Carolina Gonzalez v ACT Community Services Directorate

[2021] FWC 1049

[2021] FWC 1049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Carolina Gonzalez
v
ACT Community Services Directorate
(C2020/7386)

DEPUTY PRESIDENT DEAN SYDNEY, 26 FEBRUARY 2021

Application to deal with a dispute – review of disciplinary decision.

[1] Ms Carolina Gonzalez made an application pursuant to s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute with the Australian Capital Territory, Community Services Directorate (CSD) in accordance with the ACT Public Sector Administrative and Related Classifications Enterprise Agreement 2018 - 2021 (the 2018 Agreement).

[2] Ms Gonzalez is employed within the CSD. She has held positions within the ACT public sector since 2000.

[3] By her application, Ms Gonzalez seeks a review of a disciplinary decision made by CSD following an investigation which found that between 2 October 2018 and 17 December 2018 she had not accurately recorded her start and finish times on her timesheets. Ms Gonzalez acknowledges that she did not accurately record her start and finish times on her timesheets. Her reason for doing so was in part because she regularly did not have a lunch break.

[4] The disciplinary action imposed was a written warning and a fine of $1,004.52. The quantum of the fine was calculated by reference to the number of hours claimed and not worked (being 22 hours and 37 minutes), multiplied by her hourly rate.

[5] The matter was the subject of conferences on 13 and 23 October 2020 which failed to resolve the dispute. A hearing was conducted on 18 November 2020 at which Ms Gonzalez appeared on her own behalf and Ms Shannon Say of ACT Government Solicitor appeared for CSD.

[6] For the reasons set out below, I find there is no basis for me to disturb the disciplinary decision as it was not unjust or unreasonable, and accordingly I will dismiss the application.

Jurisdiction

[7] There is no dispute that Ms Gonzalez’s employment is governed by the 2018 Agreement. Clause H1.4 of the 2018 Agreement provides:

“Any misconduct, underperformance, internal review or appeal process under the previous enterprise agreement that is not completed as at the date of commencement of this enterprise agreement will be completed under the previous enterprise agreement. Any right of appeal from that process will also be set out in the previous enterprise agreement."

[8] At the time the investigation into the allegations were first put to Ms Gonzalez, the ACT Public Service Administrative & Related Classifications Enterprise Agreement 2013 - 2017 (2013 Agreement) was still in force and applied to her employment.

[9] CSD submitted, and I accept, that a review of this disciplinary decision must be dealt with in accordance with the provisions of the 2013 Agreement.

[10] The relevant provisions of the 2013 Agreement are as follows:

“J6.1 The employee, or the employee’s union or other employee representative on the employee’s behalf, may seek a review by the FWC of a decision of the head of service under subclause J4.12 or subclause J4.15.

J6.2 The FWC will be empowered to resolve the matter in accordance with the powers and functions set out in clause G2 of this Agreement. The decision of the FWC will be binding, subject to any rights of appeal against the decision to a Full Bench in accordance with clause G2.15.”

The role of the Commission on review

[11] The Commission’s role in reviewing disciplinary decisions in this context is conveniently set out in CSD’s submissions as follows:

“The ‘Private Arbitration’ Jurisdiction of the Commission

37. Through clause J6 of the 2013 Agreement, the parties agreed to vest the Commission with the power to review the Head of Service’s decision made under clause J4.12.

38. The parties have conferred the Commission with the power to conciliate and, if necessary, arbitrate and make a binding determination on the parties in accordance with clause G2.9 of the 2013 Agreement.

39. The Commission’s arbitration powers are limited by ss 595(3) and 739(4) of the Fair Work Act 2009 (Cth) (the Act) and the powers conferred by the 2013 Agreement (Endeavour Energy v Communications, Electrical, Electronic Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [29]-[31]).

40. The Commission cannot make a decision that is inconsistent with the Act or the 2013 Agreement (s 729(5) of the Act).

41. The Respondent submits that the Commission ostensibly has the powers of the head of service provided for under clause J4.12 of the 2013 Agreement. The Commission is therefore able to review the decision of the Head of Service and make a decision on any recommendation in the Appeal Panel’s report, including the ability to reject a recommendation and make an alternative decision as to whether misconduct occurred or alternate sanction(s) should be imposed.

Limitation on the Commission’s decision making

42. The Commission’s function in a review under clause J6 of the 2013 Agreement is to review the decision of the Head of Service, or delegate, in respect of any recommendation of the Appeal Panel. The power of review does not entail any de novo hearing or review of the Appeal Panel’s findings (Towns v Community Services Directorate ACT Government, [2018] FWC 4271 at [23] Boxsell v ACT Government t/a ACT Government – Health Directorate, [2018] FWC 141).

43. The Commission should approach the review of the Head of Service’s decision as if it were ‘in the shoes’ of the Head of Service. Specifically, the Commission should review and decide the matter with the benefit of the same materials that were before the Head of Service i.e. the Appeal Panel report and any documents provided to the Appeal Panel.

44. Similarly, the Commission can only impose (alternate) sanctions prescribed by clause H10.1 of the 2013 Agreement (Lloyd v Western Australian Railroad Pty Ltd [2017] FWCFB 143 at [36]; Endeavour Energy v Communications, Electrical, Electronic Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [33].

Threshold issues

45. However, prior to making an arbitrated decision that is different to the original decision made by the Head of Service, the Commission must be satisfied that the original decision was unjust or unreasonable (Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (1984) 295 CAR 188 at 191 (XPT Case); Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1889 at [27] (Lend Lease Case); Brewer v AR [2020] FWC 423 at [37]).

46. The XPT Case helpfully summarises the doctrine of managerial prerogative in this way (at 191):

‘It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.’ (XPT Threshold)

47. Further, the Lend Lease Case provided further guidance as to the threshold test for injustice or unreasonableness, when the Full Bench of the Fair Work Commission noted (at [28] – [30]) that the Deputy President at first instance:

‘recognised that the management decision of Mr Coleman not to allow Mr Genovese to return to work at Barangaroo should not lightly be interfered with when he referred to there being a “high bar for the Commission to intervene to overturn the decision of management in a case such as this’

48. The Full Bench found that this approach was open to the Deputy President. Such approach also highlights that the threshold test creates a high bar for the Applicant to meet before the Commission can step into the shoes of the Head of Service to alter any decision on misconduct and/or decision on sanction, as the Commission is being asked to do so in this case by the Applicant.”

[12] In other words, I must be satisfied that the disciplinary decision is unjust or unreasonable before I can alter the decision or make a different decision.

The decision under review

[13] The decision in relation to which review is sought was made by Ms Robyn Calder (the Executive Group Manager of Corporate Services within the CSD, and, for present purposes, the delegate of the Head of Service) on 22 September 2020. She made her decision having received the report and recommendations of the Appeal Panel which had been convened upon request of Ms Gonzalez.

[14] Ms Calder decided:

a. There was no relevant evidence that was not considered in the original process and the matter did not need to be referred back to the original decision maker.

b. Allegations put to Ms Gonzalez in a letter from Ms Christine Murray dated 24 January 2019 were proven.

c. The said conduct amounted to misconduct.

d. A sanction of a written warning and a fine of $1004.52 would be imposed.

[15] In making her decision (the Disciplinary Decision), Ms Calder followed all the recommendations of the Appeal Panel Report.

Process followed up to the Review by the Commission

[16] An extensive amount of documentation, some of which are referenced below, were provided by CSD and are not set out in full in this decision.

[17] CSD provided an outline of the process it followed in reaching the Disciplinary Decision which is set out below:

“a. On 10 January 2019, a preliminary assessment was conducted by Ms Tracy Chester, Senior Director, Organisational Governance.

b. On 15 January 2019, Ms Chester recommended that the matter be referred for formal investigation.

c. On 24 January 2019, Ms Christine Murray, Director of People Management, wrote to the Applicant informing her about allegations of misconduct, which were:

“You have failed to accurately record your attendance in the workplace and in doing so, have not acted in accordance with the Public Sector Management Act 1994 (PSM Act), Section 9, Public Sector Conduct.”

d. The Applicant responded to this allegation in writing on 26 January 2019 and 20 February 2019.

e. Notably in the Applicant’s response of 20 February 2019 she indicated that, in relation to the completion of her timesheets, and her conduct: ‘I agree this was not correct protocol and this had let to inaccuracies, for which I am regretful”. “I acknowledge the allegations against me regarding times and my flex sheets over the past 3 months and feel there is no need to investigate further’.

f. On 12 March 2019, Ms Murray wrote to the Applicant notifying her of the preliminary decision and proposed disciplinary action including a statement of reasons.

g. The Applicant responded to the preliminary decision and proposed disciplinary action in writing on 24 March 2019. Notably the Applicant indicated that she was now disputing a finding being made that misconduct had occurred.

h. Due to the Applicant’s response, on 26 March 2019 Ms Murray wrote to the Applicant to advise that the investigation had been referred to the Professional Standards Unit (PSU) for investigation.

i. The formal referral for the investigation by PSU occurred on 2 April 2019. Three allegations of misconduct were put to the Applicant being:

i. Allegation 1: Between 2 October 2018 – 17 December 2018, on 40 occasions you did not accurately record your start times on your flex sheets.

ii. Allegation 2: Between 2 October 2018 – 17 December 2018, on 15 occasions you did not accurately record your finish times on your flex sheets.

iii. Allegation 3: Between 2 October 2018 – 17 December 2018, the hours of work you recorded in your flex sheet was 22 hours 37 minutes greater than the hours you worked according to your workplace records.

j. The Investigation Report was completed and dated 18 September 2019 and made factual findings that the conduct in all three allegations occurred as alleged.

k. On 16 December 2019, Ms Anne Maree Sabellico, Deputy Director – General CSD, wrote to the Applicant notifying her of the preliminary misconduct decision and proposed disciplinary action and providing her with a copy of the investigation report.

l. Ms Sabellico proposed that the three allegations were proven on the balance of probabilities, and that as a result, misconduct had occurred, and the proposed sanction was providing the Applicant with a written warning notice and imposition of a fine of $3900.

m. The Applicant wrote to Ms Sabellico responding to the proposed misconduct decision and sanction on 19 December 2019 challenging some of the evidence, agreeing that ‘the warning notice is sufficient action in regards to this matter’ and challenging the fine of $3900 on the basis that it was not procedurally fair, proportionate or justified.

n. On 29 January 2020, Ms Sabellico wrote to the Applicant, having considered the Applicant’s response of 19 December 2019, decided that the finding of misconduct would remain, and the sanction imposed would be an official warning notice and the fine would be reduced to $1004.52. Ms Sabellico also set out the basis for calculation of the fine; essentially representing the salary value of the excess 22.6167 hours found to be inaccurately recorded on the Applicants timesheets at a rate commensurate with the Applicant’s salary.

o. On 4 February 2020, the Applicant requested an appeal of the finding of misconduct and the sanctions pursuant to Section H of the 2013 Agreement.

p. The Appeal Panel comprised of the independent chair, Ms Forner, the employer nominee, Ms Jessica Summerrell and the employee nominee, Ms Kathy Stiller. The steps taken in the conduct of the appeal are outlined from paragraph 16 of the Report.

q. The evidence considered by the Appeal Panel is set out in paragraph 24 of the Report.”

Consideration by the Appeal Panel

[18] Again, CSD provided a detailed outline of its perspective of the process and consideration undertaken by the Appeal Panel, which is set out below:

“16. The Appeal Panel distilled the issues raised by the Applicant as set out in paragraph 28 of the Report, which can be summarised as follows:

a. The Investigation was procedurally unfair.

b. The method adopted for calculation of the fine was not appropriate.

c. Mitigating issues were not given sufficient weight by the decision maker, including the fact that the Applicant’s method of recording time was not corrected by her supervisor.

d. Mr Rose mislead her in a discussion in March 2019.

e. The Investigation was personally driven by Ms Chester and the Applicant was subjected to unfair and victimising treatment by Ms Chester.

f. The instructions given to the Applicant concerning her hours of work were an unreasonable restriction.

g. The delays in the process were unreasonable.

17. In relation to d., e. and f. above, the Appeal Panel noted that it could not consider these issues noting that they all had already been raised in other forums.

18. As to the investigation process, the Applicant argued that the investigation was against the intention of the 2013 Agreement. However, she failed to identify on what basis, and provide any evidence in support of that proposition.

19. The Applicant also argued that there was insufficient and incomplete probative evidence relied on in the investigation to reach the conclusions leading to the misconduct findings. In particular, she disputed the evidence used to establish her breaks and leaving times. However, in circumstances where she had admitted failing to correctly record her breaks and leaving times, and failing to record her attendance in accordance with the employer’s procedures, the Appeal Panel concluded it was illogical to argue that the findings made by the delegate were not supported by the evidence.

20. The Appeal Panel also concluded that the measures taken by the investigator to approximate the missing information were reasonable and sensible steps in the circumstances, such as examining the normal practices within the business unit. This same reasoning was relied on by the Appeal Panel to conclude that the method of calculation adopted by the decision maker to quantify the sanction fine was reasonable, i.e. she calculated the value of the fine based on the monetary value of the estimated hours wrongly claimed.

21. The Appeal Panel concluded that the decision by the delegate showed consideration of the following mitigating factors raised by the Applicant:

a. Her honest belief that she had indeed worked the number of required hours and hours claimed, regardless of the start and finish times recorded.

b. Advising the supervisor that she did not take daily breaks and no objection had been raised by her supervisor.

c. Her supervisor had never corrected her method of recording her work hours.

d. Her unblemished employment record and praise received for her work performance.

e. Her practice for recording time was allegedly a common practice adopted by her former roles in the public service.

22. The Appeal Panel also did not accept the Applicant’s allegation regarding the unreasonable delay in the investigation and decision-making process.

Decision on the Report and Recommendations of the Appeal Panel

[19] In terms of the Disciplinary Decision, CSD summarised the considerations had by Ms Calder as follows:

“24 In Ms Calder’s reasons she noted that the recommendations made in the Appeal Panel’s report were not unanimously agreed. Ms Stiller was the dissenting member. Ms Stiller chose not to write a minority report, but instead comment on a draft version of the report and have her comments incorporated into the final report. Ms Calder was satisfied that the report conveyed the views of all three members of the panel.

25. The Appeal Panel concluded by majority the following and recommended that the delegate make two findings:

a. There was no relevant evidence not considered in the original process and therefore the matter does not need to be referred to the original decision maker.

b. The delegates decisions as to findings of misconduct, the disciplinary action taken, be confirmed.

26. Ms Calder accepted the Appeal Panel’s recommendations.

27. Ms Calder’s reasons for accepting recommendation a., included a thorough analysis of the process undertaken from the initial referral of the matter to the PSU. Ms Calder was satisfied based on the evidence that the Applicant had been afforded natural justice and procedural fairness throughout the process having had ample opportunity to prepare and submit full responses to the allegations and submit any additional evidence. Ms Calder also noted that there was no evidence to suggest that the decision maker failed to consider evidence relevant to the specific allegations put to the Applicant.

28. In relation to recommendation b., Ms Calder considered the Applicant’s admission to inaccurate recording of times on her flextime sheets and her willingness to accept a warning, and that it was therefore reasonable that a misconduct finding was made.

29. Ms Calder further indicated that inaccuracies in recording times on flextime sheets could not simply be characterised as ‘careless record keeping’.

30. With misconduct determined, pursuant to Clause H10.1 of the 2013 Agreement it was open to a delegate of the Head of Service to impose a warning and fine sanctions. Ms Calder found therefore the decision maker was permitted to impose a warning and fine sanction.

31. Ms Calder considered the fact that the 2013 Agreement failed to provide guidance on how the quantum of a fine should be determined and therefore resolved that such a decision was to be made on a case by case basis.

32. Ms Calder noted the Applicant’s submission that, whilst she did not accurately record her start or finish times, she nevertheless worked the number of hours and minutes shown as worked each day on the flextime sheets.

33, Ms Calder also noted that throughout the whole process the Applicant did not provide any evidence to show what her working times were on each day. Consequently, Ms Calder found the decision maker’s rationale developed to determine the appropriate fine amount to be reasonable.

34. Ms Calder accepted that the decision maker’s method to calculate the fine did involve estimation, however this was unavoidable given that the Applicant accepted that she had inaccurately recorded her start and finish work times and in the absence of any positive evidence by the Applicant of what her actual work times were.

35. In this regard Ms Calder agreed with the Appeal Panel, that the rationale applied by the decision maker in determining the amount of the fine was reasonable in the circumstances.”

The case for Ms Gonzalez

[20] During the hearing, Ms Gonzalez submitted that her explanation and response had not been accurately represented during the process. Particularly, she had explained her daily work pattern, including that she regularly did not have her lunch break, but this was ignored by CSD.

[21] She said that people who were relevant to the investigation and the decision should have been interviewed and that those who would have supported her point of view were not interviewed as part of the process.

[22] She also contended that her supervisor was aware of her work patterns however did not raise any issues with her about this.

[23] Ms Gonzalez submitted that because she had no ‘intent’ to do the wrong thing, she should be given a warning only.

[24] She also submitted that the recording of working hours in the manner that she had recorded her hours was common practice, and because she had been singled out, it was an unfair outcome.

[25] During the course of the investigation and process set out earlier, Ms Gonzalez had provided responses to the allegations put to her. Her responses, which I have carefully considered, are not set out in detail here.

Consideration

[26] As set out earlier, the Commission’s role in reviewing the Disciplinary Decision has limitations, and in particular I must be satisfied that the Disciplinary Decision was unreasonable or unjust before a different decision can be contemplated.

[27] In this matter, I am not satisfied that the Disciplinary Decision is unreasonable or unjust.

[28] I am satisfied that Ms Gonzales was afforded procedural fairness. She was provided with the allegations made against her and given the opportunity to provide a response. A review of the material provided by the CSD shows that the investigation process was undertaken in a procedurally fair manner.

[29] In terms of the Appeal Panel, I am satisfied that the documentation provided by CSD demonstrates that the process required under the 2013 Agreement was appropriately followed. It is clear that the Appeal Panel had before it the relevant information and gave it appropriate consideration.

[30] I am satisfied that a finding of misconduct was open to CSD on the material before it, specifically with reference to section 9 of the Public Sector Management Act, and that such a finding was available to it under the 2013 Agreement.

[31] Ms Gonzalez has always acknowledged that she did not accurately record her start and finish times on her timesheets. The investigation established that this was contrary to workplace instructions as to how to properly record working times.

[32] While I accept that Ms Gonzalez may not have intended to be fraudulent in the recording of her work times, an intention to defraud is not a requirement for a finding of misconduct.

[33] I am also satisfied that the sanction imposed was reasonable and proportionate in the circumstances, that being a warning and a fine of $1,004.52. As outlined above, the quantum of the fine was arrived at by reference to the hours of unauthorised time that had been paid to her.

[34] The sanctions available to CSD are set out in Clause H10 of the 2013 Agreement. Clause H10.1(a) provides for a written warning, and Clause H10.1(b)(iii) provides for a financial penalty including the imposition of a fine.

Conclusion

[35] As CSD submitted, the Disciplinary Decision “drew on the substantial body of evidence, submissions and deliberation generated through the processes under sections H and J of the 2013 Agreement, critically reviewed that material and came to a conclusion as to the factual findings that were justified on the balance of probabilities, applied the statutory obligations on the Applicant to those findings and imposed a sanction that was proportionate to the gravity of the conduct.” I agree with this characterisation of the process.

[36] In conclusion, I am satisfied that the Commission should not disturb the Disciplinary Decision as that decision was not unjust or unreasonable in the circumstances.

[37] The application is so determined.

DEPUTY PRESIDENT

Appearances:

C Gonzalez on her own behalf.
S Say for ACT Community Services Directorate.

Hearing details:

Sydney and Canberra (By telephone).
2020:
November 18.

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