Glen Coombs v Sydney Water Corporation T/A Sydney Water
[2019] FWC 7940
•22 NOVEMBER 2019
| [2019] FWC 7940 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Glen Coombs
v
Sydney Water Corporation T/A Sydney Water
(U2019/5014)
DEPUTY PRESIDENT CROSS | SYDNEY, 22 NOVEMBER 2019 |
Application for an unfair dismissal remedy – allegations of serious misconduct – dismissal for fraudulently obtaining financial advantage in the form of payment for hours not worked – allegations proven – harsh, unjust or unreasonable – application dismissed – remedy of reinstatement would not have been contemplated.
BACKGROUND
[1] An application was filed on 18 April 2019 (the “Application”), by the Australian Municipal, Administrative, Clerical and Services Union (NSW and ACT Services Branch) (the “ASU”) on behalf of their member Mr Glen Coombs (the “Applicant”), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant seeks an unfair dismissal remedy, primarily reinstatement, following his dismissal on 12 April 2019 by Sydney Water Corporation t/a Sydney Water(the “Respondent”).
[2] The Applicant commenced employment with the Respondent on 29 January 1992. The Applicant was terminated for serious misconduct on 12 April 2019. The relevant misconduct was “tailgating”, that is, closely following a person through security access in a manner that avoided the need for the Applicant to swipe his security access card, and so not accurately recording time and attendance.
[3] The Applicant’s conduct was described by the Respondent in the termination letter of 12 April 2019, as obtaining a “financial advantage that is being payment for hours not worked and accruing and taking Rostered Days Off not entitled (Fraud).” That letter stated the Applicant had failed to comply with the Respondent’s “Absence and Attendance Policy and Living our Values-Principles for Ethical Decision-Making, Signature Behaviours and the Sydney Water Enterprise Agreement 2017,” and described his conduct as corrupt conduct. Notwithstanding that the Applicant’s conduct was found to constitute serious misconduct, he received five weeks pay in lieu of notice.
[4] The Application was listed for conciliation but did not settle at that conciliation, and the matter was then allocated to me for hearing and determination. On 19 June 2019, I issued Directions prescribing a timetable for the filing of Outline of Submissions and Witness Statements. Those Directions were varied to allow an additional time for the parties to file their materials.
[5] In accordance with my Directions, the following materials were filed:
(a) The Applicant filed:
(i) An Outline of Submissions;
(ii) Statement of Glen Coombs dated 17 July 2019, with annexures;
(iii) Statement of Romel Khaziran dated 16 July 2019;
(iv) Statement of Mal Tulloch dated 16 July 2019, with annexures; and
(v) Statement of Cheryl Harris dated 18 July 2019, with annexures.
(b) The Respondent filed:
(i) An Outline of Submission;
(ii) Statement of Tammy Falconer dated 20 August 2019, with annexures;
(iii) Statement of Liam Connolly dated 20 August 2019, with annexures;
(iv) Statement of Gordon Yee dated 19 August 2019, with annexures; and
(v) Statement of Craig Davis dated 20 August 2019, with annexures.
(c) In reply, the Applicant filed a Statement of Glen Coombs, dated 27 August 2019.
[6] Each of the deponents of filed statements provided written and oral evidence in the proceedings, but for Ms Khaziran, whose Statement was read but who was not required for cross-examination.
THE RELEVANT FACTS
[7] The Applicant commenced employment with the Respondent in 1992 as a Level 1 Sewer Maintenance employee. He worked in that area until September 2003, advancing to the position of Level 4 First Call Officer.
[8] In September 2003, the Applicant applied for and secured a position on the Water Restrictions Team. He worked in a specialised team to educate and enforce water restrictions during the drought at that time in Sydney. He served in this role until March 2008.
[9] In April 2008, the Applicant commenced working as a Plans Management Officer. In August 2012, the Applicant moved to the position of Senior Asset Information Officer to specifically look after all work related to the Plans Management Area. He continued in that role until his dismissal in April 2019. The Applicant’s final grading under the Sydney Water Enterprise Agreement 2017 (the “Agreement”) was Level 13 (with the maximum being Level 17).
[10] The Applicant’s ordinary hours of work were 35 hours a week. His usual hours were from 7.00am to 3.25pm, with a half hour lunch break, over a nine day fortnight. He had to work 7 hours 55 minutes each day (and be at work for 8 hours 25 minutes, including the 30 minute unpaid meal/lunch break). The Applicant, and other employees completed an Attendance Signature Book (the “Blue Book”), which recorded their actual commencing and finishing times. Each employee’s manager would initial the times inserted by the employees.
[11] The Plans Management area, also known as the Asset Knowledge Team, was restructured between July and October 2016. The Applicant was given a new Manager, Ms Guruge.
[12] On 27 September 2016, the Respondent rolled out their Living Our Values policy to the Asset Knowledge team in a meeting. The Applicant attended that meeting. The meeting included training in relation to the incoming Living Our Values policy. That policy focused on ethical decision making and addressing unethical behaviours.
[13] In February 2017, the Applicant was put on a performance improvement plan (the “PIP”) by Ms Guruge. Issues raised in that PIP were the Applicant’s behaviours allegedly “not aligning with Sydney Water behaviours as a senior member of the DCS team” due partly to a negative attitude, being disrespectful and undermining his manager, and not recording utilisation of time during core hours. After approximately three months, the Applicant’s performance was deemed satisfactory.
[14] On 26 September 2017, the Applicant received a letter from Ms Guruge alleging that on 27 July 2017, he left work at 1.05pm without authority prior to his recognised finishing time of 3.25pm. Ms Guruge also stated that she wanted to discuss the Applicant’s general attendance and trends relating to start and finish times. The investigation performed a “general review” of the Applicant’s attendance at work.
[15] On 13 November 2017, the Respondent sent the Applicant a letter informing him that the allegation that he left work early without authority was found to be inconclusive, however, he was issued with a formal warning due to regular poor attendance. That letter (the “Warning Letter”) advised:
“Subsequent to your response to the allegation, your attendance and adherence to your recorded start and finish times was discussed. In that conversation, you acknowledged the evidence of your attendance times and you confirmed that you needed to improve. Accurate recording of your time and attendance are important matters and your failure to do this constitutes unacceptable behaviour.”
[16] The Warning Letter listed the following outcomes:
• “This letter serves as a written warning regarding your regular poor attendance that you acknowledged at the meeting, and will be placed on your Confidential Service File;
• You are reminded that you are required to indicate in the attendance book, any attendance outside the times of your Flexible Work Arrangement. This, along with clear notification to your supervisor and your actual attendance, is the standard you will be held to in the future; and
• A review will be undertaken independent of myself in approximately three months of your attendance. I will review your attendance performance with you in our one on one discussions.”
[17] On 18 January 2018, the Applicant met with Mr Connolly to discuss the review of his attendance. At that meeting, Mr Connolly drew the Applicant’s attention to a spreadsheet of his swipe card entries from 4 October 2017, to 4 January 2018, regarding the commencement and conclusion of the day, and during the work day. 57 discrepancies were highlighted, and Mr Connolly said to the Applicant:
“You should be here for 8 hours and 25 minutes including a half hour lunchbreak. There are gaps in the data that I have reviewed, which appear to indicate tailgating. Be careful what you’re doing here, because it looks like you’re tailgating.” (the “Verbal Warning”)
[18] On 21 June 2018, the Applicant received a letter from Mr Liam Connolly, Employee Relations Specialist of the Respondent (the “Connolly Warning”). That letter was in the following terms:
“Dear Glen,
Three-month Review of Attendance
In accordance with the outcomes letter given to you on 13 November 2017, a review of your attendance was undertaken.
The review according to the letter was to be undertaken independent of your line manager, Sreema Guruge, as such it was carried out by myself based upon information supplied by Internet Audit.
I supplied you with a hard copy of this data on 18 January 2017.
My review was that your attendance during the period 4 October 2017 to 4 January 2018 was compliant with your required attendance.
I did make comment that there were holes in the data indicative of you passing through the gates without you using your pass tag. I have spoken to security who do not approve of tailgating through security gates, please be mindful of this.
If you have any questions regarding the data, please feel free to contact me.”
[19] In about mid-August 2018, Ms Tammy Falconer, the Head of Asset Management, who was the Applicant’s Manager once removed, from mid 2018, held meetings with each of the sub-teams within the Asset Knowledge team. This was confirmed in the evidence of the Applicant’s co-worker, Ms Harris, though she put the date around one month earlier. Ms Falconer advised staff, including the Applicant, that employees could not just sign in the Blue Book at the start of the day and sign out at the end of the day for the required hours but then take lengthy breaks during the day for coffee, errands, or exercise. She said words to the effect of: “The expectation is that you work the hours you are required to work. You have 30 minutes unpaid lunch break. If you take a break for coffee, errands, or exercise, these are unpaid breaks and do not contribute to your hours at work”. Ms Falconer gave that instruction because it was her observation that it may have been common for some staff to take coffee breaks (for a lengthy duration) and not make up the time (and as a result work less than their required hours). She made a distinction between a coffee break on the floor where the employee works and a break to go off-site for coffee because, in her experience, a break to grab a coffee on the employee’s floor (in the kitchen/tea room) would usually take five minutes, while a trip for coffee off the premises, on the other hand, would usually takes 15 to 20 minutes due to the distance to be travelled, plus waiting in line, waiting for the coffee to be made and to return to the work floor.
[20] On or about 22 August 2018, Ms Falconer received an anonymous complaint about the Applicant’s attendance at work. The complainant said words to the effect, “I have seen Glen on multiple occasions taking long coffee breaks outside and I don’t think he is making up that time.”
[21] After receiving the complaint, Ms Falconer reviewed the Blue Book to see whether the Applicant was working any hours on top of his required ordinary hours of work. Ms Falconer’s review of the Applicant’s hours in the Blue Book indicated that the Applicant always seemed to work very close to his required ordinary hours of 8 hours 25 minutes, and no more. That indicated that he had not been making up time for any coffee breaks that he may have taken. Ms Falconer decided to refer the complaint to Internal Audit for assessment and investigation.
[22] The investigation of the Applicant was conducted by Mr Gordon Yee, an Internal Audit Specialist – Investigations of the Respondent. He recalls receiving the referral from Ms Falconer in about October 2018. His investigation involved reviewing swipe card records for the Applicant from 1 June 2018, to 16 January 2019, and obtaining and reviewing CCTV footage of the foyer at Respondent’s premises for a selected representative period of November and December 2018 (the “CCTV Footage”). Mr Yee deposed that the Respondent could not review all CCTV footage, as it would have been a huge task, so select dates were reviewed from where there were discrepancies in the Applicant’s access swipe card data, to see if he was tailgating.
[23] On 5 December 2018, the Applicant received an email from Ms Falconer, introducing the Accessing Sydney Water Properties - Security Policy. That policy provided, among other things, that “Tailgating, avoiding access controls etc. is not permissible.”
[24] On 4 February 2019, the Applicant was issued with a letter of allegations by the Respondent. That letter was signed by Mr Simon Granville and was expressed (in part) as follows:
“Dear Glen,
Formal Investigation – Letter of Allegations
Internal Audit have been investigating your time and attendance after receiving a complaint regarding your work hours. The complaint relates to you leaving the office and staying out for extended periods of time. It is alleged that you are not completing your work hours as per the Sydney Water Enterprise Agreement 2017, that is, you are being paid for hours you have not worked. As you are an employee covered by the Enterprise Agreement, working a nine Day fortnight, you are required to work seven hours and 55 minutes per day (excluding a lunch break).
Our analysis is indicating you are not working the required hours for your role. We have also noticed gaps in the data that suggest a pattern of tail-gating at the Level 1 entry gates. Considering your previous warning regarding attendance, a caution against tail-gating provided by Employee Relations and recent information provided by security regarding tail-gating behaviour, we have concerns that you may be absenting yourself from the workplace for repeated periods and making deliberate and systematic attempts to conceal your actions which, if substantiated, could constitute corrupt conduct on your part.
Under Sydney Water’s Disciplinary Policy, we are conducting a formal investigation. To assist us in our investigation, you are required to respond to the following allegations:
1. For the period of review, 1 June 2018 to 16 January 2019 (approximately eight months), your average time in attendance in the secure area of the Parramatta office is 456 minutes per day, this is short of the required 475 minutes by 19 minutes per day. If based on a five-day working week, this is the equivalent of approximately 95 mins (1.5 hours) of leave each week that is not recorded. Over a year this is approximately 71 hours (two weeks) that you are paid for hours not worked. In addition you may not be entitled to some Rostered Days Off (RDO). At the interview you will be provided with an opportunity to explain this.
The following table shows your average daily times inside ‘IN’ and outside ‘OUT’ of the secure area of the Parramatta office based on data from your first swipe entry and last swipe exit at the Parramatta level 1 access gates Refer Table 1 on page 2.
2. You have been tailgating through Level one security gates thereby disguising your absence and attendance within the secure zone of the Sydney Water building. At the interview you will be provided the opportunity to explain the below days that you appear to be tailgating, after you entered the office usually around 7:00 am. Refer Table 2 on page 2.
“Tailgating” is not permitted as per the Accessing Sydney Water Properties – Security Policy. You were informed that tailgating is not permitted in June 2018 by Employee Relations and by Tammy Falconer on 5th December 2018 when you were provided with the Accessing Sydney Water Properties – Security Policy.
The alleged behaviour appears to be in breach of the following Policies, Procedures, Signature Behaviours, and/or terms and conditions of employment with the Corporation:
(1) Living our Values: Principles for ethical decision making, Sydney Water’s Signature behaviour: “Do what you say” which includes honesty, integrity and trust
(2) Accessing Sydney Water Properties – Security Policy – section 1.1 and 2.2
You are required to provide your response in a meeting with myself, and Gordon Yee, Internal Audit Specialist – Investigations at 10:30 am 8 February 2019 in the Harris Park Room on Level 15 Room Number 15-01 of Sydney Water’s Parramatta office, at 1 Smith Street Parramatta, NSW.
The purpose of this meeting is to provide you with an opportunity to respond to these allegations. This will assist us to assess whether the allegations are substantiated and determine whether disciplinary action will be taken.”
[25] On 5 February 2019, the Applicant requested detailed time and attendance data to review in relation to the allegations, and also requested that the scheduled meeting be delayed to allow him to organise Union representation. The Respondent complied with both requests.
[26] Due to illnesses suffered by the Applicant, the Applicant could not be interviewed until 14 March 2019. At 9.30am on that date, Mr Granville and Mr McClure from Internal Audit held an interview with the Applicant and Ms Charlotte Clark of the ASU, on level 14 at the Respondent’s premises at Parramatta. A record of interview (the “Record of Interview”) was taken at that meeting instead of a transcript of interview, because the Applicant indicated his preference that the interview not be recorded. On 20 March 2019, the Record of Interview was sent to the Applicant, who proposed one amendment.
[27] In the Record of Interview, the Applicant’s explanations for tailgating were recorded as being he was “lazy and simply follows a person through because it is easy to do”, “hadn’t read the policy” and “regularly walked through the security gates behind others”. Those responses were not accepted by Internal Audit as adequate.
[28] On 4 April 2019, the Respondent provided the Applicant with a show cause letter, seeking that the Applicant provide reasons as to why his contract of employment should not be terminated. That letter was as follows:
“Dear Glen,
Proposed Outcome of Internet Audit Investigation – Disciplinary Process
The investigation is now complete, and findings have been made in relation to the allegations.
Allegation One:
For the period of review, 1 June 2018 to 16 January 2019 (approximately eight months), your average time in attendance in the secure area of the Parramatta office is 465 minutes per day, that is short of the required 475 minutes by 19 minutes per day. If based on a 5 day working week, this is the equivalent of 95 minutes (1.5 hours) of leave each week that is not recorded. Over a year this is approximately 71 hours (two weeks). In addition, you may not be entitled to some Rostered Days Off (RDO).
Further analysis of the data after meeting with Mr Coombs on 14 March 2019 it was determined that Mr Coomb’s average time inside the secure area was 468 minutes which is short by 7 minutes per day.
Based on the analysis conducted, the allegation that Mr Coombs is not working the required time is substantiated.
On the balance of probabilities this allegation is substantiated.
Evidence to support the finding:
An analysis was conducted by Internal Audit of Mr Coomb’s daily working hours via the security gate on the ground floor see Appendix A.
A review of CCTV footage available for days where there were anomalies in the security gate wipe records see Appendix B which shows the records relating to CCTV footage where Mr Coombs has tailgated through the security gates.
Allegation Two:
You have been tailgating through Level one security gates thereby disguising your absence and attendance within the secure zone of the Sydney Water building. Eleven dates and instances were identified from 12 November to 20 December 2018.
On the balance of probabilities this allegation is substantiated.
Evidence to support the finding:
CCTV footage for 5 occasions where you tailgated through the security gates on the ground floor. You confirmed your identity on the CCTV footage and said that you followed people through because you were lazy.
Warning letter of 13 November 2017 issued by Ms Sreema Guruge in which you were warned that accurate recording of time and attendance were important matters.
Letter of 21 June 2018 issued by Mr Liam Connolly in which you were advised to be mindful of tailgating as it is not approved.
Proposed Outcome
The substantiated allegations constitute corrupt conduct and as such as propose to terminate your contract of employment for breach of:
Sydney Water Enterprise Agreement 2017 – clause 11.2.1(a), 11.3.2
Living Our Values: Principles for Ethical Decision Making
Absence and Attendance Reporting Policy
We now provide you with an opportunity to provide us with any reasons as to why your contract of employment should not be terminated.
Please provide your response in person 1pm – 2pm Monday 8 April 2019 at Head Office Parramatta, Rom 14-01 or in writing to me by close of business Monday 8 April 2019.
You might find it helpful to access the confidentiality counselling service that Sydney Water offers employees through our Wellbeing provider on 1300 ARE UOK.
If you have any questions please do not hesitate to contact me.”
[29] On 9 April 2019, the Applicant responded to the show cause letter. That response was as follows:
• “I have worked for Sydney Water for 27 years in various departments, which includes my current role in Asset Knowledge for the past 7 years.
• My work has always been exemplary with no complaints. Despite the significant workload I have always met deadlines to the best of my ability. I am the only one in Sydney Water that does my job and I am accountable to myself and my manager. Until recently I had no back up, the buck stopped with me and I give 100% everyday.
• We have an attendance book for which I always enter my correct arrival and leave times in every day.
• I was unaware that tailgating was such a serious offence that could result in termination of employment. In previous warnings of tailgating, I was never told that it was a sackable offence. Security have never pulled me up. The only statement Sydney Water made to me about tailgating was that security did not approve.
• Since tailgating has been raised through this audit investigation it is now very clear to me how serious Sydney Water consider it. I realise that I have been doing the wrong thing and will never do it again. I would never risk my job and my family’s livelihood by doing something so serious and I regret now that I took the warning so lightly.
• I am also aware of other colleagues being audited for their time and attendance, but not tailgating, which I know they do and have seen them do. Because of this I feel Sydney Water are making an example of me for tailgating. This is not the fair way to go about it. Is tailgating a valid reason to sack anyone? If it is then why was this not communicated to staff clearly and why do security permit tailgating.
• I sometimes tailgated because my work environment was extremely stressful with unrealistic time restraints placed on me by my manager at the time and constant pressure from previous disciplinary actions that drew out over long periods:
◦ By August 2016 my new manager Sreema Guruge started. By February 2017 I was served with a PIP with Sreema attacking my attitude and setting unrealistic performance expectations. I normally do 10-20 jobs/day, Sreema expected 25 jobs/day. A job can take anywhere between 5 minutes and 5 hours. This PIP was incredibly stressful involving Sreema and HR. In the end I satisfied expectations and the PIP was signed off on 19th June 2017.
◦ On 26th September 2017 I was asked to respond to a complaint made to Audit that I left work 2.5 hours early on 27th July 2017. On that day I asked Sreema’s permission to leave early but she had forgot. The date was my wife’s first obstetrician appointment, so I could have asked for carers leave which was eventually used in response to the allegation, but I still stand by my reason to Sreema that I had the time in lieu. The allegation of leaving early without permission was found to be inconclusive but I still received a warning which was unfair. I was never asked by Sreema why I left early before the matter was escalated to Audit. Audit also audited my general attendance and it was identified that I was not completing my hours. I rectified my time and attendance, but this issue wasn’t closed off by HR until 21st June 2018. Having this disciplinary process hanging over my head was very stressful because I thought the process had finished.
◦ Other incidents that contributed to the stress were:
• Sreema let the whole team except for me do Saturday overtime even though there was a huge backlog of jobs for me to complete.
• I had to advocate very strongly and wait a long time to receive any assistance with my work in terms of extra resources
• My own personal issues at the time and now is that I had a brand new baby causing stress at home with sleep deprivation, and new demanding home duties, and also a separate child custody dispute involving my 10 year old daughter with an ex-partner, which is still current to this day
• I acknowledge and regret that work stress and my personal issues impaired my judgment with regards to tailgating. I wasn’t thinking clearly with everything else going on and didn’t want to risk another audit process for getting a coffee. As you would be aware court disputes and the birth of a child are incredibly stressful and I wasn’t coping.
• I had time and attendance issues raised last year, which were rectified during an audit a few months later.
• There were occasions where the gate was already open and there were also times when I asked Security to open the gate for me as my hands were full and I was unable to access my card in order to swipe it.
• My knowledge of the gates are for the safety of staff to ensure no non-Sydney Water employees are in the building - tailgating did not infringe this. I do admit that tailgating would have impacted Sydney Water’s capacity to know if I was in the building or not if there was an evacuation and therefore impacted my safety. By tailgating I did not consciously impact the safety of any other Sydney Water staff member.
• I have forensically gone over times produced to me by the audit team and dramatically reduced them. Over an 8 month period I was given an average of 19 minutes that I was alleged to be outside of the secure area of the building, I challenged this with the audit team and it was reaudited and was reduced to 11 minutes. I was still unsatisfied with the audited times and requested they review these times again during a particular month and the times were reduced again to an average of 7 minutes a day. I still believe that this could be reviewed again and reduced even further. The problem with the auditing process does not take into account the nature of my work. These reductions show how inherently fallible this audit process is.
• During my time as an employee of Sydney Water over the past 27 years, I have never had a customer complaint and never had a problem with work performance. I have a great rapport with my customers including both internal and external colleagues.
• • Disciplinary issues have only ever been brought up over the past 2 years which coincided with a change of management and new unrealistic deadlines which demonstrated a lack of understanding of my role.
• I have been married for 2 ½ years to my wife Marissa with whom I have a son Joshua aged 14 months. I also have a daughter Charlotte aged 10 years with an ex-partner.
• The impact of termination would have significant financial consequences for me and my young family. I have used Sydney Water to grow my career from a maintenance employee to my position as a Senior Asset Information Officer, which required me to go back to school to earn the right credentials for my current role for which I am proud of and enjoy doing every day.
• My father, Ronald Coombs, worked for Sydney Water for 36 years and I feel proud to be following in his footsteps in order to provide for my family the way he did for me and my sister.”
[30] On 12 April 2019, the Respondent sent the Applicant a letter terminating his employment. That letter was as follows:
“Dear Glen,
Outcome of Internal Audit Investigation
I refer to the letter of 4 April 2019 advising of Sydney Water’s proposed disciplinary outcome and opportunity for you to provide any reasons as to why your contract of employment should not be terminated. I confirm that you and your support person met with Mr Craig Davis on 9 April 2019 and were provided with an extension to complete your response until 10 April 2019. I confirm receipt of your response on 9 April 2019 to Mr Craig Davis.
Mr Davis has provided me with your response.
In determining the appropriate outcome, I have taken into consideration the following matters:
• The serious impact that a dismissal will have on you and your personal circumstances;
• The formal warning letter of 13 November 2017 issued by Ms Sreema Guruge (your supervisor at the time) in which you were warned that accurate recording of time and attendance were important matters;
• The letter of 21 June 2018 issued by Mr Liam Connolly, Employee Relations Specialist, in which you were advised to be mindful of tailgating (following a person through the security access gates) through the security access gates as it is not permitted;
• The fact that you are aware of how to correctly use your Sydney Water ID Card through the security access gates as seen on the CCTV footage;
• Your use of deception (tailgating) to obtain a financial advantage that is being payment for hours not worked and accruing and taking Rostered Days Off not entitled (Fraud);
• The fact that Sydney Water is a State Owned Corporation and has legislative responsibilities for preventing and responding to corrupt conduct; and the wilful and deliberate nature of your conduct that caused a serious and imminent risk to the reputation of Sydney Water.
Outcome
Sydney Water has an expectation that its employees, especially senior employees will not engage in corrupt conduct.
Sydney Water also expects that its employees will comply with its Absence and Attendance Policy and living our Values-Principles for Ethical Decision-Making . Signature Behaviours and the Sydney Water Enterprise Agreement 2017. As such, I have determined that summary dismissal without notice is the appropriate outcome for your serious misconduct and your contract of employment shall be terminated effective today.
Given your length of service, I am prepared to pay a notice period of 5 weeks in addition to any accrued entitlements that are owed to you.
As a former employee you and your family are entitled to continue to use our Employee Assistance Program by telephoning …”
[31] The Respondent considered that the Applicant’s tailgating was deceptive to conceal the amount of time he spent out of the office and not working. As a result, on 2 May 2019, Sydney Water’s Managing Director, Mr Kevin Young, reported the matter to the Independent Commission Against Corruption on the basis that it was felt the conduct of the Applicant amounted to corrupt conduct under the Independent Commission Against Corruption Act 1988(NSW).
ASU Involvement Regarding Time and Attendance in Asset Knowledge
[32] As noted above, on 13 November 2017, the Respondent sent the Applicant the Warning Letter. Around that time the ASU became directly involved with concerns of their members within Asset Knowledge, and Mr Mal Tulloch, Industrial Organiser of the ASU, gave evidence of that involvement. Ms Harris also deposed to the time and attendance audit occurring.
[33] On 6 November 2017, Mr Tulloch was contacted by email by ASU Vice President based at Parramatta, Mr Paul Muller, with concerns regarding his members in Asset Knowledge. That email was as follows:
“Mal
Just had a meeting with Robert Rodgers from Gen [sic] Coombs area it’s about their swipe cards. Corinne Cheeseman has called all the staff into a meeting about there [sic] are abnormalities about the data they have collected from there [sic] swipe cards. She said she will try give them a 5 day amenesty [sic] if the [sic] come forward and confess up. This is a witch hunt and I suspect they are trying to get Glen. I have never seen this done in all my time in Sydney Water. Could you contact Robert Rodgers on … I’ll be off tomorrow back on Wed.”
[34] It was accepted in the proceedings that the reference to “Gen Coombs” was in fact a reference to the Applicant. It was clear that the Applicant was a key participant in the ASU’s agitation on this issue.
[35] On 22 November 2017, Ms Guruge emailed employees, including the Applicant, stating, in part, “At a team brief held on 6 November at 11.00am, I requested everyone to record the time you arrive and the time you leave when you sign in the attendance book to enable me to manage the flexibility you would like to have in the team. In addition, for any deviations greater than 30 minutes from the agreed times of arrival/leaving work, you were asked to send me an email to inform me, in addition to writing the time in the attendance resister.” The reference to the attendance book was to the Blue Book.
[36] On 6 December 2017, in a team meeting with Asset Knowledge employees the issues “data mining” and “hours worked and swipe card times” were raised. Those issues remained the topic of various discussions for a number of months. The Applicant confirmed in cross-examination that “data mining” referred to the Respondent reviewing entry and exit data from the security gates 1.
[37] On 6 March 2018, Mr Tulloch wrote to various managers of the Respondent, including Ms Corinne Cheeseman, regarding a number of concerns expressed at a union meeting. Under the heading “Surveillance of Employees,” Mr Tulloch wrote:
“The Union understands Asset Knowledge management has informed our members at team briefs that the turnstile access and egress records will be monitored regarding attendance during working hours. This has been expressed as a data mining exercise that will identify anomalies with attendance . Asset Knowledge management has also expressed an amnesty from employees who choose to self-identify non-compliance with attendance since October 2017. This action was recorded in the team brief meeting in 6 December item 3 attached.
The Union understands that employees are required to sign in an attendance book each day to record their attendance. This has been the custom and practice within the workplace for a considerable time. But Asset knowledge management has taken an unilateral step to use access data in addition to signing of the attendance book. The Union is not disputing the need for employees to record their attendance but question the use of turnstile records.
The turnstiles main purpose has been to protect the safety, evacuation and security of SW employees and was never intended to be a bundy block. The Union would raise concerns regarding the collection and storage of personal data, who has access to this data and would question if SW complies with the workplace surveillance and privacy laws.
The Union understands that this data may be required for a “proper purpose” or law enforcement issues. But the ASU would dispute that a “proper purpose” is allowing local management to use this data to track the movements of its employees. Further that using the entry turnstile asses and egress records for the purpose of surveillance of employees attendance is not an accurate record of movements. The threat from management to use this data has created a considerable anxiety amongst our members appears to entrench a micro-management culture and has contributed to a deterioration of their heath & wellbeing.”
[38] On 12 March 2018, Ms Cheeseman responded to Mr Tulloch, which correspondence on the issue of surveillance stated:
“There is no plan to implement any on-going monitoring of the movements of staff via swipe-card access. This review of swipe-card records for a defined period was in response to a concern expressed by internal audit regarding the attendance patterns of some employees. Actual attendance patterns are difficult to confidently verify using any single method. Sydney Water always uses its business records as a source of information where they may help verify/clarify situations. We consider this to be a ‘proper purpose’.
We were entirely open with staff during this process, including providing an amnesty for staff who provide an early disclosure of potential breaches.”
[39] Mr Tulloch escalated the issue to the General Manager LCS within the Respondent, Mr Paul Plowman, and they met on 6 June 2018. Mr Plowman advised Mr Tulloch in an email of 6 June 2018 of the following regarding time and attendance:
“Time and Attendance
The issue dates back to September 2017 and originated from seeking to understand an underlying issues [sic] surrounding sufficient resources to undertake work. Through that process it appeared that there were inconsistencies in time and attendance across the team.
It was decided that the best course of action was to re-set expectations (as opposed to entering a detailed investigation and disciplinary process) with the knowledge that time and attendance would be measured over time. This was known in the team as the “amnesty” I believe.
My understanding is that there has been a marked improvement across the team and only a few still have unaccounted for hours. My understanding is that the analysis has taken a conservative approach i.e. where data is unclear, analysis erred towards the employee.
By way of background it is important to note that this has been referred to the ICAC in line with S11 of the ICAC Act as the matter may constitute corrupt conduct on the part of the affected persons that we plan to interview. The ICAC have confirmed that they are happy to have Sydney Water conducting the investigation and reporting the outcomes to them.
The investigation is being conducted by Audit and Assurance (AK management are not involved). Audit have summarised the following for me:
The next steps are that the affected persons will be provided with a letter of allegation. This will detail the allegations at a high level with sufficient information for the person to be able to prepare themselves for an interview with the investigators. The letter will give them at least 48 hours notice of the date, time and location of the interviews. The investigators will be from Deloitte, engaged by the independent Head of Audit and Assurance who reports directly into the Audit & Risk Committee and not into the Executive.
The affected persons will be offered the opportunity to bring a support person to the interview. The role of that person is to provide support to the affected person and to provide a safeguard against unfair practices.
At the interview the person will be provided an opportunity to respond to the allegations that are being put to them. They will be provided with choice of having the interview recorded electronically and subsequently being given a copy of that record that will summarise the discussions during the interview.
The affected persons will be offered the opportunity to provide supporting evidence to the responses they provided during the interview or other evidence that they believe should be considered as part of the investigation process. They will have five working days to provide that information.
After that period a report will be drafted by the investigators concluding on whether corrupt conduct has been substantiated in line with the evidentiary requirements relating to such matters.
That conclusion and the basis of the conclusion will be provided to management (GM LCS) to determine whether any disciplinary outcome is required. In addition the report will be provided to the Disclosures Panel (Managing Director, Industrial Relations, Head of Audit and General Counsel) for their review.
I understand that the letters are ready to be distributed and that the investigators are lined up for late next week.
The options are for letters (6 individuals – I don’t know who they are) to be distributed tomorrow (or Friday) – giving those affected a longer preparation period; or distribute on Tuesday and have the 48 hours in accordance with the policy.
My preference is the former. Note that this is independent, so I can influence but not determine.”
[40] There was no link established in the proceedings regarding whether the Applicant was one of the six individual letter recipients, and I make no assumption that any link existed, but I note the Applicant received the letter that was the Connolly Warning on 21 June 2018.
CCTV Footage
[41] Part of the case put to the Applicant during the investigation process in February to April 2019, was the CCTV footage collected by Internal Audit of the Respondent. That footage was also an Exhibit to the Statement of Mr Yee in the proceedings and admitted into evidence. The CCTV footage is compelling in what it shows. If it were possible to have annexed that footage to this Decision I would have done so, in order the assist any persons reading this Decision to fully understand the conduct.
[42] There are four security gates at the entry to the Respondent’s Parramatta premises. Gates 1, 2 and 3 are thin, and close quite quickly. Gates 4 is a wider gate, presumably for disabled access, which takes longer to close. All gates are opened by an employee passing their swipe card over a sensor. Upon so swiping, the red light on the gate turns green, the gate opens, and the gate closes when the employee is sensed passing through the gate.
[43] All the CCTV footage showed the Applicant tailgating only through the wider/slower gate (Gate 4). In some of the CCTV footage, it appeared the Applicant had made an effort to conceal that he was not going to scan his access swipe card. He did so by moving his hand in such a way as to grab his access card to use, pretend to go to swipe, but to then tailgate and not use his access swipe card. His conduct can be described as a feint to conceal the absence of a swipe.
[44] On other occasions, such as on 13 December 2018, the Applicant waited for another person to arrive before he followed them through the wide gate. On each occasion of tailgating it was clear that the Applicant was maintaining an uncomfortably close proximity to the person ahead of him in order to avoid being caught by closing security gates.
[45] Mr Tulloch also exhibited video footage he took on 9 November 2017, of two employees tailgating another employee through the slow fourth gate at the Respondent’s premises. That footage, having been taken over a year before the introduction of the Accessing Sydney Water Properties - Security Policy, was of limited relevance.
The Credit of the Applicant
[46] The Applicant was an unreliable witness. He has shown throughout, from the investigation process prior to his dismissal, up until the conclusion of his evidence before this Commission, to be evasive and contradictory in his evidence regarding tailgating. He has continually sought to downplay the gravity of his conduct.
[47] When first asked for his reasons for tailgating in the Record of Interview, when advised, “Please be honest and truthful,” he stated he was “lazy and simply follows a person through because it is easy to do”, “hadn’t read the policy”, and “regularly walked through the security gates behind others.”
[48] In the Applicant’s Application, the Applicant provided a different explanation. This was drawn to his representatives’ attention in proceedings 2 and not disavowed. That explanation was:
“[13] The Respondent’s methods of accounting for workplace time and attendance mean that any staff member who has a coffee break using facilities within the secure area have their break counted as time worked. As the applicant chose to leave the secure area and visit a coffee shop this time constitutes an absence from work.
[14] This resulted in a situation where the applicant occasionally tailgated to ensure that his times were compliant and ultimately to ensure that he did not have to endure another disciplinary investigation into his time and attendance. …”
[49] In his first Statement in the proceedings, the Applicant reverted to the “opportunistic” and “lazy” explanations, coupled with an alleged lack of knowledge or appreciation of the seriousness of his conduct. Those explanations did not withstand scrutiny.
SUBMISSIONS
(a) The Applicant
[50] The Applicant submitted that the Respondent did not have a valid reason for the dismissal, and that under any circumstance such a termination would be harsh, unjust and unreasonable. The Applicant noted the contrast between the exhortations of various members of the Respondent that the behaviour of the Applicant was fraudulent, dishonest and corrupt, and the reality that the Respondent’s case, at the end of the day, amounted to the fact that the Applicant was having seven minutes of breaks per day, which were reasonable, and not tapping his access card every time he entered the building.
[51] It was put that the Respondent, for all its protestations, was aware of the tailgating for over a year but took no action. No written warning, no allegations, no suspension, not even a discussion with the Applicant, on an informal basis.
[52] The Applicant submitted that in determining the existence of a valid reason there are two pertinent questions. Firstly, whether or not the Commission is satisfied that the conduct alleged actually occurred on an objective basis; and secondly, whether such conduct justified termination.
[53] To answer the first of those questions, it was obviously relevant to consider that actual allegation substantiated by the Respondent. In the outcome of investigation letter two matters were listed as being substantiated. First, the Applicant was short by seven minutes per day, and second, that he had tailgated through the security gates to disguise that absence. The Applicant submitted that I should not accept either of those findings.
[54] In relation to the seven minute breaks, the Applicant conceded that he took breaks throughout his employment. In his 27 years of employment with the Respondent he never denied this. But those seven minutes a day were reasonable breaks.
[55] The second allegation was the tailgating through the gate in order to allegedly defraud the Respondent. The Respondent variously described the conduct as fraudulent, dishonest, or even corrupt. But the evidence showed that the Respondent never took the conduct so seriously. Mr Connolly’s evidence was that he was aware of 57 incidents of tailgating by the Applicant, or potential incidents of tailgating by the Applicant, as early as January 2018, over a year before he was terminated, and over a year before he was even given an allegation of tailgating, yet he did nothing to follow that up.
[56] The Applicant noted that the Applicant was not even suspended for his conduct, and submitted that was because the Respondent did not consider it “high risk.” That characterisation was inconsistent with the characterisation of the conduct as corruption and fraud because those things are, necessarily, by definition, going to be high risk behaviours.
[57] The Applicant noted that while the Respondent received a complaint in August 2018, that complaint was not raised with the Applicant until February 2019, not even informally. The Applicant had no notice of the fact that there was any investigation, let alone any problem with his behaviour, until February 2019, at which point his employment was eventually terminated. The Applicant’s Manager, Mr Davis, and Ms Falconer and Mr Yee, all knew of the alleged conduct of the Applicant from around August to October 2018, but no one raised that conduct with the Applicant.
[58] The truth of the matter was that the Applicant just did not think that the proscription against tailgating was an overly serious matter, and given the lack of urgency with how the Respondent’s witnesses have treated it, that was a reasonable assumption. The Applicant’s oral submission on this point was as follows 3:
“They’ve been aware of the tailgating since the end of 2017 yet didn’t raise it with him until February 2019. Not a single allegation or warning. No performance management as to tailgating. It was simply not the behaviour of an organisation that considered this behaviour to be particularly concerning.
So as a result, the applicant continued what we concede is a sub-par practice. Something that he’s conceded on several occasions and regrets. He continued to tailgate in the middle of the day.
Since management had raised concerns about his start and finish times, back in 2017, he did make, you know, a concerted effort to ensure that those times were correct, and that swipings did occur at those times, but in the middle of the day he just didn’t pay attention to it. He didn’t think it was a big deal. Why would he have thought that?”
And 4:
“If Sydney Water had commenced some sort of investigation or allegations in regard to this tailgating and these long breaks, then it would be reasonable to presume that perhaps there is a reason for the applicant to engage in some sort of deceit. But in circumstances where he’s not been put on notice of it and, in fact, when he has been talked about tailgating it seemed to be not a big issue, it is quite a leap for the respondent to substantiate, on the balance of probabilities, that the reason he did it was to conceal his behaviour.”
[59] The Applicant submitted that there was not dishonest behaviour, and further submitted that even if I were to make a finding of dishonesty in the sense that the conduct was designed to try to circumvent Sydney Water’s surveillance of his time and attendance, such conduct would not warrant dismissal. The Applicant referred to the observations of the majority of a Full Bench of Fair Work Australia in APS Group (Placements) Pty Ltd v Stephen O’Loughlin 5, that were as follows:
“However, we note that such dishonesty will not automatically render a dismissal based upon it a dismissal that is not harsh, unjust or unreasonable. An illustration is provided by the decision of Buchanan J in McDonald v Parnell Laboratories. In that case the Court was required to consider whether an employee who had been dismissed for dishonesty in a response she gave to a manager in answer to an instruction to state her times of attendance over the previous three weeks had engaged in wilful, serious or persistent misconduct, within the meaning of a term of her contract of employment, such as to justify dismissal without notice in accordance with that term. Buchanan J reviewed the law relating to summary dismissal for serious misconduct at common law. It is clear from his Honour’s reasons that what he described as the as, “a single foolish dishonest act”, did not, in the circumstances, amount serious misconduct justifying summary dismissal at common law.” (Emphasis added).
[60] The Applicant submitted that if a finding of dishonesty were made, then it was the result of a single, foolish act. That act was a decision to tailgate and if it were found to be in order to deceive the Respondent, in those circumstances it would be a decision to tailgate to avoid the drama of arguing about seven minute breaks.
[61] The dismissal was a result of a hasty policy, implemented on 5 December 2018, in the middle of the investigation, that should not be allowed to be relied upon to validate termination. There was no consultation with the ASU or the Applicant on the policy.
[62] The Applicant referred to the decision of a Full Bench of the Commission in B, C and D v Australian Postal Corporation 6, at paragraph [48], where they observed:
“[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies, in the particular circumstances of an individual case, can be harsh, unjust and unreasonable.”
[63] On the issue of warnings, the Applicant submitted that he received none in relation to tailgating. This lack of warning goes towards the lack of a valid reason for termination and makes this termination harsh, unjust and unreasonable. But more than that, the Applicant submitted, there was simply no notice, in any of the documents, that the Applicant’s employment was at risk if tailgating were to continue.
[64] In those circumstances, it must be conceded by the Respondent that they have not given the Applicant a warning and there is not a warning capable of intimating to him that if his behaviour were to continue that disciplinary action, including the termination of his employment, could result.
[65] As to remedy, the Applicant submitted that reinstatement was the appropriate remedy. It is the primary remedy and should be considered prior to any other remedy, pursuant to s.390 of the Act. There had not, in this case, been a loss of trust and confidence that would make the employment relationship untenable. Until the February 2019 allegations in this matter and the termination of employment, this tailgating issue had hardly been ventilated.
[66] It was simply unsustainable for the Respondent to, on the one hand, state that trust and confidence has been lost, as at February 2019, when the behaviour that has apparently caused that loss in trust and confidence has been apparent to them for a period of at least six months prior. Mr Connolly was aware of the conduct for a year and a half prior. The Respondent cannot turn around now and take that behaviour that they so accepted and so allowed and say that that has caused a loss of trust and confidence.
[67] It was reasonable for the Applicant to misapprehend that his behaviour was not considered to be serious. The fact was that management, instead of trying to correct his behaviour, simply allowed him to dig a hole for himself, for a further six months, before they had enough data, in their opinion, to terminate him and bring his lifelong career to a close.
[68] The Applicant is 47 years old, and has worked for the Respondent since he was 20. It was a lifelong career, but more than that, it was and it is his identity. The impact of this termination on him and his family was profound and cannot be understated.
(b) The Respondent
[69] The Respondent commenced by noting that the Applicant was a senior employee. He was at level 13, out of 17, under the Enterprise Agreement and is not someone who is new to the workforce and might be oblivious to his obligations as an employee. Indeed, he recognised that he has an obligation as an employee to comply with his employers lawful and reasonable directions.
[70] Further, it was not in dispute that the Applicant tailgated. It was also not in dispute that he received directions, instructions and warnings not to tailgate. On each of the occasions the Applicant was told not to tailgate the message was clear. What is in dispute is the gravity of the conduct, and whether or not the explanations given by the Applicant were satisfactory.
[71] The Respondent submitted that the Applicant was not an impressive witness, due to his attempts to downplay what had occurred, including on a number of occasions by not answering the questions asked of him. The Applicant had failed to be open and honest or candid, both with the employer and this Commission.
[72] In response to the Applicant’s evidence that he had an unblemished record, the Respondent drew the Commission’s attention to:
(a) A Disciplinary Caution, dated 15 January 1998, partially relating to absences without a medical certificate, late or incomplete running sheets, and the conclusion that those incidents demonstrated an irresponsible attitude to duty;
(b) A letter of 24 November 1999, regarding failing to secure and maintain, in a safe manner, a Sydney Water vehicle;
(c) An email from Andrew Ford to John Gillett, in 2002, which outlined a number of occasions, while acting as team manager, the Applicant had to be spoken to;
(d) A memorandum of 21 October 2002, that, having outlined some of the Applicant’s employment history, noted “his manager of the time reported that Glen displayed a couldn’t care less attitude to the issues raised”; and
(e) The Applicant’s concessions, in cross-examination, that his 2012 and 2013 performance reviews rated him as “needing attention”.
[73] Then, more pertinently for the disposition of the Application, the Respondent addressed the more recent disciplinary measures. First, there was the PIP in February 2017. The Respondent noted it was trying to get visibility on the work performed by the Applicant, and he was not complying with an instruction to document that. On page 1, in the second row of that PIP, on page 1 of the PIP, in the “Current Issues” column, the issue is:
“Recording of utilisation of time during core working hours. After many requests recording of time has not commenced. Glen has informed me that he will commence recording times as of 1 February 2017.”
[74] Next, in July 2017, where there was an issue raised about the Applicant leaving work early. While the Applicant gave evidence, initially, in cross-examination, that he didn’t understand this issue was disciplinary, he subsequently acknowledged that he knew, at the time, that it was a disciplinary process because it included the following:
“The allegations are serious and if proven may result in disciplinary action.”
[75] The Respondent noted that letter also squarely addressed the issue of the Applicant’s attendance, and consequently resulted in the Warning Letter regarding regular poor attendance of 13 November 2017.
[76] Thereafter, Mr Connolly then conducted his review of the Applicant’s attendance. Mr Connolly looked at the Applicant’s attendance times from the swipe card entries at the security gates and saw the 57 instances where there was not an accompanying exit or entry swipe. He issued the Verbal Warning that:
“You should be here for 8 hours and 25 minutes including a half hour lunchbreak. There are gaps in the data that I have reviewed, which appear to indicate tailgating. Be careful what you’re doing here, because it looks like you’re tailgating.”
[77] The Respondent submitted that the above statement was a clear direction, instruction and warning not to tailgate, and noted that the following day, the Applicant wrote a memorandum in response to the disciplinary process, wherein he stated:
“An internal audit was also done of the gate times of entry in and out of Parramatta head office.
This was an added issue on top of the original application.
My times were seen as an issue and I was put on a three month probationary period to correct this issue.
Personally, these allegations against me have caused much anxiety and distress and I know that if the allegations [had] been brought to my attention by my immediate manager when it happened it would not have happened at all.”
[78] The Respondent submitted that, arising from the above statement, the Respondent should have been able to have confidence that, it having been raised with the Applicant that tailgating was not appropriate, it would not happen. However, what did occur was that the Applicant just kept on tailgating.
[79] The Connolly Warning reinforced the position on tailgating. While it was given some five months after the Verbal Warning, such delay explained at least partly by the Applicant’s absence on paternity leave, it stated:
“I did make comment that there were holes in the data indicative of you passing through the gates without using your pass tag. I have spoken to security who do not approve of tailgating through security gates, please be mindful of this.”
[80] The Respondent submitted it was impossible that any reasonable person would have interpreted that tailgating was other than prohibited. In response to the Applicant’s arguments regarding being given appropriate notice of tailgating being unacceptable, the Respondent submitted 7:
[147] I have made my findings as to the credibility of the Applicant, but further find that the Respondent could have no confidence in the Applicant ever complying with any lawful and reasonable direction that it gave where the Applicant did not himself want to comply with that direction.
[148] The Application is dismissed, and I so order.
DEPUTY PRESIDENT
Appearances:
Mr R Coluccio, for the Applicant.
Mr J Mattson, for the Respondent.
Hearing details:
2019
Sydney
4 and 5 September
Final written submissions:
For the Applicant: 28 August 2019
For the Respondent: 20 August 2019
Printed by authority of the Commonwealth Government Printer
<PR714484>
1 PN287-PN289
2 PN2658 to PN2661
3 PN2237 to PN2239.
4 PN2268.
5 [2011] FWAFB 5230, at [56].
6 [2013] FWCFB 6191.
7 PN2524
8 PN2619
9 [2015] FWCFB 1033.
10 PN2555.
11 (1938) 60 CLR 336.
12 Print S4213.
13 Mourilayan v James Hardie Australia Pty Ltd [2010] FWA 9672, at para [88].
14 [2017] FWC 3505, at [216]
15 Federated Miscellaneous Workers Union of Australia v Wattyl Limited. 1 March 1991. S Print J6922
16 [2010] FWA 6487, at [32].
17 PN 411 to PN 414
18 Concut v Worrell (2000) 176 ALR 693; 103 IR 160.
19 Exhibit R1.
20 PN 750 to PN 757.
21 At paragraph [54].
22 PN 558 to PN 567.
23 (2000) 98 IR 233 at 237.
24 [2015] FWC 816, at [75].
25 Print S 9280.
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8
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