Michael Rosser v Toll Transport Pty Ltd

[2021] FWC 1881

[2021] FWC 1881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Rosser
v
Toll Transport Pty Ltd
(U2020/11287)

COMMISSIONER CAMBRIDGE SYDNEY, 16 APRIL 2021

Unfair dismissal - misconduct involving dishonesty - valid reason for dismissal - no significant procedural deficiencies - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 19 August 2020. The application was filed by the Transport Workers’ Union of Australia (TWU) and it was made on behalf of Michael Louis Jack Rosser (the applicant). The respondent employer is Toll Transport Pty Ltd (the employer or Toll).

[2] The application indicated that the date that the applicant’s dismissal took effect was 3 August 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.

[3] The matter was not resolved at conciliation, and on 22 September 2020, the Fair Work Commission (the Commission) issued Directions for the Parties to file and serve evidence and other materials prior to an arbitration Hearing/Conference that was fixed for 10 December 2020.

[4] On 13 October 2020, the TWU provided advice to the Commission and the employer that it was withdrawing its representation of the applicant, and that the applicant had been advised accordingly. On 21 October 2020, Adero Law filed a Notice that it was acting on behalf of the applicant and would seek permission to participate in further proceedings. On 13 November 2020, King & Wood Mallesons filed a notice that it was acting on behalf of the employer and would seek permission to participate in further proceedings.

[5] At the commencement of the Hearing, which was conducted in Sydney on 10 December 2020, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. At the Hearing, Mr T Hakkinen, solicitor from Adero Law appeared for the applicant, and he introduced evidence from the applicant as the only witness called in support of the unfair dismissal claim. The employer was represented by Mr J Wells, solicitor from King & Wood Mallesons lawyers. Mr Wells called two witnesses who provided evidence on behalf of the employer.

[6] At the conclusion of the Hearing on 10 December, the evidence from each side had been finalised. However, at the request of the Parties, a timetable for the provision of documentary submission materials was established, which was completed when the applicant’s lawyers filed closing submissions in reply on 9 February 2021.

Background

[7] The applicant worked for the employer for a period of 3 years and 8 months. The applicant was employed as a casual Truck Driver and he was engaged on a regular and systematic basis. The applicant worked for Toll at the site of the Woolworths Regional Distribution Centre located in the Sydney suburb of Minchinbury (the site), and he described his position as that of a “Metro delivery driver”.

[8] The employer is a subsidiary company of the Toll Group of companies, and it conducts a general road freight/logistics business. Relevantly, the employer operates from the site in conjunction with the Woolworths company. The site is owned by Woolworths, and the employer provides logistical services to distribute Woolworths supermarket products from the site to Woolworths retail stores.

[9] In April 2019, the applicant was elected as a Health and Safety Representative (HSR) in accordance with Division 3 of the Work Health and Safety Act 2011. The applicant was actively involved in raising issues and representing workers concerns in his role as a HSR. As a HSR, the applicant was also a member of a Health and Safety Committee that comprised other HSR’s including another delivery driver, Mr John Erak.

[10] In June 2020, Mr Erak was the subject of a disciplinary investigation involving allegations that he (Mr Erak), had failed to take the most direct route to and from various Woolworths stores, and that he had taken longer and unauthorised breaks which had not been accurately recorded, and which essentially resulted in fraudulent claims for payment in respect of time which had not been worked. The employer’s senior site manager, Mr Dean Southern, undertook the disciplinary investigation into the allegations made against Mr Erak.

[11] On Friday, 19 June 2020, Mr Erak sent an email to Mr Southern, which inter alia, advised that the applicant would be present at a disciplinary meeting that was scheduled to commence at 1 pm later that day. This advice was provided in response to an email that Mr Southern had sent to Mr Erak on 17 June 2020, and which inter alia, requested that Mr Erak confirm his attendance at the disciplinary meeting, and indicate whether he would be bringing a support person and if so, who that would be.

[12] Subsequently, in accordance with the email advice that had been provided by Mr Erak, the applicant accompanied Mr Erak at the disciplinary meeting that commenced at about 1 pm on 19 June 2020, and this meeting lasted for more than one hour and 10 minutes. The applicant was scheduled to commence work later that afternoon and after the disciplinary meeting had finished, he inquired as to whether there was any driving work for him to undertake at that time. The applicant was advised that there was no driving work for him to perform at that time, and he was told to return to the site at his scheduled commencement time later that day (either 3 or 5 pm).

[13] On Tuesday, 23 June 2020, the applicant attended a second disciplinary meeting that was held in conjunction with the allegations made against Mr Erak. On this occasion the meeting was scheduled to commence at 1 pm however Mr Erak and the applicant arrived at the site at 12:50 pm whereupon Mr Southern issued Mr Erak with a show cause document, and the meeting concluded within about 10 minutes. The applicant was scheduled to commence a rostered engagement at 5 pm that day, and after the disciplinary meeting had finished the applicant had a discussion with Mr Southern about whether he would receive payment for his time at the site prior to his scheduled 5 pm rostered engagement. The applicant and Mr Erak left the site and the applicant returned at about 4:30 pm that afternoon.

[14] On Friday, 26 June 2020, the applicant attended a third disciplinary meeting that was held in conjunction with the allegations made against Mr Erak. On this occasion, Mr Southern had unsuccessfully attempted to postpone the meeting because a decision regarding the disciplinary issues involving Mr Erak had not been finalised. Consequently, when Mr Erak and the applicant attended the site at 12:50 pm they were told that the meeting would be rescheduled to Monday, 29 June. The applicant was scheduled to commence a rostered engagement at 4 pm that day, and after a brief discussion with Mr Southern, he and Mr Erak left the site. The applicant subsequently returned to the site at about 3:40 pm that afternoon.

[15] Later on Friday, 26 June, Mr Southern sent an email to the employer’s General Manager – Grocery, Mr Steve Innes, in which he raised concerns that the applicant had, on 23 June, attended the second disciplinary meeting concerning Mr Erak which had lasted approximately 10 minutes, but he had claimed paid time for the period from the commencement of the disciplinary meeting and the time thereafter, as contiguous with the subsequent start of his rostered engagement. Mr Southern included mention in his email to Mr Innes that he had told the applicant that he would only be paid from the commencement of his rostered engagement, 5 pm.

[16] As a result of the email that Mr Southern sent to Mr Innes on 26 June, Mr Innes then commenced an investigation into the conduct of the applicant in respect to the claims that he made for payment regarding his attendance at the site on 23 and 26 June 2020. On Monday, 29 June 2020, the applicant attended a meeting at the site with, inter alia, Mr Innes, and he was provided with a written notification of stand-down. This notification relevantly advised of an allegation that the applicant had falsified his timesheets for financial gain and an investigation into this issue was to be conducted.

[17] On the following day, Tuesday, 30 June 2020, the applicant was provided with a document which set out four allegations regarding his conduct on 23 and 26 June 2020. The letter of allegations asserted that on both 23 and 26 June 2020, the applicant had deliberately falsified his timesheet records such that he made claim for payment for time including and following his attendance at the disciplinary meetings, and for which he had been advised that he was not entitled to receive payment. The letter of allegations confirmed that the employer was undertaking an investigation into the applicant’s conduct on 23 and 26 June 2020, and it proposed that the applicant attend an interview scheduled for the following Thursday, 2 July 2020.

[18] On 10 July 2020, the applicant provided a written response to the letter of allegations. In summary, the applicant advised that his attendance at the site and at other off-site locations on Tuesday, 23 June 2020, and Friday, 26 June 2020, involved activities associated with his role as a HSR, and not in the capacity of a support person for Mr Erak. Consequently, the applicant asserted that he was justified to make claim for payment in respect of his initial attendance at the site which commenced with his involvement in the disciplinary meetings concerning Mr Erak, and subsequently included off-site activities, because this conduct involved the performance of his role as HSR, and therefore required payment of ordinary time wages.

[19] On Wednesday, 15 July 2020, the employer issued the applicant with a document that set out the findings of its investigation into the allegations surrounding the applicant’s conduct in respect of his claims for payment of wages on 23 and 26 June 2020. The employer found the four allegations to have been substantiated, and it advised the applicant that it was now commencing a show cause process and invited the applicant to respond in respect to the proposed termination of his employment.

[20] On Friday, 17 July 2020, the applicant provided a document in response to the show cause letter of 15 July. The applicant’s response to the show cause letter referred to his earlier response of 10 July 2020, and he reasserted that his attendance at the meetings on 23 and 26 June 2020, were activities that he undertook in his role as a HSR, and that he was of the belief that he was entitled to be paid a minimum of four hours for attending those meetings.

[21] On Monday, 3 August 2020, the applicant was provided with a notice of termination. The notice of termination letter referred to the investigation that the employer had conducted in respect to the applicant’s claims for wage payments on 23 and 26 June 2020, and it advised that the substantiated allegations involved the serious misconduct of the applicant for which his employment was immediately terminated.

The Case for the Applicant

[22] Mr Hakkinen, the solicitor for the applicant, provided documentary submissions dated 30 October, 2 December 2020, and 9 February 2021.

[23] The submissions made on behalf of the applicant focused upon the applicant’s position regarding his entitlement to claim for the periods that he included on his timesheets for 23 and 26 June 2020. In this regard, it was submitted that the applicant did not have to prove to the Commission that he was entitled to the payments that he had claimed relating to the disciplinary meetings with Mr Erak, but rather he only needed to prove that he was not acting dishonestly or unreasonably in entering those times on his timesheets.

[24] The applicant’s submissions asserted that in order to establish a valid reason for dismissal, the employer had to establish that the applicant was not entitled to claim for the time that he entered on his timesheets on 23 and 26 June 2020, and that it was never reasonable for the applicant to make such claims, and that in doing so, the applicant was dishonestly claiming the time that he entered on his timesheets on 23 and 26 June 2020. According to the submissions made on behalf of the applicant, it was necessary for the employer to establish that firstly, the applicant was not entitled to be paid for the periods that he claimed on his timesheets on 23 and 26 June 2020, and secondly, that if the entitlement did not arise, the applicant’s conduct did not represent a reasonable mistake, and thirdly, that the applicant acted wilfully and dishonestly and as such, serious misconduct was established to the requisite standard of proof.

[25] The submissions made on behalf of the applicant included an examination of conflicting evidence particularly that provided by the applicant and an alternative version that was provided by Mr Southern. In this regard, the submissions made on behalf of the applicant conceded that the applicant was not the most reliable witness. However, it was submitted that his testimony was consistent in key respects, and notwithstanding identified faults to the applicant’s credibility, the Commission was urged to adopt a preference for the evidence of the applicant wherever that differed with the evidence provided by Mr Southern.

[26] Further to an examination of some particular detailed aspects of conflicting evidence, the submissions made on behalf of the applicant asserted that the employer had not established that the applicant was not entitled to attend the meetings on 23 and 26 June 2020 in his capacity as a HSR, nor had the employer properly established any particular dishonesty in the applicant’s conduct. It was submitted that the employer had difficulty articulating the allegation of misconduct that was brought against Mr Erak, such that the disciplinary process concerning Mr Erak did involve work health and safety issues. Consequently, it was submitted that the disciplinary meetings that the applicant attended on 23 and 26 June 2020 were at all relevant times meetings that concerned work health and safety. Therefore the applicant was entitled to the reasonable belief that he was undertaking his role as a HSR, and was entitled to payment as he had claimed on his timesheets.

[27] In conclusion, the submissions made on behalf of the applicant asserted that the applicant was entitled to make claims for payments as recorded on his timesheets on 23 and 26 June 2020. Further, even if the applicant was not so entitled, any misunderstanding on his part could not be considered unreasonable, and further even if the applicant’s belief was unreasonable, it was asserted that the applicant had not been dishonest, and therefore there was not a valid reason for his dismissal. The submissions made on behalf of the applicant urged that the application be allowed.

The Case for the Employer

[28] The written submissions provided on behalf of the employer summarised that the reason for the applicant’s dismissal was as a result of him claiming wages for attending meetings with Mr Erak on 23 and 26 June 2020. Further, it was submitted that the meetings on 23 and 26 June were clearly disciplinary in nature, the applicant was not attending the meetings either in his capacity as a HSR, or to exercise functions of a HSR, and the applicant knew, as a result of the discussion that he had with Mr Southern, that he had no right to claim wages in respect of his attendance at these meetings.

[29] The submissions made by the employer included an examination of particular aspects of the evidence provided by the applicant which it was said established that the applicant’s evidence in respect of any contentious matters should not be accepted. Various aspects of the evidence provided by the applicant were the subject of detailed criticism. In particular, mention was made of the uncontested evidence that the applicant inquired of Mr Southern as to whether he would be paid for his attendance at the disciplinary meeting on 23 June, and this evidence dispelled any assumption that the applicant genuinely believed that he had an entitlement to make any claim for payment.

[30] Further, the submissions made on behalf of the employer asserted that the Commission should accept Mr Southern’s version of the 23 June conversation that he had with the applicant. Therefore, according to the submissions made on behalf of the employer, the applicant could not maintain that he acted honestly or reasonably when he subsequently made claims for payment. Consequently, the submissions made of behalf of the employer asserted that there was a valid reason for dismissal as the applicant had acted dishonestly when he made claims for payment in respect of the meetings that he attended on 23 and 26 June.

[31] The submissions made by the employer also referred to the question of procedural fairness. In this regard, the employer submitted that there were no significant procedural deficiencies that could render the termination to be harsh, unjust, or unreasonable. Further, it was submitted that there were no other issues such as the age or personal circumstances of the applicant, which could override the employer’s legitimate response to improper conduct.

[32] The employer’s submissions also asserted that claiming for wages to which an employee was not entitled was improper conduct, and in this instance, it was asserted that the applicant knew that he could not claim for his time of attendance at the meetings on 23 and 26 June 2020. Further, it was submitted that on any reasonable and objective assessment, any entitlement to be paid for the time as was claimed by the applicant, was so improbable, illogical, and unreasonable that the applicant should have made some confirmed inquiry before he proceeded with any claim for payment.

[33] The submissions made by the employer also addressed the assertion that the applicant’s employment was terminated for some reason other than his misconduct associated with claiming for payment on 23 and 26 June 2020. Specifically, the employer rejected the proposition that the applicant’s activities as a HSR and in respect to other Union activities, contributed to the employer’s motivation to dismiss the applicant.

[34] In summary, the submissions made by the employer asserted that there was valid reason for the dismissal of the applicant, and that upon a consideration of all of the relevant factors, the Commission should not find that the applicant’s dismissal was unfair. The employer urged that the Commission should dismiss the application.

Consideration

[35] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[36] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust, or unreasonable.

[37] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 is in the following terms:

“387 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

S. 387 (a) - Valid reason for the dismissal related to capacity or conduct

[38] In this instance, the applicant was dismissed because the employer formed the view that he had engaged in serious misconduct that was inconsistent with any continuation of the employment relationship. The serious misconduct of the applicant arose from his claims for payment of wages on Tuesday, 23 June and Friday, 26 June 2020. On each of these occasions, the applicant made claims for payment of wages whereby he recorded a start time of 12:50 pm and on 23 June, a finish time of 22:00 (10 pm), and on 26 June, a finish time of 01:30 (1:30 am).

[39] The employer investigated the circumstances surrounding the applicant’s activities on 23 and 26 June, and it determined that the applicant had deliberately falsified his start times on both occasions. The start times of 12:50 pm coincided with the applicant’s attendance at disciplinary meetings regarding the alleged misconduct of another employee, Mr Erak. The respective finish times were not the subject of any contest and recorded the completion of the applicant’s work in connection with rostered engagements on each occasion, the rostered engagement on 23 June was to start at 5 pm, and on 26 June, the start time was 4 pm.

[40] On both 23 and 26 June, the disciplinary meetings finished within about 10 minutes. Consequently, the alleged deliberate falsification involved the claim for payment that encompassed the period from the commencement of the disciplinary meetings up until the rostered start times of 5 pm and 4 pm respectively on 23 and 26 June. On both occasions, the applicant and Mr Erak left the site shortly after the disciplinary meetings had concluded. On both occasions, the span of hours that were claimed from 12:50 pm until finish of the work in connection with the rostered engagements, resulted in the payment of overtime to the applicant.

[41] The applicant was clearly making claim for payment of wages in respect to a period prior to the start times of his rostered engagements on 23 and 26 June, during which time he had left the site after the completion of the disciplinary meetings. The applicant was understandably asked to provide an explanation as to why he would make claims for payment of wages during a period when he was not at the site or undertaking any apparent work on behalf of the employer, and in circumstances where he had at least, inquired of Mr Southern about any basis for payment in respect to his attendance at the disciplinary meetings.

[42] The applicant’s response to the employer’s allegations as set out in his response letter of 10 July 2020, appeared to have adopted the strategy that is sometimes described as “the best form of defence is attack.” The applicant’s response included the assertion that the employer was engaging in prohibited behaviour against him as a HSR by making the allegations. The applicant’s response letter also included the following:

“In your letter, you have alleged that I falsified timesheets and stolen approximately 7 hours and 20 minutes’ time, when in fact I should have been paid a total of 4 hours for each day that I attended meetings as a HSR representative, [sic] prior to commencing my rostered shift.

In fact, I believe that Toll owe me a total of 40 minutes pay to make up the minimum 4-hour engagement period required under the Road Transport and Distribution Award.”

[43] On any reasonable and objective contemplation, the applicant’s claims for payment of wages in respect to periods when he was not at the site or engaged in any work on behalf of the employer, would be likely to attract controversy. It is difficult to imagine that any employee would consider it proper and appropriate to claim wages for time spent engaged in activities away from the workplace such as having a chat over coffee with a work colleague or attending an Officeworks store to purchase personal stationery. Consequently, the applicant’s somewhat belligerent response to the reasonable and predictable inquiry of the employer was a curious response which, when having regard for the totality of the evidence, was a reflection of a guilty mind.

[44] The basis for the applicant’s defence involved the proposition that the applicant was attending the disciplinary meetings not as a support person for Mr Erak, but instead in some HSR role. This proposition was clearly open to challenge. The meetings that the applicant attended were repeatedly referred to as disciplinary meetings, and there was no evidence that at any time during the meetings did the applicant convey or otherwise identify that his participation in the meetings was connected with his role as a HSR.

[45] The applicant would have anticipated challenge to his “HSR defence”. If the applicant held the genuine belief that his claims for payment of wages on 23 and 26 June 2020, were legitimate, his response would have logically included a request to have the question of his purported entitlement independently determined. Therefore, it was curious that at no point in time did the applicant make any conciliatory offer to repay amounts that he had received if it was established that there was no entitlement to be paid wages for the times that he had claimed.

[46] The totality of the evidence, particularly that which was provided by the applicant, does not support a finding that the applicant had a genuine belief that his attendance at the disciplinary meetings on 23 and 26 June 2020, involved legitimate HSR activities for which he was entitled to make claim for payment of wages. The applicant’s own evidence confirmed that the start times of 12:50 pm that he had recorded on 23 and 26 June 2020, did not represent a start time for work performed in accordance with his contract of employment and for which he was entitled to receive payment of wages. As an example, the applicant’s true state of mind about his start times and the disciplinary nature of the meetings that he attended, was revealed by the following extract from his supplementary witness statement:

“John and I are not pub people and even if we were it is unlikely that John would suggest having a beer before I started my shift, especially not in the context of exiting a disciplinary meeting where the Respondent was considering terminating John’s employment.” 1 [emphasis added]

[47] The evidence has established that on 23 and 26 June 2020, the applicant was, as he described it, exiting a disciplinary meeting, and before he started his shift he made claim for payment of wages in respect to the period of time between the start time that he claimed at 12:50 pm and his rostered commencement times of 5pm and 4pm respectively. The applicant made claim for payment of wages in these periods of time when in all good conscience, he understood that there was no entitlement for payment of wages to be made.

[48] In addition, the evidence that was provided by Mr Southern about his discussion with the applicant on 23 June 2020, confirmed that the applicant had been advised that the employer rejected that there was any entitlement for the applicant to receive payment in respect of his attendance at the disciplinary meetings. Although the applicant provided a conflicting version of the discussion that he had with Mr Southern, the evidence provided by Mr Southern was consistent, believable, and supported by the contents of the email that he sent to Mr Innes on 26 June 2020 2. An objective consideration of the conflicting evidence provided by the applicant and that provided by Mr Southern has established an unequivocal preference for the evidence of Mr Southern wherever that differed from the evidence that was provided by the applicant.

[49] The applicant’s proposition that his attendance at the disciplinary meetings and subsequent activities prior to his rostered commencement times involved the performance of his role as a HSR was a deliberate misrepresentation that was constructed in an attempt to justify the wage claims that he had made, and for which he knew he had no entitlement. The misrepresentation that the applicant constructed with his “HSR defence” was little more than a misuse and indeed abuse, of his HSR position. The applicant’s false reliance upon his HSR role as an attempt to justify illegitimate wage claims, potentially diminishes and damages the standing of the HSR position. The HSR position is a vitally important role which has legislative powers and functions that have attendant responsibilities and obligations that should be discharged with care, good conscience and for legitimate purposes, and not misused for personal gain.

[50] A careful and thorough examination of all the evidence has established that the applicant engaged in serious misconduct which involved his deliberate falsification of his timesheets. The deliberate falsification of his recorded start times for 23 and 26 June 2020, resulted in the applicant receiving wage payments for time that he had not worked in accordance with his contract of employment. The actions of the applicant involving his deliberate falsification of his recorded start times represented acts of blatant dishonesty.

[51] In summary therefore, the conduct of the applicant whereby he engaged in the deliberate falsification of his timesheets for 23 and 26 June 2020, represented serious misconduct involving dishonesty and which provided sound, well-founded, and defensible reason for the dismissal of the applicant.

S. 387 (b) - Notification of reason for dismissal

[52] The employer provided notification of the reasons for the applicant's dismissal in a notice of termination letter dated 3 August 2020. The notice of termination letter was personally provided to the applicant on that day.

S. 387 (c) - Opportunity to respond to any reason related to capacity or conduct

[53] The applicant was provided with an opportunity to respond to the allegations which were set out in the letter of allegations dated 30 June 2020. The applicant provided a letter dated 10 July 2020, in response to the allegations. Further, the applicant was given an opportunity to respond to the findings of the employer’s investigation which were set out in a letter dated 15 July 2020, and which included an opportunity for the applicant to respond as part of a show cause process. The applicant responded to the show cause letter of 15 July, in a further letter dated 17 July 2020.

S. 387 (d) - Unreasonable refusal to allow a support person to assist

[54] The employer did not unreasonably refuse to allow the applicant to have a support person present to assist at any discussions relating to his dismissal.

S. 387 (e) - Warning about unsatisfactory performance

[55] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead for serious misconduct.

S. 387 (f) - Size of enterprise likely to impact on procedures

[56] The employer is not a small size business operation and therefore the procedures that it has adopted have been subject to the requisite level of scrutiny.

S. 387 (g) - Absence of management specialists or expertise likely to impact on procedures

[57] There was evidence that the employer did have employee management specialists. The processes that were adopted by the employer provided the applicant with procedural fairness.

[58] The employer provided the applicant with a document that particularised the allegations that were under consideration as providing potential basis for dismissal. The applicant was suspended from duty whilst the investigation and disciplinary processes were undertaken. The applicant was provided with an opportunity to offer explanation or make out any defence in respect of the identified allegations. The employer’s decision maker, Mr Innes, met personally with the applicant to hear the applicant’s responses to the findings of the disciplinary investigation which had substantiated the allegations. The employer then subsequently further considered the applicant’s verbal and written responses before finalising its decision to dismiss the applicant.

[59] Consequently, the processes that were adopted by the employer represented a commendable example which, whilst not an elaborate or overly lengthy procedure, ensured that the applicant was provided with procedural fairness. Essentially, the allegations were clearly identified and conveyed to the applicant, he was given proper opportunity to respond, and the employer did not hastily reach a conclusion regarding dismissal.

S. 387 (h) - Other relevant matters

[60] The Commission has had regard for the personal circumstances of the applicant, including the financial and other impacts of the termination of employment. These matters have been evaluated and balanced against the various other factors under consideration. In particular, the Commission has considered all other relevant matters in the context of the existence of a valid reason for dismissal involving serious misconduct.

Conclusion

[61] In this case the applicant was dismissed when the employer formed the view that he had engaged in serious misconduct that was inconsistent with any continuation of the employment relationship. The serious misconduct arose from findings that the employer made following its investigation into, and consideration of, the applicant making claims for payment of wages during periods of time following his attendance at disciplinary meetings and before his rostered commencement times on 23 and 26 June 2020. Upon careful analysis, the employer’s findings in respect to the applicant’s serious misconduct, which involved his dishonest falsification of timesheet records, have been confirmed.

[62] An examination of the other relevant factors has established that there were no procedural errors or defects with the process that the employer adopted in respect to the investigation, consideration, and final determination of the dismissal of the applicant. Indeed, the employer adopted a commendable procedure that included, clear identification of the allegations under investigation, suspension of the applicant from duty, a show cause process that involved the decision maker meeting with the applicant face to face, and an appropriate level of hesitation/caution before any final determination was made.

[63] In conclusion, the applicant was dismissed for valid reason involving his established serious misconduct arising from his deliberate falsification of timesheet records. There were no procedural deficiencies or other matters which operated to render the dismissal of the applicant to be harsh, unjust, or unreasonable.

[64] Therefore, as the dismissal of the applicant was not harsh, nor unjust, nor unreasonable, it cannot be found to be unfair. The application for unfair dismissal must be dismissed accordingly. An Order dismissing the application shall be issued in conjunction with this Decision.

COMMISSIONER

Appearances:

Mr T Hakkinen, solicitor from Adero Lawappeared for the applicant.

Mr J Wells, solicitor from King & Wood Mallesons lawyers appeared for the employer.

Hearing details:

2020.

Sydney:

December, 10.

Printed by authority of the Commonwealth Government Printer

<PR728420>

 1   Exhibit 2 @ paragraph 11.

 2   Exhibit 5 - Annexure 2.