Elizabeth Furneaux v Peninsula Health T/A MEPACS
[2014] FWC 5712
•22 AUGUST 2014
| [2014] FWC 5712 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Elizabeth Furneaux
v
Peninsula Health T/A MEPACS
(U2014/4714)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 22 AUGUST 2014 |
Application for relief from unfair dismissal – compensation ordered.
[1] On 17 February 2014 Mrs E Furneaux (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) in relation to the summary termination of her employment on 23 January 2014, by Peninsula Health T/A MEPACS (the Respondent) on the basis of serious misconduct.
Brief Background
[2] The Applicant commenced her employment with the Respondent on 24 October 2011. The Applicant was employed by the Respondent as a sales specialist in its Mount Eliza Personal Assistance Call Service (MEPACS) Division. The MEPACS division of the Respondent provides medical alarms and related 24 hour monitoring and support systems to the elderly and vulnerable. MEPACS has a contract with the Victorian Department of Health to provide a funded service to eligible individuals, the primary business of MEPACS and also provides services to private clients and retirement villages. The Applicant was employed to promote and sell the service offered by the private side of the MEPACS business. 1
[3] The termination of the Applicant’s employment followed an investigation by the Respondent’s MEPACS Manager, Mr D Richardson, which was initiated by him on 5 September 2013, following consultation with the Respondent’s Director of Employee Relations, Ms K Pimm, who sought advice from Mr D Goldberg, Legal Counsel for the Respondent. 2 The investigation concerned alleged false recording of work attendance and time on time sheets by the Applicant and followed a dispute between the Applicant and Ms L Hardy-House, an Acting Client Services Manager temporarily assigned to oversee MEPACS, concerning queries about the Applicant’s time sheets in respect of 20 and 21 August 2013.3 Ms Hardy-House communicated the content of her conversation with the Applicant on 26 August 2013 to Mr Richardson (who was absent on an accrued day off) by email on the same date and amended the time sheets in accordance with the directions of Mr Richardson in a reply email.4 On 29 August 2013, the Applicant approached Mr Richardson, to complain about the amendment to her time sheet by Ms Hardy-House, following up with an email.5
[4] Around 19 August 2013, Mr Richardson conducted a review of the Applicant’s time sheets over several months against her log-ins to the Respondent’s Q-Master telephone system (a call centre management software) 6 on the basis that with some exceptions, the Applicant would have logged into the telephone system when working. That review disclosed that there were further days where the Applicant’s time sheets showed her to be working but there was no Q-Master log-in.7 Following consultation, Mr Goldberg, Mr Richardson and Ms Pimm decided to stand the Applicant down and investigate further, a decision endorsed by Mr D Anderson, the Respondent’s Executive Director Finance.8
[5] On 6 September 2013, the Applicant was called to a meeting with Mr Richardson and Ms L Raso, the Respondent’s MEPACS Operations Manager and Ms S Tomlinson, a sales colleague of the Applicant and advised her that in light of discrepancies discovered in her time sheets, the Respondent had decided to stand her down on full pay whilst it undertook a thorough investigation. 9 At the conclusion of the meeting, the Applicant was handed a letter advising of an allegation that “You have falsely recorded work attendance and time, claiming you have worked when at home sick” and advising the Applicant of the suspension.10 It also advised of a meeting scheduled for 16 December 2013 to discuss the allegations with the Applicant. The letter attached a copy of the Respondent’s fraud policy.
[6] On 13 September 2013, Mr P Furneaux, the Applicant’s husband, wrote to Ms Pimm advising that due to ill health, the Applicant could not attend the 16 September 2013 meeting and requesting documentation relevant to the Applicant’s defence of the allegations against her and also requesting that the investigation be put on hold due to the health of the Applicant. 11 He attached a medical certificate stating “given the psychological distress, not fit to work 4 weeks”.
[7] On 17 September 2013, Mr Richardson responded in a letter restating the allegations, enclosing a table (the Respondent’s table) identifying:
• days on which it was alleged that the Applicant’s time sheets had indicated that she had worked but she had not logged onto Q-Master;
• days on which the Applicant’s time sheets had indicated that she had not worked but she had logged onto Q-Master; and
• days on which the Applicant’s time sheets had indicated that she had worked but she had called in sick.
[8] The letter also advised of a meeting on 3 October 2013 to discuss the allegations.
[9] On 26 September 2013, Mr Furneaux wrote to Ms M Holian, the Respondent’s Executive Director Human Resources, requesting the documentation previously sought and again requested that the investigation be put on hold due to the health of the Applicant. It attached a medical certificate certifying that the Applicant was “not able to attend any meetings at this stage because of her mental health”. 12
[10] Still not having a response in respect of the information previously requested of Mr Richardson and Ms Pimm, Mr Furneaux wrote on 8 October 2013 to Dr S Devanesen, the Chief Executive Officer of Peninsula Health. 13 It included in the address “Empowered Officer”, reflecting the identification of Dr Devanesen as the empowered officer under the Respondent’s fraud policy. Mr Furneaux identified three errors in the Respondent’s table:
• one day – 6 October 2012 – on which the Applicant worked but was not shown in the table;
• four days in October 2012, in which the Applicant was on Annual Leave and not at work; and
• one day – 26 August 2013 – when the Applicant was shown as not working but did work.
[11] The letter referred to the Applicant’s flexibility in rescheduling working days to meet the Respondent’s work demands and advice by a previous Manager to keep her time sheets the same hours each week.
[12] On 4 October 2013, Ms K Gillies the Respondent’s Acting Executive Director Human Resources wrote to Mr Furneaux in response to his 26 September 2013 letter. 14 The letter attached various policy documents sought by Mr Furneaux. Ms Gillies declined to provide other information requested. Ms Gillies acknowledged the medical advice provided in respect of the Applicant and advised that the meeting of 3 October 2013 would be rescheduled until a time when the Applicant was medically fit to attend. The letter advised that the Respondent’s investigation was complete and, as the Applicant could not attend the scheduled meeting on medical advice, the suspension would conclude on 4 October 2013. It requested that the Applicant contact Ms Pimm when she was medically fit to attend a meeting to finalise the matter.
[13] On 6 November 2013, Mr Richardson wrote to Mr Furneaux, responding to his 8 October 2013 letter to Dr Devanesen. 15 Mr Richardson accepted the errors in the Respondent’s table identified by Mr Furneaux’s 8 October 2013 letter and included an updated version of the Respondent’s table. The letter requested that the Applicant attend a meeting with himself and Ms Pimm to provide the Applicant with an opportunity to address the allegations, stating that a meeting had been scheduled for 26 November 2013 for this purpose. The letter also stated that if the Applicant was unable or unwilling to attend the meeting, the Respondent required a full written response to the allegations by 26 November 2013, which the Respondent would consider before making a decision about disciplinary action, if any.
[14] On 20 November 2013, Mr Furneaux wrote to Ms Holian requesting the updated Respondent’s table which had not been attached to the 6 November 2013 letter of Mr Richardson and stating that the Respondent’s correspondence to that point had not articulated the allegations against the Applicant in a clear and comprehensive manner and asking that that be done in a timely manner. 16 Mr Furneaux’s letter stated that the 26 November 2013 meeting cannot occur until that was done and documents previously requested by him but denied by the Respondent were provided.
[15] On 22 November 2013, Ms Holian wrote to Mr Furneaux, providing the updated Respondent’s table and notes of a meeting and time sheets as requested by him, extending the 26 November 2013 meeting date to 2 December 2013 and requiring a full written response to the allegations from the Applicant by 2 December 2013 if she was unable to or unwilling to attend the meeting. 17
[16] On 22 January 2014, Mr Anderson wrote to the Applicant advising that, based on the information before it, the Respondent had determined that the Applicant had provided false information in the time sheets she had submitted and that, as a result, she had gained a financial benefit not owing to her. It further advised that the Respondent had determined that this conduct breached the Respondent’s fraud policy and constituted serious misconduct. 18 It advised the Applicant that her employment had been terminated effective 23 January 2014.
Evidence
[17] The following witnesses provided a witness statement and gave oral evidence:
• The Applicant, Mrs Furneaux; 19
• Mr Richardson, the Respondent’s MEPACS Manager, the Manager to whom the Applicant directly reported; 20
• Ms Pimm, the Respondent’s Director Employee Relations; 21 and
• Ms Hardy-House, the Respondent’s Acting Client Services Manager (from November 2012) and Customer Services Manager (from February 2014). 22
[18] Witness statements were admitted without objection from the following persons:
• Ms C Spence, former MEPACS Sales and Marketing Manager of the Respondent, to whom the Applicant reported to until August 2012; 23 and
• Ms Raso, the Respondent’s MEPACS Operations Manager. 24
[19] The Applicant also provided a witness statement of her husband, Mr Furneaux, 25 but elected not to call him to give evidence. Mr Furneaux’s statement documented the exchange of correspondence between him, on behalf of the Applicant, and the Respondent, following her stand down on 6 September 2013 and contained attachments. Each of the documents attached to Mr Furneaux’s statements was in evidence as an attachment to either or both of the statements of Ms Pimm and Mr Richardson,26 save for four documents exchanged after the termination on 22 January 2014: attachments PF-13 to PF-16 to the statement. The witness statement was admitted on the basis that there was no real issue as to the content.27
Submissions
The Applicant
[20] The Applicant submitted that she was unfairly dismissed on the basis that there was no valid reason for the termination and it was an unreasonable decision and as a consequence it was also harsh and unreasonable.
[21] The Applicant also submitted that she was dismissed on the basis that the Respondent was satisfied that she had provided false information in her time sheets and that as a result of this false information she had attained a financial benefit, determining that her conduct breached the Respondent’s fraud policy and was serious misconduct.
[22] The Applicant submitted that the reason for her dismissal cannot be seen as sound, defensible, or well founded 28 for the following reasons:
• The allegations put against her in the 6 September 2013 letter stated that “You falsified your time sheets and stated that you were working when you were at home sick” requires satisfaction that the Applicant had dishonestly and falsely completed her time sheets with the intention of obtaining the financial benefit. The Applicant submitted that the meaning of fraud in the Respondent’s policies is also the meaning of fraud in law. 29
• There is no dispute that the Applicant did not accurately record her time or that her time sheets did not always reflect the hours that she worked. The Applicantopenly accepted this proposition in her discussion with Ms Hardy-House and Mr Robertson in late August and early September 2013, when the issue of time sheets first arose, and in the 8 October 2013 letter on her behalf to Dr Devanesen, reflecting an honest and reasonable belief on the Applicant’s part based on a discussion with her former Manager, Ms Spence.
• There is no evidence that the Applicant had an intention of obtaining the financial benefit. She was fortified in her practice of completing her time sheets on an ordinary hourly basis by the fact that her time sheets always clearly reflected that her days of work changed frequently and the signing off of her time sheets as correct by Mr Richardson or Mr P Watts – Business Support Manager.
• The Applicant was well regarded as an employee, and her willingness to adjust her hours was valued by the Respondent. She was, according to the performance review an exemplary employee.
• All these factors:
- her frankness about her time sheets;
- her understanding that the time sheets needed to be standard; and
- her understanding that her time sheets were signed from time to time in the knowledge by those persons who signed them that they did not reflect her actual hours;
• worked to indicate that the Applicant’s motive and intention in completing her time sheets in that way was not done with any intent to deceive but an intent to facilitate the good service from the sales department at MEPACS.
• The Respondent’s investigator, Mr Richardson, took the view that the reason that the Applicant was stunned and surprised by the question of the time sheets being raised was because she was caught out. He never waivered from that view at any stage during the course of the investigation. Mr Richardson never really understood the meaning of a fair investigation. He never properly considered that the Applicant might have been telling the truth about the basis on which she completed her time sheets.
• Ms Pimm gave evidence she was not aware that Mr Richardson had been given a frank explanation by the Applicant prior to the date of 5 September 2013 when he came to speak to her. She gave evidence that at the conclusion of the investigation, she had no knowledge of the explanations provided by the Applicant, back in August and September 2013: no information about those conversations; no evidence of the Applicant’s good standing; and no evidence of the Applicant’s performance review was included in the papers before her.
[23] The Applicant submitted that in Briginshaw v Briginshaw, 30 one of the critical matters for the satisfaction that a person must achieve before making a finding as serious as fraud is that they must not be provided with inexact proofs. In this case, the so called proofs of Ms Furneaux’s dishonest intent or falsification for her financial benefit was comprised of a series of two tables with a date period from 12 July 2012 to 13 August 2013. The Applicant did not understand the tables. The Respondent kept asking for a response but they never really specified what it was that the Applicant had to.
[24] The Applicant submitted the first table provided, on 17 September 2013, contained errors and failed to recognise that the Applicant did work out of the office sometimes, that some of the time she was doing other things at the office. To make an allegation such as dishonesty, falsification of time sheets for the obtaining of financial benefit, the allegations needed to be more specific. When the table was produced in the hearing, it remained having some of the same errors which could easily have been discovered by the Respondent had they properly investigated their own data.
[25] The Applicant also submitted that Mr Richardson did not conduct a proper investigation of this matter, and did not give proper consideration to the Applicant’s explanation, because the only logical explanation for the fact that she prepared contradictory time sheets about when she did and did not work on some occasions was that she did it innocently. Mr Richardson was prejudiced in undertaking his investigation.
[26] In respect of mitigation of loss, a consideration which arises in respect of remedy, the Applicant submitted that she had certificates confirming her to be unfit for work. Those certificates were not challenged in any way by the Respondent. There is no evidence that the Applicant had been doing anything other than trying to recover from her illness. The Applicant is unfit to work currently, she has an inability to mitigate for loss of her employment at Peninsula Health, and she submitted that that inability should not be confused with failure to mitigate her loss.
[27] The Applicant wishes to be reinstated at MEPACS in the position of the sales representative. She could move on and she anticipated that everyone could move on.
[28] The Applicant concluded that the allegation made against her was really a very serious allegation and could have been handled by way of a conversation about the manner in which she completed her time sheets back in the week between 29 August 2013 and 6 September 2013, as the Applicant sought to do through her 29 August 2013 email to Mr Richardson. Instead, the question of the completion of her time sheets became an extremely serious matter, involving an allegation of such seriousness as to require a very careful analysis by the Respondent of the allegations. This was never done.
[29] The Applicant sought a finding that the termination was harsh, unjust and unreasonable and that she was unfairly dismissed. An order was sought that the Respondent reinstate her employment with the Respondent’s MEPACS sales department, with full entitlements back to 6 September 2013, pay the Applicant a sum of compensation and make a written apology, acknowledging that the Applicant was not guilty of misconduct.
The Respondent
[30] The Respondent submitted that the focus on the matter should be a valid reason for termination found in the false recording of attendances at work on the Applicant’s time sheets and the fraudulent nature of this conduct by the Applicant: fraudulent falsification of time sheets or, at least, the unilateral switching around of her hours according to what she thought was a fair recognition of which days she should be paid for, which days she should have off.
[31] The Respondent also submitted that when the question of discrepancies in Ms Furneaux’s time sheets were raised on 6 September 2013, the Applicant should have responded “Look, there seems to have been a dreadful misunderstanding, can’t we sort this out.” or, “Look, can we go through the dates in question” and discuss the discrepancies. Instead, the Applicant’s response was immediately to go on the attack, with “Well, I go above and beyond this place, I cannot believe this”, which was inconsistent with the Respondent’s policies and practices.
[32] On this basis, the Respondent submitted that the Applicant was uncooperative throughout the Respondent’s investigation, proceeding to frustrate the process with all sorts of requests for obviously irrelevant documents. The Respondent submitted that if there was a simple explanation of the type that Ms Furneaux would have the Fair Work Commission (the Commission) accept, then she should have proffered her explanation at the time.
[33] The Respondent submitted that the case law is clear on the requirement for a valid reason: the employer must show that there was a valid reason for the termination, that it need not precisely be the same reason as the employer acted upon at the time. 31
[34] The Respondent also submitted that it was only on the first day of the hearing that it was able to hear a response from the Applicant on the issues concerning the various discrepancies in her time sheets. With the assistance of that information the issues in dispute effectively change from a failure of the Applicant to provide any explanation to the adequacy of the explanations proffered.
[35] The Respondent further submitted that it was apparent that the time sheets that were submitted by the Applicant were not accurate. They did not state the days that the Applicant had actually worked. The Applicant put in time sheets claiming to be paid for days of work when she was not there. The Respondent submitted that this was the dishonesty that the employer had every reason to express concern about and that the Applicant did nothing to dispel in the course of the investigation that followed.
[36] The Respondent submitted that the Applicant sought to justify the inaccuracies in the time sheets on the basis of an understanding she claimed to have with her previous Manager, Ms Spence that she was entitled to put in time sheets which reflected something other than the hours that she had worked. The Respondent understood the evidence that was given about what Ms Spence had apparently said, it was to the effect of, “You just put down the same hours every day and you don’t put down, effectively, the finishing time as at - you know, a different time every day - you put down the same standard hours”. The Respondent submitted that it provides no mandate to put down days that were not worked and claim payment for those days from the employer as if they were worked: the practice that the Applicant has adopted.
[37] The Respondent submitted that whilst the Applicant provided an explanation, in the witness box, of what she was doing on each of those days that were marked in yellow on the Respondent’s table, they do not explain the discrepancies.
[38] The Respondent rejected criticism of the investigation process, and submitted that to the extent, that there were any deficiencies in the degree of proof involved in this case, the deficiencies were largely because of the Applicant’s failure to cooperate and failure to provide a response to the issues that were put to her through the letters that were sent. The Respondent submitted that its tables were a precise and clear statement of the days on which the Applicant was expected to furnish an explanation as to what she was doing, an entirely reasonable request from the employer. Discrepancies have been picked up, the discrepancies had no apparent explanation and Ms Furneaux was asked to provide details. The Respondent submitted that its allegations were set out clearly to the Applicant in its letter of 17 September 2013:
“I note Ms Furneaux was suspended due to allegations that she improperly claimed remuneration based on work hours that were not, in fact, worked.”
[39] The Respondent submitted that the Applicant’s position that discrepancies were explained by the taking of time off in lieu provided no sufficient reason for the Applicant’s conduct and the conduct provides a valid reason for termination in light of:
• The existence of a system for the taking of time in lieu which was not utilised by the Applicant;
• Even in the absence of a formal mechanism available for the taking of time in lieu, it is not for an employee to simply lodge claims for the payment for days not worked, and then justify it after the event on the basis of some informal time in lieu system;
• Even if the Applicant thought the time in lieu practices were entirely legitimate and understandable and that she was entitled to be paid for a day because she had been working hard, it was necessary to convince her Manager of the merits of that claim; and
• The Applicant effectively refused to cooperate with the investigation and cannot profit from that failure to cooperate. Even if there was any substance to the suggestion that the Applicant’s time in lieu recording arrangements had been misunderstood and were the reason for the discrepancies, she should have raised that at the time of the allegations being made.
[40] The Respondent also submitted that the failure of the Applicant to engage in its investigation and, in particular to address each of the discrepancies in the time records identified in its tables, in itself constitutes a valid reason for the termination of the Applicant’s employment. 32
[41] The Respondent submitted that the proposition that Ms Spence authorised the Applicant to claim time off in lieu was not made out by the evidence. The honest and reasonable belief argument was not made out. The time in lieu arrangements, the fact that the Applicant was knowingly claiming the days when she was not at work, were not something that had been explained or justified and there was no material that would support a conclusion that the Applicant was entitled to take those days off as she did, or to claim the extra payment as she did.
[42] The Respondent concluded that there was a valid reason for the termination. It was properly raised with the Applicant before termination. There was an attempt by the Respondent to fully investigate the issues involved that was met with a lack of cooperation from the Applicant. The Respondent at all times provided an opportunity for the Applicant to respond in a meeting or in writing through an extensive process detailed in the termination letter dated 22 January 2014.
[43] The Respondent submitted that it reached the point where, “Well, it’s been over four months since the allegations were made and it’s been an uphill struggle to get anything meaningful out of Ms Furneaux”. It submitted that there had not been an explanation proffered and, the words “time in lieu” which figure prominently in the explanations proffered the current proceedings did not feature at all in the correspondence and explanations that had been given by the Applicant before that date. The Respondent submitted that it made the unsurprising decision to terminate on 22 January 2014 because there was a valid reason for the termination, and the termination of employment was not harsh, unjust or unreasonable
[44] The Respondent also submitted that if the Applicant was found to have been unfairly dismissed, the relationship of trust and confidence in this matter cannot be restored and the Applicant should not be reinstated.
[45] It submitted that reinstatement would be inappropriate in circumstances where:
• There was no evidence of any vacancy for the Applicant to rejoin the Respondent’s business;
• The Applicant had shown no contrition and had attempted to blame everyone else for the fate that had befallen her; blaming Ms Hardy-House as having an ulterior motive to have the Applicant removed from employment;
• It was an “extraordinary claim to make but one which does nothing to heal the rifts in the employment relationship and makes it even harder for a restoration of trust and confidence”; 33
• The reasons for the termination in this case make it very difficult for the Applicant to go back into the workplace. The Applicant cannot “simply go back in and be expected to fill out time sheets with the degree of trust that’s reposed in employees in those circumstances; to accurately state the hours that they’ve worked and receive payment only for days for which they’re entitled”; 34 and
• The Applicant’s conduct has “cost her the trust and confidence that the employer had formally reposed and disentitled her to her position”. 35 The relationship has suffered significant damage.
[46] The Respondent submitted that if the Applicant is awarded compensation instead, then there are two factors that must be taken into account:
• The Applicant has made no attempts whatsoever to mitigate her loss; a failure to mitigate that loss is what the legislation directs attention to. There has been no attempt to find any alternative employment. If the Applicant has “been too unwell to work” then, there is “no basis for saying she should receive compensation” 36 from the Respondent for the period in which she has been unable to work.
• A reduction in the payments on account of the Applicant’s misconduct should be made, having regard to s.392(3) of the Act. The Applicant is the “author of her own destiny in the losses that have been suffered”. 37 Any compensation which is payable should be reduced on account of the Applicant “having brought this situation upon herself and having, effectively, caused the loss that she now complains of as having been brought about”.38
Consideration
Was the Applicant unfairly dismissed?
[47] The application is brought on the basis that the Applicant was unfairly dismissed. There is no issue between the parties that the Applicant is protected from unfair dismissal (s.382 of the Act). I find that the Applicant is protected from unfair dismissal. There is no issue between the parties that the Applicant had been dismissed (s.385(a) of the Act), no issue arises in respect of the Small Business Fair Dismissal Code (s.385(c)) and the dismissal was not a case of genuine redundancy (s.385(d)). I make a finding to that effect. Accordingly, the remaining matter for determination is determining whether the Applicant was unfairly dismissed and if the dismissal was harsh, unjust or unreasonable (s.385(b)).
[48] In determining whether the dismissal was harsh, unjust or unreasonable, I am obliged to take into account the matters in s.387 of the Act:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Was a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[49] There is no suggestion that any matter related to the Applicant’s capacity or performance provides a valid reason for the termination of her employment. Mr Richardson accepted that the Applicant was a good sales person and she was regarded well because she was prepared to be flexible in her hours and in her days of work. 39 He accepted that the Applicant’s June 2012 Performance Review, undertaken by Ms Spence contains a glowing appraisal.40
[50] The Respondent’s case as to a valid reason for the termination was based entirely on the Applicant’s conduct in relation to the completion of her time sheets in a manner which did not reflect her actual attendance at work and her conduct in relation to the Respondent’s investigation of the time sheets issue. The time sheets issue raised conduct which constituted a valid reason for termination, at two levels:
• The fraudulent falsification of time sheets, in contravention of the Respondent’s fraud policy; and
• Even if not fraudulent, the unilateral switching around of hours by the Applicant according to what she thought is a fair recognition of which days she should be paid for, contrary to the proper processes of the Respondent for recording attendance on time sheets.
[51] The Respondent also submitted that the conduct of the Applicant in relation to its investigation of the time sheets constitutes a valid reason for the termination of the Applicant’s employment. 41
[52] I first consider the Applicant’s conduct in relation to the time sheets. I do so against the background that there is no contest to the proposition that the days and times of work recorded by the Applicant on her time sheets do not accurately reflect the days and hours that the Applicant actually worked. So much so it was conceded by the Applicant in opening her case 42 and the evidence of the Applicant confirms that to be the case.
[53] The issue for determination in relation to the time sheets is whether the conduct of the Applicant in completing her time sheets in a manner which did not accurately reflect her working days and times constituted fraud and, even if not fraudulent, whether the false recording of attendance on time sheets provides a valid reason for the termination of the Applicant’s employment. I deal with those propositions in turn.
Fraudulent behaviour
[54] A finding that the Applicant’s conduct in not recording her attendance on her time sheets to record her actual days and times of work was fraudulent, requires a finding that the Applicant’s conduct was intended to derive personal benefit - specifically payment to which she was not entitled.
[55] The Respondent has a fraud policy. 43 It was not suggested that the Applicant was not aware of the policy and an employee should, in any case, be aware that the falsification of time sheets for the purpose of deriving personal benefit is fraudulent conduct which constitutes misconduct.
[56] The fraud policy identifies “falsely recording work attendance and time” as an example of fraudulent behaviour. Fraud is defined as:
“Dishonest activity causing actual or potential financial loss to any person or entity, including theft of monies or other property by employees or persons external to the entity where deception is used, which includes the deliberate falsification, concealment, destruction or use of falsified documentation used or intended for use for a normal business purpose or the improper use of information or position for personal financial benefit.”
[57] Consistent with the policy and the authorities relied on by the Applicant in relation to legal concept of fraud, a finding of fraudulent conduct against the Applicant requires evidence of (and a finding of) an intention or purpose of the Applicant’s conduct in completing her time sheets to obtain personal financial benefit to which the Applicant was not entitled.
[58] In order to determine whether the Applicant’s conduct in relation to her time sheets involved an intention of obtaining a personal benefit – payment in respect of work not undertaken by her – it is necessary to consider the evidence in relation to the time sheet entries which do not accurately record her attendance at work.
[59] The starting point to such a consideration is the Respondent’s table. It was identified, by colour coding:
• Days on which the Applicant had completed her time sheet as worked but there was no record of logging in to Q-Master;
• Days on which the Applicant had not indicated on her time sheets that she had worked but the IT (Q-Master) records showed her as working; and
• Days on which the Applicant had completed her time sheet as worked but she had called in sick.
[60] The Respondent’s table appeared in three forms:
1. A table attached to a 17 September 2013 letter from Mr Richardson to Mr Furneaux; 44
2. A table intended to be attached to a 6 November 2013 letter from Mr Richardson to Mr Furneaux, 45 which was not attached and subsequently provided attached to a 22 November 2013 letter from Ms Holian to Mr Furneaux.46 The table was amended from the earlier version to record the Applicant as having worked on Saturday, 6 October 2012 and Monday, 26 August 2013 and having been on leave (rather than having worked) during the week commencing 15 October 2012, following the acceptance by Mr Richardson of the errors in the first table identified by Mr Furneaux in a 8 October 2013 letter to Dr Devanesen;47 and
3. A table tendered in the proceedings by the Respondent, 48 which appears to be in the form of the first table provided to Mr Furneaux on 17 September 2013.
[61] The tables show the three categories of discrepancies between the Applicant’s time sheets and other records (principally Q-Master records):
A. Days on which the Applicant had completed her time sheet as worked but there was no record of logging in to Q-Master:
2012: Tuesday, 30 October;
Friday, 9 November;
Monday, 3 December; and
Monday, 17 December.
2103: Friday, 1 March;
Tuesday, 26 March;
Friday, 12 April;
Thursday, 9 May;
Friday, 5 July;
Tuesday, 20 August; and
Wednesday, 21 August.
B. Days on which the Applicant had not indicated on her time sheets that she had worked but the IT (Q-Master) records or Mr Richardson’s concession in respect of Saturday 6 October 2012 showed her as working:
2012: Saturday 6 October;
2013 Friday, 19 April;
Friday, 14 June;
Tuesday, 9 July;
Friday, 9 August; and
Friday, 23 August.
C. Days on which the Applicant had completed her time sheet as worked but she had called in sick:
2013 Friday, 31 May;
Tuesday, 18 June;
Tuesday, 2 July; and
Wednesday, 3 July 2013.
[62] Each of these days involved an irregularity in the time sheets completed by the Applicant in the sense that the information recorded by her in the time sheets did not reflect actual circumstances in that either the time sheets indicated that she had worked when Q-Master did not record her attendance (and had called in sick in respect of the days in Category C above) or she had worked, as recorded by Q-Master or acknowledged by Mr Richardson in respect of Saturday, 6 October 2012 but did not record herself as having worked in her time sheets.
[63] Documentary evidence is available in relation to the days identified as involving incorrect recording of time sheets in the Respondent’s table. The documentary evidence is found in the Q-Master records, 49 Access records,50 records of advice of the Applicant’s absence due to illness51 and the 2013 diary of the Applicant.52 Some limited extracts of the Applicant’s 2012 diary were also in evidence.53 Further evidence is found in the evidence of the Applicant and Mr Richardson.
[64] The Access records are a computer based record of the first contact visits with potential clients by the Applicant and/or sales colleague, Ms Tomlinson. They provide evidence of work activity off site which would not be reflected in Q-Master records.
[65] There are two manifestations of the 2013 diary of the Applicant: the diary as it existed at the time of the hearing 54 and the diary as it stood at 5 September 2013,55 when Mr Richardson made a photocopy of it showing the period 8 April to 1 September 2013.56 It is clear that the diary was augmented by the Applicant at some point or points between 5 September 2013 and the date of the hearings. Some limited augmentation of the diary during that period, in blue ink, is acknowledged by the Applicant.57 They are not material to this decision. I do not accept the evidence of the Applicant that the additional entries, other than those in blue ink, were contemporaneously made.58 That evidence is disclosed to be incorrect by a comparison of Exhibits R9 (copy of diary extracts) and FWC 4 (diary extracts of work/personal diary), which shows augmentation of the diary entries after 5 September 2013, in the same ink as the original writing. There is no evidence in Exhibit R9 of deletion of the additional entries found in Exhibit F5 (diary extracts of work/personal diary). The Applicant cannot recall or explain the additions. Most of the augmentations give more detail to the entries and suggest that the augmentation by the Applicant occurred either in assessing the Respondent’s table during the Respondent’s investigation or in the course of the preparation for the proceedings in the Commission. Whatever the case, I find that the augmentations occurred after 5 September 2013 and accordingly, the augmentations are not contemporaneous records made at the relevant dates but later recordings of events on the relevant dates made by the Applicant from her memory at some point after 5 September 2013.
[66] A work diary of Ms Tomlinson, which was relied on by Mr Richardson in preparing the Respondent’s tables, 59 was not available in evidence, having been discarded by her upon ceasing her sales position.60
[67] In assessing the evidence in relation to the three categories of discrepancies in the Respondent’s tables, I will deal with, in turn Category C (sick days) and category A (on time sheet but not Q-Master) and Category B (on Q-Master but not time sheets).
[68] There was no intention to defraud on the part of the Applicant in respect of Friday, 31 May 2013, Tuesday, 2 July 2013 and Wednesday, 3 July 2013. On each occasion the Applicant had sent a message to Mr Richardson to advise him that she was unwell. 61 There is no basis for finding fraudulent behaviour by the Applicant in respect of these days, which was the basis of the allegation initially put against the Applicant on 6 September 201362 and repeated on 27 November 2013.63 The Applicant disclosed her absence from work on the basis of ill health to Mr Richardson on each day.
[69] In respect of Tuesday, 18 June 2013 the Applicant was not at work. Equally she was not on sick leave, although she rang Mr Richardson late on that day to advise that she was not feeling well and may not attend work the next day. (In fact she was absent sick on the 19–21 July 2013 having sent a text message to Mr Richardson to advise him of her absence on the 19 July 2013.) The Applicant’s diary records a “day in lieu”. Tuesday, 18 June 2013 should be, and is, considered together with the other days in category A.
[70] I deal next with the evidence in relation to each day on the Respondent’s table on which the Applicant had completed her time sheet as worked but there was a record of logging into Q-Master and the additional day of 18 June 2013.
Tuesday, 30 October 2012
[71] The Applicant’s evidence 64 and the Access records indicate that the Applicant was working “on the road” at Cranbourne on 30 October 2012. I am satisfied that the Applicant worked at Cranbourne on 30 October 2012, explaining the absence of a Q-Master record. The time sheet record of the Applicant working on 30 October 2012 is accurate.
Friday, 9 November 2012
[72] The Applicant’s time sheet shows her working on 9 November 2012 but there is no Q-Master record of her working. The Applicant’s evidence 65 and her contemporaneous diary notes indicate that she had a day off on 9 November 2012 but would work five days the following week but claim only four days. The evidence suggests that this occurred. The Applicant’s evidence is that on Friday, 16 November 2012, she worked off site in Cranbourne (the Probus Club)66 and the Access records indicate that the Applicant made visits to potential client’s in the Seaford/Cranbourne area, including the Probus Club on that date. 16 November 2012 was not claimed on the Applicant’s time sheet. The evidence supports a finding that, whilst the time sheets do not reflect the days on which the Applicant worked during the relevant pay fortnight, she worked the total number of days recorded, swapping 9 and 16 November 2012 and working offsite on the 16 November 2012.
Monday, 3 December 2012
[73] The Applicant’s time sheets show that she worked on 3 December 2012 but there is no Q-Master record supporting that proposition. There is no diary entry on that date. The Applicant gave evidence that she worked on that date 67 but when asked how she knew that provided no basis for her belief, instead contending that she did not need to be on Q-Master whilst at work.68 The Applicant was logged into Q-Master on each day she worked other than when working off site and on days which there was specific evidence of her activities. I do not accept, without specific explanation or evidence that the Applicant worked on 3 December 2012 without logging onto Q-Master. I find that the time sheet incorrectly claimed that she had worked on 3 December 2012 and there was no evidence that she did so. There was no evidence of additional time worked warranting time off on 3 December 2012.
Monday, 17 December 2012
[74] The Applicant’s time sheets record her as working on 17 December 2012. There is no record of the Applicant having logged on to Q-Master. The Applicant’s diary records “rostered day off”, which usually designates a day on which the Applicant did not work or record attendance on her time sheets. The Applicant’s oral evidence did not address 17 December 2012. I find that the time sheet incorrectly claimed that she had worked on 17 December 2012 and there was no evidence that she did so. There was no evidence of additional time worked warranting time off on 17 December 2012.
Friday, 1 March 2013
[75] The Applicant’s time sheets record her as working on 1 March 2013. There was no record of the Applicant having logged on to Q-Master. The Applicant’s diary shows “rostered day off” crossed out and the entry “(day owing) T.I.L”. The Applicant’s oral evidence simply confirmed the diary entry 69 and provided no information in relation to additional work warranting time off on 1 March 2013. The Applicant’s evidence in relation to this date was that she recorded time accrued and taken in a notebook,70 kept at work where she recorded time accrued71 and taken which remained at work when her employment was terminated.72 The Respondent did not locate the notebook.73 The Applicant accepts that she did not work on 1 March 2013, having taken time off in lieu of other unidentified time worked. The Applicant’s time sheet incorrectly claimed that she had worked on 1 March 2013. There is no evidence of additional time worked warranting time off on 1 March 2013.
Tuesday, 26 March 2013
[76] The Applicant’s time sheets record her as working on 26 March 2013. There was no record of the Applicant having logged on to Q-Master. The Applicant’s diary shows “Appeal Court Hearing (Day in Lieu) Renee worked full day”. The Applicant’s oral evidence simply confirmed the diary entry 74 and provided no information as when the additional work warranting time off on 26 March 2013 occurred. Nothing in the Applicant’s diary identified such additional time worked referenced to time off on 26 March 2013. The diary entry suggests that the day in lieu was taken in connection with the Court Hearing. The Applicant’s time sheet incorrectly claimed that she had worked on 1 March 2013.
Friday, 12 April 2013
[77] The Applicant’s time sheets record her as working on 12 April 2013. There was no record of the Applicant having logged on to Q-Master. The Applicant’s diary shows “Rostered day off” for 12 April 2013. It also shows in the 9 April 2013 entry “Mandy worked full day”, with “Rostered day off” having been added and crossed out and an additional notation “Change - need to work/train” added after 5 September 2013. The Applicant’s evidence was that she switched her day off from Tuesday (9th) to Friday (12th) because of late advice that Mandy (Ms M Hoff, MEPACS colleague) was coming in to be trained and the Applicant needed to devote time to that. 75 The Applicant’s time sheets do not record her as working on 9 April 2013 and she is not recorded as having logged on to Q-Master on that day. The Applicant gave evidence that she did have to be on the computer when training on 9 April 2013,76 although the Applicant was logged on to Q-Master on 10 and 11 April 2013, days on which Renee (MEPACS colleague) worked in the Applicant’s area.77 The Applicant also gave general evidence as to circumstances (when training, packing materials or replenishing stock) in which she may not log onto Q-Master after logging on to her computer.78
[78] Mr Richardson gave evidence that he knew whether the Applicant was logged on when training Mandy because he asked Mandy. 79 His evidence does not disclose whether the training was undertaken on 9 April 2013 or what Mandy’s answer about the log on was. The answer must have been either that the Applicant was not logged on during the training on 9 April 2013 or on another day, or the Applicant was logged on but the training did not take place on 9 April 2013. The Applicant’s explanation of a swap of 9 April and 12 April 2013, involving the training of Mandy and not logging onto Q-Master while training, first arose in the evidence of the Applicant in the day before Mr Richardson gave his evidence. I infer that Mr Richardson made his enquiries of Mandy only then, after the explanation of the 9 April and 12 April 2013 swap was made known to the Respondent. Evidence from Mandy as to whether or not she was trained by the Applicant on 9 April 2013 or rosters disclosing whether or not Mandy worked in the sales department on 9 April 2013 would have supported or challenged the Applicant’s evidence. I conclude, from the absence of such evidence after the Respondent was put on notice of the Applicant’s explanation of a swap of 9 and 12 April 2013 and the relevance of the rosters,80 that the evidence would not have assisted the Respondent.
[79] I find that the Applicant worked on 9 April 2013 and thereby worked the total number of days recorded on her time sheet for that fortnight, swapping 9 and 12 April 2013.
Thursday, 9 May 2013
[80] The Applicant’s time sheet recorded her as working on 9 May 2013. There is no record of the Applicant having logged on to Q-Master. The Applicant’s diary contains an entry of “day in lieu - Sale”. The Applicant’s evidence is that 9 May 2013 was a day in lieu in respect of extraordinary hours worked in relation to the Sale expo on 1 May 2013. 81 Her evidence is that she discussed having a day in lieu for Sale with Mr Richardson.82 In respect of 1 May 2013, the Applicant’s diary records “Dynamic Duo - Sale Expo” and a 6.00 a.m. commencement time. The Access records83 record the Applicant and Ms Tomlinson as attending the Sale expo on 1 May 2013. Mr Richardson accepted that the Applicant did work at Sale on 1 May 2013.84 The Applicant accepts that she did not work on 9 May 2013, having taken time off in lieu for additional time worked on 1 May 2013 in Sale. The Applicant’s time sheet incorrectly claimed that she had worked on 9 May 2013. I find that the Applicant took time off taken in lieu for additional time worked on 1 May 2013 in Sale.
Tuesday, 18 June 2013
[81] 18 June 2013 was recorded on the Respondent’s tables as a day on which the Applicant was not recorded at work on Q-Master but was home on sick leave. It is now accepted by both the Applicant and the Respondent that the Applicant was not on sick leave. The Applicant’s time sheet recorded her as working on 18 June 2013. There is no record of the Applicant having logged on to Q-Master. The Applicant’s diary records “Day in lieu”. The Access records indicate that the Applicant texted Mr Richardson late on the day to advise that she was feeling unwell and may be absent due to sickness on the following day. It is unlikely that she would have texted if working in the office. The Applicant’s evidence did no more than confirm the diary entry 85 and provided no information as when the additional work warranting time off on 18 June 2013 occurred. The Applicant’s time sheet incorrectly claimed that she had worked on 18 June 2013.
Friday, 5 July 2013
[82] The Applicant’s time sheet recorded her as working on 5 July 2013. There is no record of the Applicant having logged on to Q-Master. The Applicant’s diary, on 5 September 2013 showed “not worked owe”. At some time after 5 September 2013, the Applicant added text so that “owe” read “owed as DINL”. The Applicant’s evidence confirmed the post 5 September 2013 diary note 86 and provided no information as to when the additional work warranting time off on 5 July 2013 occurred.
[83] There was, however, specific evidence of the Applicant 87 and Mr Richardson88 in relation to the week of Monday, 1 July to Friday, 5 July 2013. In that week the time sheets record the Applicant as having attended work on all days other than Thursday, 4 July 2013. Text messages from the Applicant to Mr Richardson record advice by the Applicant of absence due to illness on Tuesday, 2 and Wednesday, 3 July 2013.89 On 2 July 2013, the diary of the Applicant records “not worked - sick made up for working 9/4”. The notation “sick” was not in the diary on 5 September 2013. On 3 July 2013, the diary of the Applicant records “not worked owe”.
[84] The Applicant gave evidence in relation to 2 and 3 July 2013 that she had a conversation with Mr Richardson in which she asked if she could make up those days and did so on 9 July 2013 and 9 August 2013, 90 an arrangement agreed to by Mr Richardson.91 Mr Richardson’s evidence was that he did not have a conversation with the Applicant about 2 and 3 July 2013 but did have a conversation with her on 8 July 2013 about 5 July 2013 (on which the Applicant did not work)92 and accepted that the Applicant did work on 9 July 2013 (and 23 August 2013).93
[85] The Applicant’s evidence and diary entries concerning making up days for 2 and 3 July 2013 is problematic. There is no reason why the days would be made up at all given the Applicant was absent on sick leave due to illness, having advised Mr Richardson of her absence. I find that Mr Richardson’s evidence in this regard is more probable – that a discussion occurred between him and the Applicant on 8 July 2013 about her absence on 5 July 2013, which was made up for by working on 9 July 2013, a day on which the Applicant’s time sheet does not record her as working but Q-Master records a log-in.
[86] I find that the Applicant did not work on Friday, 5 July 2013 in accordance with her time sheet but did work on Tuesday, 9 July 2013 to make up for the absence. Whilst the time sheet was inaccurate, the Applicant did work the number of days (albeit different days) indicated on the time sheet in that pay fortnight, save for her absence on sick leave on 2 and 3 July 2013.
Tuesday, 20 August 2013 and Wednesday, 21 August 2013
[87] The Applicant recorded that she worked on 20 and 21 August 2013 on her time sheets. The Q-Master records do not record a log-in by the Applicant on those days. On 20 August 2013, the Applicants diary shows “Elle in” and “rostered day off” as at 5 September 2013, with later additions to read “Elle in for this week” and “rostered day off”. On 21 August 2013, the Applicant’s diary shows “Elle in” and “(not worked)” as at 5 September 2013, with later additions to read “Elle in” and “(not worked) working 5 days next week”. The Applicant’s diary, as at 5 September 2013, recorded “work a full week” on Monday, 26 August 2013, the first of “5 days next week”. Q-Master records indicate that the Applicant worked on Friday, 23 August 2013 a date on which the Applicant did not record her attendance on her time sheet. 94 The Applicant did not record an attendance on her time sheet for Friday, 30 August 2013 one of the “5 days next week”.
[88] The Applicant’s evidence was that she did not work on 20 and 21 August 2013 because of a last minute operational requirements 95 and she took those days off because she was required to work a full week the following week (commencing 26 August 2013) because Ms Tomlinson was going to be absent and Ms Hoff was coming in, so that she was working three days in the week commencing 19 August 2013 and five days the following week.96 Her evidence is that she worked on 23 August 201397 but did not work on 30 August 2013 (the fifth day of the next week) due to her dissatisfaction with the challenge to and alteration of her time sheet for the pay fortnight commencing 26 August 2013 by Ms Hardy-House.98 The Applicant had entered “not worked owed a day due to altered timesheet” in her diary for the date 30 August 2013.
[89] The evidence of Ms Hardy-House 99 was that when she asked the Applicant about incorrect recordings of her attendance on 20 and 21 August 2013, “[t]he Applicant told me that she normally worked four days per week, but that she had been away on the Tuesday and Wednesday [20 and 21 August 2013] and had therefore only worked three days that week. She said, however, that she would work five days the following week but would record only four days for that week on her timesheet”.100 This evidence is broadly consistent with that of the Applicant’s account of the discussion101 insofar as it involved an explanation of the swapping of days due to operational requirements and is consistent with the Applicant’s oral evidence.
[90] I find that the Applicant had completed her time sheets for the week commencing 19 August 2013 incorrectly but that the Applicant had intended a swap of the days of 23 August and 30 August 2013. The Applicant did not in fact work on 30 August 2013 as a result of her dissatisfaction as to the alteration of her time sheets by Ms Hardy-House. Whilst reflective of the incorrect completion of her time sheets and the Applicant’s self managed allocation of working days, the circumstances around 20 and 21 August 2013 dates do not indicate an intention to defraud the Respondent.
[91] The final set of days identified in the Respondent’s table are those on which the Applicant had not indicated on her time sheets that she had worked but the IT (Q-Master) records or Mr Richardson’s concession in respect of Saturday, 6 October 2012 showed her as working.
Saturday, 6 October 2012
[92] It is conceded by the Respondent that the Applicant worked, off site in Ballarat on Saturday, 6 October 2012. 102 The Applicant’s time sheets for that pay fortnight were not in evidence. On the basis that the Respondent’s table recorded all days on which the Applicant’s time sheets shows her to have worked, I infer from the fact that there is no recording of the Applicant working on that day in the Respondent’s tables that the Applicant’s time sheets did not show her working on that day. There was no evidence of any day being worked in lieu of 6 October 2012. There was evidence that the Applicant worked a half day on Friday, 7 December 2012 in respect of the hours in excess of a normal day in Ballarat.103 There was no evidence of any day being taken in lieu of the normal hours worked in Ballarat on 6 October 2012.
Friday, 19 April 2013
[93] The Applicant was recorded on Q-Master as having worked on 19 April 2013 but her time sheets do not record her attendance at work. The Applicant’s diary shows only a tick on that day. There is no evidence which indicates a day off work taken in respect of 19 April 2013.
Friday, 14 June 2013
[94] The Applicant was recorded on Q-Master as having worked on 14 June 2013 but her time sheets do not record her attendance at work. The Applicant’s diary for the day records “Sonya’s birthday” and “not in” with an arrow pointing to “Sonya’s birthday”. I take this to mean that Sonya was not in. There was no evidence which indicates a day off work taken in respect of 14 June 2013.
Tuesday, 9 July 2013
[95] The Applicant was recorded on Q-Master as having worked on 9 July 2013 but her time sheets do not record her attendance at work. The Applicant’s diary shows only a tick on that day. The Applicant’s diary for 9 July 2013 shows the entry “VCAT Tenant Hearing adjourned”, with an additional, after 5 September 2013 of “made up for day for 2/7”. As indicated above in respect of the entry made under 5 July 2013, the Applicant was actually on sick leave on 2 July 2013. For the reasons given in respect of the entry under 5 July 2013, above, I find that the Applicant worked on Tuesday, 9 July 2013 to make up for the absence on Friday, 5 July 2013.
Friday, 9 August 2013
[96] The Applicant was recorded on Q-Master as having worked on 9 August 2013 but her time sheets do not record her attendance at work. The Applicant’s diary entry shows “Worked 5 days claim 4 – 2 days only paid back” with an addition made, after 5 September 2013, of “made up for 3/7”. The Applicant’s evidence was that she worked on 9 August 2013 to make up for not having worked on 3 July 2013. 104 As noted under the entry under 5 July 2013 above, the Applicant’s evidence was that she worked 9 August 2013 to make up for an absence on 3 July 2013. However, as also noted under that entry above, the Applicant was absent on sick leave on 3 July 2013, having advised Mr Richardson of her absence, and there is no reason why that day would be made up at all. There was no evidence which indicates a day off work taken in respect of 9 August 2013.
Friday, 23 August 2013
[97] The Applicant is recorded on Q-Master as having worked on 23 August 2013 but her time sheets do not record her attendance at work. The Applicant’s diary for 23 August 2013 records “rostered day off” crossed out. As noted above in respect of 20 and 21 August 2013, the Applicant’s evidence was that she worked on 23 August 2013 (and intended to work on 30 August 2013) 105 because of a last minute operational requirements,106 swapping days by not working on 20 and 21 August 2013. I find that the Applicant worked on 23 August 2013 in place of 20 August 2013, which her time sheets record her as attending for work through a rearrangement of her working days to meet operational requirements. I also find that the Applicant’s time sheets did not accurately reflect her attendance for work.
[98] My findings, drawn from my assessment of the evidence above, are:
• Over the period July 2012 to September 2013 shown in the Respondent’s tables, the Applicant’s time sheets do not accurately record her attendance (or non-attendance) at work on 20 occasions. This confirms that the Applicant regularly did not accurately record the days on which she worked on her time sheets on a regular basis.
• One further occasion on which the Respondent’s tables showed her not to be working – 30 October 2012, she in fact worked at Cranbourne. Whilst the Q-Master records did not record a log on by the Applicant on the day, the Respondent’s Access records recorded that the Applicant was working off site at Cranbourne. Those records were available to Mr Richardson at the time of preparing the table but not utilised by him in doing so.
• The 20 occasions in which the Applicant’s time sheets were not an accurate reflection of the days on which she worked were:
- Three occasions on which the Applicant was on sick leave, rather than at work, having advised Mr Richardson of her absence by text message, and each occasion provides no basis to support a conclusion that the Applicant sought to obtain a financial benefit not due to her or to deceive the Respondent;
- Eleven occasions on which the Applicant recorded on her time sheets that she was at work, when she was not:
- On five of the 11 occasions (9 November 2012, 12 April, 9 May, 5 July and 20 August 2013), there is specific evidence that the days in question were taken as time in lieu for work undertaken on another occasion or swapped for non-working days to meet the operational requirements of the sales department;
- On one occasion – 21 August 2013, there is specific evidence that the Applicant intended to swap 21 August 2013 for 30 August 2013 to meet operational requirements, but did not work on 30 August 2013 due to dissatisfaction with the questioning and alteration of her time sheets by Ms Hardy-House. There is no evidence of an intention to defraud or deceive the Respondent; and
- On the remaining five of those 11 occasions (3 and 12 December 2012, 1 and 26 March 2013 and 18 June 2013) there is no evidence of a specific time in lieu or day swap arrangement.
- Six occasions on which the Applicant worked but did not record working on her time sheets on those days:
- Two of the six days worked (9 July 2013 and 23 August 2013), there is specific evidence referring the time worked to earlier days, providing evidence of swapping of days to meet operational requirements; and
- The other four days were additional time worked in lieu (work on Saturday, 6 October 2012 in Ballarat) or additional days worked (19 April 2013, 14 June 2013 and 9 August 2013) with no specific evidence of corresponding days not worked.
[99] The evidence clearly establishes that the Applicant did not accurately record the days on which she worked on numerous occasions. However, it does not support a finding that the Applicant falsely completed her time sheets with the intention or purpose of defrauding the Respondent, in order to obtain a financial benefit to which she was not entitled or with the intention of deceiving the Respondent. Rather, the evidence supports a finding, consistent with the evidence of the Applicant 107 and the position put to Ms Hardy-House by the Applicant on 26 August 2013,108 that she self managed her working days, taking time off in lieu of additional hours worked or swapping her working days to accommodate operational requirements but did not record the outcome of these arrangements on her time sheets. The immediate advice by the Applicant to Ms Hardy-House on 26 August 2013 of her practice of swapping working days and working the right number of days for the relevant period but not recording the actual days on her time sheets supports a conclusion that the Applicant was up front and did not seek to deceive the Respondent or utilise the practice to obtain a benefit of payment for days not worked.
[100] There is specific evidence from an assessment of the days identified in the Respondent’s table of the taking of time in lieu or swapping of days to meet operational requirements which is consistent with the Applicant’s evidence and reflects no financial gain sought or obtained by the Applicant. There are five days over the relevant period in which the Applicant did not work on days which the Applicant completed her time sheet as having worked for, which there is no specific evidence of a time in lieu or swap arrangement. Against that, there are also four days which the Applicant worked but did not record on her timesheet for which there is no specific evidence of a time in lieu or swap arrangement. The working of additional days by the Applicant, which were not recorded on her time sheet and for which she would not have received payment is inconsistent with the proposition that the Applicant completed her time sheets inaccurately with the purpose of obtaining additional payment. The inaccurate recording of the Applicant’s time sheets in respect of days for which there is no specific evidence of a time in lieu or swap arrangement, with a similar number of days worked and days not worked, does not provide evidence of an intention to obtain financial benefit on the part of the Applicant.
[101] I find that the inaccurate recording by the Applicant of the days on which she worked does not constitute fraudulent conduct or misconduct on the part of the Applicant on this basis.
Even if the conduct of the Applicant in relation to her time sheets was not fraudulent conduct, does her method of self managing her working arrangements provide a valid reason for termination?
[102] The Applicant completed her time sheets within a few days of them being made available, placed in the monitoring centre in a folder early in each pay fortnight by Mr Watts,109 so that they were completed in advance of the fortnight.110 The Applicant completed her time sheets on the basis of what she expected to work over the next fortnight.111 The Applicant’s evidence was that she received no training on the completion of time sheets.112 The Applicant’s evidence was that her approach was consistent with the instruction in the Respondent’s induction booklet that time sheets should be completed as soon as they are received.113 The Peninsula Health Corporate Orientation 2011 booklet114 was given to the Applicant at orientation day when she started with the Respondent115 – a slide headed Time Sheets concludes: “It is recommended that you complete your time sheet as soon as you receive it for the fortnight”.
[103] The Applicant worked four days per week but not on fixed days because she needed to be “the flexible person” in the sales department because of the fact that they only had two staff.116 Mr Richardson expected the Applicant to be at work in the office to cover for Ms Tomlinson when she was on the road or on leave.117 The Applicant’s four days were worked in accordance with operational requirements of the sales department, at the discretion of the Applicant following discussions with her colleague, Ms Tomlinson, but without the involvement of her Manager, Mr Richardson.118 Whilst the days recorded in the Applicant’s time sheets varied, the hours were consistently shown as 9.00 a.m. to 5.00 p.m., although the hours actually worked varied.119
[104] The Applicant’s evidence was that she discussed the manner of completing her time sheets with Ms Spence not long after she started work at MEPACS120 because her hours were “all over the show”.121 Ms Spence told the Applicant “[k]eep your hours exactly the same each week because payroll will have an issue with it and the other times just keep a note of your times and you take that as time in lieu”.122 The Applicant did not receive any instruction or a direction about how to complete time sheets from any other Manager after that conversation with Ms Spence.123
[105] Ms Spence’s statement rejected the Applicant’s evidence that “because her hours were irregular, I told the Applicant to take a note of any extraordinary hours she worked and authorised her to take days off in lieu at her discretion once those extraordinary hours had accrued”.124 Her evidence was, that at no point as the Applicant’s Manager, did she “authorise the Applicant to take days off in lieu at her discretion . . . it was not within my powers to authorise days off in lieu”.125 Ms Spence’s statement did not, however, dispute the Applicant’s evidence the Applicant should keep her hours exactly the same each week in her time sheets.
[106] Mr Richardson’s evidence was that prior to the meeting on 6 September 2013, he called Ms Tomlinson into his office to ascertain whether the Applicant had an arrangement with Ms Spence whereby she could record her time in her time sheets flexibly. She responded “[n]o way. Catherine used to watch her like a hawk”.126
[107] The evidence of the Applicant was not that Ms Spence authorised the Applicant to take time in lieu at her discretion, as suggested by Ms Spence’s statement. The Applicant clarified her evidence to the effect that whilst she recorded the same times in her time sheets each week and kept a note of her times, she discussed the taking of time in lieu with Ms Spence when time in lieu was taken. The Applicant accepted that Ms Spence did not allow the Applicant to manage her own time in lieu.127
[108] However, the Applicant’s earlier evidence suggested that she never had a discussion with Ms Spence about time in lieu arrangements: “we’d just note them in the diary . . . Keep track of it yourself”.128 Her evidence was that as soon as her training was over Ms Spence said keep a note “‘You don’t get paid for extra hours. It’s just take time in lieu at the moment, if that’s all right with you’ and that’s what I did”.129
[109] The evidence of Ms Spence in relation to her discussion with the Applicant about the completion of time sheets goes no further than to indicate that she did not then, or at any other time whilst managing the Applicant, authorise the Applicant to take days off in lieu at her discretion. It does not address the Applicant’s evidence that her contracted hours were 9.00 a.m. to 5.00 p.m. and she was not paid for additional hours or that any extraordinary hours worked by the Applicant were accrued as overtime (except to the extent that Ms Spence had no recollection of the Applicant ever taking time off in lieu). Ms Spence’s evidence provided no account of what was said in the discussion between her and the Applicant concerning the completion of time sheets and did not contest the Applicant’s evidence that she told the Applicant to keep her hours exactly the same each week on her time sheets. Whilst Ms Spence understood that the accrual and taking of time in lieu required approval from the MEPACS Manager, her evidence contained no suggestion that this position was conveyed by her to the Applicant or that she brought the time in lieu form to the attention of the Applicant.
[110] The Applicant’s evidence was that her contracted hours were 9.00 a.m. to 5.00 p.m. but she was not paid overtime, with any extraordinary hours worked being compensated for by time in lieu.130 The Applicant’s evidence was that she had an arrangement with Ms Spence that she would not be paid for time worked over her contracted hours and if she worked more hours, they would be compensated for by time in lieu.131 The Applicant’s evidence was that Mr Richardson “obviously was fully aware of that as well”.132
[111] The Applicant’s time sheets indicate that she was paid for additional hours (beyond 30 per week) in the pay fortnights commencing 3 December 2012, 25 February 2013 and 11 March 2013.133 The Applicant was not paid for more than 30 hours a week after mid March 2013. The only evidence in relation to this is the Applicant’s evidence that Mr Richardson tightened up the budget, advising the Applicant that she was “not allowed to get paid over 30 hours per week”.134
[112] The Applicant’s evidence was that she never had any discussion with Mr Richardson or any other Manager in relation to how time in lieu arrangements worked, other than the discussion about the completion of time sheets with Ms Spence135 and a discussion with Mr Richardson when he knew the Applicant and Ms Tomlinson were going to Ballarat on Saturday, 6 October 2012, when he said ‘“You’re going to have a long day. Just take’ - ‘and you know you just take time in lieu”’.136 The Respondent’s time in lieu arrangements were never explained to the Applicant. The Applicant took it upon herself to record days on her time sheets to claim payment for days when she did not attend work, and indicated in her own diary “as time in lieu days”.137
[113] The Applicant believed that “as long as I covered my 30 hours it was okay”: that is what she was told by Ms Spence and she has not had any discussions from any other Manager to say “nothing has changed since”.138
[114] Other than evidence in respect of Ms Spence and the evidence of a discussion involving Mr Richardson and the Applicant in relation to the Ballarat trip, there is no evidence of any Manager discussing the completion of time sheets with the Applicant or discussing time in lieu arrangements, including the time in lieu form.
[115] The time sheets completed by the Applicant were not completed as an accurate record of the days and times she worked. In each case they were certified correct by Mr Watts or Mr Richardson. Seven of the Applicant’s time sheets in evidence were certified correct by Mr Richardson.139 The time sheets reflect regular hours of work (9.00 a.m. to 5.00 p.m.), even though Mr Richardson accepted that the Applicant was flexible in her hours.140 Mr Richardson certified as correct the Applicant’s time sheet for the pay fortnight commencing 1 July 2013, despite his knowledge that she had been on sick leave, rather than worked on 1 and 2 July 2013 as the time sheets certified as correct by Mr Richardson showed.141 Mr Richardson certified as correct other time sheets for pay periods in which the Applicant had adjusted her days.142 Mr Richardson conceded that he “never had a conversation with her about adjusting days in any form”.143
[116] The Applicant’s evidence is that no Manager ever raised with her the recording on her time sheets of days other than those actually worked.144 There is no evidence to the contrary.
[117] Mr Richardson gave evidence that the taking and accrual of time in lieu was recorded on time in lieu forms which had been utilised before he commenced his employment with the Respondent in 2010.145
[118] Mr Richardson’s evidence was that the time in lieu form and its arrangements was communicated to employees usually during induction and with discussions with their Managers, the first time a Manager had asked them to work extra hours.146
[119] The Applicant’s evidence was that she was not aware of the forms. They had never been mentioned to her from the moment she started at MEPACS.147 The Applicant had been trained by Ms Spence and was not made aware of a time in lieu form by Ms Spence.148 The Applicant’s evidence was that neither she nor Sonya had completed a time in lieu form149 and neither Ms Spence nor Ms Tomlinson told her about a time in lieu form.150 Mr Richardson never told her that she needed to fill out a form in respect of time in lieu.151 Mr Richardson does not recall discussing the form with the Applicant and was not aware of whether any other Manager did.152 There is no evidence that the existence of the form or the time in lieu arrangements were communicated to the Applicant during her induction in 2011.
[120] There is no evidence that the form was brought to the attention of the Applicant at any time during her employment. The only discussions at all in evidence about time in lieu involving the Applicant were the discussions with Ms Spence about the completion of time sheets and the discussion with Mr Richardson about Ballarat. In each case the discussion of time in lieu went no further than to indicate that excess hours could be taken as time in lieu.
[121] Mr Richardson explained that the arrangements in respect of extra hours worked by employees were that the extra time could be taken either take as overtime or time in lieu, either of which required approval (signing off and recording by an employee’s direct Manager).153 Mr Richardson did not give any evidence that he had communicated these arrangements to the Applicant (nor did Ms Spence in her statement). In fact, Mr Richardson’s evidence was that the only time he said anything to the Applicant about time in lieu was when he addressed a whole group of people, including the Applicant, in the context of employees, working on the weekend at Ballarat. The extent of that discussion was to advise the employees that they could take the time worked as “overtime or time in lieu”154 and Mr Richardson believed he “would have” instructed the staff that they needed to complete a time in lieu form “usually when I spoke to people about TIL”.155 He had no recollection of doing so in the context of that discussion,156 which was the only time he said anything to the Applicant about time in lieu.
[122] The Respondent tendered time in lieu forms completed by Ms Spence and Ms Tomlinson.157
[123] The forms in relation to Ms Spence showed an extensive record of time in lieu accrued and taken over the period June 2008 to September 2011. No records were put in evidence in relation to Ms Spence in respect of the period October 2011 and August 2012, the period of time in which she managed the Applicant.158 There is no evidence that she utilised the form over that period of time.
[124] The Applicant gave evidence repeatedly of herself and Ms Tomlinson self managing time in lieu.159 The Applicant’s evidence was that she recorded her time in lieu in a notebook and that she and Ms Tomlinson worked out their time in lieu together for the betterment of the sales department.160 The Applicant never filled in a time in lieu form, nor saw Ms Tomlinson do so.161 The only time in lieu form concerning Ms Tomlinson was, a single entry on 22 November 2013,162 recording an accrual of time off in lieu in respect of travel to Nagambie, subsequent to the suspension of the Applicant and after the conclusion of the Respondent’s investigation.163 Mr Richardson had no forms for Ms Tomlinson prior to that time.164 There are no forms, constituting a record of accruals and usage of time off in lieu for Ms Tomlinson, such as was evident for Ms Spence. There was no evidence that Ms Tomlinson completed a time in lieu record during the period in which she worked with the Applicant, notwithstanding evidence of time in lieu during that period in respect of travel to Ballarat,165 travel to Sale166 and a day in lieu taken on 5 September 2013 in lieu of 3 September 2013 when Ms Tomlinson returned early from leave.167
[125] I reach the following conclusion in relation to whether the Applicant’s method of self managing her working arrangements provides a valid reason for termination:
• As I have already found, the Applicant did not complete her time records so as to accurately record the days and times she worked;
“The weight to be accorded to ongoing incapacity on the part of an employee when considering whether reinstatement pursuant to s 170CH(3) is appropriate will depend upon all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, the guiding principle ought be that generally reinstatement of a materially incapacitated employee will not be appropriate where:
• further performance of the employee’s contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment;
• reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or
• reinstatement would impose an unreasonable burden on other employees.
Exceptional circumstances would be necessary before reinstatement could properly be regarded as appropriate in such cases.” 264
[226] Those principles were advanced in relation to ongoing incapacity, with the Full Bench distinguishing ongoing capacity from temporary absence from work because of illness or injury. 265
[227] The difficulty, in the current matter, is that there is no basis upon which it can be determined, on the evidence, before me, whether the Applicant’s medical condition and incapacity is ongoing. The final medical certificate referred to in the hearing was issued on 4 June 2014 and ran until early July 2014, with a further review due at that time. 266 Whilst the evidence discloses discussions between the Applicant and her general practitioner and specialist in relation to return to work, the only evidence of the outcome of those discussions is the general practitioner’s suggestion that a return to work “would have to be minimal to begin with”.267 There is uncertainty as to whether the Applicant’s medical condition is ongoing, any additional burden which would be placed on the Respondent in managing reinstatement of the Applicant and, as noted above, the impact of a return to the workplace on the Applicant’s medical condition. This level of uncertainty supports a finding that reinstatement is inappropriate.
Conclusion as to Reinstatement
[228] I am not satisfied that the evidence supports a reasonably based concern by the Respondent’s Managers that their trust and confidence in the Applicant makes reinstatement inappropriate or that reinstatement is inappropriate on the basis of the absence of a relevant vacancy. However, the uncertainty as to the Applicant’s medical condition and, in particular, the likely affect of a return to the workplace on the Applicant’s medical condition are such that reinstatement is inappropriate. I am satisfied that reinstatement of the Applicant is inappropriate.
An Order for Compensation
[229] I am satisfied that an order for compensation in lieu of reinstatement is appropriate in all of the circumstances of the case. The Applicant was unfairly dismissed and has been deprived of significant income since the termination of her employment and, in circumstances where I have found reinstatement to be inappropriate, should be compensated for that loss and the loss of her ongoing employment.
[230] Section 392(2) of the Act requires the Commission, in determining the amount for the purposes of an order for compensation, to take into account all the circumstances of the case including a range of specified criteria. Section 392 of the Act contains additional provisions in respect of misconduct of an employee which contributed to the employer’s decision to dismiss the employee (s.392(3)), prohibition of a component by way of compensation for shock, distress or humiliation (s.392(4)) and a cap on the amount of compensation which can be ordered (s.392(5)). Each of these matters is considered below:
The effect of the order on the viability of the Respondent’s enterprise (s.392(2)(a))
[231] No submissions were put in relation to this matter. The Respondent did not suggest that an order for compensation would affect its viability.
The length of the Applicant’s service with the Respondent (s.392(2)(b))
[232] The Applicant worked for the Respondent for just over two years before the termination of her employment on 22 January 2014 and was secure in her employment until the events of August 2013, which led to the termination of her employment. I regard the length of the Applicant’s employment as a neutral factor in determining compensation in the circumstances of this case.
The remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed (s.392(2)(c))
[233] The Applicant was paid an hourly rate of $31.24 per hour for thirty hours work each week immediately prior to the termination of her employment. 268 This was an amount of $937.20 per week before taxation.269 In addition, the Applicant would have been entitled to receive a superannuation contribution of 9.25% of her wage at the time of her termination,270 which forms part of her remuneration.271 The superannuation contribution was $89.00 per week. There was no evidence of other remuneration received by the Applicant from the Respondent. The weekly remuneration was therefore $1,026.20 per week.
[234] The remuneration lost by the Applicant as a result of the termination of her employment, between 22 January 2014 and the final date of hearing of 20 June 2014 – a period of 21 weeks was $21,550.20 (wages of $19,681.20 and superannuation of $1,869.00).
[235] I am satisfied that the Applicant would have lost further remuneration from the Respondent beyond the last hearing date. The Applicant was a good sales person and was well regarded. 272 The Applicant’s June 2012 performance review was extremely positive.273 There was no evidence suggesting that her employment would not have continued for an indefinite period. I find that the Applicant would have continued in her employment with the Respondent for at least a further year beyond the last date of hearing. On the basis of an additional year, the Applicant’s loss would include an additional $53,509.00 (wages of $48,868.29 and superannuation of $4,640.71).274
[236] Accordingly, I calculate the remuneration that the Applicant would have received, or would have been likely to receive, if her employment had not been terminated, as wages of $68,549.49 and additional superannuation contributions of $6,509.71, total remuneration of $75,059.20, rounded to $75,059.
The efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal (s.392(2)(d))
[237] The Applicant has been unable to work since the termination of her employment until the time the hearing concluded due to her medical condition and the advice of her medical practitioners that she was unfit for work. 275 As a result she has been unable to take any actions to mitigate her loss by seeking and obtaining alternative employment. I am satisfied that the Applicant has made all efforts that she was medically able to take to mitigate the loss she has suffered because of the dismissal.
The amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation (s.392(2)(e))
[238] As a result of her medical incapacity, the Applicant has earned no remuneration from employment or other work during the period between the dismissal and the hearing of the matter, 276 which covers most of the period between the dismissal and the making of the order for compensation. The Applicant was subject to a continuing certificate of medical incapacity until early July277 and subject to a further medical review at that time. There is no evidence as to the likelihood of the Applicant being certified fit for work beyond that time, other than her general practitioner’s advice that any work “would have to be minimal to begin with”.278
[239] The ability of the Applicant to undertake alternative work beyond the hearing date would be dependant of her medical condition and the advice of her medical practitioner (in the first instance at a scheduled review in early July 2014). If she obtained a medical clearance to undertake work prior to the making of the order for compensation, it appears likely that any work, if obtained, would be minimal. I think it highly unlikely that the Applicant would be successful in obtaining alternative employment within that limited time-frame even if a medical clearance was obtained.
[240] I make no deduction on account of remuneration earned from alternative employment during the period between the dismissal and the making of the order for compensation from the remuneration of $75,059 that the Applicant would have received, or would have been likely to receive but for the termination. I find that there would have been no such earnings during that period.
The amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation (s.392(2)(e))
[241] The $75,059 extends over a period until 20 June 2015, a year after the last date of hearing. It is comprised of:
• $30,786 which is made up of the $21,550 to the time of the last hearing and $9,236 for the 9 weeks between that date and the date of the order (for which no deduction for alternate earnings has been made); and
• $44,273 in respect of the period from the making of the order and 20 June 2015.
[242] Whilst the Applicant’s alternate earnings up to the point of the hearing are certain, and it is unlikely that any alternate earnings would arise in the additional period through to the making of the order, considerable speculation is necessary in assessing likely earnings from other sources over the remaining period of around one year. The uncertainty arises from the Applicant’s medical condition and her ability to obtain alternate employment. I find it unlikely that the Applicant would earn more from alternate employment than around three quarters of her previous level of remuneration, over that period. I will make a deduction at that level of 75 per cent of the remuneration of the Applicant in her employment with the Respondent over a year, as an estimate of what she was likely to receive from other employment over that period. Accordingly, I will deduct from the amount remuneration that the Applicant would have received or been likely of to receive of $75,059, 75 per cent of the amount of $44,273 in respect of the period between the making of the order and 20 June 2015. Accordingly, I deduct $33,205 (75 per cent of $44,273) from $75,059. This leaves an amount $41,854.
Any other matter that the FWC considers relevant (s.392(2)(g))
[243] No matters were suggested as being relevant by the parties.
[244] I consider that another matter does arise for consideration: contingencies in respect of future losses – the $44,273 component of lost earnings which relates to future earnings lost. 279 In my view, a limited deduction in respect of such contingencies is warranted in the circumstances of this matter, given the positive performance of the Applicant in her employment with the Respondent. I think a deduction for contingencies of 20 per cent is appropriate.
[245] Accordingly, I will further deduct from the amount of compensation determined an amount of 20 per cent of $44,273 or $8,855. That leaves an amount of compensation of $41,854 less $8,855: an amount of compensation of $32,999.
Did the Applicant engage in misconduct which contributed to the Respondent’s decision to dismiss her? (s.392(3))
[246] I am not satisfied that the Applicant engaged in misconduct in relation to the matters relied upon by the Respondent to dismiss the Applicant. I rely on my earlier reasons in respect of s.387(a) of the Act.
Shock and Distress (s.392(4))
[247] I have not included a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the Applicant by the manner of her dismissal in the amount of compensation determined.
Compensation cap (s.392(5))
[248] The compensation cap in this case is the amount worked out under s.395(6) of the Act: of the total amount of remuneration received by the Applicant for any period of employment with the Respondent during the 26 weeks immediately before the dismissal and if the Applicant was on leave with pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the Applicant for the period of leave in accordance with the regulations.
[249] In this case the Applicant was on paid leave from 6 September 2013 until 4 October 2013 and then on personal leave until the time of her termination. There is no evidence that any leave was unpaid. In any case, by virtue of Regulation 3.06 of the Fair Work Regulations 2009, the Applicant would be entitled, for the purpose of the compensation cap, to be taken to have received the remuneration that she would ordinarily have received during the period of leave if the Applicant had not been on leave without pay during any unpaid leave.
[250] The compensation cap for the Applicant is 26 (weeks) by $1,026.20 (remuneration); an amount of $26,681.20.
[251] The amount of compensation I have determined is $32,999. This exceeds the compensation cap of $26,681.20.
[252] I am constrained by s.392(5) of the Act to ordering an amount of compensation of $26,681.20.
CONCLUSION
[253] The termination of the Applicant’s employment was harsh, unjust and unreasonable. The Applicant was unfairly dismissed.
[254] I am satisfied that reinstatement is not an appropriate remedy in the circumstances of this matter.
[255] I am satisfied that an order for compensation in lieu of reinstatement of $26,681.20 is an appropriate remedy in the circumstances of this matter.
[256] I have issued an order in Print PR554504 to give effect to my decision.
SENIOR DEPUTY PRESIDENT
Appearances:
D Foy of Counsel for the Applicant.
R Millar of Counsel for the Respondent.
Hearing details:
2014.
Melbourne:
June 5, 6 and 20.
1 Transcript, at para 117.
2 Exhibit R2, at para 20 and Exhibit R6, paras 4–5.
3 Exhibit F1, at paras 22–27 and Exhibit R7, at para 8.
4 Exhibit R7, at paras 9–10.
5 Exhibit F1, at paras 23–27.
6 Exhibit R2, at para 19.
7 Exhibit R2, at para 19.
8 Exhibit R2, at para 20 and Exhibit R6, at paras 4–6.
9 Exhibit R2, at para 24, Exhibit F1, at para 32 and Exhibit R8, at para 14.
10 Exhibit R2, attachment DR-4.
11 Exhibit R2, attachment DR-8 and Exhibit R6, attachment KP-2.
12 Exhibit R2, attachment DR-10 and Exhibit R6, attachment KP-4.
13 Exhibit R2, attachment DR-11 and Exhibit R6, attachment KP-6.
14 Exhibit R2, attachment DR-12 and Exhibit R6, attachment KP-5.
15 Exhibit R2, attachment DR-13 and Exhibit R6, attachment KP-8.
16 Exhibit R2, attachment DR-14 and Exhibit R6, attachment KP-9.
17 Exhibit R2, attachment DR-15 and Exhibit R6, attachment KP-10.
18 Exhibit R2, attachment DR-16 and Exhibit R6, attachment KP-16.
19 Exhibit F1 and Transcript at paras 97–2203 and paras 3621–3911.
20 Exhibit R2, and Transcript, at paras 2224–2829 and paras 3194–3742.
21 Exhibit R6, and Transcript, at paras 2901–3187.
22 Exhibit R7, and Transcript, at paras 3553–3609.
23 Exhibit R5.
24 Exhibit R8.
25 Exhibit F3.
26 Exhibits R6 and R2 respectively.
27 Transcript, at paras 2211–2217.
28 Selvachandran v Peteron Plastics Pty Ltd, 62 IR 371, at 373.
29 MacLeod v The Queen, (2013) CLR 230 and 197 ALR 333.
30 Briginshaw v Briginshaw, (1938) 60 CLR 336, at 362.
31 MM Cables v Zammit Print S8106, at para 42 and Kipa v Hansen Yunken Pty Ltd [2014] FWC 1307, at para 89.
32 Karmakar v C Management Services T/A CQ University Sydney [2013] FWC 1692 at paras 127–129 and Blow v SBD Services Pty Ltd [2013] FWC 5733 at para 47.
33 Transcript, at para 4273.
34 Transcript, at para 4275.
35 Transcript at para 4276.
36 Transcript at para 4303.
37 Transcript, at para 4319.
38 Transcript, at para 4321.
39 Transcript, at paras 2338, 2360, 2367 and 2436.
40 Transcript, at para 2366.
41 Karmakar v C Management Services T/A CQ University Sydney [2013] FWC 1692 at paras 127–129 and Blow v SBD Services Pty Ltd [2013] FWC 5733 at para 47.
42 Transcript, at para 50.
43 Exhibit R6, attachment KP-1, attached to the 6 September letter.
44 Exhibit R2, attachment DR-9.
45 Exhibit R2, attachment DR-13.
46 Exhibit R2, attachment DR-15.
47 Exhibit R2, attachment DR-11.
48 Exhibit R1.
49 Exhibit R2, attachment DR-7.
50 Exhibit FWC1.
51 Exhibit FWC2.
52 Exhibits F5, R9 and FWC4.
53 Exhibit F5.
54 Exhibit FWC4.
55 Exhibit R9.
56 Transcript, at paras 3818 and 3879.
57 Transcript, at para 3684.
58 Transcript, at para 3694.
59 Transcript, at para 2728.
60 Transcript, at paras 2865–2868.
61 Exhibit FWC2.
62 Exhibit R2, attachment DR-4.
63 Exhibit R6, attachment KP-12.
64 Transcript, at para 1196.
65 Transcript, at paras 1207–1210.
66 Transcript, at paras 1213, 1219 and 1196.
67 Transcript, at para 689
68 Transcript, at para 690
69 Transcript, at paras 867 and 976.
70 Transcript, at para 870.
71 Transcript, at para 3726.
72 Transcript, at paras 514 and 870.
73 Transcript, at paras 2885–2886.
74 Transcript, at paras 996 and 1925.
75 Transcript, at paras 1070, 1077 and 1096.
76 Transcript, at para 1074.
77 Transcript, at para 1095.
78 Transcript, at paras 316 and 690.
79 Transcript, at paras 2748–2750.
80 Transcript, at para 1079.
81 Transcript, at paras 1119–1124.
82 Transcript, at para 1128.
83 Exhibit FWC1.
84 Transcript, at para 3233.
85 Transcript, at para 1179.
86 Transcript, at paras 1050 and 1055.
87 Transcript, at paras 1182–1194.
88 Transcript, at paras 2481–2510.
89 Exhibit FWC2.
90 Transcript, at paras 1183, 1187–1188 and 1193.
91 Transcript, at para 1189.
92 Transcript, at paras 2482–2483.
93 Transcript, at para 2490.
94 Exhibit R7, attachment LH-1.
95 Transcript, at para 237.
96 Transcript, at paras 238 and 280.
97 Transcript, at para 245.
98 Transcript, at paras 279–280.
99 Exhibit R7, at para 8.
100 Exhibit R7, at para 8.
101 Exhibit F1, at para 22.
102 Exhibit R2, attachment DR-13.
103 Transcript, at paras 754–755.
104 Transcript, at para 1187.
105 Transcript, at para 245.
106 Transcript, at para 237.
107 Exhibit F1, at paras 32–33 and Transcript, at paras 184–190, 199, 789, 871–875, 885 and 2256.
108 Exhibit R7, at para 8.
109 Transcript, at paras 164 –174, 415 and 456.
110 Transcript, at para 175.
111 Transcript, at para 502.
112 Transcript, at paras 546 and 603.
113 Transcript, at para 171.
114 Exhibit F2.
115 Transcript, at para 473.
116 Transcript, at para 184–185.
117 Transcript, at para 2454.
118 Transcript, at paras 188–190.
119 Transcript, at para 192.
120 Transcript, at para 289.
121 Transcript, at para 212.
122 Transcript, at para 212.
123 Transcript, at para 214.
124 Exhibit R5, at para 5.3.
125 Exhibit R5, at para 6.
126 Exhibit R2, at para 23.
127 Transcript, at para 3632.
128 Transcript, at paras 1337–1341
129 Transcript, at para 1342.
130 Transcript, at para 197.
131 Transcript, at para 199.
132 Transcript, at para 201.
133 Exhibit R6, KP-10
134 Transcript, at para 520.
135 Transcript, at para 1344.
136 Transcript, at para 1359.
137 Transcript, at para 1295.
138 Transcript, at para 555.
139 Transcript, at para 2794.
140 Transcript, at paras 2359 and 2439–2440.
141 Transcript, at paras 2495–2496.
142 Transcript, at para 2516.
143 Transcript, at para 2517.
144 Transcript, at paras 779, 789, 839.
145 Transcript, at paras 2268–2269.
146 Transcript, at para 2289.
147 Transcript, at paras1270–1271.
148 Transcript, at para 1263.
149 Transcript, at para 1249 .
150 Transcript, at para 1336.
151 Transcript, at para 2249.
152 Transcript, at paras 2290–2291.
153 Transcript, at para 2240.
154 Transcript, at para 2241.
155 Transcript, at para 2304.
156 Transcript, at para 2305.
157 Exhibit R4.
158 Transcript, at para 3401.
159 Transcript, at paras189–190, 839, 846, 871, 1296 and 1343.
160 Transcript, at paras 870–871.
161 Transcript, at paras 862 and 1285.
162 Transcript, at para 2278.
163 Exhibit R4.
164 Transcript, at para 2302.
165 Transcript, at paras 202 and 1359.
166 Transcript, at para 513.
167 Transcript, at paras 617 and 620 and Exhibit FWC4.
168 Transcript, at para 212.
169 Transcript, at para 212.
170 Transcript, at para 2241
171 Transcript, at para 1359.
172 Transcript, at para 2302.
173 Exhibit F1, at para 40.
174 Exhibit F1, at para 41.
175 Transcript, at para 1044.
176 Transcript, at para 381–384.
177 Transcript, at paras 1142–1144, 1162, 1453–1457 and 1957.
178 Exhibit R6, attachment KP-2.
179 Exhibit R6, attachment KP-4.
180 Exhibit F1, at para 22.
181 Exhibit R7, at para 8.
182 Transcript, at paras 3597–3602.
183 Exhibit R7, attachment LH-3.
184 Exhibit F1, at paras 24–25.
185 Exhibit F1, attachment EF-7.
186 Exhibit R2, attachment DR-11.
187 Transcript, at para 2563.
188 Transcript, at para 2661.
189 Transcript, at para 2646.
190 Exhibit R2, at para 20.
191 Transcript, at para 3070 and 3074.
192 Transcript, at para 3344–3356.
193 Transcript, at para 2524.
194 Exhibit R2, at DR-6.
195 Exhibit R2, at para 25 and attachment DR-6.
196 Exhibit R2, para 25.
197 Exhibit R2, attachment DR-4.
198 Exhibit R2, attachment DR-8.
199 Exhibit R2, attachment DR-9.
200 Exhibit R2, attachment DR-10.
201 Exhibit R2, attachment DR-12.
202 Transcript, at para 1694.
203 Exhibit R2, attachment DR-11.
204 Exhibit R2, attachment DR-13
205 Exhibit R2, attachment DR-14.
206 Exhibit R2, DR-15
207 Exhibit R7, attachment KP-11.
208 Exhibit R7, attachment KP-12.
209 Exhibit R7, attachment KP-12.
210 Exhibit R7, attachment KP-13.
211 Exhibit R6, at para 23.
212 Exhibit R2, attachment DR-16.
213 Respondent’s outline of submissions, at para 20.
214 [2013] FWC 1692 at paras 127-129.
215 [2013] FWC 5733.
216 [2013] FWC 1692 at para 132.
217 [2013] FWC 1692 at para 151.
218 [2013] FWC 5733 at para 47.
219 Exhibit R2, attachment DR-10.
220 Exhibit R2, attachment DR-8.
221 Exhibit R2, attachment DR-15.
222 Exhibit R2, attachment DR-9.
223 Exhibit R2, attachment DR-15.
224 Exhibit R2, attachment DR-15.
225 Exhibit R2, attachment DR-12.
226 Exhibit R2, attachment DR-10.
227 Exhibit R2, attachment DR-11.
228 Exhibit R2, attachment DR-12.
229 Exhibit R2, attachment DR-14.
230 Exhibit R7, attachment KP-11.
231 Exhibit R7, attachment KP-12.
232 Exhibit R2, attachment DR-11.
233 Exhibit R2, attachment DR-11.
234 Exhibit R2, attachment DR-10.
235 Exhibit R2, attachment DR-11.
236 Exhibit R2, attachment DR-11.
237 Exhibit R2, attachment DR-10.
238 Exhibit R2, attachment DR-11.
239 Exhibit R7, attachment KP-13.
240 Exhibit R2, attachment DR-12.
241 Exhibit R2, attachment DR-14 and Exhibit R7, attachment KP-11.
242 Chubb Security Australia Pty Ltd v Thomas Print S2679, at para 41, Fearnley v Tenix Defence Systems Pty Ltd, Print S6238 at para 71 and Wright v Cheadle Hume Pty Ltd T/A Macedon Spa, [2010] FWA 675 at paras 30–31.
243 Transcript, at para 1451–1453 and Exhibit R2, at para 24 and attachment DR-6.
244 Transcript, at paras 2338, 2360, 2366–2367 and 2436.
245 Australia Meat Holdings Pty Ltd v McLauchlan, (1998) 84 IR 1, at 17.
246 Exhibit R2, at para 48.
247 Exhibit R6, at para 26.
248 Transcript, at para 2910.
249 Transcript, at para 2911.
250 Exhibit F1, at para 36 and Transcript, at paras 1747–1750 and 1752–1757.
251 Transcript, at paras 2100–2101.
252 (1997) 72 IR 186.
253 (1997) 72 IR 186 at 191–192.
254 Transcript, at paras 418, 889 and 978–980.
255 Transcript, at paras 418, 889 and 978–980.
256 Chelvarajah and Another v Global Protection Pty Ltd (2004) 142 FCR 296, Smith and Roulston v Capral Aluminium, Print R9808; and Fairhall v Smorgon ARC, PR913285.
257 Newtronics Pty Ltd v Salenga, Print R4305.
258 (2004) 130 IR 446, at para 15.
259 See for example Smith v Moore Paragon AIRC Full Bench, (2004) 130 IR 446.
260 Exhibit R6, at para 27.
261 Transcript, at para 2103.
262 Transcript, at para 386.
263 Transcript, at para 387.
264 (2004) 130 IR 446, at para 51.
265 (2004) 130 IR 446, in footnote 53.
266 Transcript, at para 385.
267 Transcript, at para 387.
268 Transcript, at paras 2116 and 2119.
269 Transcript, at para 2123.
270 Superannuation Guarantee (Administration) Amendment Act 2012, Schedule 1.
271 Rofin Australia Pty Ltd v Newton, Print P6855 at p. 4; and Deane v Paper Australia Pty Ltd, PR929820 at paras 16–20. Contrast s.332 of the Fair Work Act 2009 (Cth).
272 Transcript, at paras 2338, 2360, 2367 and 2436.
273 Transcript, at para 2366 and Exhibit F1, attachment EF-6.
274 In fact slightly more given the increase in the superannuation contribution to 9.5% from 1 July 2014.
275 Transcript, at paras 2071–2083.
276 Transcript, at paras 367–368.
277 Transcript, at para 2083.
278 Transcript, at para 387.
279 See Slifka v JW Sanders Pty Limited, (1995) 67 IR 316 at 328; and Enhance Systems Pty Ltd v Cox, PR910779 at paras 39–40 regarding a reduction for contingencies on future losses.
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