Jaskaran Singh Basanti v Linfox Australia Pty Ltd
[2025] FWC 2481
•22 AUGUST 2025
| [2025] FWC 2481 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jaskaran Singh Basanti
v
Linfox Australia Pty Ltd
(U2024/12654)
| COMMISSIONER PERICA | MELBOURNE, 22 AUGUST 2025 |
Application for an unfair dismissal remedy
INTRODUCTION
Mr. Jaskaran Singh Basanti had been employed at Linfox for at least 10 years.[1]
At the time of his termination, Mr. Basanti was employed at Melbourne Fresh Distribution Centre (MFDC) in Truganina. He described his “day to day work” at the MFDC as “delivering fresh produce to Woolworths supermarkets” and working as a “yardie” which involved arranging for trailers to be removed from docks or placed on docks.
Mr. Basanti had been a Transport Workers’ Union (TWU) delegate at Linfox since mid-2016 and, at the time of his termination, was a senior delegate for TWU members employed at MFDC and at the Melbourne Liquor Distribution Centre at Laverton.
Following a disciplinary procedure on 3 October 2024, Mr. Basanti’s employment was terminated without notice for serious misconduct related to “worksheet falsification and dishonesty”.
On 22 October 2024, Mr. Jaskaran Singh Basanti made an application under s 394 alleging he had been unfairly dismissed from his employment with Linfox Australia Pty Ltd (Linfox).
Hearing
The matter was first heard on 18 February 2025. Mr. Basanti gave evidence and was represented by Mr. Santino Raftellis of the TWU. Mr. Blake Byrne, Workplace Relations Manager, appeared for Linfox. Two employees of Linfox, Mr. Ralph Vitug, a Site Manager, and Mr. Matthew Sheridan, an Executive General Manager, gave evidence for it at the hearing.
The day before the hearing, the TWU filed three witness statements of Mr. Basanti’s coworkers. At the end of the hearing, I issued directions listing the matter for a second day on 14 March 2025 and for Linfox to file material in reply, which was received on 4 March 2025.
The matter was further heard on 14 March 2025. Mr. Gurvinder Singh, Mr. Amanvir Singh and Mr. Ljupco Ristanovski attended and gave evidence.
Disposition
For the reasons I set out below, I am satisfied:
· The dismissal of Mr. Basanti was harsh, unjust or unreasonable within the meaning of s 385 of the Act.
· A remedy of compensation in the sum of gross $23,889 subject to the payment of tax in favour of Mr. Basanti, along with the payment of superannuation on that amount, is appropriate in all the circumstances of the case.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a)the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b)the Applicant has been unfairly dismissed.
Both limbs of this section must be satisfied. I am therefore required to consider whether Mr. Basanti was protected and whether he has been unfairly dismissed.
It was not contested Mr. Basanti was a person entitled to protection from unfair dismissal.
When has a person been unfairly dismissed?
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(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.
The matters referred to at points (a), (c) and (d) are not in issue. The contest in this proceeding is whether Mr. Basanti’s dismissal was harsh, unjust or unreasonable within the meaning of s 385. Before turning to consider that question, it is convenient to set out some of the factual background relevant to the proceedings.
BACKGROUND FACTS AND EVIDENCE
Mr. Basanti worked for Linfox for over ten years until the termination on 3 October 2024. At all relevant times, Mr. Basanti’s employment was regulated by the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2023 (the Agreement).
DRIVER’S DAILY WORK SHEETS AND THE KRONOS SYSTEM
Linfox drivers are required to complete daily worksheets. They are issued and completed by drivers for every shift they work. At the top right hand corner of every worksheet there is a text which reads “This run sheet is a legal document. All data keyed must be accurate and true”.[2]
Linfox also employs a biometric device aptly named “Kronos”[3] whereby workers entering or exiting the site, place their fingerprint on it and it records the time of entry or exit. In his Statement, Mr. Sheridan, who was at all material times the Executive General Manager of the Woolworths’ contract for Linfox, states in his witness statement “Employees use Kronos time and attendance machine to clock in and out each day. This data is cross referenced with the worksheet to capture any anomalies which cannot be managed by Kronos (i.e. delays)”.[4]
Linfox policies relevant to work hours and work sheets in the Red Book
The policies and procedures for Linfox employees are contained in a book of policies known as the Red Book. The Red Book contains policies which are relevant to hours of work and their recording which appear in a page headed “employee commitments to Linfox”.[5]
6.3 Hours Worked
You must clock on or sign the register when you arrive for work and clock off (or sign out) when you leave. This ensures you will be paid for the time you work. Worksheets/Trip sheets must be completed with all relevant details.6.4 Sign on/sign off (clockcards/records of attendance)
– It is your sole responsibility to ensure you sign on and sign off.
– Only clock on and off yourself.
– Clocking in or out for another employee is strictly forbidden and may be subject to disciplinary action up to and including summary dismissal.6.5 Worksheets
– Deliberate inaccurate completion of worksheets is fraudulent and may
lead to instant dismissal.
– Record your time on the worksheet to the nearest five minutes.
– All activities, including breaks or stoppages, must be recorded.
– Worksheets must be completed daily and accurately.
– Worksheets are legal documents.6.6 Absence or lateness for work
You are required to be punctual for work. If you are absent or will be late for any reason, you must notify your immediate manager as soon as possible. In most circumstances, your absence should be notified well in advance of your scheduled start time.
Mr. Sheridan gave evidence that Linfox “reinforces” the requirement of adherence and compliance with the Red Book.[6] All drivers complete a Red Book induction when they commence working at Linfox and are provided with a copy of it.[7] Drivers also undergo periodical refresher training on the Red Book.[8] The method of that training is a multiple choice test on a computer.[9] It was the evidence of Mr. Sheridan that Mr. Basanti had undertaken this refresher training on 6 December 2017, 17 September 2019, 30 October 2020, 16 February 2023 and most recently on 21 May 2024 and had been issued a “Certificate of Completion” for “Linfox Red Book induction”.[10]
OLD 2014 WARNING
On 9 July 2014, Mr. Basanti was issued and signed a First and Final Warning letter for failing to “accurately” complete pre trip inspection documentation. Mr. Basanti checked off that the tyres on the vehicle he was driving were in a good condition where it subsequently transpired one of the tyres were bald.[11]
2022 DISCIPLINARY PROCESS
In August 2022, Linfox completed a “compliance audit” on entry and exit times of the site turnstiles and break times, against data on worksheets. On the basis of this audit it commenced an investigation into the drivers who had been identified as having discrepancies in their worksheets, including Mr. Basanti.[12]
18 August 2022 interview
On 18 August 2022, Mr. Basanti and his support person, Mr. Anthony Goddard from the TWU attended a record of interview. Mr. Basanti “agreed there were discrepancies between his arrival times and the times declared on his worksheet”. A record of interview was subsequently prepared, and Mr. Basanti and his support person refused to sign it.[13]
19 September show cause letter
On 19 September 2022, Linfox after completing the investigation concluded Mr. Basanti had “falsified” his worksheet and issued Mr. Basanti a letter entitled “Investigation Outcome”.[14] That letter relevant stated:
You were shown a summary of the discrepancies of your security turnstile entry and exit times for the month of July of which there were 15, totalling 4 hours and 5 minutes. You were asked whether you claimed monies that you were not entitled to, you stated: "When I am not on site, I am taking handovers, pay inquiries, roster change. On site, in the carpark, in the gantry if they are smoking." At the conclusion of the ROI you remained suspended with pay until the conclusion of the investigation.
Linfox has completed its investigation and has concluded that you have been fraudulent when completing your worksheets, as you have claimed to have been working when in fact you were not onsite at during these occasions identified in the table. Furthermore, no approvals were provided to you to record a start time of 2:00am even though you were not on site, as you had claimed. Worksheet falsification is in breach of company policy, specifically, "The Red Book Induction" section.
5. Employee Commitments to Linfox, subsection 5.15 Work Sheets, which states:
·Deliberate inaccurate completion of Work Sheets is fraudulent and may lead to instant dismissal.
·Work Sheets must be completed daily and accurately...
·Worksheets are legal documents
You were shown a summary of the discrepancies of your security e provided to you
The 19 September letter went on to state “Linfox had reached a preliminary view” that “there is a basis for the termination of your employment for serious misconduct for worksheet falsification and dishonesty” and gave Mr. Basanti an “opportunity to explain why your employment should not be terminated”.
21 September 2022 final written warning
On 21 September 2022, Mr. Basanti was issued a “final written warning” which rehearsed the disciplinary process that had been undertaken, the conclusion Linfox had reached in the investigation and restated the “Worksheet Policy” for the Red Book. The letter concluded (the emphasis is in the original):
Linfox has reviewed all the evidence and has concluded that there is a basis for termination of your employment due to serious misconduct for dishonest or theft as well as worksheet falsification in accordance with clause 71 Counselling and Discipline of the Linfox and Transport Workers Union Road and Distribution Centres Agreement 2021 which states:
71.2 Serious misconduct includes but is not limited to:
(a) dishonesty or theft; and
(b) falsification of worksheets.However, on this occasion, Linfox has decided to issue you with a Final Written Warning and provide you with one final opportunity to remain with the company. You should be aware that any future misconduct, regardless of the type is likely to result in the termination of your employment.
Mr. Basanti and his support person refused to sign the final warning. In his oral evidence, Mr. Basanti explained why. It was related to his understanding that he could perform delegate duties which sometimes delayed his ability to fill in his worksheet:[15]
BASANTI: So two years ago, I received a warning. According to my understanding and the arrangement I had with the previous site manager at that time was to perform my delegate roles. At that time, we had a lot of issues regarding roster changes and timings, which were not getting sorted, so a lot of drivers were upset, and before I start work, the pm boys who were leaving the site, they can hold me at the car park before the turnstile, and same thing happens when I'm finishing my shift. The guys who are coming - - -
COMMISSIONER: So you were consulting members on their afternoon shift?‑‑‑
BASANTI: Yes.
BASANTI: So they maybe hold me up there for five/10 minutes while I'm on site doing the delegate role, just for the company benefit, to get these things sorted, and at that time, due to COVID, we were not using the electronic system (indistinct), so my timesheets come up say five/10 minutes, the round-up figures, which I got alleged on at that time.
RAFTELLIS: Thank you, Mr. Basanti. Did you sign that warning when you received it from the company?‑‑‑
BASANTI: No.
COMMISSIONER: Hang on a minute. I'm not sure I understand. So you were out there doing the - what was the discrepancy in the timesheet as a result of you going and consulting the members?
BASANTI: So like I come in at 2 o'clock and I got held up by the drivers for 10 minutes, and while I'm filling out my run sheet - because I had the arrangement with the site manager that he told me that it's fine, 'as long as you're on the site', so I put the time as 2 o'clock.
2024 DISCIPLINARY PROCESS
The complaint against Mr. Basanti
On 4 August 2024, Linfox received a complaint against Mr. Basanti from Mr. Mark Trioralas by e-mail to Mr. Sheridan.[16] That e-mail relevantly stated:
“…I believe there is fraudulent activity occurring where Jaskaren might be falsifying his runsheets as he has not arrived on time at work in the past six months. His start time is 2am but is late every morning, sometimes up to two hours, with no repercussions. Also about 1 month ago, he left the site about 7.30 and did not return until after 9PM to run his own errand (taking his car for a service. He did not clock off during his absence or adjust his run sheet to reflect his absence.”
As a result of this complaint, Mr. Sheridan directed the Linfox Workplace Relations Team to investigate the complaint.
28 August 2024 interview in relation to work sheet discrepancies
On 28 August 2024, Mr. Basanti and his support person, Mr. Goddard attended an interview with Mr. Thai Trinh, Mr. Caldern and Mr McNicol, Workplace Relations Officer. During the interview, three allegations related to discrepancies on his time sheets were put to Mr. Basanti.
The 19 May 2024 allegation: On 19 May 2024 – he left the site mid shift at 10:18 AM and re-entered the site at 11:14 AM, a total of 56 minutes. Workers are entitled to a 30-minute paid meal break. According to the record of interview, in answer to this allegation he said (amongst other things):
· “I just went for my lunch break from 10.30 until 11. I put “180” for all my lunch break.”
· He “did not recall’ why he took longer 26 minutes longer than the prescribed 30 minute lunch break.
· He went to an “Indian Restaurant to get food”.
· “We don’t clock off for lunch breaks. There is no expectation to clock off during our lunch breaks.”
The 2 July 2024 allegation: On 2 July 2024 – he entered the site at 4:51 AM but recorded a commencement time of 3:55 AM and a finish time of 2:55 PM. The discrepancy meant that Mr. Basanti was paid for 11 hours when Kronos recorded a period of 10 hours 2 minutes between clock on and clock off. This meant an increased payment of overtime. In relation to this allegation, he said (amongst other things):
“That is accidental to write 3.55. I clocked on at 4.55 and logged off. I used Kronos and we are paid through Kronos. When in the tug I get my run sheet printed when I finish my shift. They print the run sheet for me. Maybe on the day I started late and wrote the wrong time on my run sheet accidentally.”
The 10 July 2024 allegation: 10 July 2024 leaving the site at 6:52 AM and re-entering at 8:14 AM. Mr. Basanti was off site for 1 hour and 23 minute during his lunch break, which is limited to 30 minutes. In response to this allegation, he said
“My car was booked in for recall and I forgot it was that day. I sent an alarm for 6 o’clock and it remind me of the recall. The supervisor has called in sick. I called Ralph Vitug and explained that I need to take my car in for a recall and I would be back in half an hour. On the way back I grabbed food for everyone and got stuck in the traffic due to the explosion and chemical factory fire on Swan Drive. I called the office, and no one answered. I called Ralph after this. Thai called me back and I explained that to him.”
Mr. Basanti was suspended on full pay while the investigation took place.
25 September Show Cause letter
On 25 September 2024, Mr. Ralph Vitug, the site manager at the Woolworth’s MFDC, sent a letter to Mr. Basanti entitled “Investigation Outcome”.[17] It set out the process of the 28 August interview, the three allegations and Mr. Basanti’s responses to them. It went on:
Linfox has completed its investigation and has concluded that you have been fraudulent when completing your worksheets as you have claimed to be working when in fact you were not on site. Furthermore, Linfox considers your interview responses to be both lacking in honesty and credibility.
Linfox explained it had formed a “preliminary view that there is a basis for the termination of your employment for serious misconduct for worksheet falsification and dishonesty. This view has been formed based on your most recent conduct in combination with the 2022 Final Written Warning”. It also gave Mr. Basanti an opportunity to “respond and explain any circumstances which might mitigate or explain the conduct”. It notified him of a further meeting on 26 September 2024.
Written Response to the Show Cause
Just prior to the Show Cause meeting, Mr. Basanti prepared a written response to the preliminary view expressed by Linfox in relation to the three allegations:[18]
“19 May 2024
We are not instructed to clock off during our lunch breaks. I took my lunch break and
unfortunately took longer than the allocated 30 minutes. The remaining 26 minutes may have been explained by delays at the restaurant I attended to pick up food for me and my colleagues. It is common practice for a nominated person to collect food for their coworkers as it facilitates a quick lunch break for all employees and prevents delays to everyone’s lunch breaks if there is traffic, delays or an incident. I accept that I was delayed getting back to site but I believe it is relevant to consider the context of collecting lunch for numerous other people and ensuring that they remain able to perform their duties on site and take an expeditious 30 minute break.2 July 2024
I believe that I made a simple mistake on my timesheet. I clocked on at 4:55am and accidentally wrote 3:55am. Kronos reflects the accurate clock on time for my shift and it is my understanding that it is through Kronos that our hours and pay are determined.10 July 2024
On this date, I had authorisation from my manager Ralph Vitug to use my lunch break to finalise my car service. As mentioned above, we are not instructed to clock off during our lunch breaks. Because I was off site, I was asked to collect lunch for my colleagues – this is standard practice for which there are numerous witnesses. Unfortunately, there were significant traffic and delays that may be explained by the local chemical factory fire which diverted traffic. I called the office to flag my delay but no one answered. I then subsequently called my manager Ralph Vitug to explain the delays who was very understanding and gave me no reason to be concerned or alarmed. I called him one additional time to communicate my delay, and again he was
sympathetic and gave me no reason to be concerned.I believe that all of the allegations upon which the company is seeking to rely to terminate my employment can be explained by the circumstances and context I have outlined above.”
Show Cause meeting on 3 October 2024 and termination
The Show Cause meeting was held on 3 October 2024 and was conducted by Mr. Vitug and Mr. Calderon. Mr. Basanti attended with Mr. Raftellis (who appeared in the proceeding). Linfox, Mr. Basanti and his representative went through the Show Cause letter and Mr. Basanti’s written response amongst other things.
Mr. Sheridan (who could not attend the show cause meeting) “after considering all the information presented” to him did not “think” that the exculpatory material presented by Mr. Basanti “justified or excused his actions and decided Mr. Basanti’s employment should be terminated.[19] Mr. Sheridan requested Mr. Vitug and Mr. Calderon to prepare a termination letter for Mr. Basanti.[20]
A letter of termination was prepared and a letter dated 3 October 2024 was hand delivered to Mr. Basanti.[21] The letter, after laying out the circumstances that lead to the 2022 final written warning, the written interview on 28 August, the 25 September Investigation Outcome letter and excerpts from the Red Book went on:
Today, 3 October 2024, you attended a meeting to discuss the company’s preliminary decision to terminate your employment, due to serious misconduct for worksheet falsification and dishonest. No mitigating circumstances were provided by you that alter the company’s decision…
As such Linfox has decided to terminate your employment immediately, without notice,
pursuant to the Linfox Driver Behaviour Policy…
EVIDENCE ON THE 19 MAY 2024 ALLEGATION
Witness statement of Basanti
In his witness statement Mr. Basanti said the following about the 19 May allegation:[22]
“At 10:18am, I departed the MFDC site to collect lunch for myself and many of my colleagues. This is common practice because Linfox does not offer any food or beverage services on the site that I worked.
It is common practice for a nominated person, on rotation, to collect lunch for a workgroup oftentimes using the Linfox vehicle available for staff. This prevents a mass exodus of workers leaving site and causing issues for Linfox by arriving back at site late if individual food orders are delayed.
I would collect food for the others in my workgroup and local management approximately four or so times a week. Over a year that is over 150-200 trips.
We are not instructed to clock off during our lunch breaks. We are told to only use Kronos at the start and end of our shift. It was common practice to put the standard half an hour for lunch on the timesheet. Managers were understanding that a group order can take some time and there might be delays. As such we were never instructed to put more time than half an hour. We were asked to call one of our managers if we were delayed.
Most of the restaurants frequented by drivers are approximately a ten-fifteen-minute drive. This is more difficult on Sundays as almost all the local cafés are closed and so the drive is often further.
On Sunday, 19 May 2024 I left site to pick up a group lunch order for employees including the allocators and supervisor Jagdeep Chahal Singh. Unfortunately, it took longer than the allocated 30 minutes. The remaining 26 minutes may have been explained by delays at the restaurant I attended to pick up food for me and my colleagues.
As noted above, it is common practice for a nominated person to collect food for their coworkers as it facilitates a quick lunch break for all employees and prevents delays to everyone’s lunch breaks if there is traffic, delays or an incident. I accept that I was delayed getting back to site, but I believe it is relevant to consider the context of collecting lunch for numerous other people and ensuring that they remain able to perform their duties on site and take an expeditious 30-minute break.
…..
I cannot definitively recall if I contacted my supervisor that day, Jagdeep Singh Chahal, but I believe that I did as I would do so any time that I was delayed. Nonetheless, no members of management, including Jagdeep, raised any concerns or issues with me when I arrived back to site late.A member of local management is required to sign our time sheets before it is processed by Linfox Accounts Team. A member of management would have signed my time sheet to approve it.”
Oral evidence of Basanti
In his examination in chief in answer to the question whether or not he had informed management of his late return, Mr. Basanti said:[23]
“Yes, always with any delays. Since my last warning, I learned my lesson, I mend my ways and always, whenever I get delayed, inform the first point of contact, which is the supervisor. If he's not available, one higher up, ops manager or the site manager.”
Mr. Basanti and his representative went on:[24]
RAFTELLIS: At paragraph 25, you speak about your supervisor being Jasmeet Johal Singh; is that correct, Mr. Basanti?
BASANTI: Yes.
RAFTELLIS: You said you called this individual?
BASANTI: Yep.
RAFTELLIS: Or you believe you may have, sorry. My apologies, Commissioner.
The question of whether or not Mr. Basanti could recall ringing his supervisor Jagdeep Singh was the subject of cross examination:[25]
BYRNE: The question I have for you, Mr. Basanti, in your witness statement dated 6 January and what you've said today, there is an inconsistency. Did you or didn't you?‑‑‑
BASANTI: I did because I confirmed with him, double-checked with him that he was working that day, and he confirmed looking at his diary that he was working. And then he remembered that I ring him that day.
BYRNE: You had an opportunity to put a reply statement in?
BASANTI: But we did in the other statement that we did.
BYRNE: Can you take me to that statement where you've confirmed what you've just said today?‑‑‑
BASANTI: I can't find. But (indistinct) confirms and he agreed that was the scenario.
BYRNE: You've got no evidence of that, do you?‑‑‑
BASANTI: No.
Mr. Basanti gave some explanation of the inaccuracies on his time sheet in cross examination:
BYRNE: I took you to that and you agreed with me on that. That's what it said. So do you agree with me that you left the site at 10.18 on that day?‑‑‑
BASANTI: Yeah.
BYRNE: Why did you write down 10.30 and not 10.20, which is the nearest five minutes to your exit time?‑
BASANTI: Because I fill out the run sheet at the end of the day. Every other example which we discussed previously that those run sheets while driving were the light run sheets. I had run sheet with me all the time. When doing (indistinct) activities I received the run sheet after doing my 12-hour shift.
Evidence on the “lunch practice” from other workers
The hearing was adjourned after the first day to allow the TWU and Mr. Basanti to file evidence in relation to the lunch practice at MFDC. One person would leave the worksite to obtain lunch for their fellow workers. Three witness statements were prepared that were received into evidence. The witness statements were from Mr. Amanvir Singh, Mr. Gurvinder Singh and Mr. Ljupco Ristanovski. Their witness statements were received into evidence as A3, A4 and A5 respectively.
In most circumstances the statements use precisely the same words. All three statements contain the following identical text:
“• It is common practice to leave site during the designated break time in order to purchase meals.
· To minimise disruption to the business each day we try and nominate a single employee on a rotating basis to purchase food on behalf of the rest of the work team.
· If there are any delays to our lunch break, it is standard practice to notify a member of management of our delay.
· I have bought lunch for my colleagues and for supervisors and allocators previously.
· It can take longer than half an hour to pick up lunch. Sometimes nearby shops are closed and so you have to drive a bit further, or restaurants take longer than you expect, especially on a group order.”
Mr. Ristanovski and Mr. Amanvir Singh both precisely state: “It is not standard practice, nor are we instructed, to put down a time in excess of 30 minutes for a lunch break if it takes longer than 30 minutes to collect food.”
Mr. Gurvinder Singh says “I have never been told to put down a time in excess of 30 minutes for a lunch break if it takes longer than 30 minutes to collect food on our lunch break.”
They all give evidence in relation to the practice of marking down delays for lunch breaks:
· Amanvir Singh: “When I have run late for my lunch break [and I have rung a member of management about my delay], I notify the office and I don’t mark it down on my worksheet because they don’t ask me.”
· Gurvinder Singh: “When I am running late, which is rare, I will call up my supervisor and let them know but I don’t mark it on my worksheet.”
· Ljupco Ristanovksi: “I have seen people arriving back at Melbourne Fresh after their half an hour lunch break has finished multiple times. I understand that they do not alter their time sheet to reflect the longer than half an hour if management are aware of that delay.”
Ljupco Ristanovski
In his oral evidence Mr. Ristanovksi explained the group lunch practice in this way:[26]
“…We dedicate one yard driver to step out and get lunch for everyone, including management, because we don't have any facilities on site, and this is the normal practice. So we've been doing it for many years, since I've been there, roughly, you know, 2021, and with the management we have an agreement if we get held up at any stage or any reason, whether traffic or at the restaurant, just to give the site manager a call and let them know that we're held up for 10 minutes or so, or 15. It happens rarely, but when it does this is what we do, or what we have been doing, and as far as we all are aware, and I'm aware, that we don't need to note this down on our run sheet, because we yardies we don't carry the run sheets with us like drivers do; we collect it at the dead end of our shift, and then we put in our 30‑minute lunch break, as discussed with the managers on site.”
Mr. Ristanovski recalled that he had been late coming back from getting lunch once: “…I can’t recall the exact date, but I’d say last year in June/July it did happen once, and I notified the supervisor at the time…”[27]
Amanvir Singh
Mr. Amanvir Singh also described the lunch practice as follows:[28]
RAFTELLIS: Mr Singh, you had, like, one or two times, did you put that on your worksheet?‑
AVANVIR SINGH: As long as we notify, like, any delays we notify the supervisor who is on that shift. Nobody told us to put that delay in the run sheet as long, like, (indistinct) got the run sheet in the morning, when they start the shift, we (indistinct) the run sheet when we finish the shift. That's it.
Mr. Amanvir Singh in his oral evidence said that he was late coming back from getting lunch for the group ‘one or two times”,[29] that it happened “rarely”[30] and when it did happen, “we notify the supervisor”.
Gurvinder Singh
Gurvinder Singh in his oral evidence described the lunch practice as:[31]
“Yeah, because we don't have any sort of a canteen or anything in the yard, so usually we go for the food outside, normally a café or restaurant, whatever. So we ask all the yardies and for the supervisor as well, so we go out and grab the food, all of them once - one go.”
He also described what occurred on the occasion when he was going to return beyond his 30-minute lunch break:[32]
“Yeah, because last year there was - I don't know what the date, but last year there was - I just call my supervisor, 'Guys, I'm going to be five, seven minutes late.' I just remember that, but after that I - yes, (indistinct) these things didn't happen so we are no more - I am no more going outside to get the foods.”
When asked what he marked on his time sheet on the occasion he was late, he stated “just [marked] the normal break, like half an hour break we allowed to, so (indistinct) half an hour break”.[33]
Mr. Vitug on the lunch practice
In his witness statement, Mr. Ralph Vitug, who is the site manager at MFDC, also gave evidence on the lunch practice as follows:[34]
· Employees are free to use their 30-minute meal breaks how they see fit. Linfox does not endorse or allow employees to take longer than 30 minutes for a meal break because they are collecting food for other employees.
· … employees have been approved to use the site Ute for a variety of purposes. On these occasions the ute is driven out of the truck exit and returns through the truck entry. Employees do not leave or return through the site turnstiles.
· Employees are not instructed to clock on and off for their meal breaks as they are afforded 30 minutes each and every day. I reject any assertion that managers allow a grace period when employees are collecting food for other staff members.
· Linfox has facilities for employees to store food in a fridge or heat food they can bring from home. Employees do not need to purchase food from a café or store. This is a choice made by employees.
Mr. Vitug was cross examined about his statement about how Linfox does not “endorse” lunch breaks over 30 minutes:[35]
RAFTELLIS: I asked you before if you would consider management and yourself as employees and you said that is the case. I mean you're welcome to clarify your statement, but what I understand is that it's your view that Linfox does not endorse or allow employees, that is, anyone who is employed by the business, to take longer than 30 minutes for a meal break; is that correct?‑‑‑
VITUG: It depends on the - so if it's a driving crew, they're obviously on a weekly - weekly basis. Monthlies, no.
RAFTELLIS: What do you mean by that, sorry, weekly, monthly basis?‑‑‑
VITUG: So drivers are weekly and white collar staff are in the salaried staff.
COMMISSIONER: So what you mean by 'employees' is not white collar staff; is that right?‑‑‑
VITUG: Not white - well, in that instance.
RAFTELLIS: Well, you made a qualification before when you said, 'Has happened, seldom happens' as far as the agreement‑covered staff?‑‑‑So for blue collar?
VITUG: Yep.
RAFTELLIS: So when you say it seldom happens, you meant - - -?‑‑‑A
VITUG: Blue collar.
RAFTELLIS: Your reference to 'employees' here, you're meaning blue collar, are you?‑‑‑
VITUG: For this particular statement, yeah, it's blue collar.
RAFTELLIS: So you're kind of carving out the managers? They can take longer, if necessary?‑‑‑
VITUG: Monthly salaried staff, not managers strictly.
RAFTELLIS: What do you mean by that distinction? ‑‑‑
VITUG: So allocators, supervisors, they're all monthly salaried staff.
RAFTELLIS: So the half an hour break doesn't apply to them?‑‑‑
VITUG: No, it doesn't because they don't - they don't have a designated break time.
RAFTELLIS What might be an example of, or who might be an example of a manager who's paid on a weekly basis that would be restricted to the half an hour?‑‑‑
VITUG: There isn't any.
RAFTELLIS: So they're just drivers that are mentioned in the enterprise agreement?‑‑‑
VITUG: Correct.
MFDC Ute Log
Mr. Basanti in his reply statement took issue with Mr. Vitug’s claim that Linfox does not “endorse” a longer than 30 minute meal break by attaching a sample of the MFDC ute logbook (which is often used for the group lunch practice) which shows some employees have taken longer than thirty minute for lunch. He states:[36]
I reject the assertion that Linfox does not endorse employees or allow employees to take longer than 30 minutes for a meal break. The attached sample pages of the Linfox ute logbooks demonstrate that employees take longer than 30 minutes on their lunch breaks. As many of these individuals are managers, I believe this demonstrates that the standards set by Linfox are that it is acceptable to take longer than 30 minutes on a lunch break …It is my view that they may have financially benefitted from the lunch breaks that they took in the same manner.
Mr. Basanti was cross examined on the contents of the log excerpts. The log contains entries in relation to “Food”, “Lunch Run” or “Lunch”, and the employees who used the ute include management and salaried staff (who are not paid on an hourly rate and therefore don’t get paid meal breaks) and drivers who are paid the 30-minute meal break and are covered by the Agreement.
The cross examination established that employees who were drivers in the log, namely Govinda, Sahab, Jugrat, Amanvir (and some others), all returned within the 30-minute meal break.[37] There are two entries for the driver “Jatton”: the first entry he returned within the 30 minutes, the second entry on 21 December was for a period of 50 minutes.
EVIDENCE ON THE 2 JULY 2024 ALLEGATION
Witness Statement of Mr. Basanti
In his 6 January Witness Statement, Mr. Basanti states:[38]
“On 2 July 2024 I entered at 4:51am and clocked out at 2:57pm. On my worksheet I accidentally wrote 3:55am instead of 4:55am. I believe that I made a simple and regrettable mistake on my timesheet.
Kronos reflects the accurate clock on time for my shift and it is my understanding that it
is through Kronos that our hours and pay are determined.…others had made similar mistakes such as this and were not subjected to disciplinary processes or outcomes.”
Sheridan statement on disciplinary action taken against workers for worksheet inaccuracies
In paragraph 48 of his Statement, Mr. Sheridan lists eight employees between 21 September 2022 to 14 September 2024 who were disciplined for “falsified” worksheets. Two received final warning letters and six had their employment terminated.[39]
Basanti reply statement on 2 July 2024 allegation
In his reply statement dated 11 February 2024, Mr. Basanti expanded on his explanation:
My usual start time is 2:00am and I had slept in as I was unwell. I intended to take the day off to recover, but when I called Jasmeet Singh, Office Clerk, told me that three other employees had called in sick and that they were quite understaffed. As such, I attended work but later than my usual start time.
When I completed my worksheet at the end of the day, I accidentally wrote down the
wrong start time. Once I wrote it down wrong once at the top of the worksheet, I continued to make the same error as I worked down the sheet.I am upset and disappointed that this error has been used as grounds to terminate me considering I did not intend to come into work as I was unwell, but did so in order to help the company. I worked 72 hours over 6 days every week starting at 2am every single day. I would work every public holiday and rarely call in sick. I have been a committed employee of the company for years and have been treated like I am disposable for making one mistake on 2 July.
Oral Evidence of Mr. Basanti
In his examination in chief, Mr. Basanti said:[40]
“So 2 July, I wasn't feeling well that day, I slept in, and when I wake up around quarter past 3, I ring the site and say, 'I'm not feeling well, I slept in. Can I take a day off today?' And the person at that time was Jess Mead, who's the office clerk. He advised me that Mark Disolas(?) - he's another truck driver who used to start with me - that he already called in sick, and Jasmeet, who's the supervisor, he's not there yet, and they had one other employee, which I forget the name, that he's not there, so we short‑staffed, 'If you can please come in, it will be really appreciated.' So I straight away jump in the shower and get to work.
Then I accidentally put wrong time because of - we get the run sheets end of the shift. We start early in the morning and finish it on 2 pm/2.30, and after working 12 hours, we given the run sheet to fill in. So at that time, I just accidentally put the wrong time.”
Mr. Byrne cross examined Mr. Basanti about the elaborated explanation in his reply statement as well as whether Jasmeet, the person he contacted, was a supervisor:[41]
BYRNE: So again, I put it to you that Jasmeet is not a boss, not a senior manager on site, not someone that runs the site, is he?
BASANTI: He was the only person available at the site. As I said, the supervisor was running late. He wasn't there when I ring. I ring the landline phone for the supervisor extensions.
BYRNE: Mr. Basanti, in your record of interview on 28 August 2024, can you show me in there where you advised that you were unwell, and that contributed to the conduct engaged by you on 2 July?
BASANTI: I can't recall at that time, the ROI. It was just presented to me, so I can't recall straightaway. After that, I had done my investigation that – who was working, I consult with those people, and then I remembered and confirmed that that was the actual day on that day.
…
BYRNE: There's nothing in that witness statement that says you were unwell and that contributed to it. There's nothing in there, is there?‑‑‑
BASANTI But I don't work there anymore. I have to find people, make calls, and remember those, days, scenarios, bring them – picture them in front, that – what was the date. And they have to go back, check that – who was working that day. And after doing all that, I gathered the information that happened.
BYRNE: Well, you worked at Linfox on 28 August. These people were all available to you on 28 August, but you didn't remember it then, and you couldn't put it in that document there?
BASANTI: I wasn't given the opportunity to go talk to people. I was in the room, and that sheet comes in front, all of a sudden, after two months.BYRNE: Well, you signed that record of interview, didn't you.
BASANTI: Yes.
EVIDENCE ON THE 10 JULY 2024 ALLEGATION
Basanti statement and the oral correction
Mr. Basanti’s witness statement as it was made on 6 January 2024 stated:[42]
On 10 July 2024 I entered the worksite at 2:31am.
At 6:17am I called Site Manager Ralph Vitug and advised that I needed to use my lunch break to finalise my personal car service. Ralph approved me doing so and asked me to pick up pork rolls for lunch for management (including Ralph himself), Operations Manager Thai Trinh, Country Clerk Tim, and Supervisor Jagdeep Singh Chahal back in the office while I was out
I left the site at 6:52am. As mentioned above, we are not instructed to clock off during our lunch breaks.
Unfortunately, there were significant traffic and delays that may be explained by the local chemical factory fire which diverted traffic. As noted in my Record of Interview …I recall that Swan Drive was blocked off and traffic was being directed elsewhere. Traffic may have been directed elsewhere due to the chemical spill which preceded the fire – it is unclear to me why the road was blocked off.
I called the office to notify them of my delay, but no one answered. I then subsequently called Ralph Vitug at 7:52am to notify him that I had picked up lunch and explain the significant delay He was very understanding and gave me no reason to be concerned or alarmed.
I had a genuinely held belief that because I was collecting lunch for management, at their request, and that I had notified Ralph of my delay that I did not need to alter my time sheet to reflect a longer lunch break.
When I got back to site, I distributed out lunch and spoke with Ralph. Ralph did not express any issues or concerns about my time, nor did he ask me to put down an altered time on my timesheet or write any notes.
A member of local management is required to sign our time sheets before it is processed by Linfox Accounts Team. A member of management would have signed my time sheet to approve it. It is likely that one of the four members of management who was aware of my delay because they got lunch from me that day, signed off on my timesheet because managers often sign our timesheets at the end of our shift.
Relevantly, Mr. Basanti attached a screenshot from his phone to corroborate the discussion he had with Mr. Vitug on 10 July. It records that Mr. Basanti rang Mr. Vitug at 6:17 AM and that phone call lasted 46 seconds and again at 7:52 AM and that lasted 37 seconds.[43]
Before this statement was received into evidence at the hearing, Mr. Basanti made a correction to his first statement that was also made in his reply statement under the heading “Response to Ralph Vitug Statement”:[44]
I want to correct that Thai, the operations manager, he asked about the pork rolls and when I was taking permission from Ralph I offered that I’m getting pork roll for other staff, “would you like One? And he said “yes”.[45]
Vitug Statement
Mr. Vitug stated the following in relation to this allegation:[46]
· On 10 July 2024 I received a phone call from Mr. Basanti at 6:17am advising me that he needed to take his car for a recall service and would be doing this in his lunch break, I was at home when I received the phone call. I advised Mr. Basanti that he should have told me the day before so we could have planned for it; I advised Mr. Basanti that he was free to do this in his lunch break, however, I did not approve or endorse for him to take longer than his allotted 30-minute break time. Mr. Basanti did not inform me that he was taking his lunch break at that time. I reject the allegation that I asked him to buy me lunch or collect my lunch.
· Mr. Basanti called me at 7:52am and advised me that he was on his way back to the site but not that he had experienced significant delays.
· The management team review the information recorded on the worksheet prior to signing off the worksheet. Mr. Basanti recorded no information related to his absence from work 6:52am to 8:14am. Had he done this, the management team would have brought this to my attention, and I would have acted upon it. The expectation is that all drivers are to note on their worksheets any delays.
Mr. Basanti replied to this statement in a reply statement in which he stated:[47]
· I informed Mr. Vitug that I had been asked by Linfox Manager Thai Trinh to collect lunch for members of management and my colleagues. I offered to purchase him food, and he asked what I was getting and I advised it was pork rolls, and he asked me to get him one. Please see attached bank transaction indicating the value of my purchase. [Attached to his Statement was a receipt from “Bahn Mi Viet St Albans” in the sum of $50.14.]
· I reject the assertion that I did not inform Mr. Vitug of my delay. That was the express purpose of my call.
· The supervisor who signed off on the sheet, Vakeel Singh, was aware that I was late from my lunch break as I had notified him and told him that I had reported this to Mr. Vitug.
Sheridan statement on chemical spill and fire
Mr. Sheridan in his statement sought to interrogate Mr. Basanti’s claim that his delay on 10 July 2024 was due to “Traffic may have been directed elsewhere due to the chemical spill which preceded the fire” as follows:[48]
· Mr. Basanti departed the MFDC at 6:52am and returned at 8:15am on 10 July 2024;
· Upon review of the media report issued by Fire Rescue Victoria, emergency services arrived at the scene of the factory fire at 11:20 AM;
· Mr. Basanti returned to the MFDC 3 hours prior to emergency services attending the factory fire
· Mr. Basanti did not record this delay on his worksheet.
Oral evidence of Mr. Basanti:
In his oral evidence, Mr. Basanti stated:[49]
BASANTI: So on 10 July, my car was booked in for recall, but instead of putting the alarm a day prior, I put the alarm at 6 o'clock for the same day, and when the alarm ring, I ring Ralph straight away that I forget my car supposed to go for recall, 'Can I do this in my lunch break?' And he gives me okay to do that.
RAFTELLIS: Who did you buy lunch for that day, Mr. Basanti?
BASANTI: So before leaving site, I ask Thai, as usual, I ask everyone, all my truck drivers and the other staff that is needing food, and Thai insist me to get pork rolls on the way back, and when I ring Ralph, I offered him as well that, 'I'm getting pork rolls for everyone, would you like one?' and he said, 'Of course', and I went, done my car and bought food.
RAFTELLI: Why did you call Mr. Vitug?‑‑‑
BASANTI: So I called him twice on that day, firstly, to take permission that if I can go swap my car in my lunch break, and second time I ring him to notify the delay. I ring the office phone. They didn't answer, so I ring Ralph Vitug again that I got held up due to traffic. I don't know what the reason was there, but I had a detour. I was at standstill for three to four minutes, so I had to take detour, which took me longer than expected, and because I ring the office, then Thai ring me back. I explained him the whole situation there as well. So I informed two people.
RAFTELLIS: Did you get lunch for Ralph?
BASANTI: Yes, they had photos from the turnstile of me holding two bags full of food.
In cross examination he was asked questions about his telephone calls with Mr. Vitug:[50]
BYRNE: When you called Mr. Vitug he was at home? ‑‑‑
BASANTI: Yeah.
BASANTI: You told him that you would use your 30-minute lunch break to do your car service. That's what you told Mr. Vitug?—
BASANTI:‑Yes.
BYRNE: You never told Mr. Vitug that you needed to take longer?‑‑‑
BASANTI: I was only swapping the car with my wife so she can take to the shop because I forget.
BYRNE: So when you called Mr. Vitug you never made any comment to him that you were going to take longer than 30 minutes?‑‑‑
BASANTI: No.
BYRNE: You left the site at 6.52 am?‑‑‑
BASANTI: Yeah.
BYRNE: That's 35 minutes after making the phone call to Ralph?‑‑‑
BASANTI: Yeah.
Mr. Byrne then asked Mr. Basanti questions concerning the “chemical spill” which Mr. Basanti speculated may have led to the delays he experienced. Mr. Byrne took Mr. Basanti to a news report which was an attachment to the Sheridan statement. In that statement it stated “Crews arrived at Swan Drive scene at 11:20AM.”[51]
BYRNE: Fire Rescue Victoria outline that crews arrived at 11.20 am, however you arrived back to the site at 8.15 am?
BASANTI: Yeah.
BYRNE: Emergency services arrived to the factory fire two hours and 55 minutes after you returned to the site. How is it possible that this incident caused you any delays when emergency services arrived at the scene two hours and 55 minutes after you returned to the site?‑‑‑
BASANTI: If you go back to page 129, twice there I told: It could have been due to chemical factory fire, accident. Not sure, but it was blocked. So in my ROI I told that three times, that if I'm looking one month after, that's the only incident I can find over the website. There was a fire on that day that was on the news.
BYRNE: You say …., 'There was significant traffic delays', and that Swan Drive was blocked off and traffic being directed elsewhere?
BASANTI: Yeah.
BYRNE: So you think that wasn't in connection with the factory fire, it was something else?‑‑‑
BASANTI: As I said, it could be due to chemical factory or accident, not sure.
BYRNE: Why didn't you record it on your worksheet on 10 July?
BASANTI: Because I notified my site manager.
BYRNE: But you'd recorded on numerous other occasions, Mr. Basanti, delays or activity that had been approved by your manager that they knew what you were doing and you wrote that down on the worksheet. But on this particular day you told management and management were aware of it, that's what you say, and you didn't write it down in your worksheet?‑‑‑
BASANTI: All those 150 examples we got here is my working.
BYRNE: There is not a single one regarding my lunch break or anyone's lunch break.
BYRNE: No, but it's activity. It's delays incurred during your day?‑‑‑
BASANTI: Yes. There could be other incidents where things get done on the phone call as well which I haven't recorded. But the majority of the time I record, but not regarding the lunch delays. If it happens, I inform two people: my ops manager and my site manager.
Oral evidence of Mr. Vitug
On the recording of delays
In cross examination Mr. Vitug gave evidence of recording delays returning from breaks.[52] His evidence was the following:
· He confirmed it was the “unform policy” that drivers who take longer than a 30 minute meal break must record it on their worksheet and that is made “very clear” to the drivers. He gave the example, that if they took “five minutes extra” before a fatigue break. After a review, the drivers are told “this must be noted down on the run sheet.”
· If there is a discrepancy between the time they put down in their worksheet and the actual amount of time taken that is raised with the driver “if its noted on the worksheet”.
· If supervisors are aware that someone has taken in excess of their break, they've been informed, and they see them enter the site half an hour or an hour longer than they ought to raise it with the driver. The expectation is that the supervisors “advise the drivers to put down everything on the run sheet”.
· He was also asked about Kronos and the worksheets. Mr. Vitug said that Kronos and the worksheets work “hand in hand”. The drivers scan in and that time they scan is what they put on the run sheet. There should not be any discrepancies.
· He conceded the point that the “ideal outcome” is the workers fill out their worksheets correctly but if someone takes longer on their meal breaks he would “typically” try to have a conversation with the driver and rectify them.
The Basanti/Vitug telephone calls
Mr. Vitug was then cross examined about the conversation he had with Mr. Basanti on 10 July. In that exchange he gave evidence of what occurred in the 6:17 AM phone call:[53]
· Mr. Basanti mentioned he needed to service his car and that he’d do it on his break.
· He mentioned he was also “grabbing lunch on his break”.
· He did not mention to Mr. Vitug that Thai Tren had asked him to get lunch.
· He could not recall if Mr. Basanti asked him if he wanted lunch as well.
· He could recall Mr. Basanti had said he was buying lunch for other workers.
He also confirmed that at the 7:52 AM call:[54]
· Mr. Basanti rang to let him know that he was on his way back.
· Mr. Basanti did not explain the fact that he had been delayed “because Mr. Vitug did not know what time he left”.
· They discussed that Mr. Basanti had got the food he was on his way back and “that was it” …” nothing else”.
· Confirmed the 7.52 AM phone call went for 37 seconds. The following was discussed “he was letting me know that he’s gotten everything, the food, and was on the way back” Mr. Raftellis sought to test him on whether that conversation would take 37 seconds and put to him that it would take “10 seconds”. In response Mr. Vitug “I mean we can talk” and what they talked about was that Mr. Basanti was “on the way back and he’s letting me know”. Mr. Vitug responded Mr. Basanti with “Yeah that’s fine, is the site still covered?” He was “okay with the fact that he was on his way back to the site “because he wasn’t aware of what time he left”.
· When Mr. Basanti returned back to the site and talked to Mr. Vitug, he was unaware he had taken longer than 30 minutes. Mr. Vitug had not seen Mr. Basanti discuss with other members of management, nor had anyone discussed with him that Mr. Basanti was late.
EVIDENCE OF MR. BASANTI’S WORKSHEETS UNRELATED TO THE ALLEGATIONS
The Sheridan Statement included evidence of other time sheets Mr. Basanti had completed which were part of the investigation into the allegations.[55] They included:
· Twelve worksheets from the period 25 May 2023 to 28 June 2024 where he was performing duties as a yardie;[56] and
· Thirteen worksheets from the period 23 January 2023 to 28 July 2024 where he was making deliveries as a driver”.[57]
Mr. Sheridan explained the entries on these worksheets “demonstrated to me that Mr. Basanti would regularly record information related to delays or approved activity from his management team”.[58]
Mr. Byrne cross examined Mr. Basanti extensively on most, if not all, the worksheets.[59] The cross examination revolved around the fact that Mr. Basanti had placed text in the part of the form entitled “comment section – please explain any issues or delays”. I assume this is to make the argument that he did not fill out this section for the delays and errors in the time sheets which were the subject of the allegations.
As an illustration of the form of cross examination on this topic, I will give two examples of the line of questioning:
· 15 November 2023 time sheet: Mr. Basanti was asked questions relating to the worksheet for 15 November 2023:[60] He confirmed it was his worksheet and he had recorded “[Code] 100, meeting with HR Cameron “in the comments/notice section.
He confirmed management had approved that activity and he recorded it because he was “not working from 9am to 10.45am”. He agreed that he had complied with the Red Book on 15 November 2023.
· 12 January 2023: time sheet:[61] He confirmed it was his worksheet that he had completed, and he had placed in text in the comments/notice section. On dock delays. Waiting for the storm until 9.45am to make room for the Lineage twice. Not taking deliveries before 12PM. Wait 30 minutes for the storm. Mr. Basanti agreed that he had “complied with the Red Book by reporting all activity”.
After my summary of the evidence, I will now examine whether the decision to dismissal Mr. Basanti was harsh, unjust or unreasonable.
SECTION 387(a): WAS THERE A VALID REASON FOR DISMISSAL RELATED TO MR. BASANTI’s CONDUCT?
2022 Final Warning
The decision to terminate Mr. Basanti occurred in a context that he was the subject to the 21 September 2022 final written warning for “worksheet falsification” because of discrepancies in his worksheets, noting that he refused to sign it because he says he had permission to undertake union duties when he arrived at work in the written warning, Linfox:
· Referenced the Red Book Policy 5.15 in relation to worksheets. This is to the effect that “deliberate falsification of worksheets is fraudulent and can lead to instant dismissal, worksheets must be completed daily and accurately, and worksheets are legal documents”.
· Reached the conclusion that there was a basis for terminating his contract for “serious misconduct” because “dishonesty or theft” and “falsification of worksheets” is serious misconduct under the Agreement.
· Decided not to terminate his employment but warned him that he “should be aware that future misconduct, regardless of the type is likely to result in the termination of your employment.”
Mr. Basanti argues this warning is “diminished” because of the length of time between the warning and the termination of his employment. It is also argued that “unlike the circumstances of the warning with the discrepancies that lead to the termination Mr. Basanti had “engaged with managers on his delays, followed direction and engaged in standard practice”.
2024 termination letter and the reasons for termination
The termination letter referred to the 19 May, 2 July and 10 July allegations as follows:
· When asked to explain the turnstile entries recording you leave the site mid-shift on Sunday 19 May 2024 at 10:18:23AM and re-entering the site at 11:14:10AM, a total of 56 minutes, you stated: "I just went for my lunch break from 10:30-11:00. I put 180 for all of my lunch breaks". You provided no reason why you were absent from site for 56 minutes and only recorded a lunch break for 30 minutes on your Worksheet.
· On Tuesday 2 July 2024, the site turnstile recorded you entering the site at the commencement of your shift at 4:51:39AM, however you recorded on your Daily Worksheet a commencement time of 3:55AM and a finish time at 2:55PM. You agreed that you were paid for 11 hours when you were only on site for a total of 10 hours. You stated: "I accidentally wrote the wrong time. I wasn't deliberately stealing money."
· On Wednesday 10 July 2024, the site turnstiles recorded you leaving the site during your shift at 6:52:31AM and re-entering at 8:14:58AM. You explained that you left the site for 1 hour and 23minutes because you had to take your car for a service. When asked to explain your absence from site for 1 hour and 23 minutes, you stated: "I was on my lunch break then I was stuck in the traffic due to the factory fire or accident, not sure but fire was on the news."
Linfox had “finalised its investigation and concluded that you had falsified your worksheets as you claimed monies you were not entitled to; and that your interview responses lacked honesty and credibility” and then noted the worksheet policy in the Red Book which stated: “Deliberate inaccurate completion of worksheets is fraudulent and may lead to instant dismissal, Record your time on the worksheet to the nearest five minutes, All activities, including breaks or stoppages, must be recorded, Worksheets must be completed daily and accurately, Worksheets are legal documents.”
The termination letter went on to state that the 3 October show cause meeting was arranged to “to discuss the company's preliminary decision to terminate your employment, due to serious misconduct for worksheet falsification and dishonesty. No mitigating circumstances were provided by you to alter the company's decision with respect to this matter.”
Linfox decided to terminate his employment immediately, without notice, “pursuant to
the Linfox Driver Behaviour Policy, and clause 71. Counselling and Discipline in the agreement for serious misconduct”, which included “dishonesty or theft and falsification of worksheets”.
Was he guilty of “dishonesty or theft and falsification of worksheets?” I will examine the facts on each of the three allegations.
19 MAY 2024 ALLEGATIONS
It is not contested Mr. Basanti was absent from the site for a period of 56 minutes where the paid lunch break period is 30 minutes. It is also not contested that the delay was not recorded on his worksheet.
[54] PN1496-1523.
[55] DCB at 172-174: the Sheridan Statement at paragraphs 31 to 35.
[56] DCB at 435-458.
[57] DCB at 459-484.
[58] DCB at 174 at paragraph 35.
[59] From PN 386-615.
[60] DCB at 447.
[61] DCB at 461.
[62] PN352-353.
[63] DCB at 37.
[64] DCB at 142.
[65] DCB at 176 at paragraph 38.
[66] The recent Full Bench in Illawara Coal Holdings Pty Ltd t/a South32 v. Mr Joe Sleiman[2024] FWCFB 365 at [49].
[67] High Court in Neat Holdings Pty. Ltd v. Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 2.
[68] (1938) 60 CLR 336 at 361–362.
[70] Selvachandran (1995) 62 IR 371 at 373.
[71] Rode v. Burwood Mitsubishi Print R4471 at paragraph 19.
[72] RMIT v. Asher [2010] FWAFB at [26].
[73] See for example two Full Bench decisions B,C and D v. Australian Postal Corporation[2013] FWCFB 6191, and Woolworths v. Brown (PR963023).
[74] DCB at 48 with emphasis added.
[75] PN 352-353.
[76] This is an explanation first given by Mr. Basanti in a reply statement which invites some scepticism as to its credibility.
[77] DCB at 163.
[78] DCB at 29-30.
[79] DCB at 33.
[80] DCB at 164.
[81] Sprigg v Paul Licensed Festival (1988) 88 IR 21.
[82] Ellawala v Australian Postal Corporation Print S5109 at [34].
[83] He v Lewin [2004] FCAFC 161 at [58].
[84] PN2362.
[85] PN2339.
[86] Received as “A6”.
[87] DCB at 34.
[88] DCB at 169.
[89] [2016] FWCFB 7206 at [34].
[90] Which ensured they were inaccurate.
[91] Which was fraught with the risk of error.
[92] Smith v. Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].
[93] The superannuation entitlement guarantee percentage at the time of dismissal.
[94] PR790968.
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