Damian Caeiro v Woolworths Limited T/A Woolworths - [2014] FWC 3306

[2014] FWC 3306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damian Caeiro
v
Woolworths Limited T/A Woolworths
(U2013/17410)

COMMISSIONER SIMPSON

BRISBANE, 6 JUNE 2014

Application for relief from unfair dismissal - Summary dismissal for serious misconduct - Actions were not deliberately dishonest - Dismissal Unfair - Reinstatement Ordered.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Damian Caeiro (“the Applicant”) who alleges that the termination of his employment with Woolworths Limited T/A Woolworths (“the Respondent”) was unfair in accordance with the definition contained within s 387 of the Act.

[2] The application was filed on 15 December 2013 and a conciliation conference was conducted on 11 February 2014 which was not successful in resolving the matter. The matter was listed for hearing on 14 and 15 May 2014 in Brisbane. At the hearing the Applicant was represented by Mr Steven Ferreira and the Respondent was represented by Mr Daniel Williams of Minter Ellison Lawyers.

CONSIDERATION

Initial Induction

[3] The Applicant commenced employment with the Respondent on 7 November 2011. He said in the induction period he was shown how to use of the T2 voice collect system which is used to pick orders. He said he spent three days with Malcolm Marsh who showed him how to pick orders correctly and safely. 1

[4] The Applicant said the first two days were in an office, and the next three days were on the floor actually physically picking. The Applicant said he thought the training provided to become an Order Selector was sufficient. 2

[5] The Applicant said the procedure for taking meals was by using the T2 Voice system and he was instructed by Malcolm March that once he was up in the canteen area he would ask the T2 for a break, whether it was a tea break or lunch break, and the T2 would respond in a “computer voice” “would you like to take a tea break or lunch break” and he would say either “yes” or “no” and if you answered yes it would tell you this is the start of your break, and when you need to return to finish your break. 3 The Applicant said he was never shown how to log on and off breaks using a computer terminal.4

[6] The Applicant said he fulfilled the role of Order Selector for about 15 to 18 months before becoming a Grade 4 in extractions. He said he continued Order Selecting because his extractions role was only part time. 5

[7] The Applicant said that he never used clock cards to log on and off for breaks before he accepted the role in Extractions, and the only time he used the clock card system was to sign in and sign out for the day. 6

[8] It was put to the Applicant that Scott Morrison, a Human Resources Specialist, carried out part of his initial induction training in 2011 and the Applicant was trained on the scanning method of time recording at the workplace. The Applicant denied this. 7

[9] The Applicant accepted that when he was employed as an Order Selector and used the T2 Voice system to take breaks, he would scan off for a break as he walked toward the canteen and back on when he had finished his break. 8 It was put to the Applicant that it would make no difference whether he were using the voice system or the scanner system, he would naturally scan on and off at the scanners as you commenced and then finished his break, but the Applicant maintained this was not according to his training.9The Applicant conceded the method he claimed to have been trained in reflected something other than commonsense.10

[10] Mr Shannon Dixon has been employed by the Respondent for 16 years and in that time has held a range of positions including that of a Trainer. He said he had performed training as part of the induction program for new personnel and also order selector training. 11 He said training for the Grade 4 Extraction role and Grade 6 Team Co-ordinator role is done by an employee already established in that role, in a mentoring capacity.12 He also described it as a buddy system.13

[11] Mr Dixon explained that employees are shown during training how to clock on and off at the start and end of the day with a scan number, and otherwise the T2 system has replaced the need to manually scan in and out throughout the course of a day. 14 He accepted that Order Selectors are trained to clock off for their break as they walk past the machine to commence their break, and to clock on again at the end of their break.15

[12] Mr Dixon said he did not believe he could remember anything that specifically talks about the procedure for clocking in and off breaks. 16 Mr Gore, an employee of the Respondent currently employed as a relief Team Co-ordinator gave evidence in the Applicant’s case. He said as an Order Selector he would call a meal break through the T2 system and didn’t need to use scan clocks.17 Mr Gore said order selectors were only shown how to clock on and off for the day.18

[13] Mr Scott Morrison, a Human Resources Specialist employed at the BRDC said he is responsible for providing support and advice to managers at the BRDC in relation to policy and procedure, performance management, investigations into employee conduct, training, coaching and employee relations. 19 He referred to clause 6.5.1 in the relevant Enterprise Agreement, and to the Respondents Code of Conduct.20

[14] Mr Morrison said he was the trainer at the Applicant’s induction on 7 November 2011 and the procedure for taking breaks was clearly explained. 21 Mr Morrison’s evidence was to the effect that at induction employees were trained in the correct process for taking breaks in the role of order selector, and also in any other role including Extractor and Team Co-ordinator.22 23 However he clarified in his oral evidence that he did not train the Applicant in the use of clock machines by use of employee number, but he maintained that the Applicant was trained in induction. Mr Morrison claimed there is a standard training package for inductees that involve training in relation to the clocking machine by use of the T2 system and the number system.24 This training package was not produced in evidence.

Training for Extractions and Team Co-ordinator Role

[15] The Applicant said on or about June 2013 he was offered to be trained in the Extractions role, effectively a promotion. This role consisted of communicating with transport allocators, despatch team leaders and shift managers. 25 He said on or about June 2013 he received training from Sue Porter, then predominantly from Jamie Hamill to do the extraction duties.26

[16] He said that during training he was directed to take a break first, then when returning to scan at clock cards and then scan off back at the workstation. The Applicant said both trainers showed this practice with Jamie Hamill only advising to wait the allocated 10 minutes before clocking off. 27

[17] The Applicant said in his oral evidence during this time he had to ask how breaks were taken because on his first couple of days with Sue (Porter) she would go up to the canteen and say we would be back in half an hour. The Applicant’s evidence in chief indicated he was unsure at the time of how to take a break and felt he needed to be shown how to take a tea break because he always took the breaks when he was an Order Selector. 28

[18] The Applicant claimed Ms Porter said to him “Oh, just eat your breakfast...” 29 The Applicant claimed Ms Porter told him that once he had finished to go back to the scan clock, type your scan number in that shows that it’s him.30 The Applicant further claimed that Ms Porter told him, when he had done that, to just go back to his work station where there will be another scan clock there, and to scan off and wait for her. The Applicant claimed as he had to wait for Sue Porter he did not know how to use the other scan clock to scan back in for his break because it was his first day using a scan clock for anything other than logging on and off, so he had to ask the team member at dispatch to help him get off his tea break.31

[19] Ms Porter in her statement said the Applicant did not require nor did she provide any training around taking breaks any differently to how he already should have been taking them. 32 However importantly she gave the following evidence about how she took her breaks before attending the meeting of 11 October 2013;

“Before attending those meetings, what was your practice in relation to scanning for breaks?--- I didn’t really follow the correct process. For a very long time, we never scanned, so when I tried scanning the right way, I kept on getting locked out and you would have to go and see the team leader to get unlocked, so what I did was devised my own little thing that I would have my break, then I would scan at the clock up the top and then I would scan back in on the clock as I was going into the despatch office, so that it showed I was having a break..” 33

[20] This is important evidence because Ms Porter was describing a similar practice to what the Applicant claimed he had been shown to do by her. It would appear quite possible that Ms Porter unwittingly had shown a procedure to the Applicant that he adopted.

[21] The Applicant said he was not shown any other procedure by Ms Porter to take meal breaks. He said it was different with Jamie Hamill. The Applicant said when he was training with Mr Hamill he went up with Mr Hamill for breaks. He said with taking his break with Mr Hamill they ordered breakfast, sat down and ate. He said after the allocated time they went back to the scan clock and Mr Hamill showed him how to use the scan clock. He said they then went back down to dispatch and clocked back off and went back to work. 34

[22] The Applicant said on his second day with Mr Hamill, Mr Hamill introduced him to a screen on the Work Management System (WMS), the computer program called ACTIA. The Applicant said this computer screen was used apparently, to sign off breaks. The Applicant said Mr Hamill showed him the screen. The Applicant said instead of worrying about the scan clock when you get back to the work station you can scan off as well. The Applicant said Mr Hamill told him the screens he needed to use in the WMS program to do his job. 35

[23] The Applicant said for the first couple of times he would scan off (at a different place) straight away when getting back, but Jamie Hamill showed him to wait for 10 minutes so it would show he had a 10 minute break. 36 He said Mr Hamill also showed him how to use the computer work system to scan off.37

[24] There is a conflict in the evidence of the Applicant and Mr Hamill on this point. Mr Hamill agreed that the Applicant was trained in all technical aspects of the role, but he said he did not train the Applicant to use the computer system to log on and off for breaks. 38 Mr Hamill agreed he knew how to take breaks using the WMS and explained how that could be done using ACTIA. When asked where the Applicant would have learnt how to take a break using WMS if Mr Hamill did not show him, Mr Hamill answered that he would assume from the other trainer because he was not the only one that had a role in training him.39

[25] When Mr Hamill was asked a second time how the Applicant would have known how to take a break using WMS if he wasn’t shown? He answered, “Well, he’s obviously been shown how to use the screen. It may have happened once or twice if he’s forgotten to scan on the clock. You can use it to scan in.” 40

[26] Mr Hamill went on to say it was possible during the Applicants three or four weeks training that that incident occurred once or twice. 41 Mr Hamill’s evidence indicates firstly that the Applicant was shown by someone how to use the ACTIA screen for taking breaks, and secondly that the screen was probably used at least ‘once or twice’ for the Applicant to log off a break during his training period.

[27] There was no training manual as such used for the training of the Applicant in the new role, or other documentation or checklists. 42 The Applicant said after his training he then worked on his own.43 The Applicant accepted that the 10 minute breaks under the Enterprise Agreement start at the amenities area, and employees are entitled to 5 minutes walking time.44

[28] The Team Co-ordinator role includes a leadership role. The role could involve supervising up to 50 employees. 45 The Applicant said that he did Team Co-ordinator training roughly three months after he got trained in the role of Extractions. He said he continued in other roles as well. He said he was trained in the Team Co-ordinator role by Mr Bryce Danby.46 47

[29] The Applicant claimed that Mr Bryce Danby instructed him that the role (of Team Co-ordinator) required availability regardless of whether you were on a lunch break, hence, taking a break first, then afterwards returning to the work station using the computer system to log on and off for breaks. 48 The Applicant affirmed this in oral evidence.49

[30] The Applicant said the Respondent was “desperately short” of Team Co-ordinators and he volunteered for the role and was trained the following week, however he said he only received one and half days training with Mr Danby. He said there was no paperwork. The Applicant said he also noticed Mr Danby;

“doing exactly the same thing on the computer screen, logging on and off. So far as I was aware, two people doing that that are in senior management, then that must be common knowledge in the workforce that several team members were using that method.” 50

[31] The Applicant said he asked Mr Danby (about logging his breaks on and off at the computer screen) and the Applicant claimed Mr Danby said; “That’s just what most the TC - just most - majority of the TCs do just to make the job easier.” The Applicant was asked if it raised a concern for him (regarding the taking of breaks) when Mr Danby was dismissed some time later. He answered it did a little but he still thought he was doing the right things. 51

[32] The Applicant said whenever a Team Co-ordinator has a break they have a telephone with them because the warehouse must keep going. His evidence was to the effect that breaks are frequently interrupted by calls; including the 30 minute unpaid break. 52

[33] Mr Gore gave evidence that when he was trained for the Team Co-ordinator role in regard to taking breaks he claimed he was told “Just hit your scan number for whatever break you want.” He said some of the clock cards show the type of break on them, and some don’t. He said he “stuffed up” the first couple of times and got locked out and had to see managers. 53 he said he learnt how to use the clock card system by “trial and error.” 54

[34] Mr Gore was asked about a screen on the WMS system called ACTIA. He said it was the same as the clock cards, and you can scan a break through ACTIA. When asked how he came to know about this screen he answered “Trial and error.” He said when an order selector gets locked out, Team Co-ordinators unlock them and so you have to work out at what stage they are locked out. 55 The Applicant said in the past if he had been locked out of the computer he would ask the team co-ordinator to unlock him.56

[35] Mr Dixon explained employees can be locked out of the system if they go beyond their break time and a more senior person has to unlock them, and in such cases if a reasonable explanation is given the person will be unlocked. 57

Team Co-ordinators Meeting of 11 October 2013

[36] The Applicant said that on 11 October 2013 a meeting was held with all team co-ordinators to point out that only 2 Team Co-ordinators were taking their breaks correctly. 58

[37] The Applicant said the meeting was between 5 and 10 minutes long and Mr Les Howard (currently the Queensland Operations Manager for Woolworth’s logistics, and had been the Ambient Operations Manager ) expressed “disappointment” that they weren’t all signing on and off for all of their breaks. The Applicant said there was a piece of paper with names blocked out and that these people “weren’t doing the right thing.” The Applicant claimed Mr Howard said “there’s only two people in the entire warehouse doing the right thing”. The Applicant said he thought at the time that as he takes all his breaks he must be one of the two people.

[38] The Applicant said Mr Howard also told the meeting they could not unlock themselves with fellow Team Co-ordinators and they needed to go to a team leader. 59 It was the Applicant’s evidence that the meeting did not discuss what they were doing wrong, just that the needed to take their breaks properly.60 The Applicant claimed that his understanding from the meeting was that employees had to take their breaks in accordance with the enterprise agreement, and not to unlock each other but to ask a management person to do it.61

[39] The Applicant was referred to a document headed “Team talk to permanent and reserve pool Team Co-ordinators” 62 63 The Applicant appeared to accept the contents of the document were communicated to the meeting of 11 October but said the document was not given to employees.64

[40] The Applicant maintained the reference to ‘un-scanned breaks’ could mean people not taking their breaks. 65 The Applicant said he did not remember Mr Howard talking about people taking extended breaks, or flash breaks.66 He continued under cross examination to maintain that at the time he believed he was doing what was required.67

[41] The Applicant also maintained under cross examination that the expression “scan in and out for each break” as stated in the meeting of 11 October 2013 was what he was doing. 68

[42] Mr Gore gave evidence that he was in attendance at the meeting on 11 October 2013 and the matters that he could recall being raised were about Team Co-ordinators unlocking each other from breaks, Team Co-ordinators changing their break times in the WMS system, the amount of delay time being issued on the floor. He did not recall a discussion on the correct procedure for taking breaks as a Team Co-ordinator, but that they were told to take their breaks according to the enterprise agreement. 69 He said no documentation was provided at the meeting.

[43] Mr Morrison said Mr Howard’s presentation at the meeting discussed the correct procedure for scanning breaks and reinforced that taking extended breaks beyond entitlements in the Enterprise Agreement was not appropriate. 70

[44] Mr Howard said in his statement that in the team talk on 11 October he explained that many staff had not been adhering to the correct procedure and, he clearly explained the correct procedure. He said he asked if anyone had any questions and the Applicant did not ask a question. 71 However his oral evidence was to the effect that he read the ‘Team Talk’ document as it stood without elaborating on its contents.72

[45] It is possible to discern a difference between what the Applicant would claim to be ‘explaining the correct procedure’ and Mr Howards view of it. If Mr Howard did simply read document which was exhibit 5 as it stood without further elaboration then on the evidence it is open to conclude the Applicant could have listened to that information and still not understood that the practice he was adopting at the time of scanning ‘on’ at the end of the break and scanning ‘off’ on returning to his work area did not conform with what he was being told in the meeting. For example whilst the Applicant’s practice would appear inconsistent with the plain words of ‘scan in and out for each break’ and ‘do not adjust any break times within WMS’, it is still conceivable that he misconstrued the message and interpreted that language in a such a way that he still believed what he was doing was acceptable.

[46] There was clearly widespread practices for taking breaks that did not conform with the Respondent’s requirements because Mr Howard said that about 70 Team Co-ordinators were taking breaks incorrectly and only 2 Team Co-ordinators at the time doing it correctly. 73

[47] Importantly Mr Howard during the hearing was asked if the Applicant was one of the two taking their breaks correctly and he said no. This evidence indicates the Respondent was aware as at 11 October the Applicant was not taking his breaks correctly. This evidence is relevant in the context of the later discussion between the Applicant and Mr O’Brien. 74

Termination of three Team Co-ordinators

[48] The Applicant rejected the proposition put to him that he knew three Team Co-ordinators were terminated for breaches of the time recording system. He said he could only assume what had happened and he was not told by anyone on behalf of the Respondent. He said he talked to the three only after he was terminated himself. 75 76

[49] The Applicant was referred during cross examination to the record of the meeting on 9 December 2013 77 where he made reference to the reason the other team co-ordinators were terminated, and it was put to him that this was inconsistent with his earlier oral evidence during the hearing that he didn’t know why they were dismissed at the time. He said this was just rumours, and an assumption.78

[50] The evidence of Mr Gore appeared to indicate it was his belief that the three Team Leaders were dismissed for unlocking the WMS when someone had been locked out, although the express reasons for the termination of these three employees by the Respondent was not addressed in any detail by evidence in the hearing.

[51] I am not satisfied the evidence on this issue points to the Applicant having been dishonest about what he knew during his evidence at the hearing as claimed by the Respondent. It is plausible he had heard rumours about the reasons for the three Team Co-ordinators being terminated, had made assumptions but had not had any verification about it, as he claimed. It is clear from the evidence the Respondent was treating the factual circumstances surrounding the three dismissals as a confidential matter.

Team Co-ordinators Meeting of 22 November 2013

[52] Mr Howard’s evidence was again that the information given at the meeting on 22 November was the same as what was in the document prepared for the meeting, and that he read the document 79 as it was.80

[53] The Applicant said that at a meeting on 22 November 2013 a number of questions were asked about the dismissed Team Co-ordinators but the employer response was “no comment while the investigations are pending.”

[54] The Applicant said Mr Howard was running the meeting and there were other Human Resources staff and management present. He said they went over the code of conduct, the enterprise agreement and that as Team Co-ordinators the management expected trust to be upheld at all times. 81 Mr Morrison’s evidence was that he was not in attendance but the run sheet for the meeting was prepared by Ms Leanne McKay, a HR Specialist.82

[55] The Applicant said other Team Co-ordinators asked “can you tell us what they did wrong?” and the response was that management could not as it was private and confidential. This is consistent with the evidence of Mr Howard who said he did not discuss the reasons for the terminations at all. 83

[56] The Applicant said another person asked “Oh, so how do we know if we’re doing something wrong?” The Applicant said they were told at the end of the meeting “if they felt uncertain about their role approach the shift manager at the end of the meeting and they’ll let you know.” 84 The Applicant said in his evidence that at neither of the two meetings were employees shown the method for taking breaks. 85

[57] Mr Gore gave evidence that he asked questions at the meeting on 22 November. 86 He said in his witness statement a question he asked was, when scanning on/off a break can you explain what we are doing wrong? In his oral evidence he said he asked what the correct procedure was to correctly take a break because he was confused, because he had tried to read the EA (enterprise agreement) and couldn’t find it in there. Under cross examination his evidence remained fairly consistent that the thrust of the question was about seeking clarification about what they should be doing.87

[58] Mr Gore also claimed under cross examination that he wasn’t trained how to scan (as a Team Co-ordinator) and he had to work out how to by trial and error which he said he shouldn’t have had to do. 88 He claimed in both his statement and oral evidence that Mr Howard said he was unable to reply to that based on other investigations.89 He claimed he was left feeling that he still didn’t have a clue at the end of it.90

Applicant’s discussion with Shift Manager Brett O’Brien

[59] The Applicant said in his witness statement that after the meeting on 22 November he asked the Shift Manager Mr Brett O’Brien if he was following the correct method and Mr O’Brien advised him that he was. 91 He repeated this in his oral evidence saying at the end of that day he went up to the office and spoke to Mr O’Brien.

[60] The Applicant said Mr O’Brien had video footage of people moving in and out of the canteen area where the scan clocks were. The Applicant said “I’m like, oh, cool.” The Applicants version of the conversation is that he said to Mr O’Brien; “Excuse me, Brett. Can you please tell me if I’m doing anything wrong in regards to my breaks?” and he responded, “No, you’re not under investigation.”

[61] The Applicant repeated during cross examination that he went to see Mr O’Brien after the 22 November meeting and after his conversation with Mr O’Brien thought he was fine, and he was doing the right thing. 92 Mr O’Brien said in his oral evidence as follows;

“---Damien did approach me did approach him after the second meeting, yes, an asked me whether he had anything to worry about and I sort of stated to Damien “From what I’ve seen, no, but I hadn’t investigated anything,” and “If you follow the correct procedure that we spoke about there wouldn’t be any issues.” 93

[62] Mr O’Brien said in re-examination that in team talks we (I took to mean management) discussed the need to set an example for the rest of the team and the need to be scanning their break when leaving the floor and scan back when they return to the floor. 94 Mr O’Brien was the only witness to claim this was specifically stated in those words at the meetings. This is not the same as evidence from other witnesses including Mr Howard who indicated he stayed with the prepared documents. Mr O’Brien did not indicate which of the two meetings this was said. I am not satisfied on balance that the manner of scanning on at the commencement of the break and off at the conclusion was expressed as clearly at the meetings as Mr O’Brien claimed.

[63] It was put to the Applicant that his evidence in his witness statement 95 that Mr O’Brien advised him he was following the correct method was inconsistent with his oral evidence that he was told he was not under investigation. He responded by saying that was his opinion of it, that he was doing the right thing.96 He later said that was what he took out of it.97

[64] While the Respondent drew attention to the apparent inconsistency between the statement and oral evidence on this point, it does appear conceivable the Applicant interpreted this comment from Mr O’Brien to mean the Respondent did not take issue with how he was taking his breaks, which would be consistent with his evidence in his statement and also during the hearing. The Applicant’s evidence was Mr O’Brien had been looking at camera footage of staff. The Applicant said he figured if he could see people walking in and out, using the scan clock or not, Mr O’Brien could have told him. 98

[65] Mr O’Brien said in cross examination he was not privy to the names that Mr Howard had blanked out (being Team Co-ordinators who were not taking their breaks correctly) and that the only document he saw was the list that the names were blacked out on, and therefore didn’t know who they were. 99

[66] It is unfortunate that at this meeting neither the Applicant nor Mr O’Brien took the step of clarifying the specific nature of the practice that the Applicant was adopting for taking his breaks.

Investigation and meeting of 9 December

[67] The evidence of Mr Morrison is that Mr Haddrill spoke to him on 6 December 2013 and explained he was investigating another employee which required him to view CCTV footage of the time-clock area and while doing so noticed the Applicant had left the DC floor and taken his break without scanning it at the time clock. He said after the Applicant had taken his break he would then scan ‘on’ for a break, proceed back to the floor and sign ‘off’ his break at another location. Mr Morrison described this as unusual behaviour and not in line with correct procedure. 100

[68] Mr Morrison said he advised Mr Haddrill to review more instances where the Applicant had taken his breaks and the review identified 5 dates where the Applicant had taken extended breaks and incorrectly scanned on a number of occasions. The evidence of Mr Morrison and Mr Hadrill is consistent regarding how the matter came to be investigated. 101

[69] Mr Hardill in his statement provided a table as follows:

Date	Break Type	Scanned start	Scanned finish	Total scanned time	Actual time off floor	Total time off floor	Exceed entitlement by
30/11/2013	10 mins	7.19am	7.28am	9 mins	7.04am-7.19am	15 mins	5 mins
2/12/2013	10 mins	7.14am	7.25am	11 mins	7.09am-7.25am	16 mins	6 mins
3/12/2013	10 mins	8.44am	8.51am	7 mins	8.31am-8.48am	17 mins	7 mins
6/12/2013	10 mins	12.52pm	1.00pm	8 mins	12.38pm-12.52pm	14 mins	4 mins
9/12/2013	10 mins	8.27am	8.54am	27 mins	8.10am-8.29am	19 mins	9 mins
TOTAL	50 mins	62 mins	81 mins	31 mins

[70] Mr Hadrill said the Applicant would alter the way he scanned ‘on’ and ‘off’ his breaks, specifically:

(a) start the break, scan ‘on’ for the break at the completion of his break, and then scan ‘off’ his break at another location, such as his computer.

(b) Start his break, return to the time clock to scan ‘on’ for his break, return back to the lunchroom to resume his break, and scan ‘off’ at the completion of his break

(c) Start his break, scan ‘on’ for his break at the completion of his break, loiter around the staff amenities area, and then scan ‘off’ his break at another location.

[71] Mr Hadrill said the difference found between the Applicants rest break entitlement and the actual time taken was 31 minutes over 5 shifts.

[72] The Applicant said that on 9 December 2013 he was called into a meeting for the purpose of an interview with Mr Morrison and Mr Haddrill. 102 103 It was the Applicant’s evidence that he did not request a support person to attend with him because he did not think he had done anything wrong.104

[73] The Applicant said that during the meeting several things were raised and he answered honestly and truthfully, raising that this was how he was trained and providing relevant details. The Applicant agreed that he raised his discussion with Mr O’Brien from a few weeks earlier and Mr O’Brien had told him there was nothing wrong with his breaks. 105 106

[74] At the bottom of the first page of the record of interview in answer to a question about whether the Applicant had been accurately scanning in and out of breaks he answered;

“As accurate as possible yeah. I don’t go up for half an hour for tea break, not for an hour lunch like those other guys that were let go. The only other time I scan late for extractions, i order food then gone back to clocks and scan and then sit back down. This is in replacement for walking time and sometimes with extractions its busy and you need to get back fast on a friday or Saturday. You can check the clock - i wouldn’t be out very much past the times allocated. It’s not in me to cheat the system like that.”

[75] The record of the meeting shows on the second page in the fourth paragraph that the Applicant described the practice he was using to the management representatives present as follows regarding why he scanned off his break at other locations.

“Sometimes i don’t have the full 10 minutes upstairs so i walk back downstairs and walk back in, otherwise if you just have a few minutes it would look like flash scanning. I do that a fair bit for my first tea break. That’s what I was thought to do when I was trained up from Sue Porter and Jamie Hamill. Jamie said you scan it upstairs and come downstairs and scan it back downstairs, Sue doesn’t scan at all. That’s what I was show for the three weeks of training.”

[76] The Applicant was clearly saying that was how he believed he was trained. 107 The Applicant said the Respondent had a couple of weeks of evidence showing that he had not been following the correct process for taking breaks, and his reply was to tell them “I’d been doing that for six months”. The Applicant said he told the meeting that’s what he had been told to do and that’s what he had been doing.108

[77] The Applicant claimed he said to the meeting that if they go back and examine the manner in which he took breaks when he was being trained with Jamie Hamill it would prove that was the training he received. 109 Mr Haddrill accepted the Applicant said this.110

[78] Mr Haddrill said that based on WMS information he checked the two weeks of data prior to discussions with the Applicant. 111 This information could not provide any information to the Respondent in regard to the manner in which breaks were being taken by Ms Porter or Mr Hamill six months earlier as the Applicant had requested that the Respondent investigate. Mr Haddrill said he did not make contact with Mr Bryce Danby.112

[79] Mr Haddrill gave evidence that he asked Ms Porter if she had trained the Applicant (in taking breaks) and she said she didn’t. 113 Mr Haddrill said that Ms Porter had previously been following incorrect procedures, but based on what had happened she realised she was doing the wrong thing and started to do the proper procedure which was to scan at the clock, have her break, and scan off the clock.114 It seems clear from this evidence Ms Porter was admitting to Mr Haddrill (as she did at the hearing) that she did not follow the correct procedure for taking the breaks at the time the Applicant was working with her as part of his being trained by her in the Extractions role.

[80] Mr Hamill gave evidence that he and Susan Porter trained the Applicant in the position of Extractor. Mr Hamill said this was over approximately four weeks. He said the Applicant learnt fairly quickly. He said the Applicant did not require, request, nor did he provide any training around taking breaks differently to how he already should have been taking them. Mr Hamill said he took breaks with the Applicant and the Applicant would have seen how he took breaks which he said was by scanning on at the time clock at level 2, and off at the same clock on his way back. 115

[81] The Applicant was referred to the record of the meeting where he was asked to explain the timing and manner of his breaks on the morning of 30 November, 2 December, 3 December, 6 December and 9 December.

[82] In regard to the 6 December, the Applicant said he would have been fully finished and walked into systems and they had nothing for him to do. He said he normally does a 3am to 1pm shift on Saturday. He said he went to the systems office and asked if there was anything to do, and claimed he was told they had nothing for him to do so he went upstairs. He said everything was fully extracted and done. He said he could have stayed in the office for another 10 minutes. 116 There was no evidence that the Respondent sought to investigate or challenge the Applicants claims that on 6 December he had effectively run out of work at the end of the shift. In regard to 9 December the Applicant said he got called back to a team member who was ‘triple A’d’ and he got locked out.

[83] On the last page of the record of the 9 December 2013 meeting 117 the Applicant states, “So you’re going to check up what I said today and see if it matches up.” The evidence in the hearing made clear this was a request for the Respondent to check his claim that he had only been doing what he had been trained to do. He said at the conclusion of the meeting he was suspended pending completion of the investigation. 118

Interruption of Breaks

[84] The Applicant said during the hearing he was entitled to a 10 minute uninterrupted break. 119 The Applicant claimed he was told in several meetings if you’re not having your entitlement, to make sure you have a 10 minute break.120 The Applicant said the following at the meeting on 9 December;

“9 times out of 10 you’re going to get a call, want to chill out for a few minutes then go back, that pretty common. I try to stick to break times as much as possible but I know I went over a few minutes this morning. Fair enough I have buggered up the walking time but I am not stealing time.”

[85] He also said at the hearing,

“We’ve had plenty of team co-ordinator meetings every Monday and Friday morning, and we’ve always complained about phone calls in our roles and they said, “Look, at the end of the day, just make sure you have a 10 minute uninterrupted break.” 121

[86] It was Mr Dixon’s evidence that Team Co-ordinators take work-related phone calls in the canteen all the time. 122 He indicated some “guys” get upset with them (Team Co-ordinators when they complain about their breaks being interrupted.)123

[87] When Mr Gore was asked if he ever had his breaks interrupted or if he had been stopped while walking to or from the canteen, he replied all the time. He said as a Team Co-ordinator he carries a phone, and is not allowed to walk and talk with the phone, so if the phone rings you stop once you’ve clocked onto your break. He said that week he had a six minute period out of a 10 minute break where he couldn’t even get to the lunch room and was 25 metres away from it. 124

[88] Mr Gore indicated he did not extend his break in such circumstances as he would run the risk of being questioned or “written up” for why he was late or over the break. Mr Howard appeared to accept that Team Co-ordinators are interrupted during breaks. 125 It also appeared from his evidence that Mr Howard believed if an employee is interrupted during their break then they should be entitled to continue the break in order to get the equivalent time provided for the enterprise agreement although this was not entirely clear.126

[89] The Applicant also said that in mid or late September 2013 team leaders Trent Platt, Frank Fong and Katie Thomas advised all Team Co-ordinators that the Operations Manager had instructed that they all start 20 minutes earlier than their rostered starting time, without pay, to avoid expenditure on overtime hours. This evidence was not challenged.

Dismissal meeting 13 December

[90] The Applicant said that on about 13 December 2013 he returned to the site at approximately 9am. He said he spent a number of hours being interviewed during which he relayed the same honest answers he had already provided. He said he reiterated that this is how he was trained as a grade 4 and a grade 6.

[91] The Applicant said he was told there were no events during his time as a grade 2 which conflicted with the Respondents expectations for taking breaks. The Applicant said that he made a number of statements in the meeting to the effect that this proves he was not here to take advantage of the Respondent and that the conclusion is that he takes breaks as he has been trained to take breaks. 127

[92] The Applicant said in his oral evidence that the Respondent did not check the video footage back to his training, and they did not say why. He said all he was told was “I’ve checked on Jamie and Sue and they’ve been doing their breaks right in the past couple of weeks.” 128

[93] Mr Morrison was asked in cross examination what evidence the Respondent relied upon in regards to the request from the Applicant to investigate how he had been trained to take his breaks. Mr Morrison answered that they reviewed training records, and also CCTV footage and warehouse management systems records. He said the Applicant’s training records indicated that Mr Morrison was his induction trainer. 129 However in other evidence he accepted he did not personally train the Applicant about the taking of breaks during induction.

[94] The Applicant said he was not informed if Ms Porter or Ms Hamill had been spoken to, and he did not believe Mr Danby had been spoken to. 130 Mr Morrison said Mr Hadrill spoke to these two employees and Mr Danby was no longer an employee.131 The Applicant said he was “gobsmacked” on that day (of his termination) and still is. 132

New Signage after Applicants termination

[95] The Applicant said that a few days after he was dismissed one of his ‘mates’ sent through a few photos and there were big bright orange marking signs all through the canteen area saying, “If you’ve not scanned on for your tea break at the scan clock go back now.” The Applicant said he wished that was there when he was there. 133

[96] Mr Dixon also referred to this signage relating to the taking of breaks. 134 Mr Hamill did not believe this signage was present while the Applicant was being trained by him. He thought this signage was put up after the Applicant was dismissed.135

HARSH, UNJUST AND UNREASONABLE

[97] The Applicant said that he saw Woolworths as a career job for him. He said he moved up quickly with two new roles within 6 months and he was even applying for roles above team leader. He claimed he had said to management he was “here for the long haul” and he wanted to move to duty manager. He said he was setting himself up for his kids and his family. 136

[98] It is apparent to me from the evidence, particularly that of Mr Morrison that in the face of the claim by the Applicant that he was not given specific training at his induction in November 2011 about clocking on and off for breaks, there has been no-one in the Respondent’s case that has been able to give direct evidence about him having received such training. Despite Mr Morrison’s claim that he did, Mr Morrison who provided training at the induction himself said he did not do it himself, and can’t identify anyone else who did. The standard training package he referred to was not produced by the Respondent.

[99] The Respondents argument is really that it should have been commonsense for the Applicant to apply the same method to clock on and off for tea and meal breaks after he was promoted to the Extractor and Team Co-ordinator roles, that he had previously been trained to use to clock on for the start of the day, and off at the end of the day as an Order Selector. Further that when he used the T2 system as an Order Selector to clock on and off breaks when they started and finished, it was common sense that is what he would continue to do using clock cards instead of the T2 voice system. I agree that would seem logical, but that is different to the claim of the Respondent that that is what the Applicant was trained to do at induction, that claim is an assertion not supported by direct evidence in the Respondents case, and rejected by the Applicants evidence, as well as the evidence of Mr Dixon and Mr Gore concerning what was covered at induction.

[100] The evidence concerning the meetings on 11 October and 22 November is that Mr Howard effectively read from a prepared document the information contained in those documents. Despite what was said in the Respondents case, for example by Mr Morrison about the 11 October meeting, that Mr Howard’s presentation discussed the correct procedure for scanning breaks and reinforced that extended breaks were beyond entitlements and were not appropriate, 137 that is not explicitly clear from the documents which were apparently just read out. Mr Morrison asserted that the correct procedure and expectations in regard to taking breaks was outlined in the team talks however he was not at the meetings himself.138

[101] The evidence tends to show that the precise manner in which scanning on and off was to be performed was not discussed in detail at either meeting. Mr Howard, it would appear, progressed on the basis that he assumed he did not have to be so specific as to describe on a step by step basis the correct method required on the basis that would have been obvious from what he was reading from the document. The Applicant’s claim is he was shown a different way and did not take away from either of the two meetings that his way was wrong.

[102] Further, on the issue of the extended time of his breaks, the uncontested evidence of the Applicant was that Team Co-ordinators had frequently raised the issue of interruptions on breaks and that they were told by managers to “.....just make sure you have a 10 minute uninterrupted break.” 139 In circumstances where there was clear and unchallenged evidence that Team Co-ordinator breaks were frequently interrupted, on the evidence available to me, the explanations of the Respondent at the meetings did not squarely address that matter, for example, could a Team Co-ordinator have still believed they were allowed to factor in interruptions to breaks to take work calls in order to have a full uninterrupted 10 minute break?

[103] The evidence of the Applicant that he asked his manager Mr O’Brien on 22 November whether he was doing anything wrong (as he had been advised to do in the team meeting) in the context of his breaks was corroborated by Mr O’Brien. Mr O’Brien told the Applicant he was not being investigated. Mr O’Brien’s response had subsequent consequences for the Applicant because it was Mr Howard’s evidence that the Respondent was aware, as early as 11 October, that the Applicant was not taking his breaks correctly. 140 The meeting between the Applicant and Mr O’Brien represented an opportunity for the matter to be resolved that day. The Applicant was proactive in making the approach to his manager about the very issue that led to his termination, and at that time, management, through Mr Howard, had within its possession knowledge that the Applicant was not conforming with what it wanted. However, despite the Applicant doing as had been suggested by Mr Howard,141 to go and see his manager if he was unclear, he left the meeting with Mr O’Brien none the wiser.

[104] The Applicant was clearly claiming at the meeting on 9 December and 13 December that he was doing what he was doing because that was what he had been trained to do. Mr Morrison said Mr Haddrill spoke to Ms Porter and Mr Hamill about these claims but Mr Danby was not spoken to because he was no longer an employee. 142 However it appears the Applicant was never given an opportunity to respond to what Mr Porter or Mr Hamill said to Mr Hadrill at the second meeting on 13 December.

[105] The evidence of Ms Porter is important in this case. Her oral evidence added plausibility to the Applicant’s evidence because she said, before the meeting of 11 October, she described taking her breaks in a fashion that was similar to what the Applicant described in that she said, “..I would have my break, then I would scan at the clock up the top and then I would scan back in on the clock as I was going into the despatch office, so that it showed I was having a break..” 143 This evidence fits the Applicants claim that he adopted her method which on her own evidence she used herself until 11 October 2013.

[106] Whilst Ms Porter’s evidence was that it was at the meeting of 11 October 2013 she became aware her practice was wrong, it is quite possible the meeting did not have the same effect on the Applicant.

[107] The Respondent should also have investigated the Applicants claim that the method he adopted was the same method he had always used for the preceding 6 months. Whilst not determinative this was a relevant consideration in deciding whether he was being honest about the matter, or whether had been deliberately attempting to deceive the Respondent about his breaks. This is particularly so when it was reasonably apparent that had he continued to adopt the same method he said he had always used after the meeting on 22 November 2013 and the conversation with Mr O’Brien.

[108] If the Applicant was aware that scanning on for his break at the conclusion of the break and then scanning off again on returning to his work station was wrong, and was a deliberate attempt at deception as the Respondent asserts, then why would he continue doing it after 22 November? On his own evidence he was aware of rumours that three other Team Co-ordinators had been terminated in connection with the taking of breaks. He had approached his Manager Mr O’Brien about the very issue.

[109] It is interesting to note that the length of time between when the Applicant scanned on for his break, and then scanned off on 9 December (one of the days the Respondent relied upon to disclose an intent to deliberately mislead it) was for a period of 27 minutes when his actual time off the floor was only 19 minutes. Therefore the Applicant returned to work 8 minutes earlier than the method he adopted for scanning his break showed he did. If the Applicant was attempting to hide from the employer that he was deliberately misleading his employer in relation to his breaks then this was an odd way to do it.

[110] For the Respondent’s hypothesis to stand-up, the Applicant needed to be well aware that the practice he adopted was not permitted, and despite knowing that and despite his attendance at the meeting of 11 October 2013, and the subsequent termination of three Team Co-ordinators, and the meeting of 22 November, and his discussion with Mr O’Brien, he kept doing it anyway.

[111] Mr Morrison said in his evidence that the decision to terminate the Applicant was made as his conduct was inconsistent with the Code of Conduct and the Enterprise Agreement. He said it was concluded that the Applicant had acted in a deliberate manner in falsifying timesheets for personal gain, and in the circumstances his conduct was serious misconduct justifying immediate termination. 144

[112] Given all of the above, and the Applicants approach to Mr O’Brien on 22 November, the evidence regarding the manner in which he took his breaks on 30 November, 2 December, 3 December, 6 December and 9 December points more to him being simply misguided about the issue and less to him attempting to deliberately deceive his employer. It would have been reckless and dishonest in the extreme to continue to do what he was doing despite everything that had occurred if he was engaged in an attempt at deliberate deception as the employer concluded. I find that implausible. It does not sit easily with the uncontested evidence that he was in all other respects a promising employee with an unblemished record who had progressed reasonably quickly through the career path and had ambition to continue to progress. It also does not sit easily with the manner in which he waivered little from his explanation for his conduct under sustained, forceful and competent cross examination at the hearing from an experienced lawyer.

[113] I have concluded that not only is it possible that the Applicant was simply misguided about what he was doing and not deliberately attempting to deceive the Respondent, but that it is more probable than not that is what in fact occurred.

[114] I am also persuaded to this view because there was no evidence there was ever an issue about the Applicant complying with the requirements for taking breaks at the prescribed times during his approximately 18 months as a level 2 Order Selector. The Applicant’s explanation for this is that he followed the method that he had been trained to use and applied it, which would be consistent with his evidence that he adopted the same method for taking breaks once he had been promoted and applied it.

[115] The evidence disclosed that there is no specific training for employees provided at the time they are promoted from an Order Selector role to the Extractions or Team Co-ordinator role to specifically walk them through the difference between recording a break using the T2 system, and scanning using the time clock method for taking breaks after promotion. The evidence of the Applicant, Mr Gore and Ms Porter all disclosed they had difficulties making the transition. It appears to me that the Applicant observed others, certainly Ms Porter, possibly Mr Hamill, and probably Mr Danby adopting a method which was incorrect, and he adopted it himself. Mr Hamill’s evidence left it open to find that the Applicant had been shown by someone (the Applicant claimed by Mr Hamill himself, Mr Hamill assumed it could have been by Ms Porter) how to use the ACTIA screen to log off a break.

[116] The evidence perhaps points to a gap in the training methodology of the Respondent when promoting an employee from level 2 to a higher level where different methods are used for the recording of break times. The evidence was the Respondent took steps to display signage about the issue at the workplace after the applicant was terminated. The Applicant said in his evidence;

“But I’ve been doing this ever since I got trained in extractions. That’s what I was told to do an that’s what I’ve been doing” - and that’s my discipline. I’ll do the same thing every day. I’ll turn up 15 minutes every day, I’ll do my job. I’ll do the breaks how I was shown - and nothing changed. Because it’s just habit.” 145

[117] His evidence in the hearing was consistent with what he said at the meeting on 9 December about the issue prior to his termination. 146 Whether in fact the Applicant is correct in his claim that Ms Porter, Mr Hamill or Mr Danby actually deliberately showed him to take his breaks in the manner he did, or alternatively whether he was misguided about that as well and erroneously adopted the method despite the trainers not intending to teach him such a method, is less important than the fact that he believed the method he was using was acceptable because he was doing something he believed he had seen others do, and it was acceptable.

[118] Determining the true factual position about whether he was trained in the method, or alternatively that he erroneously thought he was but was not, is to my mind not the critical issue because either way, it still leaves standing the finding that he was not deliberately attempting to deceive the Respondent about his break times by doing what he was doing, and that is the critical issue.

[119] The finding above deals with the method adopted for scanning on and off breaks, but it is also important to deal with the issue of the length of the breaks themselves.

[120] I do not accept the Respondent’s argument that the Applicant manipulated the WMS in order to allow him to gain an advantage of the enjoyment of extended breaks by deception, or wilful dishonesty. However I do accept he should not have taken breaks for longer than the allocated time (even though it appears he frequently didn’t enjoy a full break), and this was a form of misconduct as he was operating outside his entitlements under the Agreement. The proper process as explained in the hearing if an employee’s break extended beyond their entitlement was to scan off the break, and to then see their supervisor to explain the reason for this and to ask a supervisor to unlock them if they had been locked out.

[121] The Respondent has maintained that the Applicant was doing what he was doing to avoid being locked out of the computer system, and the subsequent need to report this. I am satisfied the Applicant was not motivated by a desire to gain an advantage by being able to take longer breaks. Whilst the Respondent’s view was that the Applicant was trying to avoid being locked out, given my view that he thought the practice he adopted was in accordance with what he believed he had been shown to do the evidence did not satisfy me that he was trying to hide from the Respondent the length of his breaks.

[122] In cases where an employee is terminated on the grounds of misconduct the onus falls on the Respondent to show that the misconduct occurred. Mr Morrison gave evidence that in arriving at the decision to terminate it was concluded that the Applicant acted in a deliberate manner to falsify timesheets for personal gain, and in the circumstances his conduct was serious misconduct justifying immediate dismissal. For all of the reasons set out above I am not satisfied that the Applicant did act in a deliberate manner to falsify timesheets for personal gain, or for any other reason and on that basis the Respondent did not have a valid reason for dismissal. I did note an apparent concession from the Applicants representative in closing submissions going to s.387 (a) and whether the Respondent had a valid reason, but I have disregarded that submission on the basis that the Applicants representative did not appear to be an experienced advocate.

[123] In terms of the other considerations under s.387 the Applicant was notified of the reason for dismissal. The Respondent conducted two meetings on 9 and 13 December where the Applicant was given an opportunity to respond to the reasons related to his conduct. However the Respondent’s investigation was less than it could have been had it more fully explored the matters the Applicant had requested it to do at the meeting on 9 December which included a request that it go back six months to when he was being trained for promotion.

[124] Mr Danby it was said by the Respondent was summarily dismissed for his time clocking practices. 147 The Respondent did not interview Mr Danby to put to him what the Applicant had said about how he trained the Applicant in order to test the Applicant’s claims, and given the circumstances it may not have been possible for the Respondent to do that. Given the fact that Mr Danby was given the task by the Respondent of training the Applicant, which is by its nature a mentoring role, and Mr Danby was later summarily dismissed for the reasons stated, it would be expected that should have given rise to a question in the Respondents mind that what the Applicant was claiming to have been shown by Mr Danby might be accurate. The Respondent said it asked Ms Porter and Mr Hamill if they trained the Applicant as he claimed but drew no link between Ms Porters concession to Mr Haddrill that she had adopted the wrong method for taking breaks right up to 11 October, including the time when she was training the Applicant. The Applicant was not advised of this concession before his termination.

[125] The Applicant was offered the opportunity to have a support person. The termination did not relate to unsatisfactory performance. The Respondent is a very large employer and s.387(f) does not assist it, and nor does s.387((g).

[126] In terms of any other matters that are relevant, there was also a failure in management’s internal communication system regarding the Applicant. As set out above Mr Howard knew that the Applicant was not in the select group of only 2 out of 70 Team Co-ordinators taking their break correctly as at 11 October. At the meeting on 22 November any Team Co-ordinators who was still not clear on how to record their breaks correctly were instructed to approach their manager about it. The Applicant did exactly that. However it appears Mr Howard did not pass on to the Applicant’s Manager Mr O’Brien the identity of Team Co-ordinators under his supervision who had not been taking their breaks correctly, which would have included the Applicant. Had this been done it no doubt would have prompted a different answer from Mr O’Brien to the Applicants question as to whether he was doing anything wrong at their meeting on 22 November.

[127] Had Mr Howard told Mr O’Brien that the Applicant was on a list of employees that the Respondent knew were not taking their breaks correctly, then Mr O’Brien presumably would have told the Applicant there was a problem, even if he could not be specific about what it was at the time. At the very least Mr O’Brien could have gone back to ask the question of Mr Howard whether the Applicant was on the list of names given he had been approached about it.

[128] Having taken into account all of the considerations under s.387, for the reasons set out above I am satisfied the Applicants dismissal was harsh, unjust and unreasonable.

REMEDY

[129] The Applicant sought reinstatement, and this position was consistently maintained including in closing submissions. 148 Reinstatement is the primary remedy under the Act. Given my finding that the Applicant had not been wilfully dishonest I see no obstacle to ordering reinstatement.

[130] This is even more so where the Respondent is a very large employer, and the particular workplace itself within the Respondents business, the Brisbane Regional Distribution Centre is I understand from my involvement in previous proceedings one of the largest, if not the largest distribution centre in Australia.

[131] I have given consideration to the Respondents argument made in closing submissions in answer to a question from me, that in the event I was to find the Applicant was honest but misguided (as I have done) that the Respondent could not have confidence that he was capable of following procedures. However, this argument needs to be considered more broadly. There was common ground between the parties that but for the issue that led to his termination the Applicant had a good record, was viewed as a promising employee and had no performance issues. In that broader context I do not perceive a sound or reasonable basis to refuse to reinstate based on a loss of trust and confidence, or to find that reinstatement is impracticable because of a loss of trust and confidence.

[132] The evidence of witnesses for the Respondent indicated that there was in the order of 70 Team Co-ordinators employed by the Respondent at the Brisbane Regional Distribution Centre around the time of the Applicant’s dismissal. There should be no significant hurdle to an order being made in accordance with s.391(1)(a) for the Applicant to be reappointed to the position in which he was employed immediately before the dismissal. I have decided to make such an order in this case.

[133] I have also decided to make an order under s.391(2)(a) that the Respondent maintain the Applicants continuity of employment with the Respondent, and also an order under s.391(2)(b) that the Respondent maintain the Applicants continuous service with it.

[134] I also intend to make an order pursuant to s.391(3) for restoration of lost pay, but not the full amount. The Applicant was terminated on 13 December 2013.

[135] While there was evidence that Team Co-ordinators breaks were frequently interrupted, and that Team Co-ordinators had complained to management and been told to “..just make sure you have a 10 minute uninterrupted break”, and there was also evidence that appeared to go unchallenged that Team Co-ordinators were instructed to come to work 20 minutes earlier than their rostered start time, it remains the case that the evidence established the Applicant took breaks for longer periods than he was entitled to do on 5 occasions in a two week period.

[136] In considering that conduct, and also as required by s.391(4)(a) considering evidence that the Applicant had earned some limited income during the period between the dismissal and the issue of this decision, and finally as required by s.391(4)(b) that he is unlikely to earn income before being reinstated given the limited work he has obtained since dismissal, it is appropriate to order part of the remuneration lost be paid. I have determined an amount the equivalent of three months wages at the rate of pay the Applicant was being paid at the time of termination is appropriate. The orders described above will be issued with this decision.

COMMISSIONER

Appearances:

Mr Steven Ferreira, for the Applicant

Mr Daniel Williams of Minter Ellison Lawyers, for the Respondent.

Hearing details:

14 and 15 May

Brisbane

2014

1 Transcript dated 14 May 2014 PN 125

2 Transcript dated 14 May 2014 PN 129 -131

3 Transcript dated 14 May 2014 PN 132

4 Transcript dated 14 May 2014 PN 133

5 Transcript dated 14 May 2014 PN 135

6 Transcript dated 14 May 2014 PN 136

7 Transcript dated 14 May 2014 PN 395-400

8 Transcript dated 14 May 2014 PN 403-410

9 Transcript dated 14 May 2014 PN 414

10 Transcript dated 14 May 2014 PN 434

11 Exhibit 2 Statement of Mr Shannon Dixon dated 12 May 2014 paragraph 1 - 5

12 Exhibit 2 Statement of Mr Shannon Dixon dated 12 May 2014 paragraph 9

13 Transcript dated 14 May 2014 PN 915

14 Transcript dated 14 May 2014 PN 899

15 Transcript dated 14 May 2014 PN 945-946

16 Transcript dated 14 May 2014 PN 907

17 Transcript dated 14 May 2014 PN 984

18 Transcript dated 14 May 2014 PN 996

19 Exhibit 9 Statement of Mr S Morrison dated 11 April 2014 paragraph 1-3

20 Exhibit 9 Statement of Mr S Morrison dated 11 April 2014 attachments SM1 and SMI

21 Exhibit 9 Statement of Mr S Morrison dated 11 April 2014 paragraph 10

22 Exhibit 9 Statement of Mr S Morrison dated 11 April 2014 paragraph 20-21

23 Transcript dated 14 May 2014 PN 1118-1122

24 Exhibit 9 Statement of Mr S Morrison dated 11 April 2014 paragraph 1122-1125

25 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 4

26 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 8

27 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 9

28 Transcript dated 14 May 2014 PN 138

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32 Exhibit 10 Statement of Ms S Porter dated 8 April 2014 paragraph 7

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48 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 12

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58 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 15

59 Transcript dated 14 May 2014 PN 194

60 Transcript dated 14 May 2014 PN 197

61 Transcript dated 14 May 2014 PN 200

62 Exhibit 5 Document marked as Team Talk to permanent and reserve pool team co-ordinators on 11 October 2013

63 Exhibit 11 Statement of Ms L Howard dated 11 April 2014 attachment LH1

64 Transcript dated 14 May 2014 PN 359

65 Transcript dated 14 May 2014 PN 369

66 Transcript dated 14 May 2014 PN 372-376

67 Transcript dated 14 May 2014 PN 443

68 Transcript dated 14 May 2014 PN 447-448

69 Transcript dated 14 May 2014 PN 1011-1012

70 Exhibit 9 Statement of Mr S Morrison dated 11 April 2014 paragraph 16

71 Exhibit 11 Statement of Ms L Howard dated 11 April 2014 paragraph 11

72 Transcript dated 14 May 2014 PN 1322

73 Transcript dated 14 May 2014 PN 1326-1333

74 Transcript dated 14 May 2014 PN 1333

75 Transcript dated 14 May 2014 PN 457-463

76 Transcript dated 14 May 2014 PN 480

77 Exhibit 13 Statement of Mr H Haddrill dated 11 April 2014 attachment HH3 page 1 last paragraph

78 Transcript dated 14 May 2014 PN 515-525

79 Exhibit 6 Document marked as Team Talk to permanent and reserve pool team co-ordinators on 22 November 2013

80 Transcript dated 14 May 2014 PN 1352-1356

81 Transcript dated 14 May 2014 PN 201

82 Transcript dated 14 May 2014 PN 1236-1239

83 Transcript dated 14 May 2014 PN1360

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85 Transcript dated 14 May 2014 PN 212

86 Exhibit 1 Statement of Mr Gore dated 12 March 2013 paragraph 7

87 Transcript dated 14 May 2014 PN 1035-1042

88 Transcript dated 14 May 2014 PN 1064

89 Exhibit 1 Statement of Mr Gore dated 12 March 2013 paragraph 7

90 Transcript dated 14 May 2014 PN 1015

91 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 16

92 Transcript dated 14 May 2014 PN 485

93 Transcript dated 14 May 2014 PN 1388

94 Transcript dated 14 May 2014 PN1390

95 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 16

96 Transcript dated 14 May 2014 PN 489

97 Transcript dated 14 May 2014 PN 500

98 Transcript dated 14 May 2014 PN 210

99 Transcript dated 14 May 2014 PN 1386

100 Exhibit 9 Statement of Mr S Morrison dated 11 April 2014 paragraph 25

101 Exhibit 13 Statement of Mr H Haddrill dated 11 April 2014 paragraph 12-13

102 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 17

103 Transcript dated 14 May 2014 PN 213

104 Transcript dated 14 May 2014 PN 213-215

105 Transcript dated 14 May 2014 PN 497

106 Exhibit 13 Statement of Mr H Haddrill dated 11 April 2014 attachment HH3

107 Exhibit 13 Statement of Mr H Haddrill dated 11 April 2014 attachment HH3 page 2 paragraph 4

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115 Exhibit 14 Statement of Mr J Hamill dated 10 April 2014 paragraph 6 -8

116 Exhibit 13 Statement of Mr H Haddrill dated 11 April 2014 attachment HH3 page 3

117 Exhibit 7 Record of meeting 9 December 2013

118 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 18-19

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127 Exhibit 3 Statement of Mr D Caeiro dated 24 March 2014 paragraph 22

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136 Transcript dated 14 May 2014 PN 206

137 Exhibit 9 Statement of Mr S Morrison dated 11 April 2014 paragraph 16

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140 Transcript dated 14 May 2014 PN 1332-1333

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142 Transcript dated 14 May 2014 PN 1229-1232

143 Transcript dated 14 May 2014 PN 1267

144 Exhibit 9 Statement of Mr S Morrison dated 11 April 2014 paragraph 40

145 Transcript dated 14 May 2014 PN 217

146 Exhibit 13 Statement of Mr H Haddrill dated 11 April 2014 attachment HH3 page 4 paragraph 13

147 Transcript dated 15 May 2014 PN 1749

148 Transcript dated 15 May 2014 PN 1657

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