Harry Zoumas v TNT Australia Pty Ltd T/A TNT Express
[2011] FWA 3065
•2 JUNE 2011
[2011] FWA 3065 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harry Zoumas
v
TNT Australia Pty Ltd T/A TNT Express
(U2010/12675)
COMMISSIONER HARRISON | SYDNEY, 2 JUNE 2011 |
Termination of employment - unfair dismissal - arbitration.
[1] This decision concerns an application by Mr Harry Zoumas (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by TNT Australia Pty Ltd T/A TNT Express (the Respondent) was harsh, unjust or unreasonable.
[2] Following unsuccessful conciliation the matter was referred for arbitration on 19 January and 18 February 2011. The Applicant was self-represented and gave oral evidence. Evidence in support of the Applicant was given by his brother, Mr Con Zoumas. Written statements in support of the Applicant were submitted by Mr Michael Fric and Mr Troy Abraham.
[3] The Respondent was represented by Mr R Warren of Counsel. Evidence was given for the Respondent by Mr Robert McKenzie, General Manager Industrial Relations, Mr Joseph Fric, delivery driver, Mr Tony Merhi, HUB Manager, Mr Peter McAlpine, Design Engineer, Pinpoint Communications, Mr Robert Ryan, Regional Security Manager, Mr Robert Barter, Fleet Maintenance Supervisor and Mr Pietro Villa, Unload Supervisor.
Background
[4] The Applicant was dismissed for gross misconduct. The Respondent provided the following details of the Applicant’s alleged misconduct in a letter to him dated 14 September 2010:
- Between Monday 23 August 2010 and 7 September 2010 you regularly and deliberately used a GPS blocking device at the conclusion of your last pickup/delivery to hide your trip from your delivery area back to the Enfield Depot. This blocking device was found in your vehicle;
- During the periods outlined above you returned to the vicinity of your home address and parked TNT vehicle registration number VNQ848 in Page Street, Earlwood (outside of your run area) where you subsequently returned to your residence and remained there for lengthy periods of time during work hours. You then returned to the Enfield Depot later than you otherwise would have and as a result received overtime payments fraudulently;
- On at least two occasions you were observed with Mr Fric;
- On 7 September 2010 you siphoned fuel from vehicle registration number VNQ848 into a red jerry can;
- You deliberately lied during the investigation into the above.
[5] The Applicant denied all allegations and claimed he had medical reasons for returning home during working hours. He also claimed he was the victim of a personal vendetta carried out by Mr McKenzie the Respondent’s general manager of industrial relations.
[6] The events leading up to the termination began in July 2010 when the Respondent identified discrepancies in the data recorded by the GPS unit fitted to the company vehicle driven by the Applicant.
[7] GPS tracking systems were installed in all of the Respondent’s fleet of vehicles in 2008 following consultation with employees. Vehicles fitted with GPS units have a notice to that effect displayed in the vehicle.
[8] The anomaly appeared to occur each afternoon about 5PM which was the time the Applicant would be expected to complete his final pick-up or delivery. The depot manager was uncertain as to the cause of the problem and requested the security manager to assist in establishing whether the installed GPS unit was faulty or being interfered with.
[9] A portable GPS unit was attached to the Applicant’s vehicle on 22 August 2010 and comparisons between the fixed and portable units were evaluated between 23 August and 6 September 2010.
[10] It was the evidence of Mr Robert Ryan, the Regional Security Manager, that data from both devices matched up throughout the day until the Applicant’s last job when the fixed device did not record any data between a Sydney CBD location and the Respondent’s depot at Enfield for periods of up to three and a half hours.
[11] In support of this evidence detailed daily “Run Activity Reports” and Enfield depot gate house reports were appended to Mr Ryan’s statement.
[12] On 7 September 2010 the Respondent confronted the Applicant after he returned to the Enfield depot. Mr Ryan outlined the version of events in the following extract of his written statement:
“At about 8pm, Mr Zoumas left the debrief office. I approached Mr Zoumas and in the presence of Mr Tony Merhi, TNT PM HUB Manager, and Transport Workers’ Union delegates Mr Chris Marlow and Mr Scott Brinley, I said to Mr Zoumas words to the effect of:
Harry, due to anomalies with the recorded data from the GPS unit attached to your vehicle, I intend to conduct a search of the cabin of this vehicle. Do you understand that?
He said words to the effect of:
Yes Bob, but I don’t know nothing about the GPS, it’s too technical for me.
Mr Zoumas, Mr Merhi, Mr Marlow, Mr Brinley and I walked to where Mr Zoumas has earlier parked his Vehicle. Mr Zoumas used the key to unlock the driver’s side door and as he did so he said to me, “Bob I’ll just grab my bag and my mobile phone.”
I saw Mr Zoumas reach inside the Vehicle and remove a black coloured carry bag. I also saw him put a small electrical device that he had picked up from the console between the driver’s seat and the passenger’s seat, and which looked similar to a mobile telephone, and place it on top of his bag. Mr Zoumas pushed back past me and started to walk away from the Vehicle around the front of the Vehicle.
As I was getting into the Vehicle, through the cabin windscreen, I saw Mr Merhi reach over and with his right hand remove the small electronic device from the top of Mr Zoumas’ bag. I got out of the Vehicle and walked to the front of the truck. Mr Merhi gave me the electronic device. The electronic device looked very similar to the device I had identified during my research as a GPS blocking device, referred to above.
I said to Mr Zoumas:
Harry, this is a GPS blocking device. What can you tell me about that?
Mr Zoumas replied:
It’s a booster for my mobile phone.
I said:
I believe that this is a GPS blocking device and I intend to ask you further questions about this tomorrow.
I made a telephone call on my mobile telephone to Mr Bob Mackenzie. A short time later Mr Mackenzie arrived at the dock where Mr Zoumas, Mr Merhi, Mr Brinley, Mr Marlow and I were standing next to the Vehicle. I handed Mr Mackenzie the small electronic device Mr Merhi had taken from Mr Zoumas. In the presence of Mr Merhi, Mr Marlow and Mr Brinley, Mr Mackenzie asked Mr Zoumas if the electronic device was a GPS blocking device. Mr Zoumas said that it was a mobile phone booster. Mr Zoumas said that while it may block GPS, he did not use the electronic device for that purpose.” 1
The electronic device
[13] The Applicant’s evidence was that he purchased the device in 2006, before the introduction of GPS tracking, for the purpose of boosting his mobile phone reception. He contradicted this evidence during a transcribed interview with company representatives and union delegates on 8 September when he said an ex-employee had given the device to him a year earlier. Under cross examination the Applicant agreed he lied during the interview.
[14] The Respondent was granted leave to engage an expert to undertake tests on the electronic device to identify its nature and capacity. Mr Peter McAlpine, a senior design engineer of Pinpoint Communications, undertook a series of technical tests which were peer reviewed by the Director of Pinpoint Communications.
[15] The results of the tests and inspection of the circuitry were summarised as follows:
“In our opinion the electronic device is a RF jammer and with its ability to transmit on GPS and GSM related frequencies is designed to degrade or block GPS or GSM reception.” 2
[16] The second allegation regarding misconduct by the Applicant was that he returned home each day for lengthy periods when he should have been working. The second GPS device attached to the Applicant’s vehicle confirmed the location, date and times of his route deviations.
The Applicant’s medical condition
[17] The Applicant admitted he had been going home on his journey back to the Enfield depot on a regular basis since 2006. His reasons were that he needed to attend to a medical condition of haemorrhoids. His evidence was:
“I did a responsible day’s work and basically the only reason I was going home on a daily basis was basically to empty my bowels. Well, eating was part of that process. Basically I kept myself from an empty stomach at times for, you know, longer than 12 hours so naturally when you have a meal my digestive system works like, “Pretty soon I’ll be going to the toilet.” So basically it was a fear you could say that I had. Also it is a very risky and unhygienic situation if you’re caught in it - if you do go to the toilet in a public toilet which was the only thing available to me in my area, being a driver.” 3
[18] It was the Applicant’s evidence that the practice of going home en route to Enfield at the end of his shift was sanctioned by his then area manager, Mr Pietro Villa.
[19] Mr Petro Villa gave evidence that:
- He was never aware the Applicant suffered from haemorrhoids;
- Was never aware that he did not immediately return to Enfield after his final pick up or delivery;
- He never told the Applicant that he did not need to return immediately after his final pick up or delivery or “turned a blind eye” to this occurring.
[20] Under cross examination by the Applicant, Mr Villa did not resile from his evidence in chief.
Consideration
[21] Although the Respondent relied on additional grounds for terminating the Applicant I am sufficiently satisfied that the allegations regarding the use of a GPS blocking device and unauthorised absence from duty have been substantiated.
[22] I have reached this conclusion because the expert evidence of Mr McAlpine, that the electronic device was a GPS blocking device and not a mobile phone signal booster, is irrefutable and unchallenged.
[23] Furthermore, the Applicant did not deny spending time at home when he should have driven directly to the Enfield depot. The time so spent was paid at overtime rates.
[24] In my opinion, the Applicant’s medical condition of haemorrhoids was used by him as an excuse to cover and excuse his dishonesty. There is no evidence the Respondent was ever aware or advised of his medical condition. The only medical certificates relating to haemorrhoids were obtained by the Applicant after he was terminated.
[25] I am satisfied on the balance of probabilities that the Applicant’s wilful use of the blocking device was a calculated act to defraud the Respondent. The consistent pattern of use clearly indicates his intent to disguise his whereabouts.
[26] In so doing the Applicant deliberately set out to defraud the Respondent by accepting overtime payments for time not worked.
[27] Section 387 of the Act states that:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(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 FWA considers relevant.”
[28] I now deal with these factors. With regard to s.387(a) I find that there was a valid reason for the Applicant’s dismissal. His use of a GPS blocking device and the claiming of overtime payments for which he was not entitled were premeditated and calculated. His dishonesty was flagrant and untenable.
[29] In relation to s.387(b) the Applicant was clearly notified of the reasons for his dismissal. Following the discovery of the GPS blocking device the Applicant was suspended on full pay and interviewed by management the following day. A meeting was conducted five days later followed by a further meeting the next day when the termination was effected.
[30] With regard to s.387(c) as noted above the Applicant was interviewed on several occasions when he was given opportunities to provide his version of events.
[31] At all times during the interview process he was accompanied by his union delegates.
[32] I have had regard to the remaining provisions of s.387 including any other relevant matters. I have already found that the Respondent had a valid reason for the Applicant’s dismissal. The process and procedures adopted by the Respondent in giving effect to the termination were fair and transparent.
[33] I find that the Applicant’s termination was not harsh, unjust or unreasonable. His application is therefore dismissed.
COMMISSIONER
Appearances:
H Zoumas, the Applicant
R Warren of Counsel with J Sutherland, Blake Dawson for TNT Australia Pty Ltd T/A TNT Express
Hearing details:
2011.
Sydney:
January 19 and February 18.
1 Exhibit W7 PN 53-58.
2 Exhibit W6.
3 Transcript PN193.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR509630>
0
0
0