Mr Christopher Ferris v Water-It Queensland Pty Ltd T/A Dig It Landscapes Pty Ltd

[2013] FWC 7158

[2013] FWC 7158

FAIR WORK COMMISSION

DECISION

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

Mr Christopher Ferris
v
Water-It Queensland Pty Ltd T/A Dig It Landscapes Pty Ltd
(U2013/8414)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 27 SEPTEMBER 2013

Summary: whether dismissal harsh, unjust or unreasonable - representation of hours on a timesheet - failure to disclose information in employer’s investigation.

[1] This is an application by Mr Christopher Ferris who is seeking an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (“the Act”) in relation to his dismissal on 21 March 2013 by Water-It Queensland Pty Ltd (“the Respondent”). The Respondent conducts a landscaping business in which the Applicant had been employed since February 2005 until the time of his dismissal. At the time of his dismissal the Applicant had been performing duties as a leading hand.

[2] Though prior conduct issues were referred to, the Applicant was dismissed ostensibly for reason that he had incorrectly completed his timesheet entry for 13 March 2013. More specifically, the Applicant was said to have included in his timesheet for 13 March 2013 an hour of work that he had not performed on the project to which the timesheet was applicable, and had acted deceptively when his employer had inquired into the matter.

[3] The Applicant had been informed immediately prior to 13 March 2013 (in fact on the previous day) that time sheets had to be completed accurately in respect of the relevant project, and that no overtime was to be performed without the permission of the construction manager (Mr Tim Stafford) or the maintenance operations manager (Mr Dennis Lawler).

[4] The toolbox talks of 12 March 2013 had been jointly hosted by Mr Edmund Fisher, the maintenance manager, and Mr Dennis Lawler, the maintenance operations manager. Mr Fisher gave evidence that he discussed at length the importance of completing timesheets with 100% accuracy and the importance of this for proper allocation of costs and invoicing. An example of a correctly completed timesheet was handed to all the team members to reinforce the requirement.

[5] Mr Fisher contended that he had given extremely clear and specific directions that timesheets had to include the accurate start and finish times of each job and further claims that he indicated to the employees that if their timesheets were not accurately completed this could lead to disciplinary action. The Applicant had signed the toolbox meeting record of attendance.

[6] There is no argument in this respect. The Applicant signed off as having participated in the presentation - through the maintenance toolbox talk - in respect of these requirements.

[7] In short, despite an immediately prior warning, in the express term of his contract of employment, the Applicant had sought payment for one hour’s overtime for which he had not sought the permission of the construction or operations manager. The Applicant’s employment contract also cites the same precondition for obtaining prior approval for working overtime.

[8] The hour of overtime for which the Applicant sought to be paid involved a particular circumstance – to be discussed below – that occurred on 13 March 2013. The Applicant had not used the interim period (noting the week ended on 19 March 2013) to clarify any of the circumstances which had caused him to fill-in his timesheet in the manner in which he did.

[9] The Respondent’s human resource manager, Ms Karen Leggett, who interviewed the Applicant, stated she pointed to the timesheet entry for 13 March 2013 and the Applicant immediately recalled the particular day, for reason of another incident that occurred on site at that time.

[10] The timesheet indicated that the Applicant had concluded work at 5:30 PM on Wednesday, 13 March 2013.

[11] Ms Leggett inquired into the time at which the Applicant arrived at home.

[12] Ms Leggett said that:

Chris particularly mentioned that he did not arrive home until after 6 PM that night after he left the site.

[13] Ms Leggett then produced evidence of the GPS tracking system which demonstrated that the Applicant had left work at 4:18 PM on 13 March 2013 and arrived home at 4:55 PM.

[14] The allegation therefore was made that the Applicant had claimed in additional hour as overtime in relation to his work in maintenance operations. If the Applicant had performed an hour of overtime for a different part of the business he should have utilised an additional line, which was available on the timesheet, to specify the circumstances, but he did not do so. That is, if the Applicant wished to explain that the hour of overtime arose from another cost centre, he could have so indicated on the form, as he had done so for another matter.

[15] But more importantly than this administrative issue, the Applicant had been dishonest with his employer in its investigations into the claim as made.

[16] The Applicant, when he was so informed of the GPS log reading, was said by Ms Leggett to have placed his head in his hands and shaken his head.

[17] The Respondent thereafter expressed its significant concerns about the Applicant’s conduct in this regard. He was said to have accepted responsibility for failing to fill out the timesheet accurately and expressed disappointment at the lengthy employment relationship being in jeopardy.

[18] The meeting was said by Ms Leggett to have continued for some 30 minutes, and the Applicant was given ample opportunity to ask any questions or justify his conduct. The Applicant did not do so, and further, did not seek any opportunity to review his diary or any other documents. That is, according to Ms Leggett, the Applicant proffered no defence for his conduct.

[19] Ms Leggett conceded that she had drafted a termination letter in advance, but that that letter had not been provided to the Applicant until such time as she had heard the Applicant’s defence to the allegation. Ms Leggett argued that had the Applicant been able to provide a justification of the additional hour on his timesheet there would have been an investigation into any such circumstances and the termination letter would not have been given to the Applicant as a consequence.

[20] Immediately following the termination meeting with the Applicant, Ms Leggett provided an extensive summary of the meeting by way of an e-mail directed to Mr Mann (company director) and Mr Stafford. This e-mail was tendered in evidence and supported the structure of the conversation as recounted in Ms Leggett’s evidence.

[21] The Applicant’s conduct was not viewed by his employer in isolation, however. There had been a number of other conduct related issues that had arisen over the course of the Applicant’s employment.

[22] The Respondent’s evidence was that there had been multiple verbal and written warnings given to the Applicant over the previous 12 months. The Applicant had been served with a number of letters of warning relating to such issues as failing to wear the required uniform or to attend the office as directed to obtain the appropriate uniform (10 and 19 April 2012); substandard paperwork (24 May 2012); and incomplete vehicle log books (30 August 2012). On 8 June 2012 the Applicant was given a further written warning (following a meeting on 5 June 2012) regarding inappropriate behaviour during a company induction carried out on 16 May 2012. The Applicant’s conduct was said to have been particularly disrespectful towards managers in front of some 10 members of staff including new inductees.

[23] The Applicant at that time was counselled (by the construction manager, Mr Tim Stafford) to discard his negative attitude and behaviour, or his employment would be in jeopardy. This matter arose during a presentation being conducted by Ms Leggett, who gave evidence of the Applicant’s conduct at that time and its impact on new employees who were being inducted.

[24] Mr Stafford wrote in some detail (on 8 June 2012) to the Applicant following the incident and counselled him (on 5 June 2013) about his attitude, and how to go about ventilating any grievances he might have in a more professional manner. He also raised concerns about the Applicant’s general negativity.

[25] Ms Agata Pieprzyca, the maintenance administrator, had also witnessed the Applicant’s conduct at the induction and said that it “gave a very bad first impression to new employees.”

[26] At the same time, it appears, the Applicant was given a further verbal warning in relation to substandard paperwork. This warning once again was given by the construction manager, Mr Tim Stafford. This warning followed the warning of May 2012 (which had been given by Mr Dennis Lawler, the maintenance operations manager). Mr Stafford said that he had informed the Applicant that his timesheets and job sheets were not being completed correctly or as thoroughly as was required and that he was continuing to sign off on other employees timesheets and job sheets with information that did not match between the documents.

[27] Ms Pieprzyca declared that she could recall multiple occasions on which the Applicant had submitted incomplete or inaccurate timesheets which had created difficulties in allocating costs to appropriate projects. Ms Pieprzyca’s evidence, which was unchallenged, was that the Applicant more than any other employee had made consistent errors in the completion of his timesheets over time.

[28] Mr Edmund Fisher (maintenance manager) gave evidence that the Applicant on multiple occasions had shown a great deal of disrespectful negativity towards company policies, procedures and management staff, and had been a source of what he described as a very poisonous influence within the maintenance department, and on younger apprentices in particular. Mr Lawler echoed this claim on Mr Fisher’s part. Ms Pieprzyca also declared that she had encountered the Applicant’s negativity on various occasions particularly in respect of his disregard for time frames and difficulties in complying with policies and procedures.

[29] The Applicant’s perspective on these matters was very much different.

[30] In respect of the first warning received on 10 April 2012 for failing to follow a direct instruction, the Applicant claimed that Mr Fisher had consented to his departure from the express requirement to collect his uniform at 2:30 PM on a particular day. He claimed that Mr Fisher had subsequently forgotten that he had made this concession and instead gave him a letter of warning.

[31] In respect of the second warning of 5 June 2012 (the bad attitude towards management), the Applicant claims that he was invited to raise any issues he had at the meeting. He had done so. The Applicant also declares that he did not raise his voice, swear or talk down to management. Clearly, this was a point with which the Respondent’s witnesses furiously disagreed.

[32] The Applicant otherwise claimed that his employer had been incorrect to warn him in other respects, such as over clothing issues, when there were mitigating circumstances.

[33] The Applicant explained that the one hour of overtime that he claimed arose from a certain circumstance on 13 March 2013.

[34] The Applicant agreed that he had left work that day, so he says at about 4:18 PM before arriving home at 4:55 PM. This was despite allegedly being told by the maintenance operations manager, that he should finish work that day at around 3:00 PM.

[35] The Applicant claims that he was in receipt of a phone call at approximately 6:40 PM from Mr Nathan Sharp, who he considered to be his supervisor (but who the Respondent said was a leading hand only). Mr Sharp was said to have asked if the Applicant had a spanner for the quick cut saw that he was using at a nearby site (to where the Applicant lived).

[36] The Applicant says that he replied in the affirmative and set about driving to the site to provide Mr Sharp with the spanner.

[37] The Applicant went on to claim that he raised with Mr Sharp the prospect of being paid one hour’s overtime. Mr Sharp indicated that he would raise the matter with Mr Brett Mauger, who appears to have had a supervisory role, upon his arrival at site. When Mr Mauger arrived, the Applicant claimed that Mr Mauger begrudgingly accepted that the Applicant should be paid the additional hour. The Applicant claims to have cleaned and tidied up a bit on the site, and then made his way home subsequently. Mr Mauger is no longer an employee of the Respondent.

[38] Mr Sharp’s evidence was that he had no power to approve overtime and had only contacted the Applicant as he believed he lived nearby, and then as a favour. Mr Sharp claimed the Applicant was only on site for about 10 minutes and he recalled no discussion about overtime, or any duties being carried out by the Applicant.

[39] The Applicant went on to explain that he had filled out the time sheet for 13 March 2013 and had run out of room for that day to add the additional one hour on a separate line so he changed the last hour to show his working day extended to 5:30 PM. The Applicant therefore claimed he finished an hour later than he actually did (or perhaps even later on Mr Lawler’s evidence that he finished earlier). Why the Applicant did this, is uncertain. This is because there were further spare lines available for him on the timesheet to utilise in relation to that day – 13 March 2013, but he elected not to specify the circumstances of the additional hour of overtime or to which department it should be allocated at any time over the week before his timesheet was submitted. Moreover, the Applicant had already used the timesheet to indicate a separate irregularity and could have done so once again in relation to this matter. These were matters of which the Applicant should have been acutely aware given the toolbox discussions of the previous day.

[40] The Applicant claimed that Mr Lawler had indicated to him that he would look after the matter and the Applicant left matters at that. But Mr Lawler’s evidence did not support the Applicant’s claim in this regard at all.

[41] It was not until 21 March 2013 that Ms Leggett interviewed the Applicant regarding the timesheet of the week ending 19 March 2013.

[42] Ms Leggett was said to have enquired as to what time the Applicant arrived at home on 13 March 2013. The Applicant says that he replied around 5:00 PM. Ms Leggett was then said by the Applicant to have showed him a GPS log, which indicated he had arrived home about “5-ish”.

[43] Ms Leggett was said to have asserted that the Respondent does not have an obligation to pay the Applicant for his travel time home but that they would do so nonetheless.

[44] Ms Leggett was then said to have indicated that she and Mr Greg Mann (company director) had decided (the previous day) that the Applicant was a “thief and a liar” and that he was to be terminated. The Applicant states that he attempted to introduce the circumstances of 13 March 2013, but before he could do so Ms Leggett cut him off and told him that they were letting him go. Ms Leggett seemingly once again, the Applicant claimed, went over the Applicant’s disciplinary history and stated that “this was the last warning and that they would be terminating my services.”

[45] The Applicant claimed that he had been denied any opportunity to respond to the claims made against him and that he had been dismissed unfairly. The Applicant was not seeking to be reinstated, but was seeking compensation in lieu of reinstatement, so it was claimed.

Consideration

s.387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct

[46] The Applicant had been repeatedly warned about aspects of his administrative deficiencies and his conduct. None of these had been incidents that would be described as being at the extreme end of the misconduct continuum, though the Applicant’s conduct in the induction meeting was no doubt of concern.

[47] These warnings were spread mostly over the last 12 months of the Applicant’s employment.

[48] I add that not all of the warnings were necessarily well made out. I have mentioned this in passing above. The warning about the Applicant’s conformity with the Respondent’s dress code appears somewhat more complicated than the Respondent made out.

[49] In the end, however, the incident of 13 March 2013 was the Applicant’s undoing. The Applicant had been informed only the previous day (12 March 2013) that he had to ensure that his timesheets were accurately filled in. The Respondent took some considerable effort to explain this obligation, and to give examples of how forms ought to be completed in order to ensure that different projects and parts of the business were properly “billed” and costs accurately attributed across the business. Mr Lawler said that he had conducted the toolbox in effect for the Applicant as he had made numerous apparent mistakes in filling the forms out previously. But despite this, the Applicant had again filled in his timesheet incorrectly.

[50] However, the Applicant had done more than make an inadvertent administrative error on his timesheet following a training session on that very topic. The Applicant had intentionally extended his working hours for Wednesday 13 March 2013 by an additional hour on his timesheet in order to include what he believed to be an hour of overtime he was owed for a call out later on in the early evening of that same day, and did not disclose his conduct in so doing to his employer when queried.

[51] More specifically, Ms Leggett firstly showed the Applicant his timesheet which recorded that the Applicant had finished work at 5:30 PM. Ms Leggett then stated that she initially asked the Applicant what time he arrived home after the conclusion of work on 13 March 2013. The Applicant replied that he did not arrive home until “after 6:00 PM” (which was consistent with the 5:30 PM finish the Applicant had placed on his timesheet that day). The GPS log was then shown to the Applicant and demonstrated that he arrived home at 4:55 PM. The Applicant was then said to have shaken his head and placed his head in his hands and expressly accepted responsibility for the completion of his timesheet.

[52] The Applicant made no mention of his apparent claim for an additional hour’s overtime or any other conversations with other employees.

[53] I realise that the Applicant denies these circumstances. But I prefer Ms Leggett’s evidence in this regard. Her account of the termination meeting is reconstructed in a detailed e-mail note composed only some minutes following the meeting. Ms Leggett was an earnest HR practitioner whose evidence was given in a matter of fact manner and with a concern for detail and accuracy. The entirety of Ms Leggett’s narrative is consistent and coherent. The Applicant’s construction of the discussion - by comparison - is unstructured, incomplete and incoherent.

[54] Indeed, the Applicant’s written narrative, as it is, does not even include a reference to the timesheet being discussed. The statement seems to indicate that Ms Leggett raised an issue about the time at which the Applicant arrived home (being around 5:00 PM, which was uncontentious in fact if the Applicant had actually so replied), and when this was confirmed, he was told that a decision had been made the day before to dismiss him as a “a thief and a liar”. This is a disjunctive narrative.

[55] The Applicant claims that the additional hour arose from the circumstances relating to an effective “call out” (as I have set out above). But he never raised this with Ms Leggett over the course of a discussion that continued for 30 minutes. The Applicant claims that he was cut short when he attempted to raise the matter and simply informed that he had been terminated.

[56] But all of this is difficult to accept. The dismissal meeting was not a perfunctory meeting as the Applicant made it out to be. Ms Leggett’s detailed note composed immediately after the meeting gives credence to her claim that there was extensive discussion over some 30 minutes, and an opportunity for the Applicant to make his case in his defence. The Applicant’s physical reaction to the disclosure of the GPS vehicle log, in effect, was his response to the central, current allegation.

[57] Further, having heard the witnesses, I find it most unlikely indeed that the Applicant would have cowered in relation to Ms Leggett’s overbearing manner. Ms Leggett did not present at all as an overbearing person, by dint of either personality or physical presence. The very opposite was more the case. In any event, the Applicant’s evidence was that he tried to raise the issue of the additional hour of overtime with Ms Leggett but Ms Leggett changed the direction of the discussion. I saw nothing in the Applicant’s demeanour that would have caused him to have sat passively while Ms Leggett changed the topic of conversation in relation to a matter on which his employment security hinged.

[58] The Applicant also argued in his written evidence that while the issue of the timesheet was not referred to in the discussion with Ms Leggett, he nonetheless sought to introduce the overtime hour into the conversation. It remained a mystery as to why the Applicant would choose to do this when the dismissal was not - on his evidence - related to the timesheet, and Ms Leggett had not raised that issue. Again, this goes to the weaknesses in the evidentiary adequacy of the Applicant’s narrative about the dismissal process.

[59] In all, I found the Applicant’s recount of the dismissal discussion entirely inadequate. I prefer Ms Leggett’s comprehensive account on the dismissal meeting which was corroborated in her contemporaneous, detailed notation.

[60] Why, then, the Applicant did not avail himself of the opportunity to explain his defence (if he believed he had such a defence) during the meeting with Ms Leggett cannot be speculated upon, other than he may have felt himself (at best) apprehensive about making the overtime claim in circumstances where there was no prior approval. The Respondent’s evidence, through Mr Sharp, most definitely tended to this direction. Mr Sharp recalled no conversation with the Applicant about overtime, and he has no delegation in that respect. And the Applicant himself admitted that he understood that he could make no overtime claims without prior approval from one of the two operations managers. Mr Lawler gave no evidence supporting the Applicant’s claim that he had raised the overtime issue with him. And finally, the Applicant made no effort to represent properly his apparent claim on his timesheet.

[61] Indeed, while I can only speculate, it may also be the case that the Applicant found it difficult to explain his own conduct. The Applicant’s viva voce evidence about how and why he filled in his timesheet the way he did was confusing, and it appeared also to confuse him at times. The Applicant may have been reluctant to engage in the details about his conduct given the toolbox warnings the prior week and because he could not rationalise his own conduct adequately.

[62] Further to what I have said above, I cannot accept on the evidence that the Applicant merely did not have an opportunity to inject his defence into the conversation with Ms Leggett. Ms Leggett’s contemporaneous notes show that the entirety of the discussion - which continued for some 30 minutes - was such that the Applicant reasonably could have interposed his view at any juncture, and particularly when the issue of the additional hour of overtime was raised at the (effective) start of the meeting. But he did not do so. He proffered no defence for his conduct.

[63] The Applicant, generally, was not dismissed simply for reasons of this one departure from the prescribed procedure for completing timesheets (concerning though this must have been given that the training was only conveyed the previous day). Nor was he dismissed for claiming an hour of work on his timesheet for which he had no explanation (and none was given to Ms Leggett). The Applicant was dismissed because of these reasons taken in hand with his other conduct and failings in relation to completing proper administrative procedures.

[64] That, at least, is the wider argument as it goes for the Respondent.

[65] In my view however, having heard the evidence, the Respondent possesses a valid reason for the dismissal because the Applicant completed his timesheet incorrectly for reason that he intentionally sought to conceal a claim for an hour of overtime about which he was uncertain, or else knew, he could not legitimately claim. The hour of overtime indicated in the Applicant’s timesheet related to another time and ought to have been allocated to another cost centre. In the process of an inquiry into this matter, the Applicant acted deceptively in that he intentionally did not disclose his conduct to his employer at the time the matter was subject to investigation or query. He sought to mislead his employer by misstating the time at which he reached home (around 6:00 PM) so that it would correlate with the time he had marked on his timesheet as his finish time (5:30 PM). The GPS log showed this to be wrong. The Applicant provided no defence for his conduct at the time these circumstances were revealed.

[66] Further, the Applicant so acted in the context in which the day prior he had been expressly directed to complete his timesheets accurately (and was so directed in circumstances in which the employer had prior concerns with the accuracy of his timesheets, as evidenced by Ms Pieprzyca, the maintenance administrator, whose evidence was left unchallenged after cross examination).

[67] A claim for an hour’s pay may not seem a great deal. But it is the issue of trust and confidence that arose when the matter was not openly and honestly explained by the Applicant during the Respondent’s inquiries, in hand with the directions given at the previous day’s toolbox meeting, which are the critical matters.

s.387(b) whether the person was notified of that reason

[68] It appears to me on the basis of Ms Leggett’s account of the termination meeting the Applicant was given notice of the reason for his dismissal. The issues of concern to his employer were put to him prior to the notification of his dismissal. The Applicant was faced with an accusation for which he had no defence. The Applicant says this is not so and the Respondent had already reached a decision to dismiss him and prepared a letter of termination to that effect. But I find Ms Leggett’s reconstruction of the termination meeting of 21 March 2013 persuasive, as I have said earlier. Ms Leggett did not convey a decision to dismiss the Applicant until after she had posed the central allegation and garnered the Applicant’s response.

s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[69] The Applicant denies that he was given an opportunity to respond to the reasons given for his dismissal, and that he was cut short before he could do so. But I cannot see how in a meeting that went for some 30 minutes, and which the Applicant was speaking freely (on Ms Leggett’s evidence) this can be the case. Again, I refer to Ms Leggett’s immediate post-meeting detailed account of the conversation in this regard. In that account, Ms Leggett put the central issue of the timesheet to the Applicant, sought his view of the time of his arrival home (which was stated to be around 6:00 PM), and after the Applicant provided that information, she showed the Applicant the GPS log on the vehicle (which demonstrated that he had arrived home at 4:55 PM after leaving site at 4:18 PM). The Applicant was said by Ms Leggett to have shaken his head and put his head in his hands. The Applicant had given no defence to his actions. The Applicant was dismissed subsequently.

[70] I think the Respondent, however, itself relied for its decision on the full range of warnings that had been given to the Applicant as buttressing its decision to dismiss the Applicant. But it did not, it appears from Ms Leggett’s notes, allow the Applicant to respond to each of those particularised concerns (for some of which the Applicant believed himself to have a defence).

s.387(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

[71] The Applicant was not unreasonably refused the role of a support person to assist him in the course of his discussions with Ms Leggett. Ms Leggett’s evidence and her contemporaneous notation shows this to have been the case as Ms Leggett invited the Applicant to invite a support person at the opening of the meeting. But so far as the Applicant had no understanding that he was to be involved in discussions that may lead to his dismissal, it cannot be said the circumstances equate with the statutory intentions. That is, the statute points to a circumstance in which the Applicant is unreasonably refused a support person to assist in the dismissal or termination discussions. The Applicant had no appreciation at the time the discussions commenced that he was partaking in a discussions that might culminate in his dismissal. Section 387(d) of the Act does not apply, as a consequence. However, such circumstances may be relevant to other considerations in relation to s.387(g) of the Act.

s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[72] The dismissal did not relate to the unsatisfactory performance of the Applicant. It is not a relevant factor to which I can have regard for the purposes of the determination at hand.

s.387(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

[73] There is no relevant submission that the size of the Respondent’s establishment in some manner affected the procedures leading to the dismissal.

s.387(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

[74] My view in regard to the availability of human resource specialists is as set out above in relation to s.387(f) of the Act.

s.387(h) any other matters that the FWC considers relevant

Length of employment

[75] The Applicant had been a very long standing employee.

Presence of a support person

[76] The Applicant was not given an opportunity to have a representative in circumstances in which he was knowingly involved in discussions that could lead to his termination. The purpose of the discussions only became apparent as the meeting unfolded. The Applicant could have requested that he be represented once he was aware his employment was at risk, but he gave no evidence that he did so.

Conclusion

[77] While the Applicant had been an employee for a period of some 7 years, the relationship with his employer had declined qualitatively over time in the previous 12 months. There are some elements of harshness in the procedures effecting the dismissal decision, as well.

[78] But ultimately, there were issues of substance on multiple fronts between the Applicant and the Respondent, and the duration of the Applicant’s employment cannot set those matters aside (see Byrne and Frew v Australian Airlines Limited). 1 While the case is not one that is at the extreme, it is nonetheless one in which when all the circumstances are considered, the Applicant was not dismissed harshly, unjustly or unreasonably. Principally, as I have found above, the Applicant misrepresented his hours of work on his timesheet and did not honestly disclose his conduct to his employer when it sought to enquire into the matter, and he did so the day following a detailed toolbox talk on the very issue. The Respondent no longer could place sufficient trust and confidence in the Applicant as one of its employees.

[79] Having so found, the application under s.394 of the Act is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms M. Clare, CFMEU Industrial Advocate, for the Applicant

Ms K. Leggett, HR Manager, for the Respondent

Hearing details:

Brisbane

2013

17 September

 1 (1995) 185 CLR 410.

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