision of the parties to cross examine witnesses.
[3] Written submissions and witness statements were filed, and the following witnesses gave evidence:
Mr Babis Lagos
Mr Paul Wilson
Ms Anna Mitchell
Ms Kristen Theile
[4] I have had regard to all the submissions and evidence.
Decision
[5] In considering the criteria under section 387, and whether I am satisfied that a dismissal was harsh, unjust or unreasonable, I 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)
[6] In this case Community College alleges that there are six valid reasons for termination of Mr.Lagos’s employment:
● Mr.Lagos attached assessment documents for Ms.Senny Luu relevant to the RTE3605A Troubleshoot irrigation systems unit to the following other units for which they had no relevance:
- RTD3034A - Implement revegetation works;
- RTF3217A - Set out site for construction works;
- RTF3503A - Sample soils and analyse results;
- RTC3401A - Control weeds;
- RTF3207A - Implement a landscape maintenance program.
● Further they submit that there was insufficient evidence provided by Mr.Lagos to support the assessments of Ms.Luu in relation to each of these units, and that there were various other deficiencies, including the lack of Ms.Luu’s name on the documents. They describe his alleged conduct as fraud and serious misconduct 1. They say that this was a serious issue because Community College is required to provide evidence of tasks performed by students to meet the relevant criteria attaching to an assessment tool in a unit of training or study. This enables the college and student to refer to a record of units completed in a training course, and enables the college to meet requirements of funding bodies2;
● Mr.Lagos failed to upload on to a computer system a new course that had commenced in November 2012, which meant that student enrolments were not formally completed and the college lost funding for the training that occurred in 2012 3;
● Mr.Lagos made false claims about his qualifications in his curriculum vitae and replaced it with another one when the false claim was raised with him;
● there were many other student files that Mr.Lagos had responsibility for which were deficient 4;
● following the termination of Mr.Lagos’ employment, a box was discovered in his office which contained a number of assessment tasks for which Mr.Lagos was responsible, and which had not been completed. Some dated as far back as October 2012, and the requirement is that all assessments are to be marked and entered on the computer within one month, and all statistics need to be finalised by 1 December 2012. The documents related to 9 separate students, with a range of deficiencies in the records, and a trainer spent weeks ‘untangling the poor recording of assessment evidence. The trainer has had to work with trainees and employers to ensure that the required assessment tasks have been completed to the required standard and compliant with requirements’ 5.
Deficiencies in Ms.Luu’s student file
[7] In relation to the first alleged valid reason, Ms.Theile gave evidence about the nature of funding requirements, and other issues concerning the alleged valid reason. Mr.Lagos said that ‘to the best of my knowledge, no, I did not attach these documents’ 6, ie. that he was not responsible for placing the photocopies of the Troubleshoot irrigation systems unit on to the files for Ms.Luu concerning the other 5 units. There were also challenges made to the claimed valid reason on the basis that Ms.Theile in effect singled Mr.Lagos out and was unfair, Mr.Wilson terminated Mr.Lagos in order to assist him in the forthcoming program of redundancies, the funding arrangements did not require such evidence but could be satisfied by completing the attendance role, various allegations that the documents were relevant to the other units, alleging that persons other than Mr.Lagos could have placed the documents on Ms.Luu’s file given that they were lodged with the college in a corridor that many had access to, and other matters.
[8] Firstly, I had the opportunity to observe the witnesses giving evidence, and I accept the evidence given by Mr.Wilson, Ms.Theile and Ms.Mitchell where it is inconsistent with that of Mr.Lagos. They were convincing and forthright in giving evidence, while Mr.Lagos’ version of events was often unconvincing at best.
[9] Secondly, I accept the evidence of Ms.Theile 7 and Mr.Wilson8 that funding is dependent on evidence being on file to support assessments made of students. I do not accept that an attendance role is in all cases sufficient, particularly where an assessor has marked part of a unit as satisfactory or achieved. It would be a strange result if funding would occur simply because an assessor stated an assessment, without evidence or substantiation.
[10] Thirdly, I am satisfied that there is not evidence on Ms.Luu’s file which satisfies the assessments made of her by Mr.Lagos and which are also on file. For example, the student file for Ms.Luu contains an assessment of her for unit RTF3503A Sample soils and analyse results. The assessment is signed by Mr.Lagos, but not by Ms.Luu and the supervisor as required. Ms.Luu is certified as satisfying Element 1, but not 2 and 3 9. There is no evidence on file on which that satisfaction of Element 1 is demonstrated. The only evidence is a photocopy of a set of answers to questions given in relation to another unit10 which do not relate to the questions posed in the assessment tool for this unit11. Similar comments can be made about the other units. I agree with the analysis of the documents made by Ms.Theile and Mr.Wilson12. Mr.Lagos provided an explanation which was difficult to follow and appeared to shift from justifying the evidentiary documents13 through to accepting that the documents were not sufficient evidence14.
[11] Fourthly, Mr.Lagos was responsible for placing appropriate evidence on file, namely an ‘Evaluation of Assessment’, signed off by the assessor and student, with evidence of each Assessment Task attached 15. Did he fulfil this requirement, and is there some other explanation apart from failure by him to fulfil his obligations to account for the lack of supporting evidence on file? One explanation sought to be made out in cross examination was that Mr.Wilson and Ms.Theile were motivated by inappropriate considerations, namely a wish to avoid making another person redundant on the part of Mr.Wilson, and some form of pursuit of Mr.Lagos by Ms.Theile. Neither allegations are credible. There is no reason to believe that Mr.Wilson in any way acted to terminate Mr.Lagos for misconduct to avoid making a redundancy16. The fact that the events were in some way contemporaneous or close does not mean that such an inference can be drawn. He had before him convincing evidence of misconduct by Mr.Lagos, and it was his duty to act on that evidence, which is what he did. Ms.Theile was simply pursuing her job of conducting the required rigorous and careful audits17. She found convincing evidence of misconduct by Mr.Lagos, and it was her duty to find and act on that evidence, which is what she did. Both Mr.Wilson and Ms.Theile were convincing witnesses. It is most unlikely that some other person might have placed the documents on file in the corridor before they were obtained by college records. There is no reason to believe any person would do such a thing, or would be able to intercept and alter records lodged by Mr.Lagos, knowing the time he would lodge those documents and intercepting them before they were cleared that day or the next day. There is no evidence that any person would know when Mr.Lagos was going to lodge the records, or would have the motivation to make changes of this kind.
[12] Finally, this is a serious matter for a college. A college depends on appropriate assessment conduct by its teachers for funding and for its reputation. Conduct of this kind strikes at the heart of a core activity of the college. I find that the valid reason is made out.
Mr.Lagos’ Curriculum Vitae
[13] Ms.Theile gave evidence that Mr.Lagos’ curriculum vitae kept on his personnel file contained the claim that he had a Certificate IV Horticulture (Landscape). She asked him about it, and Mr.Lagos indicated that he did not know how that had got there. She showed the curriculum vitae with the claim about the Certificate IV qualification to Mr.Wilson. A week later Ms.Theile reviewed the file and the curriculum vitae was no longer on the file, and instead a different one had been placed there. Mr.Lagos had access to his personnel file 18. Mr.Wilson gave evidence that Ms.Theile showed him the curriculum vitae with the false claim in it19.
[14] Mr.Lagos denied the allegations:
‘I do not know what this allegation relates to. I have never been asked to provide an additional CV because of an earlier version claiming a qualification I did not hold. I do not know what qualification I have supposedly wrongly claimed. I deny ever deliberately misrepresenting my qualifications on a CV provided to CCG.’ 20
[15] I prefer the evidence given by Mr.Wilson and Ms.Theile. The natural inference from all the evidence is that Mr.Lagos provided the college with a false curriculum vitae, and replaced it after Ms.Theile raised the issue with him. This constitutes a valid reason for termination of his employment. It is also a serious matter, given the importance to a college of having staff with sufficient and relevant qualifications, and being able to rely on staff in a relationship of trust and confidence.
Failure to Upload a new Course on the Computer System
[16] Ms.Mitchell gave evidence that in January 2013 she was given paperwork prepared by Mr.Lagos to upload a Certificate III CLM Course to the college computer system. The commencement date for the course was November 2012. She said that she spoke to Mr.Lagos and advised him that she could not load the course at such a late stage, and it was not possible for the college to submit a request for funding for any course work delivered in 2012 in respect of that course. She said that students had paid for that course but the college did not receive funding from HESG in respect of course work delivered in 2012. She raised this with Mr.Lagos in 20 March 2013, contrary to Mr.Lagos’ claim that these allegations ‘have never been raised with me before’. She raised the problem with Ms.Theile 21. Similar evidence was given by Mr.Wilson22. Mr.Lagos denied the allegations23. I prefer the evidence given by Ms.Mitchell and Mr.Wilson.
[17] There was some debate about whether or not the CLM course began in 2012, and therefore whether or not the college lost funding for 2012. However, both Mr.Wilson and Ms.Mitchell gave evidence to the contrary, and I accept their evidence. Mr.Wilson gave evidence that a trainer had been employed and students were asking for results, and therefore ‘I can’t see how it cannot have been run’ 24. Ms.Mitchell says that she was told that the course was run25. Their knowledge was based on knowledge on the part of Mr.Wilson that this was the target date for commencement of the course, he knew nothing that suggested it had not gone ahead, he knew a trainer had been employed, and he had been told by others that students were asking for results. Ms.Mitchell’s evidence was based on the expected date of commencement of the course, her conversation with Mr.Lagos that did not in any way contradict that expectation, and her knowledge that students had paid for course, and from others that students were asking for results. This cumulative evidence suggests that the course took place in 2012, and that the college did not receive funding for it because of the lack of performance of Mr.Lagos. The CLM issue is not as simple as made out final submissions26.
[18] Even if for some reason it was delayed this is still a deficiency in conduct by Mr.Lagos. It is still the case that he was expected to arrange for loading of the course in expectation of it starting in 2012 and did not do so.
[19] This is a valid reason for termination of Mr.Lagos’ employment.
Other Student Files
[20] In my view there is insufficient evidence to form a view that Mr.Lagos was deficient in relation to each of these other student files.
Box of Uncompleted Work Files Discovered in Mr.Lagos’ Office
[21] Mr.Wilson gave evidence that after termination of Mr.Lagos’ employment, a box of files was discovered in his office which contained a number of Assessment Tasks for different students dating as far back as October 2012. The tasks had not been assessed. The requirement is for assessments to be marked and results entered within one month. All statistics need to be finalised by 1 December 2012. The documents related to 9 separate students, with a range of deficiencies in the records, and a trainer spent weeks ‘untangling the poor recording of assessment evidence. The trainer has had to work with trainees and employers to ensure that the required assessment tasks have been completed to the required standard and compliant with requirements’ 27. Mr.Lagos said that he did not have sufficient information or the student files to comment28, and in final submissions counsel again raised the lack of particularisation of the evidence29. In my view the evidence given by Mr.Wilson is specific and clear that Mr.Lagos was seriously deficient in the performance of his assessment duties with respect to students that he was responsible for. It was open to Mr.Lagos to deny the existence of such a box of files, or to provide some other explanation for a box of files concerning students for which he was responsible, and which was found in his office. He did not do so. I accept Mr.Wilson’s evidence, and find that this is a valid reason for termination of his employment. Again, this is a serious matter. The college had the right to expect that Mr.Lagos would fulfil his assessment duties, which are integral to the service provided by the college of training and assessing students. Mr.Lagos did not fulfil his assessment duties.
(b) Whether the person was notified of that reason
[22] Mr.Wilson notified Mr.Lagos of the reason for the termination of his employment by letter dated 27 March 2013. That letter notifies Mr.Lagos of the Ms.Luu issue. Mr.Wilson raised the issue of the curriculum vitae, and the failure to load a course, and a range of problems with students with Mr.Lagos at the meeting of 22 March, and by email of 22 March. The issue regarding a box of work to be done was not raised with Mr.Lagos because it was discovered after his termination. Even if there was some deficiency, Mr.Lagos was in substance given notice of the problems with his conduct claimed by the employer.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[23] Mr.Wilson gave evidence that he met with Mr.Lagos at 12.30 pm on 22 March in his office. He said that he outlined the problems with assessment of Ms.Luu, laid out the documents, and went through each of them. Mr.Lagos picked one up. He asked Mr.Lagos for an explanation, and Mr.Lagos said that ‘management are in and out of the files all the time’. Mr.Lagos would not say anything more, asked for information to be sent by email. Mr.Wilson said that the issues appeared to amount to serious misconduct and constituted fraud, and one possible outcome would be termination of Mr.Lagos’ employment 30. Mr.Wilson said that he also raised the issue of the failure to load a course, and the curriculum vitae false claim issue.
[24] He sent Mr.Lagos an email at 1.54 pm which listed the problems with the Ms.Luu files, the lack of loading of the Certificate III CLM course, the problem with Mr.Lagos’ curriculum vitae, and other issues, and said that this appeared to amount to serious misconduct. He said he would be prepared to accept a resignation, and indicated that summary dismissal for serious misconduct without notice was another option 31.
[25] Mr.Lagos said that he was unable to view the documents properly at the meeting, and said that in response to Mr.Wilson, he specifically denied the allegation that he had ‘photocopied evidence of student assessment for one unit and submitted this as evidence in another unit’. He admits that Mr.Wilson raised the curriculum vitae issue, but says that he was not told when asked what qualification he was referring to 32. Mr.Lagos did not reply to the email. He became unwell and visited the doctor on 25 March. However, Mr.Lagos was well enough to undertake activities such as logging into the computer system, printing out material, ringing his supervisor.
[26] I am satisfied on the basis of Mr.Lagos’ response at the meeting that he knew the central issue alleged against him, namely that he had photocopied a document from one unit and placed it on other unit files for Ms.Luu instead of satisfactory evidence. He responded to that allegation by specifically denying it on his own admission. Mr.Wilson said that he offered an explanation, namely that management were in and out of the files all the time, with the clear inference that someone else had placed the photocopies on Ms.Luu’s files. I prefer Mr.Wilson’s version of events. However, on either version of events Mr.Lagos had the opportunity to respond, and took it. On Mr.Wilson’s version of events he also had the opportunity to respond to two other issues. I accept Mr.Wilson’s evidence. Mr.Lagos then received written confirmation of the allegations. It seems likely that some form of response could have been made to the email, even of a relatively general nature. This would have been the sensible thing for Mr.Lagos to do, given that termination of employment was mentioned. Even though Mr.Lagos was unwell he engaged in other activities, which suggests that he was able to engage in some form of work, even of a limited nature. However, Mr.Lagos made no response. Mr.Lagos was given an opportunity to respond to these allegations.
(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
[27] Mr.Lagos alleges that he was not given an opportunity to request a support person at the 22 March meeting. Mr.Lagos could have requested that such a person be present and chose not to. However, the employer did not refuse to allow a support person to be present.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[28] The issue claimed by the employer is misconduct not unsatisfactory performance of duties.
(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; (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
[29] The college is not a small business and can be expected to have satisfactory procedures, and human resource specialists.
(h) any other matters that FWA considers relevant.
[30] I have had regard to all the submissions and evidence put to me.
Conclusion
[31] Having regard to all the circumstances, including the number and seriousness of the valid reasons for termination of employment, pursuant to section 387 of the Fair Work Act 2009, the dismissal was not harsh, unjust or unreasonable. Mr Lagos was accorded a fair go all round.
[32] An order dismissing the application is contained in PR540803.
DEPUTY PRESIDENT
Appearances:
Mr J McKenna of counsel for the applicant
Mr R Millar of counsel for the respondent
Hearing details:
Melbourne
2013
7 August
1 Attachment PW2, letter of termination, to Exhibit W2
2 Exhibit W1, paragraphs 7-19
3 Exhibit W2, paragraphs 34-36
4 Exhibit W2, attachment PW1, p.18
5 Exhibit W2, paragraphs 65-66
6 PN405
7 Exhibit W4, paragraphs 23-32; PN1337-1345
8 Exhibit W2, paragraphs 15-17
9 Exhibit W4, p.237 of the attachments
10 Exhibit W4, pp.240-244
11 Exhibit W4, p.232
12 Exhibit W2, paragraphs 41-43
13 PN537
14 PN532-578
15 Exhibit W4, paragraph 28
16 PN1128-1138
17 Exhibit W4, paragraphs 43-53; PN1462-PN1489
18 Exhibit W4, paragraphs 62-67
19 Exhibit W2, paragraphs 30-33
20 Exhibit L1, paragraph 66
21 Exhibit W3, paragraphs 19-25
22 Exhibit W2, paragraphs 34-36
23 Exhibit L1
24 PN1009-1013
25 PN1255-1257
26 PN1604
27 Exhibit W2, paragraphs 65-66
28 Exhibit L1, paragraph 63
29 PN1605
30 Exhibit W2, paragraphs 51-60
31 Exhibit W2, Attachment PW1
32 Exhibit L1, paragraphs 39-45
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