Loukis v Compaction & Soil Testing Services Pty Ltd
[2021] FCCA 281
•8 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Loukis v Compaction & Soil Testing Services Pty Ltd [2021] FCCA 281
File number(s): SYG 505 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 8 July 2021 Catchwords: INDUSTRIAL LAW – Fair Work – General Protections – adverse action – dismissal from employment – consideration of the reason or reasons for dismissal Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 352, 360, 361, 370
Fair Work Regulations 2009 (Cth)
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648
Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17
McGarva v Enghouse Australia Pty Ltd [2014] FCCA 1522
Hodkinson v Commonwealth (Department of Human Services) (2011) 248 FLR 409
Reay v Fuel & Gas Haulage Pty Ltd [2019] FCCA 2473
Rees v Worthington Services Pty Ltd (No 3) [2019] FCCA 2785
Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250
Short v Ambulance Victoria [2015] FCAFC 55
Number of paragraphs: 239 Dates of hearing: 9, 10, 16, 17 December 2020, 17 February 2021 Place: Sydney Counsel for the Applicant: Ms U Okereke-Fisher Solicitors for the Applicant: Australian Workers Union (NSW) Branch Counsel for the Respondent: Ms J Steele, SC Solicitors for the Respondent: Kennedys Law ORDERS
SYG 505 of 2020 BETWEEN: STEPHANIE LOUKIS
Applicant
AND: COMPACTION & SOIL TESTING SERVICES PTY LTD
ACN 106 976 738Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
8 JULY 2021
THE COURT ORDERS THAT:
1.The application filed on 3 March 2020 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
By an application and Form 2 statement filed on 3 March 2020 (Claim), the applicant (Ms Loukis) seeks relief under the Fair Work Act 2009 (Cth) (Fair Work Act) in consequence of her dismissal from employment, allegedly in contravention of a general protection. Ms Loukis alleges that the respondent, Compaction & Soil Testing Services Pty Ltd (the Company) dismissed her from her employment because she was temporarily absent from work due to illness or injury and for a reason that is, or reasons that are, prohibited by s 340(1) of the Fair Work Act.
In essence, Ms Loukis claims that she had a workplace right because as an employee, she was able to make a complaint or inquiry in relation to her employment.[1] Ms Loukis claims she exercised her workplace right in that she made a complaint or enquiry to the Company in respect of her wages on 17 October 2019 and 22 October 2019.
[1] Fair Work Act, s 341(1)(c)(ii)
In the alternative, Ms Loukis asserts that she had a workplace right, because as an employee, she was entitled to the benefit of a workplace law and a workplace instrument.[2] The relevant benefit is said to be the right to personal leave under the National Employment Standards. Ms Loukis asserts that she exercised her workplace right by accessing personal leave during her employment on 29 and 30 July 2019 and 11, 14, 15 and 29 October 2019. She alleges she was dismissed because she exercised her workplace right, being the right to take personal leave.
[2] Fair Work Act, s 341(1)(a)
It is uncontroversial that the termination of Ms Loukis’ employment with the Company was “adverse action” for the purposes of s 340 of the Fair Work Act.
Section 352 provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury.
The Company opposes the application. It was filed just outside the period prescribed under the Fair Work Act following the issuing of a certificate by Deputy President Young of the Fair Work Commission on 5 February 2020. On 27 May 2020, following an interlocutory hearing on the question of an extension of time, I ordered under s 370(a)(ii) of the Fair Work Act that time for the filing of the application be extended up to and including 3 March 2020. I took into account the very short delay, the explanation for the delay and my impressionistic assessment at that stage of the legal merit of the application.
The matter was referred for mediation which was unsuccessful.
The following statement of background facts is derived from the submissions of the parties.
The factual basis for Ms Loukis’ claims can be summarised as follows:
(a)Contract of Employment - on 24 June 2019, Ms Loukis and the Company executed a contract of employment, under which Ms Loukis was employed as a Field Geotechnician on a full-time, permanent basis (the Contract). The Contract[3] expressly stated that Ms Loukis’ employment was probationary for the first three months (the “Probation Period”) and either party was entitled to terminate the Contract with one week’s notice or payment in lieu of such notice[4]. Ms Loukis’ wage under the Contract was $26 per hour and her working hours were Monday to Thursday (8.00am to 4.30pm) and Friday (8.00am to 2.00pm). However, the Contract expressly states “Start and finish times may vary and must be approved by the Employer and mutually agreed between both parties”[5]. Prior to executing the Contract on 24 June 2019, Ms Loukis sent an email to Lara Addison, the Company’s Accounts Manager seeking clarification of her hourly rate post the Probation Period. In a response dated the same day, Ms Addison confirmed that Ms Loukis’ wage rate would increase to $28 per hour, subject to a satisfactory 3-month probation period;[6] and
(b)the Employment Period – Ms Loukis commenced work for the Company on 2 July 2019 and the Company summarily terminated Ms Loukis’ employment on 30 October 2019 (the “Employment Period”).
[3] Affidavit of Shanan McManus made on 7 May 2020 (McManus 1), Annexure SM-2
[4] Clause 3.1 and 3.2 of the Contract
[5] Schedule to Contract – Items 7 and 8
[6] Affidavit of Stephanie Loukis made on 1 July 2020 (Loukis 1), Annexure K
The Company is a small business employer which engages in geotechnical and environmental engineering and field engineering based services. The Company’s work includes supervisory work for contractors and field and laboratory material testing.[7]
[7] McManus 1, [13]
The Company’s office, including its sample testing laboratory, is situated at 1/78 Owen Street, Glendenning in New South Wales (Office).[8]
[8] McManus 1, Annexure SM-1, page 21
Mr McManus as General Manager is responsible for the day to day management of the Company, including human resources matters.[9] Mr Groat as Managing Director oversees the Company’s operations, including matters concerning human resources.[10]
[9] McManus 1, [9]
[10] Affidavit of Neil Groat made on 7 May 2020 (Groat 1), [8]
Ms Loukis commenced employment with the Company on 2 July 2019 in the position of Field Geotechnician[11] (Employment), pursuant to the Contract.[12]
[11] McManus 1, [15]
[12] McManus 1, pages 23 to 35, Contract (Annexure SM-2)
The Employment was subject to a three month probationary period, which could be extended at the Company’s discretion (Probationary Employment).[13]
[13] CB 154, Contract clause 3.3
On 4 October 2019, Ms Loukis’ Probationary Employment was purportedly extended by the Company (for an additional month) allegedly due to Ms Loukis’ performance issues.[14]
[14] McManus 1, [73]-[77]
The Company asserts that Ms Loukis did not progress beyond her Probationary Employment.[15]
[15] Transcript of the hearing on 16 December 2020 (Transcript 3), page 192 at line 20
On 30 October 2019, the Employment was terminated on the basis of Ms Loukis’ lateness and performance history (discussed further below).
THE EVIDENCE AND SUBMISSIONS
The parties provided a court book (CB) containing the documents relied upon. Ms Loukis relies upon her own affidavits filed on 2 July 2020 and 8 December 2020 and affidavits by Stacey Ann Walker filed on 6 July 2020 and 8 December 2020. Ms Loukis and Ms Walker were both cross-examined on their affidavits.
The Company relies upon the affidavits of Neil Brodrick Groat filed on 7 May 2020 and 2 December 2020 and the affidavits of Shanan Jon McManus made on 7 May 2020 and 2 December 2020. Mr Groat and Mr McManus were both cross-examined on their affidavits.
I also received the following documents tendered as exhibits:
·A1 – attachment to Ms Loukis’ second affidavit;
·A2 – docket, record of site works, 22.10.2019;
·R1 – emails from Ms Walker;
·R2 – timesheets;
·R3 – phone bill; and
·R4 – letter from Kennedys to the Australian Workers Union.
CONSIDERATION
Ms Loukis’ case
The legislative framework
At the heart of this proceeding is Ms Loukis’ allegation that the Company contravened s 340 of the Fair Work Act. Under the Fair Work Act, employees in the national workplace relations system have defined rights and are protected from adverse action in breach of those rights.
“Adverse action” is defined in s 342(1) of the Fair Work Act. The provision sets out circumstances in which a person takes adverse action against another person. The task of the court in a proceeding alleging adverse action is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason.[16]
[16] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5]
Ms Loukis alleges that she was dismissed for an impermissible reason. There is said to be evidence before the Court to support a conclusion that the adverse action in the form of dismissal occurred because of the complaints or inquiries that Ms Loukis has made to the Company about her wages and in the alternative because of the exercise of her workplace right to take personal leave.
Section 360 of the Fair Work Act relevantly makes clear that a person takes action for a particular reason if his or her reasons for the action include that reason. Hence, where such a circumstance is alleged to have occurred, the statutory presumption in s 361 is engaged. The action of dismissing Ms Loukis is therefore to be presumed to have been taken for the prohibited reasons she alleges unless the Company proves otherwise. Section 361 of the Fair Work Act essentially reverses the onus of proof and requires the Company to prove that the adverse action taken against an employee was taken for a reason other than a reason proscribed by the Fair Work Act.
In Cummins South Pacific Pty Ltd v Keenan[17] at [83], Bromberg J explained:
The statutory presumption created by s 361 places an onus on a respondent to establish the fact that the reason alleged was not a reason which actuated the adverse action taken by the respondent: BHP Coal at [192]. Given that, for s 340(1) to be engaged, the reason which actuated the adverse action must be a “substantial and operative” reason, the respondent’s burden is that of negating the alleged reason as a “substantial and operative” reason for the taking of the adverse action in question. A failure to displace the statutory presumption enables the allegation by an applicant that the adverse action was taken for a particular reason to stand as sufficient proof of the fact: Short at [56].
[17] [2020] FCAFC 204
In Russell v Institution of Engineers Australia t/a Engineers Australia[18] at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”. In Short v Ambulance Victoria[19] at [54] and [55], the Full Federal Court (Dowsett, Bromberg and Murphy JJ) provides further explanation on the operation of ss 360 and 361.
[18] [2013] FCA 1250
[19] [2015] FCAFC 55
Section 352 of the Fair Work Act provides “a complete prohibition on dismissing an employee for a temporary absence from work due to illness or injury” as prescribed by regulation 3.01(5) of the Fair Work Regulations 2009 (Cth) (Regulations). Under the Regulations, an employer cannot terminate an employee because of an absence due to illness where that absence has occurred for less than three months in any 12-month period. The objective of s 352 of the Fair Work Act is to protect an ill or injured employee from dismissal within that period of time.
The actuating circumstance provided for by that provision in relation to which a dismissal is prohibited, is that the employee “is temporarily absent from work because of illness or injury”. Section 360 and the statutory presumption in s 361 apply in relation to conduct in contravention of s 352 in the same way as those provisions apply for s 340(1).[20]
[20] Cummins at [128] per Bromberg J. In Ermel v DuluxGroup (Australia) Pty Ltd (No.2) [2015] FCA 17 at [85]-[87], Bromberg J observed that the reason for dismissal that s 352 of the Fair Work Act proscribes is not merely the employee’s temporary absence but the temporary absence from work because of illness
Evidence and submissions
Under ss 340 and 352 of the Fair Work Act, the primary task of the Court in this case is to ascertain with clarity, the substantial and operative reason(s) which motivated the Company to dismiss Ms Loukis. The Company is required to prove that the adverse action taken against Ms Loukis was taken for a reason other than a reason proscribed by the Fair Work Act. For the reasons and arguments canvassed in the paragraphs below, Ms Loukis submits that the Company dismissed her for one or all the prohibited reasons alleged by her.
The Company made a number of allegations against Ms Loukis. These include allegations in respect of:
(a)extension of the Probation Period;
(b)time recording;
(c)use of the Company Vehicle;
(d)lateness; and
(e)personal leave.
Extension of Probation Period
Ms Loukis’ employment with the Company was probationary for the first three months. The Company retained the discretion to extend the Probation Period and the Contract does not place a restriction on when the discretion can be exercised. Prior to executing the Contract on 24 June 2019, Ms Loukis sent an email to Ms Addison, the Company’s Account Manager, seeking clarification of her hourly rate after the Probation Period. In a response dated the same day, Ms Addison confirmed that Ms Loukis’ wage rate would increase to $28 per hour, subject to a satisfactory 3-month probation period[21].Ms Loukis alleges that at the end of her probationary period she was still being paid $26 per hour so she sent an email seeking clarification on the promised pay rise. The Company’s position is that the Company extended the Probation Period before it came to an end, Ms Loukis did not successfully complete her probationary period and accordingly, her pay remained at $26 per hour[22].
[21] Loukis 1, Annexure K
[22] Affidavit of Mr Groat filed on 2 December 2020 (Groat 2), CB 276 [4]
Based on Ms Loukis’ commencement date of 2 July 2019, the 3-month probation period ended on 2 October 2019. Following or prior to the end of the Probation Period, the Company did not advise Ms Loukis that the Probation Period was not satisfactorily concluded. There is no documentary proof that the Company sent a letter to Ms Loukis or email advising that the probation had been extended. Consequently, Ms Loukis contends that it can reasonably be inferred that the probation was satisfactorily concluded and thus, the employment relationship continued.
Ms Loukis submits that the Company did not extend the Probation Period before it came to an end. In cross-examination, Mr Groat stated that the Company extended the Probation Period before it came to an end[23]. He accepted that:
(a)based on clause 3.3 of the Contract, the Company retained the contractual discretion to extend Ms Loukis’ probation beyond 2 October 2019;
(b)if the Company was to exercise that discretion it would notify Ms Loukis and such notification was critical because it defines her employment status;
(c)in the normal course of events, Ms Loukis would have a one-on-one meeting with her direct supervisor at the end of the probation period and such a meeting with the direct supervisor will revolve around obtaining employee feedback from the direct supervisor;[24] and
(d)Ms Loukis was entitled to a face to face discussion about the problems that caused the extension of the probation.[25]
[23] Transcript of the hearing on 10 December 2020 (Transcript 2), page 119 at line 20
[24] Transcript 2, page 119 at lines 5-20
[25] Transcript 2, page 120 at line 20
Counsel for Ms Loukis put to Mr Groat that Ms Loukis never had an opportunity to have the hypothetical end of probation meeting with her direct supervisor. Initially Mr Groat responded, “No, she never finished her probation period. We extended prior to the date”.[26] Mr Groat testified that he was not aware of the exact date of the alleged extension of the Probation Period but he was sure that Mr McManus had extended it.[27]
[26] Transcript 2, page 119 at line 20
[27] Transcript 2, page 119 at lines 20-30
Ms Loukis submits that Mr Groat and Mr McManus gave conflicting evidence in relation to the end of the Probation Period. Mr Groat’s evidence was that the Probation Period was extended prior to expiration on 2 October 2019. On the other hand, Mr McManus testified that he sent a text message to Ms Loukis on 2 October 2019, intending to catch up with her.[28] However, the text message was in fact sent on 3 October 2019 at 3.12pm,[29] a day after the Probation Period had ended. In the text message, Mr McManus indicated that he wanted to have an end of probation discussion with Ms Loukis. Based on the words of the text message of 3 October 2019, it can reasonably be inferred that by the end of the Probation Period, the Company had not notified Ms Loukis that her probation was extended. Hence, Ms Loukis invites the Court to find that contrary to Mr Groat’s evidence, the Company did not exercise the discretion to extend the Probation Period prior to 2 October 2019 or at any time.
[28] Transcript of the hearing on 16 December 2020 (Transcript 3), page 192 at line 40
[29] CB 54
Ms Loukis submits that Mr McManus did not hold a Probation Evaluation Meeting (PEM) with her on 4 October 2019 and [76] McManus 1 is a fabrication.
At [76] of McManus 1, Mr McManus claims that he held a PEM with Ms Loukis on 4 October 2019. He then outlined extensively in three paragraphs the content of the PEM. In the course of cross-examination, Mr McManus was asked questions pertaining to the PEM. His responses included:
(a)he called Ms Loukis around “lunchtime or just after” on 4 October 2019 to hold the PEM;[30]
(b)the PEM call lasted one minute;[31]
(c)he was in his car driving at the time he called Ms Loukis for the PEM; and
(d)he conducted the PEM over the telephone and it lasted one minute.[32]
[30] Transcript 3, page 194 at line 35
[31] Transcript 2, page 194 at line 40
[32] Transcript 2, page 195 at lines 30 and 45
Subsequently, it was put to Mr McManus that there was no way he could cover the issues outlined at [76] of McManus 1[33] in one minute.[34]
[33] CB 140
[34] Transcript 3, page 195 at lines 37-44
Ms Loukis vigorously denies that she had a Probation Meeting with Mr McManus on 4 October 2019 as alleged in his first affidavit. For the following reasons, Ms Loukis urges the Court to find that Mr McManus did not conduct the PEM:
(a)Ms Loukis’ evidence that the alleged PEM on 4 October 2019 never took place;
(b)Mr McManus could not possibly have conducted the Probation Meeting as outlined at [76] of his first affidavit in one minute, whilst driving; and
(c)on 4 October 2019, Ms Loukis was at a customer site at Pitt Town and it is not likely that he would have called her during company billable hours.
The evidence before the Court supports the view that Mr Groat’s evidence was inaccurate and Mr McManus did not hold the PEM and did not advise Ms Loukis of the alleged decision to extend the Probation Period.
Ms Loukis submits that the Company did not notify her that the Probation Period was extended via a Probation Letter. The Company asserts that Ms Loukis was also notified of its purported decision to extend her Probation Period by virtue of a letter addressed to Ms Loukis’ residential address and dated 4 October 2019[35] (the “Probation Letter”). It is Mr McManus’ evidence that he “caused Ms Addison to post the letter to Ms Loukis….” [36]. In cross-examination by Ms Loukis’ counsel, Mr McManus agreed that he signed the letter but the letter was written by Ms Addison and that Ms Addison emailed him the letter on 3 October 2019 and he signed it on 4 October 2019 in the morning. Notably, the first sentence of the Probation Letter proceeds as if the letter was sent following the alleged PEM on 4 October 2019. However, at the time Mr McManus signed the Probation Letter he had not held the alleged PEM with Ms Loukis. The foregoing notwithstanding, Mr McManus gave evidence to the effect that the Probation Letter anticipates the PEM on 4 October 2019.
[35] CB 252
[36] CB 140
For the reasons outlined below, Ms Loukis submits that the Probation Letter was never sent to her and invites the Court to find that the Probation Letter was fabricated for the purpose of establishing that after 2 October 2019, Ms Loukis’ employment remained probationary. The reasons include:
(a)Ms Loukis did not receive the Probation Letter;
(b)the Probation Letter was not given any preferential or priority treatment by the Company[37];
(c)the Company has not adduced evidence either from Ms Addison or in the form of documentary proof to show that the letter was actually mailed;
(d)Mr McManus accepted that he had not adduced documentary evidence to prove that the letter was in fact sent to Ms Loukis and could not veritably give evidence to the effect that the letter was in fact sent;[38]
(e)there is no email trail or documentary evidence to show that the Probation Letter was sent to Ms Loukis;
(f)the Probation Letter could have been sent via ordinary post and email; and
(g)having accepted in cross-examination that it was critical to notify Ms Loukis of its alleged decision to extend her probation, the Company has failed to demonstrate and prove that it took any meaningful step to communicate this decision to Ms Loukis.
[37] Transcript 3, page 201 at lines 36-37
[38] Transcript 3, page 201 at line 40; page 202 at line 5
Ms Loukis’ email of 17 October
On 17 October 2019, Ms Loukis sent an email to Mr McManus:
(a)querying why her wage rate had not risen to $28 per hour following the end of the Probation Period;
(b)seeking to meet with Mr McManus to discuss the probation period ending; and
(c)querying the non-payment of certain hours worked.
On 22 October 2019, Mr McManus responded to the email[39] stating that he would have a conversation with “everyone next week” in relation to timesheets. There was no mention in this email in respect of the probation or matters raised in Ms Loukis’ email of 17 October 2019. On the same day, she had a phone call conversation with Mr McManus where she queried her unpaid hours and lack of pay rise following end of probation. Mr McManus promised that they will have further discussions in person. Those discussions did not occur.
[39] Affidavit of Mr McManus made on 2 December 2020 (McManus 2), Annexure SM-1, CB 147
In cross-examination, Mr McManus accepted that Ms Loukis’ query about her pay in the email of 17 October 2019 was in relation to the promise of a pay increase that was confirmed in Ms Addison’s email of 24 June 2019.[40] Mr McManus was asked whether he was aware of any reason why Ms Loukis would write to him on 17 October 2019 wanting to have a discussion about the end of her probation if in fact she had the Probation Meeting on 4 October 2019 and the Probation Letter was sent to her on the same day, as alleged. His response was that he was confused as well.[41]
[40] CB 65
[41] Transcript 3, page 205 at line 25
Ms Loukis submits that the content of the email of 17 October 2019 is further proof that her Probation Period was not extended and the Probation Letter was never sent.
In this proceeding, Ms Loukis has not pleaded that she was underpaid. However, it is apparent that the Company continued to underpay Ms Loukis in circumstances where she was contractually entitled to an increase in pay following the successful completion of the Probation Period. Ms Loukis invites the court to find that:
(a)the Company never intended to pay her the extra $2 an hour;
(b)the Company has fabricated evidence of the Probation Meeting and Probation Letter to support it in this proceeding;
(c)Mr McManus did not call Ms Loukis on 4 October 2019 whilst she was at the customer site at Pitt Town to discuss her probation;
(d)paragraph 76 of McManus 1 is a fabrication; and
(e)the Company dismissed Ms Loukis because she complained about the promised increase in wages.
Time recording
The time recording allegations encompass:
(a)issues with completing and submitting employee timesheets;
(b)alleged discrepancies between entries on timesheets relative to a report generated from a GPS tracking device (the “Tracker Report”); and
(c)entries on a docket on 18 October 2019.
Timesheet issues
Ms Loukis submits that:
(a)submitting her timesheet via SMS text message was not a breach of the Company’s Time Recording Policy;
(b)the conduct of the Company ratified the practice of engaging Ms Walker to complete the timesheet; and
(c)the Company adopted a reasonably flexible attitude in relation to completion and submission of the timesheets.
Submitting timesheet via SMS text is not a breach of Time Recording Policy
The first allegation of time recording breach relates to the claim that in the week of 22 July 2019, Ms Loukis had her timesheet completed by Ms Walker on one day and submitted her timesheet via SMS text message to Ms Walker on that day.[42] This allegation was in accordance with Mr McManus’ evidence that the Company does not permit employees to complete their timesheet via SMS, text message or email.[43] However, in Mr McManus’ second affidavit[44] he clarified that employees are permitted to take a photograph of the timesheet which they have completed and signed and send that via text message to the office (the “Clarification”). Mr Groat gave evidence in line with the Clarification.[45]
[42] McManus 1, [44]-[45], CB 133
[43] Mc Manus 1, [39]-[45], CB 132
[44] McManus 2, [8], CB 314
[45] Transcript 2, page 110 at line 40
In the course of cross-examination, it was put to Mr McManus that based on the Clarification, there was no breach of policy as alleged at [44(b)] of Mr McManus’ first affidavit[46]. Mr McManus accepted that given the language in [44(a)] and [44(b)] does not arise[47]. Subsequently, I suggested and Mr McManus accepted that the word “sheet” in [44(b)] was an error. However, Ms Loukis argues that the evidence at [45] of Mr McManus’ first affidavit[48] suggests that contrary to the Clarification, the allegation against Ms Loukis at [44(b)] proceeded from the erroneous assumption that it was against the company policy to submit timesheets by text message and as such Ms Loukis submits that the word “sheet” was not inserted in error at [44(b)] of Mr McManus’ first affidavit[49]. Consequently, the sole potential time recording breach relating to timesheets is as alleged in [44(a)] of Mr McManus’ first affidavit.
[46] McManus 1, [44], CB 133
[47] Transcript 3, page 209 at line 20
[48] CB 133
[49] CB 133
The Company’s conduct ratified the practice of engaging Ms Walker to complete employee timesheets
The second allegation relating to non-compliance with the Time Recording Policy is outlined in Mr Groat’s first affidavit[50]. Mr Groat alleges that following a conversation he had with Mr Prakash Chandra, the Geotechnical Director of the Company, on or around 5 August 2019, he issued Ms Loukis her first warning on the same day because she had breached the Company’s Time Recording Policy in the weeks of 22 and 29 July 2019. Mr Groat also alleges that Ms Loukis breached the Time Recording Policy in the week of 15 July 2019 and he had a conversation about the breach, with Ms Loukis on 17 July 2019. Collectively, the alleged breach stems from Ms Walker completing Ms Loukis’ timesheet in the weeks of 15, 22 and 29 July 2019.
[50] Groat 1, [20]-[21], CB 116-117
Ms Loukis does not dispute that Ms Walker completed her timesheet in the relevant weeks. However, she contends that it was the Company’s practice to have staff who could not fill their timesheets on time, ask Ms Walker to assist them in completing their timesheets. This stance is supported by Ms Walker’s evidence[51].
[51] Affidavit of Stacey Walker filed on 6 July 2020, [5] and [6]
Under clause 11.1 of the Contract, Ms Loukis was required to complete regular time recordings as directed by management. Consequently, Ms Loukis submits that in asking Ms Walker to complete her timesheet she was adhering to a practice accepted and ratified by the Company and as such completed her timesheets in the weeks of 15, 22 and 29 July 2019 as directed by management.
Furthermore, clause 11.2 of the Contract states that an employee is not permitted to have another employee complete their timesheet. The foregoing notwithstanding, Mr Groat approved and signed Ms Loukis’ timesheet in weeks ending 15, 22 and 29 July in circumstances where Ms Loukis’ timesheets were completed by another employee and in clear violation of clause 11.2. Apparently, Mr Groat failed to take any disciplinary action against Ms Loukis following the alleged multiple breaches. Ms Loukis submits that Mr Groat failed to comply with the disciplinary procedures enshrined in the company’s handbook[52].
[52] CB 191
Nevertheless, Mr Groat’s evidence is that he had a conversation with Ms Loukis on 17 July 2019 regarding non-compliance with the Time Recording Policy in the week of 15 July 2019. Ms Loukis denies that the conversation on 17 July 2019 ever took place. Likewise, there is no documentary evidence of the conversation on 17 July 2019. It is said to be not plausible that Ms Loukis, a new employee on probation at the time, would have continued to breach the Time Recording Policy in the weeks commencing 22 and 29 July 2019, if she received a warning from Mr Groat, the owner and Managing Director of the Company, on 17 July 2019.
In cross-examination, Mr Groat accepted that prior to the alleged conversation with Mr Chandra on 5 August 2019, he was already aware that Ms Walker completed Ms Loukis’ timesheet in the weeks of 22 and 29 July[53]. Subsequently, I asked Mr Groat why he had to wait for the complaint from Mr Chandra before issuing the alleged first warning given that he was already aware that there were issues with the timesheets. Mr Groat is said to have provided an answer that failed to address the question.[54]
[53] Transcript 2, page 112 at lines 10-40
[54] Transcript 3, page 114 at lines 5-15
Ms Loukis submits that the alleged first warning on 5 August 2019 never took place and is a fabrication, for the following reasons:
(a)the alleged complaint from Mr Chandra could not have triggered the alleged first warning because Mr Groat was already aware of the irregularities on the timesheets of weeks 15, 22 and 29 July;[55]
(b)despite the Company’s admissions on the need to maintain Human Resources records[56], there is no record of this first warning, even though there was an alleged complaint against Ms Loukis. There are no email trail and no records in Ms Loukis’ personnel file;
(c)Ms Loukis robustly denies that the conversation ever took place;[57] and
(d)Mr Groat accepts that he has no proof that the conversation actually took place.[58]
[55] Transcript 2, page 117 at lines 15-20
[56] Transcript 2, page 100 at lines 20-35
[57] Transcript of the hearing on 9 December 2020 (Transcript 1), page 51 at line 5
[58] Transcript 2, page 108 at lines 20-30
It is said to be reasonable to conclude that Mr Groat ratified the practice of completing and submitting timesheets via another employee. This position is further supported by Ms Walker’s evidence.
The Company adopted a reasonably flexible attitude in relation to completion and submission of the timesheets
In the course of cross-examination, Mr Groat testified that:
(a)his signature on the timesheet means that he has authorised Ms Loukis to be paid and Ms Addison cannot pay an employee unless the timesheet is approved by Mr Groat[59]; and
(b)his signature on the timesheet means that he approved the content of the employee timesheet.[60]
[59] Transcript 2, page 107 at line 25, page 106 at line 45
[60] Transcript 2, page 117 at line 20
Mr Groat also gave evidence stating that if there was a problem with an employee timesheet “We would chase them up, find out what the problem was, and rectify it”[61]. The Company failed to adduce documentary evidence to show that Ms Loukis was ever asked to address why her timesheet was being completed by Ms Walker.
[61] Transcript 2, page 107 at lines 1-3
Despite testimony to the effect that time recording requirements were stringent[62], Mr Groat admitted that everybody gets paid whether they have completed the form or not[63]. Ms Loukis submits that there is obvious tension between his stance that the Company adopts a stringent attitude in relation to compliance with time recording requirements and the stance that people will be paid on payday regardless of timesheet. This is said to imply that there are no consequences for non-compliance with Time Recording Policy, which is a clear contravention of clause 11.2 of the Contract and as such “makes a mockery” of the disciplinary procedures in the employee handbook.[64] Clearly, for a policy to retain its force, there have to be consequences for non-compliance. Mr Groat’s evidence is said to suggest that there was no consequence for breaches of clause 11.2 of the Contract because “people have to be paid on payday, regardless to the timesheet”.[65] Based on the arguments outlined above, Ms Loukis invites the Court to conclude that the Company adopted a reasonably flexible attitude in relation to the timesheets.
[62] Transcript 2, page 113 at line 30
[63] Transcript 2, page 106 at lines 37-38
[64] CB 191
[65] Transcript 2, page 113 at line 34
The docket of 18 October 2019 at Penshurst site
In her first affidavit[66] Ms Loukis adduced evidence relating to the events of 18 October 2019. She deposed that on 18 October 2019, the site foreman at Penshurst site was leaving the site early and wasn’t aware of the finish time to record on the docket/invoice. He pre-estimated the finish time and instructed Ms Loukis to go home after the job was finished. Ms Loukis recorded the pre-estimated finish time on the docket. Both Ms Loukis and the site foreman signed the docket. This resulted in an early exit for Ms Loukis and she noted in her affidavit “I believe that CSTS often benefited from additional hours”.
[66] Loukis 1 at [17], CB 37
Counsel for the Company cross-examined Ms Loukis on this issue, extensively. Ms Loukis notes that she brought this evidence to the fore of her own volition. This is said to demonstrate that she did not engage in deliberate dishonest misconduct. The point of her evidence was to highlight an occasion whereby following the customer’s directions may lead to time recording discrepancy and she was of the view that on that occasion, the Company benefited from the discrepancy.
Evidence from cross-examination reveals that:
(a)when the Company’s staff are on a customer site, they are required to comply with the customer’s policies and follow the customers directions as well;[67]
(b)the docket is presented to the site foreman to authenticate the number of hours the staff worked on the site;[68]
(c)the site foreman works for the customer. However, if the site foreman signs off on the docket, the customer will still take extra steps to verify the number of hours indicated on the docket and as such the signed docket does not empower the Company to bill the customer. The Company still needs to prove that the docket is correct and that is achieved by verification of the number of hours on the docket using the GPS tracker;
(d)Company staff have no way of “manipulating the docket”. It is for the site foreman to either sign off or not sign off; and
(e)the employee fills out the docket and the site foreman signs it and the site foreman also fills out his records within his own company.
[67] Transcript 2, page 133 at line 35
[68] Transcript 2, page 135 at lines 30-33
As explained in cross-examination, Ms Loukis completed her timesheet to reflect the site foreman’s pre-estimated hours on the docket. However, she accepted that following the customer’s direction by reflecting the number of hours on the docket was effectively not telling the truth to the Company[69]. She also noted that she was unsure of the applicable process where she has been pre-signed off on the site[70]. To the best of her ability she did what she thought was right at the time[71]. In essence, the customer controls the site and Ms Loukis was following the customer’s direction on the site. Mr Groat had given evidence that supports the view that the customer controls the site if the customer told Company staff that they were no longer required for the day, that staff would have to leave and the Company could not impose hours on the customer.[72]
[69] Transcript 1, page 40 at lines 5-9
[70] Transcript 1, page 40 at line 35
[71] Transcript 1, page 41 at lines 6-7
[72] Transcript 3, page131 at lines 10-26
Ms Loukis submits that, arguably, there is no procedure or policy in the handbook which provides guidance to an employee who found herself in a situation like that which confronted Ms Loukis on 18 October 2019. She had no way of altering the pre-signed docket with the pre-estimated hours because any alteration would have suggested that the foreman signed the document as altered. Likewise, any alteration on the docket would have led to a mismatch between the record kept by the foreman “within his own company”[73] and the copy submitted to the Company. To err on the side of caution, she decided to complete her timesheet to reflect the pre-estimated hours on the docket. This may have been the wrong decision as it had the possible effect of inflating the number of hours that the Company charged the customer. However, it was not an act of dishonesty because she was simply following the directions of the Customer as she was required to do.
[73] Transcript 2, page 136 at lines 5-8
The Company insists that Ms Loukis acted dishonestly because she handed in a document that is incorrect in circumstances where Mr Groat says she had the power to put a single line through the document, alter the document and sign it. Ms Loukis argues that the Company has not adduced any evidence of company direction or policy which gives an employee the power to alter a document pre-signed by the customer’s site foreman. Ms Loukis further argues that it would be tantamount to falsifying the document to the extent that the altered document gives the impression that the site foreman signed off on the document as altered[74].
[74] Transcript 2, page 139 at lines 35-40
It is said to be apparent that Ms Loukis was at a loss as to what to do when confronted with this predicament. She did not set out to be dishonest and had no intention of inflating her hours. Ms Loukis accepts that if the pre-estimate proves to be inaccurate it is dishonest not to correct it but there was no clear guidance as to how that correction could be achieved and altering the document unilaterally as suggested by Mr Groat would have led to a discrepancy between the record submitted by the site foreman and the record submitted by Ms Loukis.
Ms Loukis submits that the Company cannot rely on any deduction from the events of 18 October 2019, adverse or otherwise, as a ground or reason for terminating Ms Loukis’ employment. This is because the information relating to the events of 18 October 2019 only came to the fore on 2 July 2020, being the date that Ms Loukis filed her first evidence.
Time recording discrepancies
With respect to the time recording discrepancies, in addition to her second written submissions, Ms Loukis makes the following submissions:
(a)use of the GPS tracker to determine number of hours worked by Ms Loukis was not authorised by the Contract;
(b)unilateral alteration of the employee timesheet was a clandestine practice, procedurally unfair and had the effect of inexplicably reducing Ms Loukis’ expected weekly income;
(c)construction of the data generated by the Tracker Report is inconsistent and erroneous; and
(d)the tracker is not a reliable basis to compute Ms Loukis’ work hours.
In the course of cross-examination, Mr Groat conceded that the Company used the vehicle tracker/GPS device (“GPS tracker”) to determine the number of hours worked by the employee and this was not in line with the use which was contractually stated in the handbook[75]; and that the initial purpose of the device did not include use to determine the number of hours worked by an employee.
[75] Handbook, Clause 17.14, CB 202; Transcript 2, page 121 at lines 40-46, page 122 at lines 1-12
In cross-examination, Mr Groat was asked whether he would agree that if he was going to reduce a person’s income based on a report from an application, it would be procedurally fair to show them the basis on which the calculation is done and he responded in the affirmative.[76]
[76] Transcript 2, page 126 at line 45, page 127 at line 4
Mr Groat conceded that part of the timesheet verification process included a comparison between the number of hours stated on the timesheet and the number of hours indicated on the GPS tracker and if there was a discrepancy with the tracker, the number of hours on the timesheet will be struck off and replaced with the number indicated by the tracker. He was unable to give evidence on whether or not Ms Loukis was ever given an opportunity to be heard prior to the alterations[77].
[77] Transcript 2, page 125 at lines 5-14
In cross-examination, Ms Loukis recalled receiving an email from Mr McManus with annotations of tracking data stating her timesheet was off but there was no conversation regarding time recording irregularities.[78] Counsel for the Company took Ms Loukis to her timesheet for the week ending 12 August 2019 and referred to the entry for 6 August 2019[79]. Counsel proceeded to state that Ms Loukis claimed nine hours when in fact she worked eight hours and she said “do you see that?” and Ms Loukis responded positively and added “I was unaware of that”[80]. Ms Loukis submits that the affirmative response was a nod to the question whether she could see the Company’s correction because she was not aware of the alteration of timesheet practice (and not confirmation that she in fact worked eight hours instead of nine hours). Likewise, with respect to the following expression “The same with the entry on 8 August?”, to which Ms Loukis responded “Yes”. Ms Loukis submits that her response was confirmation that she could see that her time entries had been corrected by the Company.
[78] Transcript 1, page 35 at lines 30-35
[79] CB 228
[80] Transcript 1, page 42 at lines 5-20
It is said to be apparent that the alteration practice was not revealed to Ms Loukis. There is no evidence depicting a process whereby Ms Loukis was allowed to provide feedback on an alleged discrepancy between the submitted timesheet and the GPS tracker. Ms Loukis submits that it was a clandestine and procedurally unfair process which had the effect of inexplicably reducing Ms Loukis’ weekly wages without giving her an opportunity to be heard.
Ms Loukis submits that she has demonstrated extensively, the basis on which she argues that the Company construed the Tracker Report wrongly. In the course of the proceeding, the Company adduced no expert evidence showing how the Tracker Report was generated. Mr Groat accepted that he did not know how the data was extracted but asserts that the tracking is accurate. Ms Loukis argues that it was not open to Mr Groat to state with conviction that the Tracker Report was accurate if he had no clue on how the data on which the report is based, is collated.
Considering the serious allegations of dishonesty levelled against Ms Loukis, the clandestine and procedurally unfair nature of the alteration practice, the possible privacy concerns raised by the use of the GPS tracker without employee consent, the Company’s erroneous construction of the Tracker Report, the absence of expert evidence and the possibility that the alteration may have led to underpayment of Ms Loukis wages, Ms Loukis urges the Court to find that the GPS tracker was not a reliable basis to compute the number of hours she worked. Ms Loukis submits that consequently, the Company cannot rely on evidence flowing from the Tracker Report to establish that she inflated her work hours and was dishonest.
Use of Company Vehicle
Ms Loukis submits that:
(a)she did not use the vehicle to move house on 29 July 2019 and did not breach clause 19.1 of the Contract;
(b)paragraph 19 of Mr Groat’s first affidavit is a fabrication; and
(c)the Tracker Report or map at CB 225-226 is a fabrication and/or does not provide conclusive evidence of the movement status of the vehicle on 29 July 2019.
The Company alleges that Ms Loukis used the vehicle for unauthorised purposes on a day she was supposed to be on sick leave and that she admitted to lying to the Company. Specifically, Mr Groat’s evidence is that on or around 29 July 2019, Mr McManus invited him into his office and advised him that Ms Loukis had taken personal leave on that day but her GPS tracker suggested she was not sick. Mr McManus proceeded to show Mr Groat the Verizon Reveal app where Mr Groat observed that Ms Loukis had made multiple trips in her Company Vehicle (the “Use of Vehicle Allegation”).[81]
[81] Groat 1, [17]-[18]
Mr Groat also states that on or around 30 July 2019, he had a meeting with Ms Loukis, in the company of Ms Addison regarding her use of the Company Vehicle and in that meeting, Ms Loukis admitted to lying to the Company about being sick on 29 July 2019.[82]
[82]Groat 1, [19]
Ms Loukis denies the Use of Vehicle Allegation. Ms Loukis’ evidence is that she took personal leave on 29 July 2019, to look after her two sisters who had been involved in a car accident. She had to take them to the hospital and spent considerable time with them. Consequently, she was tired and decided to take 30 July 2019 off as a personal leave day. She notified the receptionist at 7.02am on 29 July 2019 and placed a call at 8.02am to Mr Chandra.[83] She also sent a text message to Ms Walker explaining her absence from work on 29 July 2019.[84]
[83] Groat 1, [9]
[84] Loukis 1, [10]
In the course of cross-examination[85], Ms Loukis testified that:
(a)she did not use the vehicle to move house on 29 July 2019;[86]
(b)she denied that she had a meeting with Mr Groat on her personal leave day (30 July 2019) about using the vehicle on 29 July 2019;
(c)she noted that the tracking data report on CB 225 was remarkably different;[87]
(d)she accepted that if the report on CB 225 was genuine, it would be the only contemporaneous record of her movement on 29 July 2019;[88] and
(e)she denied telling Mr Groat that she was in fact not sick and had taken a personal leave day on 29 July 2019 to move house.[89]
[85] Transcript 1, pages 42-46
[86] Transcript 1, page 43 at lines 25-45
[87] Transcript 1, page 46 at line 5
[88] Transcript 1, page 46 at line 20
[89] Transcript 1, page 46 at lines 25-30
Ms Loukis submits that during the Employment Period, she complied with the Company’s policy in relation to the Company Vehicle. It is her evidence that she was on sick leave on 29 and 30 July 2019 and did not ever lie to the Company. She further submits that she did not use the vehicle on 29 July 2019 as alleged by the Company.
Nevertheless, Ms Loukis accepts that she used the vehicle on the weekend (27 and 28 July 2020) for personal use and she had received prior approval from Mr Groat[90]. She notes that the Company’s vehicle policy permits the use of the vehicle for personal purposes subject to prior approval from management. Under clause 19.1 of the Contract, Ms Loukis was entitled to use the vehicle for “reasonable incidental personal use”.
[90] Loukis 1 at [10]
Ms Loukis invites the Court to find that the evidence on CB 225 is fabricated. This is because the Company has not adduced evidence of a report akin to that adduced in relation to the alleged time recording discrepancies. Rather, it has included evidence of a map of undisclosed provenance and questionable data. It is submitted that the source of the map is unknown, the information on the map is without clarity and it does not provide conclusive evidence of the movement status of the vehicle on 29 July 2019.
Ms Loukis has adduced evidence showing that she was in fact on personal leave on 30 July 2019. It is not possible that she had a meeting with Mr Groat, in the company of Ms Addison on the day of her personal leave.
In cross-examination, Mr Groat said that he had the meeting with Ms Loukis on 30 July 2019 and he believed it was before lunch;[91] and that he had looked at the tracker data report showing movement of the vehicle on 29 July 2019, when Mr McManus showed it to him.[92]
[91] Transcript 3, page 153 at line 35
[92] Transcript 3, page 153 at lines 40-45
There is said to be apparent tension if not clear inconsistency between Mr Groat’s testimony and Mr McManus’ evidence where Mr McManus states[93] that:
(a)on 30 July 2019, Ms Walker detected high usage activity with Ms Loukis’ vehicle use on 29 July;
(b)around 11.30am on 30 July 2019, he and Mr Groat reviewed Ms Loukis’ tracker data for 29 July 2019; and
(c)later on 30 July 2019, Mr Groat notified him that he spoke to Ms Loukis about her car use on 29 July 2019 and she admitted that she wasn’t sick but was using the car to move houses.[94]
[93] CB 134
[94] CB 134-135
Notably, on Mr McManus’ account, Mr Groat did not state that Ms Addison was also in the alleged meeting with Ms Loukis on 30 July 2019.
Mr Groat accepted that there was conflict between his evidence and Mr McManus’ evidence[95]. He later agreed that he observed and reviewed the Tracker Report with Mr McManus on 30 July 2019 at around 11.30am.[96] This acceptance brings into serious doubt Mr Groat’s evidence that he had a meeting with Ms Loukis and Ms Addison on 30 July 2019, just before lunch, when Ms Loukis admitted lying about the use of the car and the need for personal leave on 29 July 2019. This is said to call into question Mr Groat’s credibility whether he is in fact a witness of truth. Ms Loukis submits that the entire evidence of conversation at [19] of Mr Groat’s first affidavit is a fabrication. Ms Loukis denies making the comments at [58] of Mr McManus’ first affidavit.[97]
[95] Transcript 3, page 155 at line 15
[96] Transcript 3, page 156 at line 40
[97] CB 134-135
Lateness
Ms Loukis submits the Company’s second lateness allegation as detailed in [9]-[18] of Mr Groat’s second affidavit is a fabrication.
Prior to Mr Groat’s second affidavit[98] the sole allegation of lateness to work in respect of Ms Loukis, was set out in [79] of Mr McManus’ first affidavit[99]. Considering that the fundamental question in this proceeding is the question “Why did the Company dismiss Ms Loukis?” and the Company alleges that Ms Loukis was dismissed because of lateness to work, it is said to “beggar belief” that no further evidence of lateness was introduced until 1 December 2020. Ms Loukis submits that given the severity and potential financial consequences of the Lateness to Work Allegations as outlined in [9]-[18] of Mr Groat’s second affidavit[100], Ms Loukis’ concern with the lateness allegations “borders on credibility”.
[98] CB 275
[99] CB 141
[100] CB 276-279
The Company’s initial lateness allegation was that Ms Loukis came late to work on 1 October and 4 October 2019. Ms Loukis is alleged to have arrived at 9.00am on 1 October 2019 and at 8.25am on 4 October 2019.[101]
[101] McManus 1, [79], CB 141
The second lateness allegation[102] states that:
(a)Mr Groat and Mr McManus had a series of undated discussions about Ms Loukis’ lateness and the Company got a complaint from a customer, Menai Excavations, about Ms Loukis being late to the customer site;
(b)Ms Loukis’ tardy attitude was evident whilst she worked at the Pitt Town site;
(c)for Level 1 projects, the contractor requires a Company representative to be on site before they commence work and it was critical that the Company representative is on time otherwise work on the project may be delayed;
(d)Ms Loukis was required to be at the Pitt Town Site at 7.00am each day and finish time varied depending on whether soil samples from the job site were required to be taken to the Company laboratory for testing; and
(e)Ms Loukis had to sign in and sign out of the job with the site foreman.
[102] Groat 2, [9]-[18], CB 279
Also, the Company compiled a number of documents comprising of dockets, weekly timesheets and tracker data reports depicting different start and finish times for Ms Loukis.[103] The allegation also alludes to a complaint by Menai Excavation on an unspecified date which led to Mr Groat attending the work site on an unspecified date in August 2019[104]. The Company relies on the facts above to establish that Ms Loukis was in breach of her obligation to attend work on time.
[103] CB 285-311
[104] Groat 2, [17]-[18], CB 279
Ms Loukis submits that, fundamentally, in order to determine whether in fact, Ms Loukis was regularly late to work, it is imperative to ascertain her start time as governed by the Contract. Contractually, Ms Loukis’ working hours were Monday to Thursday (8.00am to 4.30pm) and Friday (8.00am to 2.00pm). However, the Contract expressly states “Start and finish times may vary and must be approved by the Employer and mutually agreed between both parties.”[105] Furthermore, clause 3.3 of the handbook states:[106]
You must attend work punctually at the time(s) specified in your contract of employment or as otherwise agreed … In the event you are going to be late to work, or following an authorised break, you are required to notify your manager as soon as possible and indicate when you expect to arrive.
[105] Schedule to Contract, Item 7, CB 162
[106] CB 171
In response to the initial lateness allegation and assuming a start time of 8.00am, Ms Loukis submits that it would appear that contractually, Ms Loukis was one hour late on 1 October 2019 and 25 minutes late on 4 October 2019. In respect of 1 October 2019, Ms Loukis states that she was at a customer’s job site at South Wentworthville from 8.00am prior to arriving at the Company’s office at 9.00am. She has provided supporting evidence.[107] On 4 October 2019, the Tracker Report shows that she left her house at 7.36am, drove for 49 minutes and arrived at the Pitt Town site at 8.25am. This is in circumstances where she should have arrived at the site at 7.56am. Notably, other than the above, no further evidence of lateness was adduced by the Company until 1 December 2020.
[107] Loukis 1, Annexure H
In cross-examination Mr Groat:
(a)agreed that item 7 of the schedule to the Contract [108] states that start and finish times may vary and must be approved by the employer and mutually agreed between both parties;[109]
(b)stated that the allegation that Ms Loukis was late to work depended on the agreed start time;
(c)stated that different sites had different times;
(d)stated that on the Picton (Pitt Town) site Ms Loukis was required to start at 7.00am;
(e)accepted that he had not adduced evidence of an agreement between the Company and Ms Loukis stating that she would commence at 7.00am at Picton (Pitt Town);[110] and
(f)agreed that the Company is paid by customers on an hourly basis for attendance at Customer job sites.[111]
[108] CB 162
[109] Transcript 2, page 129 at line 5
[110] Transcript 2, page 130 at line 10
[111] Transcript 2, page 130 at lines 14-15
Mr Groat insisted that Ms Loukis was required to start at 7.00am mandatorily.[112] Subsequently, he was reminded that the argument that Ms Loukis was late depends on the assumption that she was required to start at 7.00am every day at Pitt Town and he had not provided any evidence to show that he instructed her to be Pitt Town every day at 7.00am. In response he said he had provided such evidence and then referred to the 7.00am start times on her timesheet.[113] Subsequently, he accepted that he had not produced any such evidence.[114]
[112] Transcript 2, page 129 at lines 26-34
[113] Transcript 2, page 132 at line 25
[114] Transcript 2, page 132 at lines 15-35
In response to the second lateness allegation, Ms Loukis submits that the Company has not adduced documentary evidence to demonstrate that there was a mutual agreement between the parties to change Ms Loukis’ start time from 8.00am to 7.00am when she attends customers’ job sites. Likewise, the Company has not adduced any documentary evidence or evidence of conversation to prove that it directed Ms Loukis to commence work at 7.00am each day she worked at a customer site. Hence, there is said to be no reasonable basis to assume or find that Ms Loukis was late on days when she started work at a time later than 7.00am.
Ms Loukis further contends that all the allegations raised in the second affidavit of Mr Groat[115] were never raised with her during the Employment Period. In her view these allegations have been manufactured to support the Company’s case in the current proceedings.
[115] Groat 2, [9]-[18]
In cross-examination by the Company’s counsel, Ms Loukis affirmed or accepted that:
(a)her normal hours when she worked from the Company’s office at Glendenning was as outlined in CB162;[116]
(b)her hours when she worked on customer site would vary;[117]
(c)her start times at different sites could vary from 7.00am, 7.30am and 8.00am;[118]
(d)her start times were determined by either the Company or the customer;[119]
(e)if she was directed by the Company to deal with a client site supervisor, she would be taking directions in respect of her hours from the site supervisor, not her direct manager;[120]
(f)if the Company directed her to be at a customer site at a particular time, she would comply;[121]
(g)she was directed by the Company to converse with the client as to what time they needed her each time, because the requirement each day was different[122] and she was not required by the Company to commence work at Pitt Town each day at 7.00am. Her start time at Pitt Town was based on the client’s requirements;[123] and
(h)denied the evidence in [9]-[18] of Mr Groat’s second affidavit.
[116] Transcript 1, page 24 at lines 30-35
[117] Transcript 1, page 24 at line 40
[118] Transcript 3, page 209 at line 20
[119] Transcript 1, page 30 at line 5
[120] Transcript 3, page 30 at line 15
[121] Transcript 3, page 30 at line 25
[122] Transcript 3, page 30 at line 35
[123] Transcript 3, page 30 at line 40
The second lateness allegation is said to be a fabrication. The Company has no documentary evidence to prove that Ms Loukis was directed either by the Company or by the client to start at Pitt Town each day at 7.00am. It would appear that the Company seeks to rely on the fact that she was often required to start at 7.00am at Pitt Town to argue that she was directed to start at 7.00am each day in circumstances where the Company has not adduced any email trail or documentary evidence to demonstrate that she was directed either by the customer or Company to start at 7.00am. The Company’s argument is said to be without force and as such must fail.
Mr Groat is said to corroborate:
(a)Mr McManus advised him that Mr McManus extended Ms Loukis’ probationary period;
(b)he had no reason to doubt Mr McManus who was honest and reliable;
(c)Ms Loukis’ performance was an ongoing issue which Messrs Groat and McManus discussed; and
(d)the extension of probation was a chance for Ms Loukis to improve her failure to comply with the matters which she had been warned about.
Mr McManus
Mr McManus is said to have been a credible and reliable witness who directly answered the questions under cross-examination, did not overstate his evidence and did not give evidence beyond his personal knowledge. For example, in relation to whether Ms Loukis had permission to use the Company Vehicle on 29 July 2019, he said words to the effect of, “I had nothing to do with it. It was Mr Groat. Yes.”[296]
[296] Transcript 4, page 239 at lines 35-45
Under cross-examination, Mr McManus gave evidence regarding ongoing performance issues with Ms Loukis’ employment, which included:
(a)the dishonest use of the Company Vehicle on 29 July 2019;[297]
(b)time recording issues and her failure to follow procedure;[298] and
(c)numerous warnings issued regarding her failure to follow the Company’s procedure,[299]
which accord with Mr McManus’ reasons for dismissal of Ms Loukis.[300]
[297] Transcript 3, page 190 at line 5
[298] Transcript 3, page 190 at line 10; page 202 at line 35; page 204 at line 10; page 223 at lines 15-20
[299] Transcript 3, page 190 at line 5
[300] CB 145 at [98]
Mr McManus’ evidence on Ms Loukis’ use of personal leave
It was Mr McManus’ evidence that personal leave was not a relevant factor to him in his decision regarding the dismissal. When questioned over Ms Loukis taking six days personal leave in total over 121 days of her employment, he said, “I’m not actually sure of the total number”.[301]
[301] Transcript 4, page 243 at line 15
When questioned whether the Company was unhappy with Ms Loukis’ use of personal leave, Mr McManus said, “No. There was – there was questionable ones in – that’s in my affidavit, around the motor vehicle use”.[302] Here there is a clear disaggregation from the use of personal leave and Ms Loukis’ dishonest conduct. It is the latter which concerned the Company.
[302] Transcript 4, page 246 at lines 38-39
Mr McManus was asked whether Ms Loukis was terminated because of her personal leave days, he said, “No. It has got nothing to do with personal leave. Everyone is entitled to what they’re entitled to”.[303]
[303] Transcript 4, page 247 at line 5
Mr McManus’ credible evidence regarding the Company’s position on personal leave ought to be accepted by the Court. It naturally follows that if Ms Loukis’ personal leave (or any inquiry) was not a substantial or operative reason for the dismissal, it was not a reason at all.
Mr McManus gave a credible account of the circumstances in which he sent the 4 October Letter.[304]
[304] Transcript 3, page 200
Termination
In relation to the events of 30 October 2019, under cross-examination, Mr McManus reiterated he had multiple conversations with Mr Groat which included words to the effect of “Mr Groat asked what our current workload is and whether we can put her off work, I said, we can make do”.
Messrs Groat and McManus each confirmed, without any uncertainty, that they were the sole decision-makers.[305] Additionally, Mr McManus gave evidence that, “Neil and I had enough information to make that [the dismissal] decision”.[306]
[305] CB 282, Groat 2, page 8 at [32]; CB 317, McManus 2 at [22] ; Transcript 2, page 111 at line 25; Transcript 3, page 185 at line 20
[306] Transcript 4, page 249 at lines 36-37
Resolution
This case is unusual in that the parties have made significant claims of dishonesty and fabrication against each other. On my analysis of the evidence, including the performances of witnesses under cross-examination, I have formed the view that these opposing claims have some substance, although they have been exaggerated. This reflects in large part the hard fought nature of the proceedings and the atmosphere in which they were conducted, but the attacks on the credibility of Ms Loukis, Mr Groat and Mr McManus went further than was necessary, in my view. At its heart, this was a relatively straightforward case about the reason for the dismissal of Ms Loukis from her employment. It was rendered more difficult and more complex because of the “take no prisoners” approach taken by both sides in the dispute.
The reason for Ms Loukis’ dismissal
There is no dispute that Ms Loukis was dismissed from her employment and that this constituted adverse action. The determinative question in this case is whether the reason for Ms Loukis’ dismissal was a proscribed reason under the Fair Work Act. The “separation letter” terminating Ms Loukis’ employment is at CB 269[307] and is dated 30 October 2019. It was handed to Ms Loukis on that day. Ms Loukis’ employment was terminated as at that date. The reason given for the dismissal was “unsatisfactory attendance” with the added words “which we are unable to sustain being a small business”.
[307] Mc Manus 1, page 141
It is in my view tolerably clear that the immediate cause of the termination was Ms Loukis’ late arrival at the workplace on 30 October 2019 following her absence on leave the previous day. This was not satisfactorily explained at the termination meeting. Ms Loukis later claimed to be sick and produced ex post facto a medical certificate verifying that she was unwell on 29 October 2019 and on 30 October 2019, but at the time of her dismissal her absence was unexplained to Mr Groat and Mr McManus. Under cross-examination, in response to a question from me, Mr Groat accepted that Ms Loukis’ anticipated absence on 30 October 2019, given her failure to arrive when expected, was the “straw that broke the camel’s back”.[308] Mr Groat struck me as a straightforward no nonsense businessman. A critical concern for him was his relationship with his clients. Ms Loukis was primarily employed in order to work at client work sites. A failure to attend a work site when expected was a concern for Mr Groat because it impacted directly on client relations and his business, which was a small business.
[308] Transcript 3, page 179
A substantial effort was made by the respondents in order to develop a picture or a pattern of behaviour by Ms Loukis justifying her dismissal. These related to time recording discrepancies and failure to adhere to the Time Recording Policy as set out in her employment contract, and misuse of a Company Vehicle. I accept that there were real issues relating to time recording and, at least on one instance, the use of the Company Vehicle for private purposes, but if these had been reasons for the dismissal, I would have expected them to be reflected some way in the letter. The Company’s Time Recording Policy was explicitly addressed in the employment contract and if non compliance with it had been the reason for the dismissal, the dismissal letter would have said so. I accept that Ms Loukis’ approach to time recording was a concern because inaccurate time recording was likely to give rise to disputes with clients over payment for time spent at their work sites. Based on the evidence, however, the process for time recording, despite what is stated in the contract of employment, was not strictly adhered to and Mr McManus’ evidence discloses that it was a problem not restricted to Ms Loukis.
Ms Loukis’ use of a Company Vehicle for a private purpose (moving house) is, on the balance of probabilities, established. However, under her employment contract, Ms Loukis was entitled to use a Company Vehicle for incidental private use. One might accept that using a Company Vehicle without notice to move house at a time when Ms Loukis was taking sick leave, was not “incidental” use and might support counselling, at least in relation to openness in Ms Loukis’ dealings with the Company. Considered in isolation, however, it was not a “sackable offence” and once again, no mention of it is made in the termination letter.
In my view, the most that can be said about these prior incidents is that they impacted upon the view Mr Groat and Mr McManus had about Ms Loukis, which made them more ready to dismiss her for her lateness on 30 October 2019. Those incidents were not the reason for Ms Loukis’ dismissal but they made it more likely.
The conclusion I reach is that neither party has persuaded me that the real reason for Ms Loukis’ dismissal was otherwise than was stated in the termination letter, namely “unsatisfactory attendance”. The critical fact leading to the decision that Ms Loukis should be dismissed was her lateness on 30 October 2019. This was important to the Company as Ms Loukis had been expected to attend a client worksite and a client had, on an earlier occasion, complained of her late attendance. Ms Loukis took personal leave for her absence on 29 October and was able to support the claim by a medical certificate some days after the event. The Company does not deny knowledge that Ms Loukis accessed personal leave on 29 October 2019. Her absence on that day was not the reason for her dismissal. Under cross-examination Mr Groat conceded that if he had known of Ms Loukis’ illness, he may not have terminated her employment. I am satisfied, however, that neither Mr Groat or Mr McManus knew that Ms Loukis was temporarily unwell when they terminated her employment. Likewise, Mr Groat conceded under cross-examination that if he had known that Ms Loukis had attempted to advise her lateness on 30 October 2019, he might not have dismissed her. That, in my view, shows that Mr Groat is a reasonable person and would probably not have dismissed Ms Loukis if he had been given an explanation for her lateness on 30 October. Neither Mr Groat nor Mc McManus took the decision to dismiss Ms Loukis because she was exercising a workplace right. They took the decision because of what they viewed as unsatisfactory attendance, as stated expressly in the termination letter. Whether or not Ms Loukis was temporarily unwell at the time of her dismissal, Mr Groat and Mr McManus were not on notice of it at the time of the dismissal and that was not the reason for the dismissal.
I conclude that Ms Loukis has not established that her dismissal was for a reason otherwise than as stated in the termination letter and, more generally, she has not established that her dismissal was for a prohibited reason under the Fair Work Act.
This means that her claim must fail.
The probation issue
A dispute emerged between the parties during the course of these proceedings as to whether Ms Loukis remained on probation under her employment contract at the time she was dismissed.
The Company’s position is that Ms Loukis’ probationary period was extended prior to 4 October 2019. Ms Loukis maintains (correctly, in my view) that it expired on 2 October 2019 as the first day of Ms Loukis’ employment was 2 July 2019.
I accept that Mr Groat and Mr McManus discussed the extension of the probation period, having regard to their concerns about Ms Loukis’ time recording. I do not accept Mr Manus’ evidence that he did extend the probation period prior to its expiry. There are several reasons for this. First, the Company relies upon a notification of the extension of the probationary period in its letter dated 4 October 2019 signed by Mr McManus. However, there is no evidence that the letter was sent, other than Mr McManus’ evidence that he directed a staff member to send it. That staff member was not called as a witness. Further, Ms Loukis denies ever receiving the letter. Secondly, Ms Loukis sent an email to Mr McManus on 17 October 2019 seeking a discussion about the ending of her probation period. She notes that her probation period had ended but that her salary had not increased. It is inconceivable that Ms Loukis would have sent that email if she had been told that her probation had been extended. Mr McManus did not make any reply mentioning an extension of the probation period. He had sent a message to Ms Loukis seeking a discussion about her probation ending, and that was on 3 October 2019.
Thirdly, Mr McManus gave evidence that he had a probation review discussion with Ms Loukis to inform her orally of the probation extension period and the reasons for it. Ms Loukis denies that that discussion ever took place. Under cross-examination, Mr McManus gave evidence that the discussion occurred while he was driving his car on his mobile phone and that the duration of the call was 60 seconds. That evidence lacks credibility. A meaningful discussion could not have taken place in such a perfunctory way and no telephone records were produced by the Company to establish that Mr McManus telephoned Ms Loukis on that day at all.
On balance, I have come to the view that Mr Groat intended that Ms Loukis’ probation should be extended but that Mr McManus failed to carry out the necessary steps to extend the probation prior to its expiry. It follows that Ms Loukis was not on probation at the time she was dismissed.
It is not obvious that anything of substance flows from this finding. The termination letter does not make any reference to the probation period and it was not a reason for the dismissal. Under her contract of employment, Ms Loukis was entitled to one week’s notice or pay in lieu of notice whether or not she remained under probation. Ms Loukis might have made a claim of unfair dismissal, having regard to the dismissal process and the expiry of her probation period but such a claim would have been a matter for the Fair Work Commission to consider, not this Court.
CONCLUSION
Ms Loukis has failed to establish the necessary elements of her claim. The Company has established to my satisfaction that the reason for Ms Loukis’ dismissal was not a prohibited reason and the dismissal did not involve a breach of the Fair Work Act.
I will order that the application be dismissed.
I certify that the preceding two hundred and thirty-nine (239) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 8 July 2021
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