Mr Ajaz Mohammed v Veolia Transport (NSW) Pty Ltd

[2013] FWC 6355

[2013] FWC 6355

FAIR WORK COMMISSION

DECISION

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

Mr Ajaz Mohammed
v
Veolia Transport (NSW) Pty Ltd
(U2012/14182)

COMMISSIONER CARGILL SYDNEY, 30 AUGUST 2013

Termination of employment.

[1] This decision arises from an application by Mr A Mohammed (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Veolia Transport (NSW) Pty Ltd (the respondent or Veolia).

[2] The applicant’s employment was terminated on 27 August 2012 and his claim was lodged on 11 October 2012 which was outside the statutory time limit. In a decision dated 22 March 2013 [PR535051] Deputy President Booth granted an extension of time for the lodgement of the claim.

[3] The substantive matter was heard by me on 3 and 22 July 2013. The applicant was represented by Mr Guy, on 3 July, and Mr Warnes, on 22 July, of the Transport Workers’ Union of Australia (TWU), an organisation of which the applicant is a member. The respondent was represented by Mr Chadwick, solicitor, who appeared with permission.

[4] The applicant gave oral evidence with the assistance of a Hindi interpreter. The applicant provided a witness statement dated 3 May 2013, Exhibit Applicant 1 and his oral testimony is at PN38-716 of Transcript.

[5] The following witnesses gave evidence in the respondent’s case:

Ms R Allen Learning and Development Manager with the respondent. At the time of relevant events Ms Allen was the H.R. Manager at Veolia. She provided a witness statement dated 11 June 2013, Exhibit Respondent 1. Her oral testimony is at PN 722-1060 of Transcript;

Mr J Jansen Service Delivery Officer with Veolia. At the relevant time he was the Depot Manager at the respondent’s Leightonfield depot. Mr Jansen provided a witness statement dated 11 June 2013, Exhibit Respondent 2. His oral testimony is at PN 1075-1300 of Transcript;

Ms E Ruello Senior Case Manager with Allianz Australia Ltd (Allianz) which is Veolia’s workers’ compensation insurer. Ms Ruello appeared in answer to an order requiring her to attend. Her oral testimony is at PN 1305-1415 of Transcript.

[6] There was extensive evidence and much material provided in these proceedings. Although I may not specifically refer to each and every issue raised, in reaching my conclusions I have had regard to all relevant materials.

FACTS AND EVIDENCE

[7] The applicant was employed by Veolia as a bus driver. It is unclear when he commenced his employment. His originating claim, Form F2, indicates that he began on 25 February 2007. That date is confirmed in the employer’s response, Form F3. However, in paragraph 6 of his statement, the applicant says that he commenced his employment with Veolia as a casual on 18 January 2008 and became full-time in August 2008.

[8] The applicant migrated to Australia from India in 2004. His first language is Urdu however he also speaks fluent Hindi. The applicant’s evidence is that he has very basic English. Mr Jansen’s evidence is that, in his experience, the applicant had a good command of English. Ms Allen’s evidence is that she had never had any issue with the applicant’s grasp of English and that the first time she was aware there was a concern was at the termination interview on 27 August 2012.

[9] The applicant gives evidence about the receipt of a letter of warning, Attachment A to his statement, and a letter of instruction which he received during his employment. Annexure L to Ms Allen’s statement sets out the applicant’s employment history including reference to both issues raised by the applicant. The history also includes other warnings and discussions. Ms Allen’s evidence is that, although the applicant’s record was not the worst she had seen, neither was it good. She testified that the applicant’s record was a minor factor in the decision to dismiss him.

[10] The applicant gives evidence about problems he experienced with the structure of his shifts in 2010. The issue was resolved after the involvement of the TWU. He also gives evidence about injuring himself at home in what appears to be either late 2010 or early 2011. The applicant’s evidence is that he rang Ms Allen who told him that, because he was not wearing his uniform at the time, he could not obtain workers’ compensation. Ms Allen’s evidence is that she could not recall any such conversation and she could see no relevance to such an issue. She also testified that, in any event, it would not have been something she would have said.

[11] On 9 July 2012 the applicant arrived at the Leightonfield depot to begin his shift. His evidence is that he parked in the street outside as usual and as he walked from the car to the depot he twisted his ankle on the kerb. The applicant said that he fell down and was in terrible pain. The applicant’s evidence is that he could not remember where this had happened until after he saw the relevant CCTV footage. He then became aware that it had been outside the gate. The applicant testified that he still does not remember where the injury took place.

[12] The applicant went to Mr Jansen’s office. Mr Jansen’s evidence is that the applicant told him that he had hurt his ankle in the depot on the kerb just behind Mr Jansen’s office. The applicant denies telling Mr Jansen that the injury took place behind the office. Mr Jansen looked at the applicant’s ankle. His evidence is that there was no bruising or swelling. The applicant’s evidence is that, after sitting down for 15-20 minutes, he realised he could not move his foot and that it was slightly swollen.

[13] Mr Jansen asked the applicant to complete an SH&E Hazard/Injury/Suggestion Form, Attachment B to the applicant’s statement, Annexure A to Mr Jansen’s statement and Annexure A to Ms Allen’s statement. In that form the applicant describes the operation he was engaged in at the time of the injury as “walking into the depot”, the location of the hazard as “exit gate” and the details of the observed hazard/risk as “twisted my ankle on the kerb edge”. The applicant’s evidence is that he didn’t understand the meaning of “location of hazard” so he was helped by his friend who told him to write “exit gate” and “twisted my ankle on the kerb edge”.

[14] After organising a replacement driver to cover the applicant’s shift Mr Jansen arranged for the applicant to be taken in a company car to the nearest medical facility. Mr Jansen’s evidence is that, before the applicant left, he asked him where the injury had occurred. The applicant pointed to a spot almost where Mr Jansen was standing. Mr Jansen’s evidence is that this was on the driveway inside the depot a few metres behind his office and about 10 metres from the exit gate. Mr Jansen took several photos of the area, Annexure B to his statement.

[15] The first two of these photos show a portion of roadway inside the depot with a kerb and gutter. The third and fourth photos are close-ups of the relevant area. During his oral testimony Mr Jansen placed an X on each of the photos to identify where he says the applicant told him the injury occurred. The third photo in particular shows an uneven section in the kerbing.

[16] The applicant agreed that Mr Jansen asked him where the injury had occurred. The applicant’s evidence is that he responded by saying “somewhere here I fell” and that this was whilst they were still in the depot. Later in his evidence he says that he told Mr Jansen that he didn’t remember where he fell. The applicant testified that he could not recall Mr Jansen taking any photos.

[17] The applicant provided a medical certificate dated 9 July 2012 which stated that he was suffering from a twisted right ankle and was unfit for work from 9 to 12 July 2012 inclusive, Annexure B to Ms Allen’s statement. Apparently he then provided a further certificate or certificates to cover the period until 16 July. There is no certificate in evidence specifically for this period.

[18] The applicant returned to work on 16 July. He asked Mr Jansen if the injury was covered by workers’ compensation and was told that he would need a certificate from his doctor. Towards the end of his shift the applicant’s right foot began to feel numb. He reported this and attended a medical practitioner later that day. He was given a Workcover NSW Medical Certificate which stated that he was unfit for work from 17 to 18 July, Annexure C to Ms Allen’s statement and the first page of Attachment E to the applicant’s statement. The certificate notes the injury as “twisted right foot at work” but the section requiring the medical practitioner’s opinion as to whether the worker’s employment was a substantial contributing factor to the injury, has not been completed.

[19] On 20 July the applicant provided a further Workcover certificate which stated that he was unfit for work from 19 to 20 July and fit for suitable duties from 23 to 27 July. The medical practitioner has indicated that, in his opinion, the applicant’s employment was a substantial contributing factor to the injury. This certificate is at the second page of Attachment E to the applicant’s statement as well as Annexure D to Ms Allen’s statement.

[20] On 26 July the applicant had an ultrasound of his right foot. The radiologist’s report is Attachment C to the applicant’s statement and Annexure F to Ms Allen’s statement. This report refers to a “suspected chronic complete ATFL tear”. Ms Allen’s evidence is that she conferred with an Occupational Therapist about the terminology in the radiologist’s report and was informed that “chronic” is usually associated with an injury or illness being long term. Ms Allen testified that she made this inquiry because, in her role as the return to work co-ordinator, she wanted to understand the medical conditions of any injured worker.

[21] On 27 July the applicant provided another Workcover certificate, Annexure E to Ms Allen’s statement. The certificate, which is dated 27 July but is unsigned, states that the applicant is unfit for work from 9 to 16 July and fit for suitable duties from 27 July to 15 August. The section relating to whether the applicant’s employment contributed to the injury is not completed.

[22] Also on 27 July Ms Allen asked Mr Jansen to view the CCTV footage of the area near the gate where the applicant entered the depot on 9 July. Her evidence is that this was for the purpose of conducting a risk assessment of the area as part of the respondent’s workplace, health and safety obligations. Mr Jansen viewed the footage and observed that it showed the applicant limping as he entered the depot. He informed Ms Allen of this. The CCTV footage was played during proceedings. The applicant agreed that it showed him limping into the depot.

[23] On 30 July the applicant completed a Bus Incident Form, Annexure G to Ms Allen’s statement. He was in Ms Allen’s office at the time. In the incident details section of the form the applicant wrote “I was walking in to the depot around 9.20am my right feet (sic) twisted - approx 4 steps near the curb near the exit gate.” His evidence is that he only wrote the words up to and including “depot” and then Ms Allen told him the rest. The applicant says that Ms Allen also gave him the spelling of the words. Ms Allen denies that the applicant asked for or received any assistance, advice or suggestions from her in filling out the form.

[24] Ms Allen viewed the CCTV footage on 31 July. She decided she needed to meet with the applicant again. Her evidence is that she did so on 1 August. In the applicant’s statement he places this meeting as having occurred on 7 August however in cross-examination he agreed that it could possibly have been 1 August. The workers’ compensation claim form which the applicant agrees he signed at that meeting is dated 1 August.

[25] In the meeting Ms Allen gave the applicant a copy of a site map of the Leightonfield depot and asked him to mark on it where he injured his ankle. The applicant’s evidence is that he didn’t remember where he was injured so he put “it” in the “most probable spot”, “it” being an X. He also initialled the spot. The map is Annexure H to Ms Allen’s statement and shows the relevant markings inside the depot not far from the exit gate.

[26] The applicant and Ms Allen looked at the CCTV footage. She says they saw it twice at the meeting on 1 August. The applicant’s evidence is that he didn’t see it until the day after this meeting. He could not recall whether he saw the footage more than once. They then had a conversation about whether the applicant would make a workers’ compensation claim in respect of his injury. Ms Allen’s evidence is that this meeting lasted for about an hour. Although there is some dispute about the exact terms of conversation it appears that Ms Allen informed the applicant that, if the injury had occurred outside the depot, it would not be covered by workers’ compensation. She explained that this was because the legislation had recently changed so that journey claims were no longer covered.

[27] The applicant’s evidence is that, although he did not understand what a journey claim was, he assumed that it had something to do with a journey to work. During cross-examination, the applicant stated that Ms Allen told him that his journeys from home to work and work to home are not covered. His evidence is that he trusted Ms Allen’s judgement. Ms Allen told the applicant that she could not advise him but that she was sure that his claim would not be accepted as a workplace injury. The applicant then told Ms Allen to send it anyway and let higher authorities decide.

[28] Ms Allen’s evidence is that she asked the applicant whether he was sure and that she was giving him the opportunity to be honest. She says that she also asked if he knew it was against the law to lodge a claim that was not true. The applicant denies that Ms Allen made either of these statements or that she warned him about the possible consequences of making a false claim. Ms Allen agreed that during this conversation she did not inform the applicant that, if his claim was denied, he was at risk of being dismissed.

[29] The applicant then completed a Worker’s Injury Claim Form, Attachment D to the applicant’s statement and Annexure I to Ms Allen’s statement. The applicant’s evidence is that he had trouble filling in the form because of his language difficulties so Ms Allen helped him and he ticked the boxes she advised him to. Ms Allen denies assisting the applicant to complete the form.

[30] In section 2 of the form the applicant described what happened as “walking in to the depot I rolled my ankle in the curb”. He also noted that he had not started work and put a cross in the box which relates to “Travelling to or from work”. The form presumably predated the change in legislation as it contains a note that, for New South Wales incidents, a journey claim form must also be completed. The latest version of the form contains a different notation with no reference to journey claims.

[31] Ms Allen signed the relevant section in the applicant’s claim form and completed an Employer Injury Claim Form on behalf of Veolia. That is Annexure J to Ms Allen’s statement and is also part of Attachment D to the applicant’s statement. In the form Ms Allen notes that she disagrees that the details in sections 2 and 4 of the applicant’s claim are correct and does not accept that the injury is work-related. At section 7 she describes the event as “rolling on ankle inside the depot”. Ms Allen has ticked the box “travelling to or from work” and at section 8 she states that she disputes the claim “as the worker arrived at the workplace limping this can be seen in CCTV footage”.

[32] Mr Jansen was asked to provide a statement to Allianz about his knowledge of the applicant’s injury. That is Annexure C to his statement in these proceedings.

[33] Ms Ruello was responsible for assessing and managing the applicant’s claim. In reaching her decision she had regard to regard to material which has been outlined above: Mr Jansen’s statement; the Bus Incident Report; the CCTV footage; the claim forms; the ultrasound report; and the various medical certificates. Ms Ruello’s evidence is that on the basis of this material, she concluded that the applicant’s injury had not occurred in the workplace and that it should be declined.

[34] A letter to that effect dated 8 August was sent to the applicant. It is Annexure K to Ms Allen’s statement and Attachment F to the applicant’s statement. There is an error in the letter in that part of the findings includes the phrase “that you did roll your ankle in the depot”. It is clear from the context and confirmed by Ms Ruello in her evidence that this should have read “that you did not roll your ankle in the depot”. A replacement letter which corrects this error became Exhibit Respondent 3.

[35] Although this is not itemised in the letter to the applicant, Ms Ruello’s evidence is that she also had the site map on which the applicant had marked where he was injured. Her evidence is that it appeared to her that the applicant was claiming that his injury had occurred in the workplace. Ms Ruello brought the claim to the attention of the fraud department in Allianz. She is unaware whether that department took the matter any further.

[36] Ms Allen’s evidence is that, after she received a copy of the letter from Allianz, she telephoned the applicant. She says this happened on 9 August. The applicant’s evidence is that it was around 12 August although he couldn’t remember exactly when. At that time he hadn’t received the letter. Ms Allen explained to the applicant what was in the letter. Her evidence is that the applicant told her that if she wanted to terminate his employment she could because he could get more from Centrelink. The applicant denies that this exchange occurred during this telephone conversation. His evidence is that it happened at a later date when he was being given an option to resign. Ms Allen informed the applicant that he would need to attend a meeting when he became fit for work.

[37] Ms Ruello’s evidence is that she telephoned the applicant in order to explain the contents of her letter. In his statement the applicant says that it was his wife who rang Ms Ruello, however in cross-examination he says that he spoke to the case officer for a little while then handed the phone to his wife because he couldn’t understand what Ms Ruello was saying. Ms Ruello’s evidence is that the applicant told her that he thought his injury was a work injury because he was wearing his uniform at the time.

[38] The applicant spoke to Mr Jansen on 23 August and the Depot Manager on 24 August about returning to work. He was informed that he needed medical clearance. He received that on 26 August and attended for work on 27 August. Mr Jansen informed him that there was to be a meeting at the main office at Bankstown and drove the applicant there. Also present at the meeting were the TWU delegate, the Group Operations Manager (South) and Ms Allen.

[39] Ms Allen referred to the fact that the applicant’s workers’ compensation claim had been declined and she stated that the applicant had been dishonest in making his claim. She also stated that she believed the claim was based on an old injury. Ms Allen says that the applicant indicated that he could not understand what she was saying although the applicant says that he can’t recall that. In any event the applicant and the TWU delegate had a discussion in Hindi at the end of which the delegate said that the applicant now understood.

[40] It is the applicant’s evidence that Ms Allen also stated that Veolia did not want to take responsibility for his injury into the future.

[41] Ms Allen advised the applicant that Veolia was considering terminating his employment but that he could resign instead. The applicant and the delegate left the meeting. The applicant’s evidence is that the delegate explained the differences between being dismissed or resigning but didn’t recommend whether or not the applicant should resign.

[42] Upon his return to the meeting the applicant informed Ms Allen that he would not resign. The delegate asked if Veolia would consider giving the applicant another chance. Ms Allen stated that after careful consideration the company had decided to terminate his employment on the basis of his dishonesty in filing the workers’ compensation claim and having regard to his overall work history.

[43] The applicant’s dismissal was confirmed in a letter dated 29 August, Attachment G to the applicant’s statement and Annexure M to Ms Allen’s statement. Ms Allen notes that the references in the letter to the meeting and the dismissal occurring on 28 August are in error and both should read 27 August. After referring to the applicant’s claim and the fact that it had been declined the letter states:

“Ajaz, the Company gave you an opportunity to explain your actions in filing the workers compensation claim however you have maintained you sustained your injury on the Company’s premises, despite evidence to the contrary and contrary to the findings of the Company’s insurer.

The Company has formed the view that your conduct in filing your workers compensation claim which was denied by the Company’s insurer for the reason that it has been found that the injury was not sustained at the location claimed by you, demonstrates that the trust and confidence between you and the Company which is the foundation of the employment relationship has been severely damaged. Taking into account your employment history at Veolia, the Company has decided to terminate your employment.”

[44] The applicant received four weeks’ pay in lieu of notice and other entitlements. The applicant has been unsuccessful in obtaining other work since his dismissal. He gave evidence about his efforts to find alternative employment. The applicant was out of Australia for about three months during which time he had treatment on his foot. Except for that period he has been in receipt of Centrelink benefits since some point in October.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[45] An outline of submissions on behalf of the applicant was provided prior to the proceedings. Mr Warnes also made oral submissions.

[46] Mr Warnes submitted that the facts in the applicant’s case are that, after parking his car in the street outside the depot, the applicant tripped on the kerb on the public road and injured his ankle. The applicant then walked into the depot and reported the injury to Mr Jansen. Mr Warnes noted that, although in the SH&E hazard form the applicant had placed his injury as occurring near the exit gate, there was still a deal of confusion about the exact location. Mr Warnes also noted that in the workers’ compensation claim, the applicant stated that he was walking into the depot at the relevant time. The applicant had also indicated that he was travelling to work.

[47] Mr Warnes referred to the legislative requirement that FWC must consider whether there is a valid reason for a particular dismissal. He referred to two decisions: King v Freshmore (Vic) Pty Ltd Print S4213 @ paras 23 and 24 (Freshmore) and Mourilyan v James Hardie Australia @ paras 87 and 88. Mr Warnes noted that, in the second of these decisions, it had been found that an allegation of fraud should not be made out unless there is clear and cogent proof. The written outline of submissions also refers to the leading authority of Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran) and the comments therein concerning the meaning of valid reason.

[48] Mr Warnes submitted that the applicant’s story had been consistent. He had always maintained that he had been walking into the depot when the injury occurred. Mr Warnes pointed to the definition of “into” in the Macquarie Dictionary which is:

“in and to (expressing motion or direction towards the inner part of a place or thing, and hence entrance or inclusion within limits, or change to new circumstances, relations, condition, form etc)”

[49] Mr Warnes submitted that, even if there was some ambiguity in the word, it had been incumbent on Veolia to have questioned the applicant to clarify exactly what he meant by “walking in to the depot”. Mr Warnes submitted that the evidence disclosed that the applicant had been consistent and truthful in his version of events.

[50] Mr Warnes submitted that the main reason for the applicant’s dismissal was that he had made a dishonest workers’ compensation claim. He submitted that the contents of the claim were all completely truthful and the worst that could be said about it was that it could be considered to be a “giving it a go” claim. The claim was not false just because the applicant had been told about the change in legislation or because the claim had been declined by Allianz. Mr Warnes submitted that there was no basis for the respondent’s contention. The conduct complained of had not occurred. Further, the required level of proof had not been made out.

[51] The written outline of submissions addresses the applicant’s evidence that Ms Allen had also stated that Veolia did not want to take responsibility for his injury into the future. It is submitted that employers are required to take responsibility for workplace injuries and this could never be considered to be a “sound, defensible or well founded” reason for dismissal.

[52] Mr Warnes submitted that there was no valid reason for the applicant’s dismissal. He also submitted that the applicant had not been given the opportunity to respond to the prospect of termination. The possibility of dismissal had not been raised by the respondent until the meeting on 27 August. Mr Warnes submitted that, even if the applicant had mentioned it at an earlier time, that was not the same as the respondent putting the applicant on notice of this possibility. He noted that Ms Allen had agreed that the applicant had not been given the chance to respond to the allegation against him in the meeting on 27 August.

[53] Mr Warnes submitted that it followed that the decision to dismiss had been reached before the meeting on 27 August. He referred to the decision of the Industrial Relations Court of Australia in Wadey v YMCA Canberra [1996] IRCA 568 @ p 10 as well as that of Deputy President Sams in deLeon v Spice Temple Pty Ltd[2010] FWA 3497. Mr Warnes noted that, although the absence of an opportunity to respond does not in itself make a dismissal unfair, it does exacerbate its unfairness.

[54] Mr Warnes submitted that there were several other relevant factors which made this dismissal harsh. These included Veolia’s conduct which, he submitted, had been less than desirable. Veolia took almost a month after the injury before it asked the applicant to fill out a workers’ compensation claim. Despite the applicant’s difficulties with English the company had left him to his own devices in dealing with a very complicated form. The company had failed to alert the applicant to the potential consequence of dismissal or the consequence if his claim was denied. Mr Warnes submitted that it would be reasonable to infer that the applicant’s dismissal had been premeditated.

[55] In the written outline it is submitted that Ms Allen’s conduct could be seen as negligent in that she failed to properly advise the applicant. It is further submitted that her actions could be described as a spiteful attempt to manufacture misconduct in order to dismiss the applicant.

[56] The next relevant factor is the applicant’s lack of understanding of English. Mr Warnes submitted that Veolia had failed to put in place systems to deal with such disadvantages in its workforce. The third factor is the applicant’s period of over four years’ service with only one written warning and one letter of instruction. Mr Warnes noted that there had been no previous suggestion of dishonesty in the applicant’s dealings with the respondent.

[57] The final factor is the impact of the dismissal on the applicant’s personal and economic circumstances. The applicant’s language difficulties and lack of formal qualifications have been reflected in the applicant’s inability to find work since his dismissal. Mr Warnes noted that the applicant’s Centrelink benefits are significantly less than his previous earnings.

[58] Mr Warnes submitted that it would be entirely appropriate to reinstate the applicant and provide him with lost pay. He noted that, if the conduct alleged by Veolia is not made out, then its assertion of loss of trust and confidence disappear. In the alternative, the applicant should be awarded the statutory maximum by way of compensation.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[59] A written outline of submissions was provided prior to the proceedings. Mr Chadwick also made oral submissions.

[60] Mr Chadwick submitted that honesty and integrity are essential to any employment relationship. He rejected the submissions made on behalf of the applicant that the dismissal occurred because the applicant incorrectly completed a form. Mr Chadwick submitted that the applicant had lied to the respondent and to Allianz.

[61] Mr Chadwick submitted that the applicant’s evidence had been inconsistent, contradictory and implausible. He also submitted that the applicant had given unsatisfactory evidence about the location of the injury. In this regard he referred to several parts of Transcript including PN247, 267, 269, 285 and 304-314. Mr Chadwick submitted that these passages demonstrated that the applicant’s evidence on this point had been fabricated, opportunistic and untrue.

[62] Mr Chadwick submitted that the truth was that, until he had viewed the CCTV footage, the applicant had maintained that he had been injured inside the depot. After seeing the footage his story changed. Despite Ms Allen’s counsel the applicant decided to press on with his claim.

[63] Mr Chadwick noted that the applicant and his representatives then placed the responsibility for the applicant’s actions upon Ms Allen. Mr Chadwick rejected the suggestion that the applicant had placed his trust in Ms Allen’s judgement. In this regard he referred to PN 450 and 702 of Transcript wherein the applicant testified that he didn’t trust anyone telling him that the “rules” had changed but left it to Allianz to decide his fate.

[64] Mr Chadwick submitted that Ms Allen had been a good witness who answered questions honestly and in a forthright manner. Mr Chadwick submitted that Ms Allen’s candour is demonstrated at PN 980, 1007 and 1012 of Transcript in particular. He submitted that Mr Jansen was a credible witness. Mr Chadwick submitted that, as of 9 July 2012, Mr Jansen had no reason to take sides. He was merely gathering information for hazard assessment purposes. Mr Chadwick submitted that Ms Ruello was also a credible witness with no axe to grind in relation to the applicant.

[65] Mr Chadwick took issue with several aspects of the submissions made on the applicant’s behalf especially those at paragraphs 11, 12, 29, 37 and 50 of the written outline of submissions. Ms Allen had not told the applicant that the CCTV footage showed that he had twisted his ankle just outside the exit gate. The case concerns a course of conduct by the applicant between 9 July and 27 August not just a mistake on a form. The applicant was given procedural fairness and an opportunity to respond. Mr Chadwick submitted that the applicant’s understanding of English has been used as a shield on his behalf to protect him from the consequences of his misconduct.

[66] Mr Chadwick referred to and relied upon several decisions concerning the requirement for honesty and trust in an employment relationship: Concut Pty Ltd v Worrell [2000] HCA 64 @ para 51; Tokoda v Westpac Banking Corporation[2012] FWA 1262 @ paras 18 and 32; Orsborn v G M Holden Ltd[2010] FWA 7356 @ paras 65,71, 75, 80, 103 and 105; Osman v Toyota Motor Corporation Australia Limited[2001] AIRC 681 @ para 29; Colgrave v Nevitoro Investments Pty Limited[2001] AIRC 1379; and Jones v Brite Services[2013] FWC 3392.

[67] Mr Chadwick provided a copy of a dictionary definition of “chronic” as “continuing a long time; long continued” in support of Ms Allen’s evidence of her concerns about the applicant’s ultrasound report. Mr Chadwick submitted that a Jones v Dunkel inference should be drawn from the absence of any evidence from the TWU delegate who was present at the meeting on 27 August.

[68] In summary Mr Chadwick submitted that the applicant’s conduct in lodging a false workers’ compensation claim was dishonest, deliberate and calculated and provided the respondent with a valid reason to terminate his employment. The applicant had been notified of the reason for his dismissal, given an opportunity to respond and had been accompanied at the interview on 27 August by a support person. The termination was not harsh, unjust or unreasonable.

SUBMISSIONS ON BEHALF OF THE APPLICANT IN REPLY

[69] Mr Warnes noted that Ms Ruello’s evidence had in fact supported the applicant’s case that he had been on his way to work at the time of his injury. He submitted that the documentation provided a clear trail of evidence that the applicant had been consistent in his claim that he had been walking into the depot at the relevant time. This defeated the respondent’s contention that the applicant had changed his story. Mr Warnes submitted that a Jones v Dunkel inference could equally be drawn against the absence from these proceedings of the other company representative at the meeting of 27 August 2012 and the notes of that meeting.

CONCLUSIONS

[70] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[71] As indicated in paragraph 2 above, although the application was not made within the statutory timeframe, an extension of time was granted. There is no dispute that the applicant is a person protected from unfair dismissal. Paragraphs (c) and (d) of subsection 396 have no relevance in the present matter.

[72] Section 385 provides that a person has been unfairly dismissed if 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.”

[73] Paragraph (a) is clearly met in relation to the applicant. Paragraphs (c) and (d) have no relevance. Consequently it is to paragraph (b) that my attention must be directed.

[74] In this regard it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWC in deciding whether a dismissal is harsh, unjust or unreasonable. Those factors are as follows:

“(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 FWC considers relevant.”

[75] The first matter which must be taken into account is whether there was a valid reason for the applicant’s dismissal. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Tribunal and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran which are referred to in the submissions on behalf of the applicant.

[76] The reason relied upon for the termination in this matter relates to the alleged misconduct of the applicant. In this regard I have to determine for myself whether the misconduct, or any part of it that is contested, took place and, if so, whether it amounted to a valid reason for the dismissal: Freshmore.

[77] The alleged misconduct in this case is that the applicant acted dishonestly in making his workers’ compensation claim. The exact nature of the alleged dishonesty became somewhat blurred during the course of the proceedings however it is not suggested that the dishonesty occurred merely because there may have been an error in the completion of the claim form or because the claim was declined by Allianz.

[78] The place where the applicant’s injury occurred is an important issue in this case. The applicant was extremely vague in his evidence on this point. Although I can understand that he may not remember the exact location of the fall I find it difficult to accept that he could not recall whether it had occurred on the kerb on the public road outside the depot or inside the gate.

[79] In my view the words “walking into the depot” or “walking in to the depot” in the SH&E form, the Bus Incident form and the workers’ compensation claim form could be read as having the meaning suggested by either the applicant or the respondent. I agree with Mr Warnes that this part of the documentary trail is consistent. However what is at odds with the applicant’s case is the applicant’s marking on the site map and Mr Jansen’s evidence about the events on 9 July 2012.

[80] The applicant’s evidence is that he placed the X on the site map in what he described as the “most probable spot”. That is inside the depot not far from the exit gate. The perimeter of the site is clearly marked on the map. Again, I do not accept that the applicant could have been unsure whether the incident took place inside the depot or outside. I am satisfied that by placing the X where he did the applicant was indicating to the respondent that the injury occurred in the workplace.

[81] As will have been apparent from my summary of the evidence there is some difference between the applicant and Mr Jansen about where the applicant indicated the injury had occurred. Again, the applicant was extremely vague and provided what I consider to be inconsistent evidence on this point. Mr Jansen was unshaken in his evidence. I prefer Mr Jansen’s evidence to that of the applicant and accept that the applicant indicated that the injury had taken place inside the depot.

[82] This is supported by the photos which are annexed to Mr Jansen’s statement. There was no challenge to Mr Jansen’s evidence that he took the photos on 9 July 2012. At that time he was only concerned with a risk assessment of a possible hazard. No reason has been advanced to explain why Mr Jansen took photos of the particular location unless it was because the applicant had pointed out that it was where his injury had occurred.

[83] I consider that the applicant was dishonest with his employer in representing both on the site map and to Mr Jansen that the injury happened inside the depot. The CCTV footage shows, and the applicant accepts, that the injury occurred before he entered the workplace on 9 July 2012. This dishonesty amounts to misconduct.

[84] I accept that Ms Allen made it clear to the applicant that the workers’ compensation legislation had changed and that journey claims were no longer covered. However, in circumstances where this was a relatively recent change, I can understand an employee wanting to test whether this really was the case. If the applicant had made it clear from the start that the injury happened outside the depot then I would not consider the action in making the claim itself to be dishonest. However in this particular case it was tainted by his earlier dishonesty.

[85] In my view the applicant’s dishonesty amounted to a valid reason for his dismissal.

[86] The applicant’s evidence is that Ms Allen stated that Veolia did not want to take responsibility for his injury into the future. Ms Allen did not deny that she made this statement. It is submitted on the applicant’s behalf that this was a further reason for the dismissal and one which could not be valid as employers are required to take responsibility for workplace injuries. I agree that terminating a worker’s employment just because they had suffered a workplace injury is most unlikely to ever be considered to be a valid reason. However in this matter Ms Allen’s evidence was clear that the applicant’s dishonesty was the primary reason for his dismissal. I also note that the applicant’s injury did not occur in the workplace.

[87] The next three paragraphs of section 387 deal with what may be characterised as procedural fairness issues. I am satisfied that the applicant was informed of the reason for his dismissal. I accept that the applicant was provided with some opportunity to respond to that reason although it was not optimal. Ms Allen’s evidence is that, during her conversation with the applicant on 1 August 2012, she was open and provided the applicant with the opportunity to be honest both with her and in his paperwork. I accept this evidence but note that, at that point, dismissal was not contemplated so the opportunity to respond was not to a reason for termination.

[88] At the meeting on 27 August Ms Allen provided an explanation of the background to the meeting including reference to her earlier discussions with the applicant and the fact that his claim had been declined. Ms Allen’s evidence is that she then waited for a response from the applicant but none was forthcoming. In the particular circumstances it would have been prudent to have specifically asked if there was anything that the applicant had wanted to say rather than assuming that he knew he could or should respond. I reject the submission that the applicant’s dismissal was contrived or premeditated.

[89] There was no unreasonable refusal by the respondent to allow the applicant to have a support person at the meeting on 27 August. The dismissal was not related to unsatisfactory performance so paragraph (e) of section 387 is not relevant.

[90] The employer’s response to the applicant’s claim, Form F3, indicates that Veolia had approximately 650 employees as at the time of the applicant’s dismissal. I note that the dismissal was more than a year ago however there is nothing before me to suggest that the company is anything other than a large employer. It has dedicated human resource specialists in the business. I am satisfied that these factors were reflected in the procedures which were followed in effecting the applicant’s dismissal.

[91] There are several matters I wish to consider under paragraph (h) of section 387. The first is the length of the applicant’s service with the respondent. That period is either four or five years depending upon the date the applicant commenced his employment. In this regard see paragraph 7 above.

[92] The next matter is the applicant’s difficulties with English. I accept that, although he may have been able to adequately communicate with both Ms Allen and Mr Jansen during the course of his employment, nevertheless English is not the applicant’s original language but indeed his third.

[93] The third matter of relevance is the impact of the dismissal on the applicant’s personal and economic circumstances. The applicant’s reduced income and inability to obtain other work has obviously caused difficulties for him and his family.

[94] The fourth matter is the applicant’s work record. This discloses several discussions and verbal warnings in addition to the letter of warning and letter of instruction referred to in paragraph 9 above.

[95] In all of the circumstances and having taken account of each of the factors in section 387 and my findings thereon I have determined, on balance, that the dismissal of the applicant was not harsh, unjust or unreasonable. It follows from this and the matters addressed in paragraphs 72 and 73 above that the dismissal was not unfair.

[96] The application is dismissed. An order PR540487 to this effect is issued at the same time as this decision.

[97] It should be noted that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all round” has been accorded to each of the parties as provided in section 381(2) of the Act.

COMMISSIONER

Appearances:

A. Guy and T. Warnes of the Transport Workers’ Union of Australia for the applicant.

N. Chadwick, solicitor, with L. Campbell for the respondent

Hearing details:

Sydney

2103.

July, 2 and 22

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<Price code C, PR541010>