Joseph Sleiman v Metro Trains Melbourne

[2016] FWC 8514

[2016] FWC 8514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Sleiman
v
Metro Trains Melbourne
(U2016/8170)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 DECEMBER 2016

Application for relief from unfair dismissal.

[1] Mr Joseph Sleiman alleges the termination of his employment by Metro Trains was unfair. Mr Sleiman’s employment was terminated because it was said he:

1. purposely left the site to avoid undertaking drug and alcohol testing;
2. did not advise his supervisor or manager that he was leaving the site;
3. after leaving the site, text messaged his supervisor that he would be absent from work which was contrary to instructions; and
4. did not roster off.

[2] Further, it was alleged that Mr Sleiman falsified information and lied during the investigation in relation to text messages and phone calls. As a result, Mr Sleiman was terminated without notice.

The evidence

[3] Ms Julia Grbac, the Human Resources Business Partner for Metro Trains, gave evidence that on 16 May 2016 she met with Mr Greg Anderson, an accredited drug and alcohol tester employed by WorkSafe, at 1.05pm at the site. 1 After waiting for Ms Michelle Barkley, one of the Production Managers, at 1.15pm Ms Grbac walked Mr Anderson onto the site. She said he was wearing a high visibility vest which had his drug and alcohol tester identification card on the front. He carried a suitcase which contained the testing equipment.2

[4] Ms Grbac, Mr Anderson and Ms Barkley walked around the corner of the lunch room past the smoking area to go to the vacant portable where the testing would occur. Ms Grbac said she saw Mr Sleiman in the smoking area. 3In cross examination, Ms Grbac said that Mr Sleiman was sitting with other employees.4 This is consistent with Ms Grbac’s email of 16 May 2016 in which she said Mr Sleiman was with other track employees.5

[5] After about 2-3 minutes 6 Ms Grbac went to the barbeque area and told the operations managers about the drug testing and then went to the lunch room and management portables and told employees that drug and alcohol testing was to take place. She further told the operations managers they would need to be tested.7 In her email of 16 May 2016, Ms Grbac said that when she walked back past the smoking area none of the guys were there.8

[6] Ms Grbac gave evidence that she had conducted numerous drug and alcohol tests at this and other sites and that the employees were well aware of the drug and alcohol process. She said that having been advised of the testing, “all other employees” at the site began to file past the smoking area to the portable where the drug testing was taking place and formed a line. 9 In cross examination, Ms Grbac said that Mr Sleiman would have known that there was testing because he was sitting with other workers and they would have told him that testing was taking place.10

[7] Ms Grbac said that Ms Barkley told her that Mr Sleiman had left the site and had not been tested. 11 Ms Barkley told her that Mr Sleiman had sent a text message to Mr Zivko Graoroski, his supervisor, advising that he had left. Ms Grbac spoke to Mr Graoroski who told her that he had received a text message.12 At 1.37pm Ms Grbac took a photo of the message. That photo showed that the text message was received at 1.33pm. The text message read:

“Going doctors now I’ll send through the certificate.” 13

[8] After being informed by Mr Sleiman, on 23 May 2016, that he had telephoned Mr Graoroski at 1.05pm on 16 May 2016, Ms Grbac again spoke to Mr Graoroski who showed her his call log which showed a call at 1.23pm on 16 May 2016 which lasted for 22 seconds. 14 No telephone number was recorded in that log but Ms Grbac said that call was from Mr Sleiman.15

[9] Ms Skye Hennessy, the Employee Relations Consultant, spoke to Mr Graoroski at the same time and he told her that he had not received a phone call from Mr Sleiman before Mr Sleiman had left the depot and Mr Graoroski said that he had not given Mr Sleiman permission to leave. 16

[10] Ms Grbac then obtained a log of Mr Sleiman’s telephone. 17 Those records disclosed a phone call from Mr Sleiman to Mr Graoroski at 1.23pm and a text message at 1.37pm.18

[11] Mr Sleiman gave evidence that on 14 May 2016 he had been admitted to intensive care. 19 He was discharged later the same day. He said he was still not feeling well when he went to work on 16 May 2016 but he went because he had no sick leave left.20 He arrived at work at 12.40pm and clocked on at 12.50pm.21 It was his evidence that he was still feeling unwell and that his condition worsened. He said when he walked back to his car to get his PPE he was physically sick. He spoke to another worker at the time, though this worker was not called to give evidence. He returned to the smoko area.22

[12] Mr Sleiman said that he saw Ms Grbac when he was sitting in the smoko area. He accepted that he did not mention in his witness statement that he had seen a man with Ms Grbac. 23 In examination in chief, he said he had seen a man with Ms Grbac but he did not recognise him.24 He said the person with Ms Grbac was not wearing a high vis vest.25

[13] He said he rang Mr Graoroski and told him that he had been in hospital over the weekend and he was still feeling unwell and he had been physically sick. He said that he needed to go to the doctors and asked him if it was OK to go. 26 He said Mr Graoroski OK’d him leaving. In cross examination Mr Sleiman said he left the site minutes after making the call.27

[14] Mr Sleiman tendered a document recording a phone call to Mr Graoroski at 1.05pm on that day which lasted 3 minutes and 3 seconds. 28 This document was a photocopy of an extract of his call history.

[15] After making a doctor’s appointment he sent Mr Graoroski a text message advising as follows:

“going doctors now I’ll send through the certificate.” 29

[16] Mr Sleiman produced a photocopy of an extract of his phone record of this text message. It was said to have been sent at 1.14pm.

[17] Mr Sleiman said that prior to him leaving the site there had been no announcement about drug testing. He said there had been no conversation about drug testing and nothing he saw would have alerted him to the drug testing. He said that Ms Grbac did not tell him about the drug and alcohol testing and neither did Mr Graoroski when he telephoned him.

[18] Mr Sleiman attended his doctors and was provided with a medical certificate for 16 and 17 May 2016 and then for 18 and 19 May 2016.

Other evidence

[19] Mr Sleiman phoned Ms Grbac at 12.23pm on 16 May 2016 to discuss his claims that he had been underpaid. Ms Grbac said Mr Sleiman sounded normal during the conversation and he did not mention being unwell. 30

Meeting of 23 May 2016

[20] Mr Sleiman met with Ms Hennessy and Ms Grbac on 23 May 2016. Ms Grbac took notes in that meeting. 31 In that meeting Mr Sleiman told Ms Hennessy and Ms Grbac what was set out above. In that meeting he said he had been in the smoker’s area for a few minutes and in his car for the remainder of the time. Mr Sleiman said he did not see the tester. He said he had not been aware of the testing. He told them he had not participated in random drug and alcohol testing before. He explained that he attended work unwell because he needed the money.

[21] Ms Grbac also produced an extended typed version of her notes. 32 That version provided more detail. It was her evidence that she typed these up the after the meeting and checked them with Ms Hennessy. In those notes Mr Sleiman said he was on site when he made the call to Mr Graoroski.

[22] Mr Sleiman said that in the meeting he showed Ms Hennessy “the screenshot from [his] phone.” 33 Ms Hennessy accepted that she was shown what she refers to as the JS Phone Record.34

Meeting of 6 June 2016

[23] On 6June 2016, a further meeting was held and again Ms Grbac took hand written notes. 35 At that meeting Mr Sleiman was asked about the discrepancy between his records and Mr Graoroski’s. He was asked if he still “got on phone.” Mr Sleiman said it “deletes itself log – dunno.” He was asked if the time on his phone was real time and he said yes.

[24] Mr Sleiman said that at this meeting, in response to questions about the discrepancy in the times, he offered to let Ms Hennessy look at the call log directly to check and she did not take up his offer. 36 In evidence in chief he said that he showed Ms Hennessy the phone and the messages.37 Ms Hennessy said Mr Sleiman did not offer to show her his phone.38 She said she asked to see the phone but Mr Sleiman said that he thought the history of the phone deletes automatically so he could not show the call on his phone. In cross examination Mr Sleiman said the reference in his witness statement to the call log was a reference to the text message.39

Meeting of 24 June 2016

[25] Ms Hennessy, prior to this meeting, had formed the view that the allegations were substantiated. She also formed the view that Mr Sleiman had falsified information. 40 At the commencement of the meeting Ms Hennessy explained her view that the allegations were substantiated. She said that there was discussion about those allegations and Mr Sleiman was provided with an opportunity to respond. Ms Hennessy decided that Mr Sleiman’s employment would be terminated without notice.41

[26] Mr Sleiman said Ms Hennessy read from the dismissal letter and went through the allegations. Ms Hennessy told him the allegations were substantiated. Mr Sleiman said that Ms Hennessy also said “we also have evidence that you falsified information that you put forward and lied in the investigation. You will now have a chance to respond before we terminate you.” 42 There was further discussion about this issue. Mr Sleiman denied falsifying the records and said he showed her the actual call/sms logs, not the screen shot picture form and said “Look, how can I have falsified it, it is still there?”43 After some further discussion Ms Hennessy said she had been instructed to follow through with the dismissal and Mr Sleiman says she said she had been “told in advance to dismiss [him] in this meeting.”44

1. Did Mr Sleiman purposely leave the site to avoid undertaking drug and alcohol testing?

[27] The following is clear. There is no evidence that Mr Sleiman was told that drug and alcohol testing was to take place on 16 May 2016. There is no evidence that Mr Sleiman was directed to attend drug and alcohol testing. There is no evidence that Ms Sleiman saw other workers lining up to be tested.

[28] While there is a disagreement about the time, Mr Sleiman agreed that he had seen Ms Grbac when he was in the smoko area but she had not mentioned the drug and alcohol testing. He said that prior to him leaving the site there was no announcement that there was going to be drug and alcohol testing. Mr Sleiman gave evidence that prior to leaving he telephoned his supervisor and told him he was unwell and his supervisor did not tell him that there was to be drug and alcohol testing. In his witness statement and in the meetings, Mr Sleiman denied seeing the tester. However in cross examination Mr Sleiman accepted that he saw a man with Ms Grbac. He said he was not wearing a high vis vest and he did not know he was a drug and alcohol tester.

[29] I find on the evidence before the Commission that Mr Sleiman was on site at 1.15pm and that he did not call Mr Graoroski until 1.23pm. I am satisfied on the evidence that when he called Mr Graoroski he was in his car on site. I am further satisfied that Mr Graoroski did not tell Mr Sleiman in that conversation that he should remain on site because there was testing. This is no reflection on Mr Graoroski as there was no evidence that at 1.23pm when he spoke to Mr Sleiman that he was aware that drug and alcohol testing was taking place.

[30] I am not satisfied that Mr Sleiman purposely left the site to avoid the drug and alcohol testing. Mr Sleiman had not undergone testing before. There was no reason, accepting that he did see a person with Ms Grbac, that he could have known he was a drug and alcohol tester. There was no evidence that the tester’s identification could be read from a distance. Ms Grbac said that the group Mr Sleiman had been “sitting with in the smoking area had all been previously tested by Greg and he’s one of the three drug and alcohol testers that MTM use.” 45 She said the other workers would have told him that there was to be testing. This of course is speculation. There was no evidence that any of the other employees told Mr Sleiman that the person with Ms Grbac was a drug tester. Further there was no evidence that either Ms Grbac or Ms Hennessy ever asked these workers if they told Mr Sleiman who the person was and none of these workers gave evidence in the proceeding.

[31] It was submitted that if I found that Mr Sleiman provided false information about his telephone records, that I should disbelieve his evidence about not knowing about the drug and alcohol testing. I am however not prepared to make that inference. That I have found for the reasons set out below that Mr Sleiman provided false information to Metro Trains does not make it more likely than not that he was not telling the truth about what occurred on 16 May 2016. Mr Sleiman was in intensive care on 14 May 2016 and that he had not recovered is supported by his subsequent medical certificates. There is no reason to not believe Mr Sleiman when he said he left the site because he was sick.

2. Did Mr Sleiman advise his supervisor that he was leaving the site prior to doing so?

[32] Mr Sleiman’s evidence was that he telephoned Mr Graoroski, his supervisor. He says he told him he was ill and asked him if it was ok to go. He said he told Mr Graoroski that he had been hospitalised on the weekend and he was still unwell. He said Mr Graoroski said “no worries, let us know how it goes.” 46 Mr Sleiman said he was sitting in his car when he made the phone call. Mr Sleiman said he made that call prior to leaving the site.47 Mr Sleiman produced a screen shot of his phone records which showed a 3 minute phone call on 16 May 2016 at 1.05pm to Mr Graoroski’s mobile phone number. He subsequently sent Mr Graoroski a text message which in his records said “Going doctors now I’ll send through the certificate.” The screen shot of that message produced by Mr Sleiman was dated “Mon, May 16, 2016, 1.14pm.”48 Mr Sleiman had no independent recollection of when the phone call was made or when he sent the text message. He said he relied on the information on his phone49 and as such in the interviews he said he made the first call at 1.05pm and sent the text message at 1.14pm.

[33] Mr Graoroski did not give evidence before me. Ms Hennessey was told by Mr Graoroski on 18 May 2016 that Mr Sleiman had not called him before he left the site. 50 She said that Mr Sleiman had not asked Mr Graoroski for permission to leave, he merely said, “I’m not well. I’m going to the doctors.”51

[34] Ms Hennessy said Mr Sleiman had called Mr Graoroski at 1.23pm and this was after he had left the site. Ms Hennessey provided a screen shot of Mr Graoroski’s phone records which showed a 22 second call at 1.23pm. That record did not indicate the phone number. 52 She said that Mr Graoroski received the text message at 1.33pm.53 These times matched the times recorded the call and data log for Mr Sleiman’s phone.54

[35] While there is a dispute about the time when the call was made, there is no dispute that it was made.

[36] I am not satisfied that Mr Sleiman had left the site when he phoned Mr Graoroski. There is nothing in Metro Trains’ evidence that supported such a finding. In the absence of evidence from Mr Graoroski and in the absence of any record of any interview with Mr Graoroski which recorded what he said to Ms Hennessy at the time, I prefer Mr Sleiman’s evidence on this point.

3. Did Mr Sleiman, after leaving the site, text message his supervisor that he would be absent from work, which was contrary to instructions?

[37] There is no dispute that Mr Sleiman sent Mr Graoroski a text message after he left this site. This would only be contrary to policy if he had not notified Mr Graoroski prior to leaving that he was leaving. As I have found that Mr Sleiman did ring Mr Graoroski prior to leaving the site, it follows that he did not act contrary to instructions in sending Mr Graoroski a text message.

4. Did Mr Sleiman fail to clock off?

[38] There was no dispute that Mr Sleiman did not clock off contrary to policy. Mr Sleiman was aware of the obligation to clock on and off because he had been counselled about this in August 2015. 55 Mr Sleiman gave conflicting explanations for why he failed to clock off.

[39] Mr Sleiman said he forgot to clock off because he was sick and needed to go to the doctors. 56 In the meeting on 23 May 2016, Mr Sleiman said that he did not clock off because of the way he felt and looked. He said he couldn’t be bothered answering any of the questions or queries from the guys about why [he] was leaving.57 Mr Sleiman agreed that this was a reason why he did not clock off.58 When questioned about this, he said rostering off was the last thing he was thinking about.59

[40] It was put to Mr Sleiman that he did not clock off because it would have given the company evidence about the time he clocked off and that would have established that the phone records were fabricated. 60 It is not clear how Metro Trains puts this proposition. Mr Sleiman failed to clock off before he knew that any disciplinary action would occur and before he knew that there was a dispute about whether he had called his supervisor.

[41] I accept that Mr Sleiman’s explanations were confusing but I am not prepared to draw any inferences from that confusion. There is no dispute that Mr Sleiman failed to clock off. Further, he was aware of the policy and he did not comply with it.

5. Was Mr Sleiman dishonest during the investigation?

[42] Metro Trains alleged that Mr Sleiman fabricated imitation mobile phone telephone screenshots in an attempt to substantiate his version of events. 61 This is a serious allegation and I accept that this serious allegation requires clear and cogent proof. However the decision must still be made on the balance of probabilities.

[43] There is clearly a dispute about times. However that is not really the issue as there is no dispute the call was made and a text message sent. The real issue is whether the screen shots produced by Mr Sleiman were actual screen shots taken of his phone.

[44] I am satisfied that Mr Sleiman did not call Mr Graoroski at 1.05pm and that he called him at 1.23pm. I am satisfied he did not send the email at 1.14pm but at 1.33pm.

[45] I am satisfied therefore that the document produced by Mr Sleiman is not a true screen shot of his phone. The record produced by Mr Sleiman records two phone calls. One at 12.27pm on 18 May 2016 and the other at 1.05pm on 16 May 2016. The header says Call History. Yet the call log for Mr Sleiman’s phone shows that no phone call was made at 1.05pm and the phone call listed on Mr Sleiman’s phone at 12.27pm on 18 May 2016 is not recorded on the call log.

[46] The screen shot of the text message sent provided by Ms Sleiman also records two text messages. One sent at 1.14pm on 16 May 2016 and one sent at 12.28 on 18 May 2016.

[47] There was a nine minute gap between the phone call and the text message sent to Mr Graoroski in Mr Sleiman’s records and a 10 minute and 5 second gap in the call log. Further, by the time Mr Sleiman sends a text message at 12.28pm on 18 May, Mr Sleiman’s records match the call log. Mr Sleiman said he did not adjust the time on his phone so there is no explanation, if there had been a fault in his time recording, why it had corrected itself two days later.

[48] Mr Sleiman’s records show that the telephone call went for 3 minutes and 3 seconds. Mr Graoroski’s phone shows a call of 22 seconds.

[49] Because Metro Trains provided actual photographs of Mr Graoroski’s phone and the call log of all text, voice and data usage from Mr Sleiman’s phone I accept the accuracy of the information provided by Metro Trains.

[50] Critically the text message Mr Sleiman sent was not the text message Mr Graoroski received. In Mr Sleiman’s record the first word of the text is capitalised and in the text message Mr Graoroski received it is not.

[51] Mr Sleiman had no explanation for the discrepancy between the time recorded on his records and those on Metro Trains’ records or the discrepancies in the length of the calls. Further he had no explanation for the change in capitalisation in the text message.

[52] Metro Trains put to Mr Sleiman that he fabricated the records and it submitted that this could be done easily using applications which can be downloaded from the internet. Mr Dircks submitted that the allegation that Mr Sleiman had used an internet application to fake the records was not put to Mr Sleiman 62 and therefore should be disregarded. I do not accept that submission. Mr Sleiman denied falsifying the records. It was therefore not necessary to put to him the way he might have faked the record.

[53] For the following reasons I am satisfied on the balance of probabilities that Mr Sleiman did provide falsified records to support his version of events.

[54] I prefer Ms Hennessy’s evidence that Mr Sleiman did not at any time show her his phone. Her evidence is consistent with the notes taken. Mr Sleiman did not call his support person who was at the meetings to give evidence on this critical point.

[55] Had there simply been a difference in the time recorded on Mr Sleiman and Mr Graoroski’s phones I would have accepted that there may be other reasonable explanations for the difference in the time recorded on the two devices. However there is also a discrepancy between Mr Sleiman’s record 63 and the call log of his phone.64 Further if the time setting on Mr Sleiman’s phone was inaccurate that would not explain the absolute time difference between the timing of the phone call and text message on his phone and that in the call log. Nor does it explain why Mr Sleiman’s records the phone call as being 3 minutes long when the other phone shows it was 22 seconds long. More importantly the change in capitalisation in the text message cannot be so easily explained.

[56] I have considered why Mr Sleiman thought it was necessary to fabricate his records because he had in fact made the phone call and then sent the text message. Mr Sleiman was seen in the smoking area at 1.15pm. This is not inconsistent with him then going to his car and making a phone call at 1.23pm. Mr Sleiman produced the records before he knew the precise times Metro Trains were relying on, but when he knew there was a dispute about whether he had contacted his supervisor before leaving the site.

[57] It was submitted that he falsified the records to support his claim that he did not know that the drug testing was occurring. I am not prepared to make a finding that he did this to support this claim. It was clear from his evidence that at all times Mr Sleiman relied on the records to defend himself against the allegation that he had not called his manager. 65

[58] Whatever the reasons, Mr Sleiman was dishonest in the investigation process. He was provided, during the investigation, with an opportunity to provide an explanation of at least the time discrepancies. He was provided with an opportunity at the hearing and he did accept that accuracy of Metro Trains’ records but could not explain any of the discrepancies particularly the discrepancy in the capitalisation and the absolute time difference. At no time did Mr Sleiman resile from his evidence that Exhibit JS06 was a true copy of the screen shot of his phone.

[59] Metro also submitted that Mr Sleiman dishonestly sought and obtained medical certificates to support the story that he had left the Bell Depot due to illness. 66 Mr Sleiman tendered a letter issued by The Royal Melbourne Hospital. That advised that Mr Sleiman had been admitted to intensive care on 14 May 2016 in the early hours of the morning and discharged late the same evening.67 That letter was dated 19 May 2016 and asked that Mr Sleiman be given due consideration for his work commitments on 14 May 2016. There was no challenge to that evidence.

[60] After calling Mr Graoroski, Mr Sleiman called his doctor. 68 He attended his doctor and obtained medical certificates. It was submitted that I could look behind the certificates and conclude that Mr Sleiman obtained the medical certificates to support his version of events. Metro Trains relied upon the decision in Anderson v Crown Melbourne Ltd69 to support the proposition that while a medical certificate ought “prima facie” be accepted the Commission is not bound to accept them. While this is correct, there is nothing in this case that would lead me to conclude that Mr Sleiman was not ill on the day. That he had a conversation with Ms Grbac in which she said he sounded normal is not sufficient for me to doubt the medical certificates. Both medical certificates state that Mr Sleiman was affected by a medical condition. That he had been in intensive care on Saturday lends support to Mr Sleiman’s evidence that he was unwell.

[61] Ms Hennessy viewed Mr Sleiman’s dishonesty particularly in relation to the text messages and call information during the investigation seriously. 70 Honesty is one of Metro Trains’ core values and expectations. The Code of Conduct requires employees to be fair and honest in their dealings with colleagues.71

Was the dismissal harsh, unjust, or unreasonable?

[62] The Commission must decide if the dismissal was harsh, unjust or unreasonable.

[63] In Stewart v University of Melbourne 72 Vice President Ross, as he was then, considered the decision of the High Court in Byrne v Australian Airlines73 and concluded:

[74] Given that the observations in the joint judgment were made in a different context they are not binding, but I find them highly persuasive. In my view, for the purpose of s.170CG, a termination of employment may be:

· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;
· unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or
· unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.

[64] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[65] Mr Dircks submitted that there was no valid reason for the dismissal because Mr Sleiman had not engaged in the conduct alleged. Much of Mr Dircks’ submissions focused on whether Mr Sleiman was guilty of serious misconduct warranting summary dismissal or whether there was misconduct. These submissions misunderstand the question that the Commission needs to answer. The Commission must decide if there was a valid reason for the dismissal and that is not determined on the basis of whether the employment was or was not terminated without notice. 74 The Commission may of course have regard to the fact that the termination was without notice in determining if the termination was harsh, unjust or unreasonable. Further the Commission is not required to determine if there was serious misconduct at common law or of the kind defined in the regulations. The Commission must determine if the conduct occurred on the evidence before it75 and decide if that means there was a valid reason for the dismissal.

[66] I have found that Mr Sleiman fabricated documents and provided them to Metro Trains during the investigation process. He produced those documents to the Commission to support his claim.

[67] The Commission has had cause to consider whether dishonesty in an investigation would mean that there was a valid reason for the termination of employment. 76 In that case the Full Bench, when determining whether there was a valid reason for the dismissal, held that:

“[23] We are satisfied there was a valid reason for the termination of Ms Streeter’s employment by Telstra related to her conduct, being her dishonesty with Telstra during the investigation it conducted on 28 February 2007 and 14 March 2007 into her activities in the room at Hotel B on 24-25 February 2007. We think it was reasonable for Telstra to conduct the investigation given it appeared her activities had caused difficulties at her work and were likely to cause difficulties at her work in the future. In the circumstances, we also think the questions Telstra asked Ms Streeter were reasonable. We think Ms Streeter needed to be honest with Telstra during the investigation, notwithstanding the inherently personal nature of her activities, so that Telstra could determine and take appropriate action to deal with the difficulties. Ms Streeter’s dishonesty during the investigation meant Telstra could not be confident Ms Streeter would be honest with it in the future. The relationship of trust and confidence between Telstra and Ms Streeter was, thereby, destroyed.”

[68] Here Mr Sleiman created documents to disprove the allegation that he had not called his supervisor. That he did not need to do this because the telephone records would have proved that he did in fact call his supervisor, is relevant but not determinative of the issue.

[69] I do not accept the submission of Mr Dircks that termination in this matter was a disproportionate response to the conduct. This is not a case of different recollections of what occurred. It is not a situation where an employee has been less than frank in recounting events. Nor is it the case where there has been an acknowledgement of the dishonesty and an explanation provided and remorse shown. Here Mr Sleiman created documents to support his claim that he had phoned his supervisor and presented them to Metro Trains. This dishonesty is serious and has not been explained.

[70] I am therefore satisfied that this dishonest conduct constitutes a valid reason for the termination of his employment.

s387(b) whether Mr Sleiman was notified of that reason;

[71] Mr Sleiman was advised of the main allegations at the commencement of the investigative process. During the investigation, and particularly at the meeting on 6 June 2016, Mr Sleiman was advised of the discrepancies in the times and call lengths and given an opportunity to respond.

[72] At the meeting on 24 June 2016, Mr Sleiman was told that Metro Trains had formed the view that he had falsified information and lied during the investigation. He was then given an opportunity to respond. I am satisfied that Mr Sleiman was notified of that reason, but not all the particulars relied upon by Metro Trains at the hearing, before the decision to terminate his employment was made. I accept that the discrepancy between the text messages was not raised with Mr Sleiman and he was not provided with an opportunity to provide an explanation.

[73] I accept that Ms Hennessy did not explain to Mr Sleiman why she reached the view that the allegations were substantiated. However the obligation was to advise Mr Sleiman of the reasons for the dismissal prior to the decision being made. It is clear that Ms Hennessy at that meeting told Mr Sleiman Metro Trains’ reasons for the dismissal, namely that he had engaged the conduct as alleged. In relation to allegations that he had provided false information, he was provided with a further opportunity to respond. Only after that did Ms Hennessy confirm that Mr Sleiman’s employment would be terminated.

[74] I am satisfied therefore that Mr Sleiman was advised of the reasons for the dismissal prior to the decision being made.

s387(c) whether Mr Sleiman was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[75] I am satisfied that Mr Sleiman was provided with an opportunity to respond.

s387(d) any unreasonable refusal by the employer to allow Mr Sleiman to have a support person present to assist at any discussions relating to dismissal;

[76] Mr Sleiman was not denied a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Sleiman had been warned about that unsatisfactory performance before the dismissal;

[77] The dismissal did not relate to unsatisfactory performance.

s387(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;

[78] This criterion is not relevant. Metro Trains is a large employer and the procedures it adopted were fair.

s387(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;

[79] This criterion is not relevant as Metro Trains have dedicated human resources staff.

s387(h) any other matters that the Fair Work Commission considers relevant.

[80] Mr Dircks submitted that I should have regard to the impact of the dismissal for serious misconduct on Mr Sleiman and that the impact had been “quite terrible” and the financial impact had been significant. 77 The only evidence given by Mr Sleiman in relation to this was that he had not been able to gain employment and had not earned an income.

[81] I readily accept that losing employment can have a significant impact on employees. However, if an applicant wishes to have specific matters considered by the Commission, evidence of those matters need to be put before the Commission. For example, if Mr Sleiman’s particular personal circumstances needed to be considered then evidence of those circumstances needed to be in evidence.

[82] Mr Dircks submitted that even if Mr Sleiman engaged in conduct warranting dismissal it did not warrant summary dismissal and this was sufficient to make the dismissal unfair.

[83] I do not agree. Mr Sleiman’s conduct was deliberate and he has not resiled from it. I am not satisfied that the manner of the dismissal is sufficient to render the dismissal harsh.

Conclusion

[84] I am therefore satisfied that there was a valid reason for the termination of Mr Sleiman’s employment and that he was afforded procedural fairness. There are no other factors that would lead me to find that the termination was harsh, unjust or unreasonable and hence Mr Sleiman’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

G. Dircks for the Applicant.

B. Popple for the Respondent.

Hearing details:

2016.

Melbourne.

10 November.

 1 Exhibit R1 at [27].

 2   Ibid at [27]-[28].

 3 Ibid at [32].

 4   Transcript PN 595.

 5   Exhibit R1 at JNG4.

 6 Ibid at [31].

 7 Ibid at [33].

 8   Ibid at JNG4.

 9 Ibid at [34].

 10   Transcript PN 595.

 11 Exhibit R1 at [36].

 12 Ibid at [37].

 13   Ibid at JNG3.

 14   Ibid at [46] and Exhibit R2 at SH5.

 15 Ibid at [46].

 16   Exhibit R2 at [43]-[44].

 17   Exhibit R1 at JNG6.

 18   Ibid.

 19 Exhibit A1 at [62].

 20 Ibid at [64].

 21   Ibid at [65]-[66].

 22   Ibid at [67]-[69].

 23   Transcript PN 314.

 24   Ibid PN 120-121.

 25   Ibid PN 124.

 26 Exhibit A1 at [70].

 27   Transcript PN 173.

 28   Exhibit A1 at JS06.

 29   Ibid.

 30 Exhibit R1 at [23].

 31   Ibid at JNG5.

 32   Ibid at JNG6.

 33 Exhibit A1 at [99].

 34 Exhibit R2 at [37].

 35   Exhibit R1 at JNG7.

 36   Exhibit A1 at [124] and Transcript PN 258.

 37   Transcript PN 140-141.

 38 Exhibit R2 at [60].

 39   Transcript PN 263.

 40 Exhibit R2 at [68].

 41   Ibid at [94]-[97].

 42 Exhibit A1 at [139].

 43 Ibid at [145].

 44 Ibid at [150].

 45   Transcript PN 595.

 46   Exhibit A1 at [70]-[71].

 47   Transcript PN 156.

 48   Exhibit A1 at JSO6.

 49   Transcript PN 164, 167-170.

 50 Exhibit R2 at [43].

 51   Transcript PN 777.

 52   Exhibit R2 at SH5.

 53   Exhibit R1 at JNG3.

 54   Ibid at JNG8.

 55   Transcript PN 274.

 56 Exhibit A1 at [107].

 57   Exhibit R1 at JNG6.

 58   Transcript PN 286.

 59   Ibid PN 285.

 60   Ibid PN 303.

 61 Submissions of the Respondent at [48].

 62   Transcript PN 1122.

 63   Exhibit A1 at JS06.

 64   Exhibit R1 at JNG8.

 65   Transcript PN 192.

 66 Submissions of the Respondent at [48].

 67   Exhibit A1 at JSO5.

 68   Exhibit R1 at JNG8.

 69 [2008] 216 FLR 164 at [80].

 70 Exhibit R2 at [78].

 71   Ibid at SH10.

 72   Print S2535.

 73 185 CLR 410.

 74   Annetta v Ansett Australia (2000) 98 IR 233 at [10].

 75   King v Freshmore (Vic) Pty Ltd Print S4213 at [24].

 76   Telstra Corporation Ltd v Streeter [2008] 170 IR 1 at [23]. See also Treffry v SThree Australia Pty Ltd[2013] FWC 3697; Vujica v TNT Australia Pty Ltd[2014] FWC 4790; Osborne v Anglo Coal (Callide Management)Pty Ltd[2014] FWC 4691; APS Group (Placements) Pty Ltd v O’Loughlin[2011] FWAFB 5230.

 77   Transcript PN 917.

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