Gautam Amba v HCL Australia Services Pty Limited T/A HCL

[2018] FWC 5786

[2018] FWC 5786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gautam Amba
v
HCL Australia Services Pty Limited T/A HCL
(U2018/841)

COMMISSIONER CAMBRIDGE SYDNEY, 20 SEPTEMBER 2018

Unfair dismissal - serious misconduct - valid reason for dismissal - no significant procedural deficiency - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 29 January 2018. The application was made by Gautam Amba (the applicant) and the respondent employer is HCL Australia Services Pty Ltd t/a HCL (the employer or HCL).

[2] The application indicated that the date that the applicant’s dismissal took effect was 9 January 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 4 May and 28 June 2018.

[4] During a Pre-Hearing Conference held on 9 March 2018, the Commission granted permission under s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. The applicant was initially represented by Adams Wilson Lawyers who filed an amended application on behalf of the applicant on 4 April 2018. However, on 30 April 2018, a Notice of representative ceasing to act was filed by Adams Wilson Lawyers.

[5] At the Hearing, the applicant appeared unrepresented. The applicant gave evidence as the only witness called in support of the unfair dismissal claim. The employer was represented by Mr A Lunn, solicitor, from Mills Oakley Lawyers. Mr Lunn called the employer’s Deputy General Manager – Human Resources, Mr Kamal Chauhan, as the only witness to provide evidence on behalf of the employer.

Background

[6] The applicant commenced employment with the employer’s India based parent Company, HCL Technologies Limited in July 2011. In June of 2015, the applicant was seconded to work in Australia for the employer. The applicant had worked for the employer and its related entity, for a total period of about 6 ½ years. The applicant worked in a senior management sales role which at the time of his dismissal was described as “Area Sales Director for Australia and New Zealand”. The applicant was engaged at the employer’s Australian headquarters located in North Sydney, and his sales role involved, inter alia, a considerable amount of domestic travel.

[7] The employer operates a business as the Australian arm of a global information technology (IT) service provider and software development Corporation. The employer, and its related entities in other Countries, provide IT related services to multiple industries including; banking and financial services; retail and consumer products; manufacturing; energy and utilities; government; mining; travel; and logistics. The employer and its associated entities have in excess of 100,000 employees, and there are about 1,380 who are employed in Australia.

[8] The employment record of the applicant was without any recorded complaint or other blemish. The sales role of the applicant involved significant travel for work-related purposes. The employer promulgated various policies regarding reimbursement of work-related expenses including a Local Conveyance Policy, which, in broad terms, required verification for claims made for reimbursement to employees of expenditure for travel and other work related expenses. In many instances proof of expenditure by way of receipts were to be provided. However, in particular, claims for the business use of a personal motor vehicle did not require any particular odometer verification and instead, broadly relied upon the honesty of the claimant, and some identification of the client or business purpose associated with the particular use of the personal motor vehicle.

[9] On 29 August 2017, the applicant received an email which had been forwarded to him by his direct superior, Mr Kidambi, who was based in the USA. Mr Kidambi had been sent an email from a global corporate audit team who had raised concern about a number of expenses claims that had been made by the applicant and which had been approved by Mr Kidambi.

[10] The concerns raised by the global corporate audit team involved what was described as a contradictory claim made by the applicant for “mileage” in respect of the use of his personal motor vehicle in and around Sydney, at a time when the applicant was in Melbourne. Specifically, the audit team had identified that the applicant had claimed mileage for 15 June 2016, of 300 kms, involving travel shown as “Waitara-Newcastle-Waitara”. Further, the applicant also claimed mileage for 16 June 2016, of 175 kms, involving travel shown as “Waitara-Parramatta-Belavista-Manly-Parramatta-Waitara”. However, in the period from 14 to 17 June 2016, the applicant was recorded to have been in Melbourne on business-related travel.

[11] On the following day, 30 August 2017, the applicant provided an email response to the audit team concerns. In his response, the applicant explained that whilst in Melbourne he had utilised a friend’s car for business-related purposes, and he had made a mistake by referencing the use of his friend’s car with Sydney location details instead of Melbourne. The audit team was not satisfied with the explanation provided by the applicant, and it sought further details about the location of the places visited during the time that the applicant was in Melbourne.

[12] The applicant was unable to provide any specific further details regarding his activities in Melbourne for which he had claimed mileage. During September 2017 the employer’s audit team conducted further investigations into the applicant’s expenses claim history. On 27 September 2017, the applicant was the subject of an internal investigation report. The investigation report identified a number of concerns with the applicant’s expenses claims, and other instances including mileage claims made in December 2015 and February 2017, were identified as being apparently contradictory and generally of further concern.

[13] On 30 October 2017, the applicant was issued with a show cause notice which referred to the ongoing auditing of the applicant’s expenses claimed during the period June 2015 to June 2017. The show cause notice advised that the applicant had not provided the employer with satisfactory explanations for various identified claims that involved; multiple claims being made on the same date at different locations; mileage claims being made on the same day as taxi charges were claimed; unidentified client entertainment expenses; and mileage claims for travelling on Saturdays and Sundays. Further, the show cause notice asserted that the applicant had made false expenses claims that involved serious misconduct for which disciplinary action would be taken. The applicant was advised to respond to the show cause notice in writing within two days. However, at the applicant’s request, time for his response to the show cause notice was extended until 3 November 2017.

[14] On 3 November 2017, the applicant provided the employer with a written reply to the show cause notice which set out in detail his responses to the various expenses that he had claimed and which were identified as raising concern. On the following day, 4 November 2017, the applicant received an email from “HCL Europe” which advised, inter alia, that the applicant’s “deputation to HCL Australia is over and you are required to relocate back to your base location in India”.

[15] On 30 November 2017, the applicant sent an email to HCL America and HCL Europe in which he tendered his resignation from his role as Area Sales Director. The applicant’s resignation provided what he described as a full notice period such that his employment would finalise on 10 January 2018. On the following day, 1 December 2017, HCL America sent an email to the applicant which advised that his resignation had been accepted.

[16] On 13 December 2017, the applicant attended a meeting with the employer that was held to discuss the applicant’s response to the show cause letter issued on 3 November. Various senior management representatives from the employer’s parent company also participated via teleconference in the meeting held on 13 December. During this meeting the applicant was questioned further about the various expenses claims that he had made and which had been the subject of concern identified in the internal investigation report.

[17] On 15 December 2017, the employer issued a letter to the applicant which referred to the ongoing investigation into expenses that he had claimed in the period June 2015 to June 2017, and about which he had been further questioned during the meeting of 13 December. The letter advised that the employer was not satisfied with the responses provided by the applicant, and it asserted that the applicant had falsely claimed a total amount of expenses calculated to be AUD $71,175. Further, the letter of 15 December advised the applicant that he was required to repay this amount to the employer by 22 December 2017.

[18] On 22 December 2017, lawyers acting on behalf of the applicant responded to the employer’s letter of demand of 15 December 2017. In brief, the applicant’s lawyers rejected that there had been any basis for the employer’s demand for repayment of amounts that were allegedly falsely claimed as expenses. The applicant’s lawyers asserted that the applicant denied any wrongdoing and that he had performed his duties in good faith, efficiently and honestly. Consequently, the applicant rejected the employer’s claim for repayment as set out in its letter of demand of 15 December.

[19] On 9 January 2018, the employer sent a letter to the applicant advising of the termination of his employment summarily and without notice for serious misconduct. The letter of dismissal provided to the applicant referred, inter alia, to the investigation conducted by the employer into the applicant’s claims for expenses in the period June 2015 to June 2017, and whereby the employer had concluded that the applicant had made false expenses claims which had been calculated to amount to a total of AUD $71,175. The letter of dismissal also repeated the demand for the repayment of the identified amount, and indicated that the employer would take steps to recover what it asserted to be a debt owed by the applicant to the employer.

[20] On 3 April 2018, the applicant commenced alternative employment which provided a level of remuneration similar to that which he had received from the employer.

The Case for the Applicant

[21] The applicant made verbal submissions during the Hearing. In addition, documentary material in the form of an outline of submissions, and a further outline of submissions in reply had been filed on behalf of the applicant. The submissions made on behalf of the applicant asserted that the dismissal of the applicant was harsh, unjust and unreasonable.

[22] The submissions made on behalf of the applicant asserted that the employment of the applicant had been terminated by way of the letter of termination dated 9 January 2018. Further, and in the alternative, it was submitted that the applicant was forced to provide his resignation and thus the termination of his employment was at the initiative of the employer. Upon either basis for the termination of the employment, it was submitted that the dismissal of the applicant was harsh, unjust and unreasonable.

[23] The submissions made on behalf of the applicant asserted that there was no valid reason for the termination of the applicant’s employment. The absence of any valid reason was said to arise because there was no serious and wilful misconduct including dishonesty, wilful falsification or misrepresentation of work records.

[24] Further, it was submitted that the applicant was not given a fair and reasonable opportunity to respond to the alleged misconduct. It was also submitted that the applicant was treated harshly, unjustly and unreasonably because the employer knew that the applicant was employed under a section 457 Visa, and the termination of his employment would have a significant impact upon him and therefore the matter should have been taken more seriously by the employer.

[25] The applicant submitted that he had always been a particularly high performance employee and his sales role required travel to existing customers and to new customers. In respect to the accusations that the applicant had made fraudulent expenses claims, the applicant said that he failed to understand why these claims were considered to be fraudulent when the claims had previously been accepted and were later unacceptable.

[26] The applicant said that he had not been treated fairly and the process did not provide an opportunity for him to clarify the expenses with the involvement of his business heads as they would have understood that these expenses had been approved by them. The applicant admitted that he had made some mistakes as he was also human. The applicant said that “not all my $85,000 expenses for the two years are all fraudulent.” The applicant said that he was not dishonest.

[27] The applicant said that it was not fair that the employer had made a decision on the basis that all of the expenses that he had raised were fraudulent. The applicant said that he had no performance warnings or escalations made against him in 6 ½ years of employment, and instead of being given a warning he had been terminated.

[28] The applicant submitted that his unfair dismissal application should not be dismissed and that compensation should be granted.

The Case for the Employer

[29] Mr Lunn, who appeared for the employer, made oral submissions in amplification of a written outline of argument dated 24 April 2018. Mr Lunn submitted that the dismissal of the applicant was not harsh, unjust or unreasonable and that the application for unfair dismissal remedy should be dismissed.

[30] The submissions made by Mr Lunn stressed that the applicant had given notice of his resignation from employment on 30 November 2017, and that by way of that notice the employment would have ended on the same day that the applicant was dismissed. Mr Lunn submitted that the applicant could not demonstrate that he had suffered any compensable loss.

[31] Mr Lunn also submitted that the applicant was dismissed for valid reason, and that valid reason involved the applicant claiming and receiving expenses totalling $71,175 without providing adequate explanation or satisfactory evidence to support the claims. Consequently, according to the submissions made by Mr Lunn, the applicant’s conduct amounted to serious and wilful misconduct which entitled the employer to terminate the applicant’s employment summarily and without notice.

[32] The submissions made by Mr Lunn rejected any criticism of the employer’s investigation into the discrepancies that had been identified with the applicant’s expenses claims. Mr Lunn submitted that the employer’s course of conduct involved a measured investigation including numerous opportunities for the applicant to provide evidence to support his expenses claims. Mr Lunn said that despite these opportunities the responses provided by the applicant were evasive and vague. Mr Lunn said that when these expenses claims were re-examined during the Hearing before the Commission the applicant continued to provide confused, vague and evasive responses in respect to the specific expenses claims that were under examination.

[33] Mr Lunn submitted that the reliance that the applicant attempted to make out and which related to his expenses having been previously submitted and accepted could not be sustained. Mr Lunn submitted that as a matter of practical reality the employer relied upon the honesty of employees and claims were accepted on that basis. However, according to the submissions made by Mr Lunn, the employer was entitled to inquire into the bona fides of the claims that had been made and paid, and in this instance, the anomalies which had been detected could not be satisfactorily addressed by the applicant. Mr Lunn submitted that the employer had gone to great lengths to provide the applicant with every opportunity to justify his expenses claims and he had been unable to provide any satisfactory explanation.

[34] Mr Lunn made submissions which referred to a number of specific examples of the expenses claims made by the applicant and which by his own admission represented significant mistakes. According to the submissions made by Mr Lunn, the employer was entitled to reject the applicant’s proposition that these claims were accountable on the basis of some mistake. Consequently, Mr Lunn said that the summary termination of the applicant’s employment on 9 January 2018, was for valid reason and without any procedural deficiency.

[35] The submissions made by Mr Lunn also rejected the proposition that the resignation of the applicant had been forced as a result of the conduct of the employer, particularly when it required the applicant to return to India. Mr Lunn said that the written notice of resignation provided by the applicant conveyed a considered and real intention to resign, and it could not be construed to have been a forced resignation. Mr Lunn submitted that the applicant had provided an extensive notice period in order to provide for opportunity to secure alternative employment in Australia because he knew that he was going to get caught out on his “dodgy expense claims.”

[36] The submissions made on behalf of the employer also addressed the various components of s. 387 of the Act. In this regard it was submitted that there was valid reason for the dismissal of the applicant based upon his serious and wilful misconduct regarding dishonesty, and the wilful falsification or misrepresentation of work records. Further, it was stated that the applicant had been notified of the reason for his dismissal, and he had been provided with multiple opportunities to respond to the allegations that had been identified in the employer’s investigation. It was further submitted that the applicant did not request and the employer did not refuse to permit the applicant to have a support person present at any of the meetings held to discuss the expenses claims made by the applicant. The employer also submitted that it had offered to support the applicant’s pursuit of permanent residence in Australia and therefore any suggestion of there being some impact of dismissal because of the applicant’s Visa status should be rejected.

[37] The employer made further submissions about the absence of any compensable loss for the applicant. The employer submitted that as the applicant had been dismissed on the last day of the notice period that he had provided in his written resignation, there was simply no basis upon which either compensation or reinstatement could be contemplated. Mr Lunn submitted that the applicant had embroiled himself in a piece of litigation that had no substance from the start.

[38] The employer made submissions which urged the Commission to find that the dismissal of the applicant was for valid reason and without any procedural defect. The submissions of the employer stressed that the basis for the dismissal of the applicant involved his fraudulent expenses claims. It was submitted that the Commission should be satisfied that the evidence that had been presented supported the employer’s findings that the applicant had engaged in serious misconduct. The employer submitted that the application for unfair dismissal remedy should be dismissed.

Consideration

[39] The unfair dismissal provisions of the Act include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[40] In this case, although the applicant had provided a written resignation there was no dispute that the employer had moved to dismiss the applicant on the day before the written resignation was to have taken effect. Consequently, whether by way of any operation of the applicant’s written resignation, or the unequivocal dismissal of the applicant for serious misconduct, it became clear that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[41] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

“(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.”

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[42] In this instance, the reason for the dismissal of the applicant has involved the serious misconduct that the employer determined to have been committed when the applicant made fraudulent claims for expenses. The determination of this matter has involved the Commission examining the evidence of the expenses claims made by the applicant and then, with the benefit of a broader evidentiary basis than that upon which the employer made its conclusions, deciding whether the employer’s conclusions could or could not be supported. Fundamentally, if the Commission arrived at the same or similar conclusions to that of the employer, the nature of the established reason for dismissal, involving fraudulent expenses claims, would represent a valid reason for dismissal that would be unlikely to be disturbed by any identified procedural deficiencies or any other conceivable factors.

Examination of Particular Expenses Claims

[43] There were three particular events involving expenses claims made by the applicant which were the subject of examination during the Hearing, and which have provided proper basis for determination of the applicant’s unfair dismissal claim. There was also evidence of numerous other events involving disputed expenses claims made by the applicant. However, for the purposes of this Decision it has not been necessary to provide any detailed analysis of these events. The first event was that which initially attracted the attention of the global audit team and involved the period 14 to 17 June 2016.

14 to 17 June 2016 - The Melbourne Conference

[44] On 14 June 2016, the applicant travelled from Sydney to Melbourne to attend the 19^th Annual Australasian Shared Services and Outsourcing Week Conference held at Albert Park (the Melbourne conference). On 17 June 2016, the applicant returned to Sydney after the Melbourne conference concluded. Subsequently, the applicant submitted expenses claims for firstly, mileage of 300 kms involving travel on 15 June 2016, shown as “Waitara-Newcastle-Waitara” and secondly, for mileage of 175 kms involving travel on 16 June 2016, shown as “Waitara-Parramatta-Belavista-Manly-Parramatta-Waitara”. These mileage claims were made for two days during the period that the applicant was attending the Melbourne conference (14 to 17 June).

[45] The applicant’s explanation for claiming mileage for travel in Sydney/Newcastle whilst he was attending the Melbourne conference was that he utilised a friend’s car to undertake work-related travel around Melbourne and mistakenly referred to this travel to have been in the Sydney/Newcastle locality. The applicant said that he “made a mistake in the description while raising a claim by putting the Sydney location details instead of Melbourne.” 1 This curious proposition led the employer to inquire further, and to request some detailed information about the particular local travel that was apparently undertaken by the applicant using his friend’s car during the time that he attended the Melbourne conference.

[46] The applicant was unable to provide details of the particular work-related events, functions or meetings that he attended with the use of his friend’s car involving a total of 475 kms of travel around Melbourne over two days during which time he was also attending the Melbourne conference. Consequently, the employer rejected the applicant’s explanation for the mileage claims that he made for 15 and 16 June 2016. The employer arrived at the unsurprising conclusion that it would have been very difficult to have actually travelled 300 kms around metropolitan Melbourne on one day whilst also attending the Melbourne conference.

[47] The applicant’s mileage claims of 15 and 16 June 2016 in respect of the use of his friend’s car whilst in Melbourne, was further scrutinised during the Hearing and unfortunately the applicant provided no logical explanation that would justify these expenses claims. The applicant provided very unconvincing evidence when questioned by the Commission about his apparent mistake in the description of the basis for the mileage claims of 15 and 16 June 2016. The applicant’s unfortunate testimony is exampled by the following extract from transcript:

“Why did you say you made your claim because you were using your friend’s car, where’s that claim? --- Sir, that was part of the mileage claim.

Which part of that? --- On that particular - the same - the same instance you are talking about, 15 to 16 of June. Can I - Sir this is point number 2 in my reply on the show cause notice. I explained that this is what happened.

Yes, this is the - this, as you said, you made a claim while you were in Melbourne because you used one of your friends cars? --- Yes, sir.

But the basis for your claim isn’t using your friend’s car, it’s going to Newcastle? --- Yes, sir, because I - I - I was a Sales Director. I (indistinct) the legal (indistinct) work to my account - visit account on a daily or, you know, sometimes three times a week or four times in a week, I have a responsibility, and when I go there I take the claim - claim those sort of things on the day basis because my customer is based out of particular places.

You didn’t put in here at point 2 that you made the mistake because you referred back to your electronic calendar and you got confused because your electronic calendar had you at a meeting in Newcastle? --- Sir, I remember I was booking us there - - -

You put in there that you made the mistake because you used your friend’s car? --- I was trying to explain this, which I was trying to explain that I put an initial cost (indistinct) I’m not able to find now.

But in any event then, what, you were proposing to give your friend whatever you claimed for using his car? Because you didn’t use your car, you used his car. So is that what you did? You gave him - the money that you got from this claim, you gave to your friend, did you? --- No, I did not. I did not transfer it to my friend.” 2

21 December 2015 - The Cancelled Newcastle Trip

[48] The second event involving an expenses claim made by the applicant which was the subject of audit scrutiny concerned his claim for mileage of 300 kms on 21 December 2015, shown as “Waitara-Newcastle-Waitara.” Attention was drawn to this mileage claim because the e-toll records for the applicant’s car show the vehicle to have been passing toll points in and around Sydney between 11:25 and 21:51 on 21 December 2015.

[49] The employer asked the applicant to explain his claim for mileage of 300 kms for a trip to Newcastle on the day when his e-toll records showed his vehicle travelling around Sydney. The applicant responded by advising that he “was travelling to meet Jennifer in Newcastle however the meeting got cancelled in the morning (while I was on my way) and hence travelled to Belavista for meeting with Richard (head of supermarket).” 3[emphasis added] In response to the employer’s further inquiries the applicant provided the following further information about his activity on 21 December 2015: “I was supposed to meet Jennifer from Woolworth in the Newcastle office as wasn’t sure about Richard. Last moment the meeting with Jenny was cancelled (while I was on my way to meet her) and instead of Woolworth Newcastle office, I went to other office towards Belavista to catch up with Richard.”4 [Emphasis added]

[50] The employer did not accept the explanation offered by the applicant for his mileage claim for travel to Newcastle which was seemingly contradicted by the e-toll account records showing his vehicle travelling on toll roads around Sydney on the same day. During the Hearing the apparent incongruity between the claim for travel to Newcastle and the e-toll records of movements around metropolitan Sydney was the subject of further scrutiny. In answer to further questioning as to why the applicant had maintained a claim for travel to Newcastle despite the meeting having been cancelled, the applicant said that on the morning of 21 December 2015 he had in fact travelled all the way to Newcastle before the meeting with Jennifer was cancelled. 5

[51] Strangely, the applicant had previously not made any mention of the actual completion of the journey to Newcastle, but instead he indicated (as emphasised above) that the meeting was cancelled while he was “on my way.” If, in fact, the applicant had completed the journey to Newcastle and returned such that at 11:25 am he passed a toll point on the M2 toll-way, he would have logically told the employer that his claim for mileage to Newcastle was legitimised by the fact that he had made it all the way before being advised of the cancellation of the meeting. The absence of any such advice to the employer, and the impracticality that the applicant had completed a trip to Newcastle and returned to the M2 toll-way by 11:25 on 21 December 2015, discredited his explanation and provided strong support for the employer’s conclusion that this was another fraudulent expenses claim.

3 February 2017 - Canberra Road Trip

[52] The third event that involved another example of the scrutinised expenses claims made by the applicant concerned a claim that he made for mileage of 300 kms on 3 February 2017, shown as travel “Waitara-Canberra-Waitara.” Attention was drawn to this claim because on the same day, 3 February 2017, the applicant had undertaken air travel from Sydney to Melbourne and return. Consequently, the employer understandably questioned how the applicant could have flown to Melbourne, then returned to Sydney, and then driven to Canberra, and then back to Sydney all on the one day.

[53] The applicant responded to the employer’s inquiry as to his activities on 3 February 2017, by way of confirmation that he had “landed back in Sydney around 4 PM and being invited by HSBC client into a dinner meeting along with some Sn partners.” 6 There was no claim made by the applicant for an overnight stay in Canberra on the night of 3 February 2017. Further, the applicant could not provide the employer with any evidence to verify the client dinner meeting that he allegedly attended in Canberra. The employer concluded that the applicant had not driven from Sydney to Canberra upon his 4 pm return from Melbourne, and therefore the mileage claim for the alleged travel to Canberra on 3 February 2017 was false.

[54] The applicant provided some curious evidence during the Hearing when he was questioned about his alleged travel to Canberra on 3 February 2017, after he had arrived back at Sydney airport at about 4 pm. The following extract of the applicant’s answers to questions from the Commission is relevant:

“Now it’s conceivable but you’d have to be doing a very long day to do Melbourne and Sydney return trip and then also get in your car and drive to Canberra and back again? --- Yes, sir. Yes, sir, I understand that I’m just looking in the - where I mentioned it. But off the top of my head which I remember this, I still - went to Melbourne and did my meeting because there was one opportunity I was working on with the client, and I had to go back to Canberra to work on that. I’m just seeing where is - is that the same one.

On page 71 you see to suggest that you got back at 4 pm and then immediately jumped in your car and drove to Canberra, did you? --- Yes, if the client request I have to go, sir.

Is that what you did? --- Yes, sir, that is what I’ve said, yes. This is what I did.

So Canberra back home that night? --- Late night’s arrival, I didn’t have any place to stay there.” 7[emphasis added]

[55] The applicant must have forgotten the above evidence that he provided on the first day of Hearing when on the second day, during his cross-examination of the employer’s witnesses, Mr Chauhan, who asserted that it was impossible to have undertaken the road trip and dinner to Canberra after returning to Sydney at 4 pm, the applicant stated:

“I go there to the dinner. Then I stayed there. Did I also claim for the night stay whether I stayed with a friend or somebody? That’s nobody’s question.” 8[emphasis added]

and,

“THE COMMISSIONER: So we would get a picture, then, of you getting back at 4 o’clock, to the airport, going home first or going from the airport directly to ---

MR AMBA: Canberra.

THE COMMISSIONER: --- straight to Canberra to the HSBC meeting ---

MR AMBA: Yes, yes.

THE COMMISSIONER: having dinner in Canberra and then driving home?

MR AMBA: Not probably on the same night - I stayed with my friend.” 9[emphasis added]

[56] The applicant’s directly contradictory evidence about firstly not having any place to stay in Canberra, and then subsequently he asserted that he stayed with his friend, operates to discredit his evidence in respect to this further expenses claim. The contradictory evidence of the applicant has provided sound basis to support the employer’s conclusion that the mileage claim made by the applicant for 3 February 2017, shown as travel for “Waitara-Canberra-Waitara” was another example of a fraudulent expenses claim.

[57] There were numerous other examples of expenses claims made by the applicant which upon any reasonable and objective analysis, would be held to have been false. However, the employer erroneously asserted that all of the applicant’s expenses claims were fraudulent. However, in fairness, many of the applicant’s expenses claims were probably legitimate, but unfortunately for the applicant, there were numerous examples of false claims which could not be accommodated as having arisen from some inadvertent mistakes.

[58] As the applicant stated: “not all my $85,000 expenses for the two years are fraudulent.” Regrettably however, a significant number of false claims were identified, and many others were plainly implausible, and would have invited more detailed scrutiny as the applicant himself acknowledged during the following exchange regarding another event that he claimed for 29 June 2016:

“THE COMMISSIONER: But in that instance, you claimed $280 in taxis plus 175 miles travelled in the one day and I suppose that’s where the query arises doesn’t it?

MR AMBA: Yes.

THE COMMISSIONER: How do you do both? $280 worth of taxis and a 175 of your own vehicle as well.

MR AMBA: That’s a good question.

MR LUNN: It’s very good.” 10

[59] The evidence of the particular expenses claims that have been the subject of analysis in this Decision represents a few examples of a significant number of claims which regrettably, were fraudulent. It is unnecessary to mention many other claims including those made by the applicant for mileage on Saturdays and Sundays when he was allegedly travelling to play golf with clients. Consequently, the conduct of the applicant involving his fraudulent expenses claims was, prima facie, misconduct that would justify dismissal from employment and the applicant’s approach to defence or justification of that misconduct must be rejected. Consequently, the findings of serious misconduct made by the employer against the applicant must be supported as representing valid reason for the summary dismissal of the applicant.

S. 387 (b) - Notification of Reason for Dismissal

[60] The employer provided written notification of the reason for the applicant's dismissal as set out in the termination of employment letter dated January 9, 2018.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[61] The applicant was given numerous opportunities to respond to the allegations of misconduct made against him in respect to his expenses claims. The procedural fairness that was provided to the applicant was recognised in the following extract from the letter of 22 December 2017, sent to the employer from the applicant’s (then) lawyers wherein it was stated: “Our client has provided detailed responses to the allegations…” 11

[62] The employer conducted a thorough investigation into what had initially been discovered as irregularities by the global audit team and which subsequently developed to become allegations of serious misconduct made against the applicant. Further, the employer implemented a show cause process which enabled the applicant to make out a defence or offer an explanation in respect to the allegations of serious misconduct.

[63] Unfortunately for the applicant he was unable to provide any satisfactory explanation for the numerous false expenses claims that he had made. The process adopted by the employer for investigation into the issues surrounding the applicant’s expenses claims, and ultimately the findings of serious misconduct providing for the determination to dismiss the applicant, was without any significant procedural deficiency.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[64] There was no evidence that the employer unreasonably refused or otherwise avoided the presence of a support person to assist the applicant. However, the employer’s procedure would have been enhanced if it had clearly advised the applicant that he would be provided with the opportunity to have the assistance of a support person at the meetings held on 30 October and 13 December 2017.

S. 387 (e) - Warning about Unsatisfactory Performance

[65] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, serious misconduct.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[66] The employer is a large size business operation. It adopted relevant procedures to deal with both the investigation of the allegations made against the applicant, and the show cause process that lead to the final determination involving dismissal.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[67] There was evidence that the employer did have management specialists or other expertise and this factor has not been relevant in this instance.

S. 387 (h) - Other Relevant Matters

[68] The confirmation of the particular nature of the misconduct which has provided valid reason for the dismissal of the applicant has involved findings of very regrettable misconduct. Understandably the employer was aggrieved that a person in a relatively senior position breached the fundamental trust to act with honesty when making expenses claims. However, the employer may wish to consider reviewing its procedures so that some verification should be provided to support all mileage expenses claims.

[69] Further, there was evidence that the employer carefully considered all of the employment and personal circumstances of the applicant. In particular, the employer was cognisance of the 457 Visa status of the applicant. These factors were appropriately balanced against the serious misconduct committed by the applicant which involved significant and persistent fraudulent claims for expenses. Accordingly, the Commission is not prepared to disturb the balanced and properly considered determination made by the employer.

Conclusion

[70] The applicant was dismissed for serious misconduct involving the employer’s findings that he had dishonestly and intentionally made and received expenses claims which were fraudulent. Upon analysis, the employer’s findings of serious misconduct have been confirmed.

[71] In view of the particular nature of the misconduct which has been established in this instance, that serious misconduct has provided valid reason for the summary dismissal of the applicant. There were no significant procedural deficiencies associated with the employer’s investigation and determination to dismiss the applicant. There were no other factors which might mitigate or otherwise impact upon the established serious misconduct of the applicant.

[72] In conclusion, the dismissal of the applicant was not harsh, unjust or unreasonable. Accordingly, the applicant’s claim for unfair dismissal remedy must be dismissed, and an Order dismissing the application shall be issued.

COMMISSIONER

Appearances:

Mr G Amba appeared unrepresented.

Mr A Lunn, solicitor of Mills Oakley Lawyers appearedfor the employer.

Hearing details:

2018.

Sydney:

May, 4.

June, 28.

Printed by authority of the Commonwealth Government Printer

<PR700394>

 1   Exhibit 1 @ Annexure GA12.

 2   Transcript @ PN1032 - PN1038.

 3   Exhibit 1 - Annexure GA14 @ page 72.

 4   Exhibit 3 - Annexure KC-11 @ page 112.

 5   Transcript @ PN1058 - PN1064.

 6   Exhibit 1 - Annexure GA14 @ page 71.

 7   Transcript @ PN1077 - PN1080.

 8   Transcript @ PN1616.

 9   Transcript @ PN1625 - PN1630.

 10   Transcript @ PN1732 - PN1736.

 11   Exhibit 3 - Annexure KC-25 @ page 184.