Martine Magers v Department of Health and Ageing
[2010] FWA 831
•8 MARCH 2010
Note: An appeal pursuant to s.120 (C2010/3259) was lodged against this decision - refer to Full Bench decision dated 7 July 2010 [[2010] FWAFB 4385] for result of appeal.
[2010] FWA 831 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
v
Department of Health and Ageing
(U2008/8103)
COMMISSIONER HARRISON | SYDNEY, 8 MARCH 2010 |
Termination of employment - arbitration.
[1] This decision arises from an application made pursuant to s.643 of the Workplace Relations Act 1996 (the Act) by Ms Martine Magers for relief in respect of the termination of her employment by the Department of Health & Ageing (DoHA). The application alleges the termination was harsh, unjust and unreasonable.
[2] Ms Magers gave extensive evidence on her own behalf together with Mr Sachs. Evidence for DoHA was given by Mr Chitty, Ms Robbins, Ms Bowen and Mr Taranto.
[3] The application alleges the termination was harsh, unjust and unreasonable and seeks reinstatement as a remedy.
BACKGROUND
[4] At the time of the termination Ms Magers was employed by DoHA as an Executive Level 1 Section Manager in the Prudential Branch. She had previously worked in various public sector departments and agencies for over 17 years with an unblemished record.
[5] On 28 November 2008, Ms Magers was summarily terminated for allegedly breaching the Public Service Act (PS Act) in respect of the APS Code of Conduct as set out in s.13 of the PS Act. It is alleged that the breaches occurred between June 2004 and August 2007 by her use of a departmental credit card (DCC) to pay for taxi services which were not for the purposes of the Commonwealth.
[6] In April 2008, DoHA initiated 292 criminal charges of fraud against Ms Magers.
[7] In August 2008, the Commonwealth Director of Public Prosecutions withdrew all charges on the basis that there was insufficient evidence to establish a prima facie case and the Commonwealth paid Ms Magers’s legal costs.
[8] Concurrent with the criminal charges, DoHA initiated its own investigations through external agents, Quality Management Solutions (QMS).
[9] The particular details of the alleged breaches were set out by QMS in correspondence to Ms Magers in August 2008 as follows:
“SECTION 13(1) OF THE PS ACT
Section 13(1) of the PS Act provides:
An APS employee must behave honestly and with integrity in the course of APS employment.
It is alleged that you potentially breached s13(1) of the PS Act in that in the period from 18 June 2004 to 2 August 2007, you allegedly failed to behave honestly and with integrity when, on up to 360 occasions, you used Commonwealth credit cards (Departmental Credit Cards) that were issued to you to obtain services, namely taxi services for private purposes, that were not related to the performance of your official duties as an APS employee of the Department.
The particulars of the alleged misuse of your Departmental Credit Cards are set out in an extract from the billing records of your Departmental Credit Card. A copy of the extract is at Attachment 1.
SECTION 13(5) OF THE PS ACT
Section 13(5) of the PS Act provides:
An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.
It is alleged you potentially breached s13(5) of the PS Act in that you did not comply with a lawful and reasonable direction regarding the use of your Departmental Credit Card as set out in s4.2 (Purchasing) and s4.7 (Australian Government Credit Card) of the Chief Executive Instructions and Procedural Rules (Instructions).
On 20 April 2004, 1 August 2006 and 10 January 2007 you signed Departmental Credit Card – Cardholder Agreements (Cardholder Agreements) in which you agrees to comply with the Instructions, in particular ss4.2 and 4.7, and additional conditions relating to the use of your Departmental Credit Card set out in the Cardholder Agreements. Those conditions included clause 3 which states:
‘I will only use the DCC for official purposes and will not incur personal expenditure on the DCC’
On 28 February 2007 you signed Departmental Credit Card – Cardholder Agreement (Cardholder Agreement) in which you agreed to comply with the Instructions, in particular ss4.2 and 4.7, and additional conditions relating to the use of your Departmental Credit Card set out in the Cardholder Agreement. Those conditions included clauses 6 and 7, which state:
‘I will only use my DCC for official purposes, with the exception of “coincidental” personal expenditure.
I will report and repay all “coincidental” private expenditure’
which were lawful and reasonable directions.
In the period from 18 June 2004 to 2 August 2007, it is alleged you did not comply with lawful and reasonable directions not to use your Departmental Credit Card to incur personal expenditure when you used your Departmental Credit Card to obtain taxi services for personal purposes that were not related to the performance of your official duties as an APS employee of the Department (see Attachment 1).
SECTION 13(8) OF THE PS ACT
Section 13(8) of the PS Act provides:
An APS employee must use Commonwealth resources in a proper manner.
It is alleged you potentially breached s13(8) of the PS Act in that you did not use Commonwealth resources, namely, your Departmental Credit Card, in a proper manner.
On receipt of your Commonwealth credit card, you signed the Cardholder Agreement agreeing to comply with ss4.2 and 4.7 of the Instruction and the conditions set out in the Cardholder Agreement, in particular, clause 3….
Or in the case of the Cardholder Agreement signed by you on 28 February 2007, agreeing to comply with ss4.2 and 4.7 of the Instructions and the conditions set out in the Cardholder Agreement, in particular, clauses 6 and 7 which provide:
‘I will only use my DCC for official purposes, with the exception of ‘coincidental’ personal expenditure.
I will report and repay all “coincidental” private expenditure’
In the period from 18 June 2004 to 2 August 2007, it is alleged you did not use Commonwealth resources in a proper manner by incurring personal expenditure when you used your Departmental Credit Card to obtain taxi services for personal purposes that were not related to the performance of your official duties as an APS employee of the Department.”
[10] Attached to the correspondence were the particulars of each of the 360 taxi journeys extracted from the records of Ms Magers’s DCC.
[11] In March 2009, some months after the termination, Ms Magers made an offer to reimburse all outstanding monies and to accept a four week unpaid suspension in return for reinstatement or redeployment. DoHA did not respond to the offer.
APPLICANT’S EVIDENCE
Martine Magers
[12] In a sworn statement 1 Ms Magers submitted that whenever she took a taxi for personal use she did not use her DCC to make payment. “I have never used a DCC to pay for a taxi trip that was for my own purposes or indeed for any purpose that was not directly connected with the proper performance of my employment in the APS”.2 It was Ms Magers’s evidence that she was given no advice about her rights or entitlements except that it was mandatory to attend work-related medical treatments. As a result she believed her medical appointments were part of her work obligations.3
[13] Ms Magers was first issued a DCC in May 2004 when attached to the Aboriginal Health Branch. She submitted that at no time was she given any instruction, training or briefing about the DCC use or, specifically, taxi use. She was told the card was to help her operate more efficiently as a manager. She did receive documentation and advice including links to DoHA’s intranet concerning procedural rules governing the use of a DCC but submitted no reference was made to taxi use and the site was difficult to enter and navigate. She subsequently signed for replacement cards including increased spending limits on three occasions. In accepting the cards she signed a Cardholder Agreement.
[14] In June 2004, Ms Magers developed overuse injuries to her right wrist and lower back. It was submitted that the injuries were caused and exacerbated by her work environment and excessive work load. It was alleged that Ms Magers’s supervisor, Mr Paul Taranto, was unsupportive and antagonistic which in turn led to her suffering a psychological injury through stress and anxiety.
[15] Upon acceptance of liability by Comcare a rehabilitation program commenced which involved medical appointments most of which were arranged outside normal working hours.
[16] A further injury occurred in December 2005 necessitating physiotherapy treatment and other rehabilitation up to six times a week for which Comcare accepted liability. The rehabilitation treatment including pilates, psychological counselling, massage, swimming and medical appointments were located all over Sydney. Ms Magers’s evidence was that she attended approximately 250 medical treatments between January 2006 and August 2007 but did not use a taxi on every occasion.
[17] It was Ms Magers’s evidence that the first time she was informed that Comcare would reimburse travelling expenses for medical appointments was in August 2007.
[18] During her period of suspension and the investigation into the allegations Ms Magers claimed she did not have access to the DoHA’s intranet. She said this prevented her retrieving information which would have assisted in her defence of the allegations against her.
[19] Ms Magers stated that in August 2007 she formally complained to the HR Manager, Mr Jeremy Chitty, that she was being bullied by the Branch Manager, Mr Paul Taranto. “On 8 August 2007, Mr Taranto came into my office and started shouting abuse at me because I made the complaint. I felt intimidated and threatened. I closed the door to my office so that staff could not hear Mr Taranto berating me. Later that day I was asked to explain the use of my DCC, being the issue for which I was ultimately dismissed.” 4
[20] In cross examination Ms Magers agreed that she signed a “Cardholder Agreement” each time she received a DCC. She affirmed that she understood the card could only be used for “official purposes” and not for personal expenditure.
[21] She regarded “official purposes” to include taking documents from work to home to enable her to perform urgent and unexpected work.
[22] In cross examination Ms Magers’s approach to her use of the DCC, relating to her work commitments and medical appointments can be seen from the following extract of transcript:
“Did you use your credit card to travel in 2005 to medical appointments?---If I was kept late in the workplace because of urgent unexpected work and I couldn't complete the work before I left (so) I would take the work with me, work in the taxis on the way to the appointments, work waiting for the appointments and take the work home with me and work on the work at home.
Were these confidential documents you were working on in the back of the cab or in the front of the cab, wherever you were? Are they confidential documents?---I didn't say that I was working on documents. I was often having people call me or making telephone conversations about the work and/or I had bulky publicly available documents with me. There were a variety of different things that I had with me.
So these medical appointments, if I can put it this way, they're your private medical appointments? They've got nothing to do with any workplace injury in 2005?---I don't agree with that. I was attending a psychologist to talk to her about the workplace issues.
This is in 2005?---That's right.
But this isn't subject to any worker's comp claim, is it?---That's right. Sorry, it is subject to a worker's compensation claim actually, yes.
It is now?---Yes.
But at the time in 2005 it wasn't?---That's right.
So you attend upon your psychologist. Did you pay for that?---The psychologist's appointment?
Yes?---Yes.
You didn't charge that to your credit card?---No, I didn't.
Am I understanding correct saying that you were attending the psychologist because of work related matters?---Yes.
So does that flow out of your work, the actual attendance on the psychologist?
---I'm sorry, I don't understand the question.
Does your attendance on the psychologist, are you saying you attended the psychologist because of work?---That's right, because of the bullying and the excess workload and the difficult - lack of support, lack of management systems. I was talking to her about all of those issues.
This is in 2005?---That's right.
Now, did you claim, did you put her bill in 2005 on your corporate credit card?
---No.
Why didn't you? If you say it's work related why didn't you do that?---Because I didn't.
Because it's not work related, is it?---It is work related. I have put in a claim for it.
In 2005 you hadn't put in a claim, no claim had been accepted and you understood, this is correct isn't it, that you understood that you were obliged to pay for that consultation and you paid for it?---I paid for it but I have put in a claim for it. As I said, I had urgent and unexpected work to do.
Now, if it wasn't for that urgent and unexpected work that you had to do, that you say you had to do?---Yes.
How would you have got to the appointment?---I would have had to have left in time.
How would you have got to the appointment?---By public transport.
And what would that have been?---By a bus.
Public transport could also include a taxi, couldn't it? It's public, anyone can use it?---Yes.
So you could have simply got a cab and paid for it yourself, you could have done that, couldn't you?---I would have preferred to have left work in a reasonable amount of time and made my way to the session in a reasonable amount of time so that I wasn't arriving in a distressed state which is what I was doing essentially, because I was trying to frantically do the work. I'd usually work through my lunch time, haven't had a lunch break, trying to frantically get the work done. Couldn't get the work done in time, took it with me, as I said, worked in the way - on the way in the cab waiting for the treatments and then when I got home.
When you took the work with you are you talking about phone calls that you received or are you talking about you have got documents in the car, in the cab?
---I believe that I also had documents as well.
So you're working on documents in the cab?---No, I wasn't working on documents in the cab. I was having telephone conversations with people about the work. People would phone me or I would phone them. I would make sure that I wouldn't say anything that would be inappropriate in front of the taxi driver but this was the situation that I was in. I was being contacted at all times of the day. It was a chaotic work environment and I was doing my best to get the work done.” 5
[23] In further cross examination Ms Magers explained that part of her reasoning to use taxis was to help her operate more efficiently as a manager and to cope with her injuries.
[24] In a letter to the Director, Fraud Control Section of DoHA in October 2007, Ms Magers stated:
“I genuinely and honestly believe I used the Mastercard appropriately for official purposes. The Mastercard use enabled me to perform duties efficiently and cost effectively and was for a work-related benefit. The table, (Attachment A), demonstrates that the use of the taxis saved the Commonwealth time and money and resulted in an estimated net benefit of more than $2,000.00 for July and August. By using them, I:
• complied with a management requirement to undertake immediate and urgent official duties:
• obviated the need for extra resources;
• prevented the Commonwealth from being charged for unused rehabilitation sessions. These were required by Comcare and the employer and as such were official duties;
• carried out most of my employer-required rehabilitation sessions in my time, again obviating the need for extra resources.
On arrival in the Department, I was required to apply for the Mastercard. I have submitted all monthly statements and receipts.
The injury necessitated an extensive Comcare and employer-required rehabilitation program. To arrive on time for rehabilitation sessions by public transport requires leaving the office up to one and half hours [sic] prior to commencement. Urgent and immediate work demands frequently reduced the time available to travel to around half an hour or less. Failing to attend with less than 24 hours cancellation notice would have resulted in Comcare or my employer being charged for the sessions. It was a requirement of my manager, Mr Taranto, that the rehabilitation program fit in with all my team and work requirements. As a result, I frequently worked back or at home to meet urgent and immediate work requirements and around 90% of the program was attended in my own time to meet Mr Taranto’s requirement. The consequence of meeting these workplace demands was using a taxi.” 6
[25] It was her belief that she had delegated authority to use the DCC and there was no need to inform her case manager that she was paying for taxis with the DCC to travel to and from Pilates and other sessions. Nor was there a need to inform anyone that she used her DCC to pay taxi fares when she carried documents to and from home.
[26] It was Ms Magers’s evidence that the day after she made a bullying and harassment complaint to Mr Chitty against Mr Taranto, she was asked to account for her taxi fares for the first time in three and a half years.
[27] DoHA challenged her evidence regarding alleged bullying by Mr Taranto.
“I’m suggesting to you that you made no complaint of bullying against Mr Taranto to Mr Chitty on 7 August?---I did. Mr Chitty advised me to go to the employee assistance program and I told Mr Chitty that I was seeing a counsellor about those issues and that I would prefer that he didn’t mention that fact to anybody.
Sorry, didn’t mention what to anybody?---That I was seeing a counsellor about Mr Taranto.
You never raised with Mr Chitty at any time after the 7 August any allegations of bullying against Mr Taranto did you? You didn’t raise that with Mr Chitty ever again, did you?---Yes, I did.
When do you say you did that?---On 9 August, I met with Taranto, Mr Taranto and Mr Chitty. It was a three hour meeting and I was reduced to tears during the meeting. I said that there were issues regarding bullying and Mr Taranto said to me, does that include me and I said I’d prefer not to say at this stage because up to that point he was attacking me in the point. I was raising issues, the day before on 8 August Mr Taranto came to my office, he was animated, angry and upset and he was berating me. I had to close the office to my door, so that my staff couldn’t hear him berating me. So in that meeting of 9 August in front of Mr Chitty, I said to Mr Taranto that I didn’t think it was appropriate that I would have preferred to have discussed those issues in a more amicable way. I said that I believed that Mr Taranto had refused to provide me with appropriate training and career development opportunities. I said that Mr Taranto was dishonestly under reporting my workload to my rehabilitation provider and I outlined a number of other issues, which any competent HR manager would see as bullying issues and the discussion about bullying also came up at that meeting.
There was a discussion of bullying on 9 August but I put it to you that you didn’t make any allegation of bullying against Mr Taranto at all on 9 August?---As I said on 9 August he asked me if that included him, and I said I would prefer not to say at this stage. Because he was attacking me in the meeting and I was reduced to tears. I didn’t want to further inflame Mr Taranto or put me in the position of being further intimidated and bullied by him.” 7
[28] In cross examination Ms Magers stated that she availed herself of flex leave in return for excess hours worked and that Mr Taranto approved the leave.
[29] In 2005 Ms Magers was not in receipt of any Comcare benefit but claimed she was still suffering the implications of an earlier overuse injury in 2004 to explain her use of taxis in 2005.
“So fair enough you say "Throughout this period to differing degrees I was suffering from several work related injuries including a wrist and forearm injury, back injury and injuries to both of my feet," and the period you describe is mid 2004 to the end of your work in the aged care branch?---That's right.
Which is some time in when, 2007?---Well, I was still - I'm still suffering from the injury and I was receiving treatment until recently.
But in 2005 you weren't suffering from a back injury, leaving aside December, up until December you weren't suffering any back injury?---That's right.
No injuries to your feet?---No.
So that's simply incorrect isn't it?---No. I had the wrist injury. As I said, I continued to use ergonomic equipment right throughout my period in the department in relation to the wrist injury.
But in 2005 none of that was covered by Comcare was it?---Yes, that's true.
The matter had resolved in 2005?---The wrist injury had resolved to a point but the department continued to provide for me the ergonomic equipment that I required to deal with the work injury, with the wrist injury.
Yes, the department continued to provide for that?---Yes.
Provide you with it. But it is incorrect for you to say that in 2005 you were suffering from several work related injuries including a wrist and forearm injury, a back injury and injuries to both of my feet. That's incorrect isn't it?---I say throughout this period to differing degrees I was suffering from several work related injuries including a wrist and forearm injury, back injury and injuries to both of my feet.
Well, to varying degrees, yes. But 2004 you've got your wrist injury?---Yes.
That's resolved in 2005, you don't have an injury to your back until the end of 2005, your feet don't come into this in 2005?---Yes.
So for a whole year, for a whole year you were getting taxis and you had no medical need to do so, that's correct is it not?---Well, no, I'm not saying that.
You have no accepted injury in terms of Comcare for 2005, correct?---They weren't paying for medical treatments at that stage, yes.
That's right. And so - - -?---But the department was continuing to provide me with ergonomic equipment because I continued to have problems with my wrist.
Yes. Your evidence to date has been that you would use the taxi to travel to your Comcare approved appointments because you say that's in some way work related?---Yes.
But in 2005 there weren't any Comcare approved appointments were there?---No.
No. You were still using the cabs to do that in 2005, to travel to medical appointments?---As I explained to you earlier, I saw a counsellor towards the end of 2005.” 8
In re-examination Ms Magers was asked if she claimed any taxi fares in relation to medical appointments in 2005 to which she replied no. 9
[30] In further cross-examination Ms Magers agreed that in three and a half years she never told her manager, Mr Taranto, that she used her DCC to pay for taxis to her medical appointments, or for taking work home, nor did she identify for reconciliation the purpose of her travel.
“But at no time did you tell anyone what the purpose of the travel was, did you?---I wasn't asked to put an explanation of the travel, it wasn't the procedure. I would have if they had asked me.” 10
David Sachs
[31] Mr Sachs is a solicitor acting for Ms Magers in these proceedings, and the preceding disciplinary investigation by DoHA and criminal proceedings. An affidavit by Mr Sachs was tendered as Exhibit N2.
[32] In the course of the DoHA investigation, Mr Sachs provided to Mr Barnes of QMS a detailed response to the allegations. It was Mr Sachs’s evidence that he made specific submissions about particular taxi trips which should have been excluded from the investigation and which were ignored by Mr Barnes in his report.
[33] Although the draft report was made available it was his evidence that the final report by Mr Barnes was never made available.
RESPONDENT’S EVIDENCE
Jeremy Chitty
[34] Mr Chitty was the NSW Human Resources Manager of DoHA during 2007. A witness statement of Mr Chitty was tendered as Exhibit S10.
[35] In summary it was Mr Chitty’s evidence that:
• On a number of occasions he met with Ms Magers during 2007.
• At the first meeting Ms Magers expressed frustration at being overlooked by Mr Taranto to act in a more senior position.
• On the second occasion Ms Magers expressed disappointment at not gaining a higher rating at her annual performance appraisal.
• At no time did she state she was being bullied or harassed by Mr Taranto and no formal or informal complaint was ever made.
• He provided Ms Magers advice on how to approach a future discussion with Mr Taranto in order to make her case for a higher rating.
• On 9 August 2007 he participated in a lengthy meeting with Mr Taranto and Ms Magers concerning her request for an “excels” rating and noted that both parties were civil and courteous. The meeting also canvassed her rehabilitation program and its impact on her work, career goals and working relationships.
• On 24 August 2007 he met with Ms Magers, her rehabilitation officer, Ms Robbins, her union representative, Mr Lloyd, and her support person, to review Ms Magers’s rehabilitation needs. He gave advice about the grievance process in response to complaints about her workload but that she should confer with her manager, Mr Taranto. Mr Chitty stated that he also gave advice that “…taxi usage was covered under two situations…either as part of an approved rehabilitation plan which should be paid by her personally and then claimed back through Comcare, (I am aware she is now doing that after her employment ended), or under the Department’s Chief Executive Instructions (CEI’s) which required approval from a supervisor to use the Department’s credit card only for the Departments [sic] business purposes. Ms Magers clearly stated to me that her credit card usage related to her management of Departmental work.” 11
[36] In cross-examination Mr Chitty stated he was unaware of any specific training being provided to Ms Magers other than he assumed that she should have had general EL1 training around awareness of the CEI’s.
[37] He agreed he set out to refute Ms Magers’s claims that she was being bullied and harassed by Mr Taranto because he was surprised at the claim.
[38] Mr Chitty could not specifically recall discussing the use of Ms Magers’s DCC with her on 15 August 2007, however, he outlined his knowledge of the CEI’s.
“I suggest to you that you responded to her, "There's a provision for the use of credit cards for that sort of thing for occupational health and safety reasons, it's in the CEI's," do you recall telling her that?---I don't recall telling her that but it is in the CEI's that there is an OH&S aspect to use of the departmental credit card for taxi purposes and usually that applies to things like people having to travel home after dark and that sort of thing.
Now, CEI's are the chief executive instructions, is that correct?---Yes.
At the time were you aware that Ms Magers had suffered two workplace injuries?
---Yes.
One to her right wrist and one to her lower back?---Yes.
So if she was taking heavy documents or awkward documents to and from work you would consider that to be an occupational health and safety reason that she be provided with a taxi rather than lug them on public transport?---I could be, subject to approval from manager to use you departmental credit card in that way.” 12
[39] Mr Chitty confirmed that he was aware that Ms Magers had complained about her workload a number of times in 2007.
Sheryl Ann Robbins
[40] Ms Robbins is a Human Resources consultant for DoHA with OH&S responsibilities. She was involved in Ms Magers’s return to work program. Ms Robbins’s witness statement was tendered as Exhibit S11.
[41] Ms Robbins’s evidence was that she spoke to Ms Magers about her workload and advised her to work according to the specified hours in her return to work plan and ensure she took her lunch breaks. She contradicted Ms Magers’s evidence that she could not travel to work in off peak periods as the plan allowed her to do so.
[42] Contrary to Ms Magers’s evidence that she was not given advice about her rights or entitlements, Ms Robbins stated that in January 2006 Ms Magers was given a package of information including an employee guide titled “All About Workers Compensation”. Part of the guide provides a “Checklist for claiming travel assistance from Comcare for travel to and from medical providers.”
[43] Ms Robbins’s evidence was that Ms Magers could use public transport including a taxi. The guide does not state that she could use her DCC to pay for public transport to her medical appointments. 13
Erin Bowen
[44] Ms Bowen was the officer who decided to terminate Ms Magers’s employment. At the relevant time she was Acting Assistant Secretary, People Branch at DoHA. Her witness statement was tendered as Exhibit S13.
[45] In summary it was Ms Bowen’s evidence that:
• Ms Magers was not authorised by her supervising officers to use her DCC for taxis.
• Ms Magers was not authorised by the terms of the DoHA Certified Agreement use her DCC for taxi fares. Relevantly Clause 131 states:
‘131 After hours use of taxis
Approval for the use of taxis by a staff member may be given by a team leader for after hours work as part of their overall OHS responsibility. Operation of this provision will be in accordance with Departmental guidelines.’
…
‘Team leader for this Agreement
For the purposes of this Agreement, team leader is taken to be a Section Head or an Assistant State/Territory Manager, or as otherwise determined by the Section Head or Assistant State/Territory Manager.’
• Clause 131 of the CA does not create an obligation on the Department to pay for taxi fares home for its employees who work after hours. Rather, it clearly refers to an ability for “team leaders” to approve the use of taxi fares for their staff who work after hours where:
a) There is a real occupational health and safety risk to the employee if they do not take a taxi home; and
b) So long as any such approval is authorised by the Department’s policies.
• Employees were only allowed to use a DCC to purchase taxi fares between work and home where they were “required to work extended hours on short notice causing disruption to normal travel arrangements”.
• Ms Magers was not authorised to purchase the taxi fares for travel between home and work for a number of reasons:
- She was an Executive Level 1 employee and was not subject to any of the overtime (or “additional duty”) provisions contained in the Certified Agreement.
- She did not fall within the exemption to the general prohibition of travelling between work and home by taxi.
- She was already remunerated for her irregular hours of work and the disruption that that might cause to her life. Clause 157 provides:
‘Executive Level employees have an important role in assisting the department to achieve its outputs. In recognition of this, remuneration for these categories of staff already includes:
* that hours of duty for this group are not regular or categorised for the purposes of additional duty or ordinary duty; and
* the special demands expected of this group.’
[46] In cross-examination Ms Bowen confirmed she engaged QMS to conduct the inquiry and also took advice from Minter Ellison Lawyers. Her decision to terminate Ms Magers was based on the report of Mr Barnes of QMS.
[47] Ms Bowen agreed that a DCC holder is given discretion on usage, subject to policy, for a variety of work related expenses without approval for each transaction.
[48] She agreed with the proposition that in reviewing the QMS report she looked for evidence of authorisation: “….That was the only thing you were looking for, isn’t that correct? Well, yes. But I also, as I said before, I find it difficult that someone who is at the executive level, you know, where every other executive officer doesn’t make that assumption that work to home was official business, and that (sic) didn’t seek further clarification or to have that conversation with a manager.” 14
[49] In further cross-examination Ms Bowen agreed that in accepting an investigator’s report which found an officer at an executive level with long service had been dishonest was a “big call”. 15 She stated that she did not believe the possibility that Ms Magers had a genuine misunderstanding of the policies.
“You didn't take into account that she could have simply been mistaken as to the operation of the policies and the manner in which she could use it?---Sorry I should say, I did take into account but I didn't think that that was the case.
And you didn't think that was the case because other people who have DCCs seem to be aware that they can't use it for those purposes, is that right?---As I said, that was part of my consideration but it was also that Ms Magers had, as you say, she's been an employee of the APS for a long time, she would have a good understanding of the responsibilities regarding expenditure of public monies, is someone who has a law background, should be able to be forensic in finding out the information around the policies and procedures. I find it difficult that in that length of time there was no mention to anyone that she was using a cab for either after hours or for travel to and from appointments which might have then raised some concerns. So to me it didn't - from looking at the information before me I didn't reach the conclusion that Ms Magers was misunderstood about her use. I believed that she was behaving dishonestly.”
Paul Thomas Taranto
[50] Mr Taranto was Ms Magers’s manager. A witness statement of Mr Taranto was tendered as Exhibit S14.
[51] In summary it was Mr Taranto’s evidence that:
• Ms Magers did not obtain his approval to use her DCC for taxis from the office to her home or vice versa or for medical appointments as required by DoHA policies and practices.
• He was unaware of any circumstances which required Ms Magers to use her DCC for such purposes on such a frequent basis.
• According to Mr Taranto’s evidence had Ms Magers sought his approval to use her DCC to purchase taxi trips to her medical appointments he would have referred to HR for clarification and approval. He was aware that Comcare may have accepted liability for such costs.
• He was responsible for overseeing the work of all Section Managers including Ms Magers and did not believe her workload was significantly greater than others. At no time did he recall Ms Magers saying her workloads were excessive.
• It was Mr Taranto’s evidence that “Ms Magers’s workloads and stresses were compounded by the fact Ms Magers had difficulty relating to or trusting other staff to properly perform their work, especially those who were more junior.” 16
[52] In cross-examination Mr Taranto agreed Ms Magers had raised workload issues with him on a number of occasions but took issue with her term “excessive”. He denied that he told Ms Magers to complete her work commitments before attending medical rehabilitation appointments.
[53] Mr Taranto stated that it was neither necessary nor was it his responsibility to provide training, instruction or direction to Ms Magers on the use of her DCC.
[54] Mr Taranto was the responsible officer who authorised the reissue of DCCs to Ms Magers. He was not aware of the degree of card usage and he was surprised in August 2007 to learn of the extent that Ms Magers was using her card.
[55] It was his evidence in cross-examination that he did not give direct instructions to Ms Magers about the protocols for DCC usage but he had discussed the issues with all his managers.
SUBMISSIONS
[56] I do not propose to traverse all of the submissions of the parties. In my view the relevant question for determination in this matter is whether Ms Magers used Commonwealth resources for personal benefit.
Applicant’s Submissions
[57] Counsel for Ms Magers submitted that the alleged offences took place in a stressful, unsupportive work environment. On 7 August 2007, it was said Ms Magers lodged a complaint alleging bullying and harassment against Mr Taranto and the following day she was directed to account for the use of her DCC and what followed was “…a persecution rather than a prosecution.” 17
[58] In the course of the subsequent disciplinary investigation it was said he was denied procedural fairness in respect of the provision of documentation and access to evidence.
[59] Counsel further submitted Ms Magers was open and honest in her disclosure about her use of the DCC and “…she was under a genuine misapprehension about the level of her authority and in the circumstances where she had never been provided with any training or instruction, and most importantly, where the Commonwealth itself has acquiesced to this conduct for over three years.” 18
[60] In submissions concerning the unfairness of the termination, Counsel for Ms Magers argued that she was charged with breaching policy 4.9 regarding use of taxi cards and vouchers yet policy 4.9 did not apply to her. Rather, policy 4.7 gave her the discretion to determine the use of the DCC and it was a fringe benefit to someone at Ms Magers’s level.
Respondent’s Submissions
[61] Counsel for DoHA submitted that the termination of employment occurred because Ms Magers had misused her DCC over a lengthy period in breach of ss. 13(1) and 13(5) of the APS Code of Conduct and s.13(8) of the Public Service Act 1999.
[62] Ms Magers was a senior, experienced officer who held an Arts/Law degree and oversaw 12 staff. As such she should have been well versed in policy and procedures. The Department was entitled to expect that its senior officers with such experience would not misuse public funds.
[63] It was said she lacked insight and showed no contrition and that after all that had transpired, Ms Magers believed she did the right thing at the time because of her particular circumstances. Although Ms Magers offered to reimburse the Commonwealth, this did not transpire until after her termination and on condition of reinstatement.
CONSIDERATION
Was there a valid reason for the termination? s.652(3)(a)
[64] In determining for the purposes of arbitration, whether the termination of the applicant’s employment was harsh, unjust or unreasonable, Fair Work Australia (FWA) must have regard to the following matters set out in s.652(3) of the Act:
652 Arbitration
(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.
[65] In considering these factors, it is important to note that the existence of a valid reason for termination is only the first of the factors to be considered by FWA when deciding matters of this kind.
[66] It is also of relevance to consider the provisions of s.635(2) of the Act which states:
(2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a “fair go all round” is accorded to both the employer and employee concerned.
[67] On the basis of the evidence before me I accept that the majority of these journeys were in breach of the compliance conditions attached to the DCC-Cardholder Agreements which Ms Magers signed on three occasions between 2004 and 2007.
[68] These conditions unambiguously limited DCC usage to official purposes with the only exception being “coincidental” personal expenditure which must be reported and repaid.
[69] Ms Magers interpreted the conditions attached to the use of her DCC broadly to the extent that its use enabled her to perform her duties as a manager more efficiently. She blamed lack of training, heavy work loads, workplace bullying, stress, anxiety and her workplace injuries as factors in her defence of the charges against her and in part justification of her DCC usage.
[70] Having carefully considered all of the evidence in this matter it appears to me that Ms Magers had a misconceived belief about her entitlement. She used taxis as a personal convenience in preference to public transport or her own vehicle. She rationalised that this behaviour was reasonable in all of the circumstances in which she felt burdened by pressures of work. Her general attitude about her entitlements is further illustrated in her evidence that she availed herself of flex-leave to which she was not entitled.
[71] I find that Ms Magers used her DCC for taxi services which were for her personal benefit and not for a Commonwealth purpose. I am satisfied Ms Magers’s actions amounted to misconduct and constituted a valid reason for the termination of employment.
[72] I am satisfied Ms Magers was notified of the reasons for termination and was given an opportunity to respond. In August 2008 detailed particulars were provided and Ms Magers was invited to respond.
[73] In October 2008, Ms Magers’s solicitors sought extra time to respond to the QMS report of its investigations into the allegations.
[74] In November 2008, Ms Bowen wrote to Ms Magers informing her that a determination concerning whether the Code of Conduct had been breached was to be made and whether a sanction should issue. Solicitors for Ms Magers requested further information which Ms Bowen regarded as irrelevant and unreasonable.
[75] On the basis of the material before me I am satisfied that the preliminary report of QMS was the basis for the termination and that no issues of lack of procedural fairness arise in this matter.
[76] Paragraph (d) of s.652(3) is not relevant as the termination was not related to performance. I note DoHA is a large Commonwealth undertaking with dedicated human resource management which were followed in effecting the termination.
Other Matters
[77] There are a number of matters I wish to consider under paragraph (g). The first is Ms Magers’s long and unblemished period of service. A single act of misconduct over a lengthy period of service can lead to termination which is neither harsh, unjust or unreasonable. With much reflection I have concluded that this matter is such a case.
[78] I do not accept Ms Magers’s defensive response of complaining of a lack of training as sufficiently persuasive. DoHA was reasonable entitled to expect an experienced Executive level officer to be fully familiar with her rights, duties and obligations.
[79] A second matter is the allegations of bullying and harassment against Mr Taranto. There is no evidence of a complaint ever being made formally or informally against Mr Taranto and I reject the submission.
[80] The application is dismissed.
COMMISSIONER
Appearances:
K Nomchong of Counsel with D Sachs, Sachs Gerace Lawyers, for Ms Martine Magers
M Spry of Counsel with R Cook, Minter Ellison Lawyers, for the Department of Health and Ageing
Hearing details:
2009.
Sydney:
29 May (Directions), 3, 4, 18 June.
1 Exhibit N1 – Statement of Ms Martine Magers.
2 Ibid., PN298.
3 Ibid., PN122.
4 Ibid., PN115.
5 Transcript PN236-261.
6 Exhibit S5.
7 Transcript PN352-356.
8 Transcript PN778 to 794.
9 Transcript PN1531-1533.
10 Transcript PN1599.
11 Exhibit S10 – Statement of Mr Jeremy Chitty, p.4.
12 Transcript PN1810-1814.
13 Exhibit S11 – Statement of Ms Sheryl Ann Robbins, p.16.
14 Transcript PN2212.
15 Transcript PN2262.
16 Exhibit S14 – Statement of Mr Paul Thomas Taranto, PN45.
17 Transcript PN14.
18 Transcript PN28.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR993362>
0
0
0