Mr Corey Batrachenko v Formway Group Ltd
[2013] FWC 5739
•27 AUGUST 2013
| [2013] FWC 5739 [Note: An appeal pursuant to s.604 (C2013/6023) was lodged against this decision - refer to Full Bench decision dated 18 December 2013 [[2013] FWCFB 9829] for result of appeal.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Corey Batrachenko
v
Formway Group Ltd
(U2012/9684)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 27 AUGUST 2013 |
Application for unfair dismissal remedy - Arbitration - Whether the dismissal was harsh unjust or unreasonable - Compensation awarded.
BACKGROUND
[1] This is an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) by Mr Corey Batrachenko in respect of his dismissal by Formway Group Pty Ltd (Formway). Mr Batrachenko was employed by Formway as a Customer Service Officer (CSO) from 8 April 2009 to 28 August 2012, when he was summarily dismissed.
[2] Formway has a customer service contract with Energex covering an area between the Gold Coast and Brisbane and employs some 30 CSOs who attend household or business premises to undertake work including maintenance and servicing of electrical meters. Each CSO is issued with a laptop computer known as a “Tough Book” which is provided by Energex. Energex, in consultation with management of Formway, issues jobs to CSOs by sending the details to their Tough Books.
[3] Details of jobs become visible on the Tough Book, and each employee logs on to the Tough Book to ascertain the jobs to be performed on a particular day. Employees also use the Tough Book to enter data about each job, including time spent travelling to the job; time of arrival on site and the time the job is completed.
[4] In or around late 2008, there was a backlog of work required to be performed for Energex. Formway made planned or regular Saturday overtime work available to CSOs to enable the backlog of work to be completed. After completing his three month probationary period Mr Batrachenko volunteered to work Saturday overtime, and was one of a relatively small number of Formway employees who did so regularly.
[5] Mr Batrachenko was dismissed for claiming and being paid at overtime rates for 8 hours on 27 Saturdays between 6 June 2009 and 25 June 2011, in circumstances where he worked for less than 8 hours on the days in question. Formway contends that this is serious misconduct. As a result of this conduct, Mr Batrachenko received payment for 207 hours in excess of those he worked, ranging from 42 minutes to 4 hours and 31 minutes on each occasion, totalling 79.5 hours in that period. The total payments for those hours amount to $5,724.00.
[6] Mr Batrachenko does not dispute that he was paid for at least this number of hours in circumstances where he did not work, and concedes that there may have been more than 79.5 hours involved. However, Mr Batrachenko contends that this practice - referred to colloquially as “job and knock” - was agreed to and authorised by his supervisor, Mr Carl Napper, and was also engaged in by other employees of Formway with the knowledge of management of the Company. Mr Batrachenko asserts that in these circumstances, he has not engaged in misconduct and the overstatement of overtime hours did not provide a valid reason for his dismissal.
[7] Mr Batrachenko also submits that his dismissal was unfair because there was a time lapse between an admission he made about the fact he had engaged in the job and knock practice and his dismissal, and because he did not engage in the practice after Formway issued a general warning about it.
[8] Formway contends that there was no approval given by Mr Napper or any other manager for Mr Batrachenko to engage in the job and knock practice, and that Mr Batrachenko and a small group of employees behaved dishonestly in doing so. According to Formway, Mr Batrachenko was asked to show cause as to why his employment should not be terminated for and was unable to provide a satisfactory explanation.
[9] During the course of this hearing, two employees who were scheduled to give evidence on behalf of Formway alleged that Mr Batrachenko engaged in a further practice termed “banking jobs” involving Mr Batrachenko accessing details of jobs scheduled to be performed on Saturdays, earlier in the week and doing those jobs then or not at all, and falsifying Tough Book records about those jobs. This was also relied on by Formway as a valid reason for Mr Batrachenko’s dismissal. Mr Batrachenko denied these allegations.
PROCEDURAL MATTERS
[10] Mr Batrachenko’s unfair dismissal application was made on 11 September 2012, within the time then required in s.394(2) of the Act. Mr Batrachenko is a person protected from unfair dismissal as defined in s.382 of the Act. Formway is not a small business and the dismissal was not a redundancy.
[11] The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, taking into account the matters set out in s.399 of the Act and the views of the parties. Mr Batrachenko was represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Pluming and Allied Services Union of Australia (CEPU). Permission was granted for Formway to be legally represented following a hearing before Senior Deputy President Richards.
[12] Mr Batrachenko gave evidence on his own behalf. 1 Evidence in support of the application was also given by:
● Mr Ross Franks, Trainer employed by Futureskills, and formerly an Organiser with the CEPU; 2
● Mr Shane McColl, formerly an employee of Formway; 3
● Mr Beau Malone, Organiser with the CEPU; 4 and
● Mr Barry Snyman, formerly an employee of Formway. 5
[13] Mr McColl was dismissed by Formway for engaging in the same practice as Mr Batrachenko and made an unfair dismissal application. The representatives of both parties agreed that for the purposes of these proceedings, it was sufficient to note that Mr McColl’s application was withdrawn. Mr Snyman resigned at or around the time that Mr McColl was dismissed. Mr Snyman gave evidence pursuant to an attendance notice. Given that an application for an attendance notice to be issued with respect to Mr Snyman was made late in the proceedings, Mr Snyman’s evidence in chief was restricted to the witness statement he had made in relation to Mr McColl’s application.
[14] Evidence was given on behalf of Formway by:
● Mr Mark Dinham, Customer Service Officer from 2 February 2007 until 6 April 2012; 6
● Ms Gillian Holden, Field Services Assistant, from July 2009; 7
● Mr Carl Napper, Queensland State Manager and formerly Electrical Supervisor, from 1 September 2007; 8
● Mr Darren Linney, Chief Operating Officer, from 1998; 9
● Mr Jeremy Walker, Customer Service Officer from 4 January 2010; 10
● Mr Jacobus Nell, Customer Service Officer from 9 March 2010 until 13 April 2012; 11
● Mr Troy Meyer, Customer Service Officer from 19 November 2009; 12
● Mr Johan Roets, Customer Service Officer from 9 March 2010; 13
● Mr David Johnston, Customer Service Officer from 1 September 2007; 14
● Mr Adrianus Derks, Customer Service Officer from 16 November 2009; 15
● Mr Bruce Simpson, Customer Service Officer from 27 June 2011; 16
● Mr Kosta Pastergos, Customer Service Officer from 1 November 2007; 17
● Mr James Gray Customer Service Officer from 1 March 2009; 18
● Mr Paul Street, Customer Service Officer from 18 April 2011; 19 and
● Mr Morne Oberholzer, Customer Service Officer from 27 April 2011. 20
[15] The hearing was conducted over a period of six days. In addition to witness evidence, a significant amount of documentary evidence was placed before the Commission including spread sheets containing data from laptop computers used by Formway and its Customer Service Officers to receive and record each job performed.
THE OVERSTATEMENT OF OVERTIME HOURS
[16] Mr Batrachenko’s evidence about this matter can be summarised as follows. During a three month probationary period upon commencing employment, Mr Batrachenko was trained by Mr Snyman. According to Mr Batrachenko, in or around the eighth week of his employment, he was involved in a three way telephone conversation with Mr Snyman and Mr Napper, on the hands free telephone in the vehicle in which he was travelling with Mr Snyman. During that conversation, Mr Napper said that if Mr Batrachenko worked overtime on Saturday, he could go home and claim 8 hours payment at overtime rates, provided that he completed 20 jobs. Mr Batrachenko said that he started working Saturday overtime on this basis.
[17] Mr Batrachenko did not mention this conversation in his oral or written response in the show cause process that preceded his dismissal, and explained his failure to do so by stating that he did not wish to get other people into trouble. Mr Snyman said that he could not remember the conversation, and Mr Napper disputed that it occurred.
[18] According to Mr Batrachenko, the goal posts were continually moved in relation to how many jobs were required to be carried out on Saturdays and in or around February 2010, Mr Napper’s requirement for work output on Saturdays was changed to:
● 40 reseal meters; or
● 20 maintain meters; or
● All the jobs on Mr Batrachenko’s Tough Book.
[19] At some point, Mr Napper instructed employees to record Saturday hours as 8.00 am to 4.30 pm to make it easier for office staff, following a mistake made with the pay of another employee. This was also consistent with the contract between Formway and Energex, which required that meter work be performed between the hours of 8.00 am to 4.30 pm on Saturdays, after customer complaints were received about Formway employees arriving at residential premises early on Saturday mornings.
[20] For two years, Mr Batrachenko worked most Saturdays and maintained that he did so on the basis of Mr Napper’s instructions - completing 40 reseal meters or 20 maintain meters or all the jobs on his Tough Book. Mr Batrachenko contended that he was always open about the way he was working, and that all overtime needed to be approved by Mr Napper or Mr Linney before any payment would be made. Formway conducted regular audits of CSOs and was aware of their productivity.
[21] Instructions about Saturday overtime were changed at an Occupational Health and Safety and Field Services Meeting on 17 November 2011. At that meeting, employees were reminded about the use of Tough Books and it was emphasised that all information was required to be completed. Mr Batrachenko maintained that at the meeting Mr Napper and Mr Linney said that only hours worked were to be booked and that no “job and knock” arrangements were to be worked. Mr Batrachenko tendered meeting minutes from 17 November 2011 recording that employees were told about the importance of the correct use of the Tough Book and features to record when employees are en route, on site and completed. Mr Batrachenko said that after this meeting, he did not work overtime on Saturdays on the basis of job and knock.
[22] There were a significant number of time sheets in evidence recording Saturday overtime. The time sheets were completed by CSOs filling them in and emailing them to the pay staff or by telephoning a dedicated phone number and giving details of hours worked to a member of staff responsible for payroll and having that member complete and lodge a time sheet recording the information provided by telephone.
[23] There is a system of coding each type of job performed under the contract between Energex and Formway and these codes are used by CSOs to record jobs on their time sheets. Mr Linney checks time sheets to ensure that jobs are correctly coded, and edits or alters time sheets with respect to the coding of jobs. Mr Linney said that he did not check or alter the hours recorded by CSOs as having been worked when undertaking his coding of jobs.
[24] Mr Batrachenko said that he generally submitted time sheets by telephone or email, using a template upon which he added a permanent notation indicating that he worked overtime on Saturdays from 8.00 am until 4.30 pm. Employees were not required to sign or otherwise verify time sheets. Mr Batrachenko agreed that a comparison between his time sheets and Tough Book records would show that on any given Saturday, he logged in on the Tough Book at a variable time between 5.30 am and 8.30 am and logged off at variable times depending on when he completed the required number of jobs. The time sheet for the corresponding day would show an 8.00 am start and a 4.30 pm finish.
[25] Mr Batrachenko did not challenge the details contained in his time sheets during the show cause process preceding his dismissal or in his evidence in chief in this case. Under cross-examination Mr Batrachenko said that there were alterations made to his time sheets that he did not know about and could not explain and that they were not secure documents. Mr Batrachenko did not point to any alteration of the times shown on his time sheet. Mr Batrachenko also agreed that the Tough Book records were probably accurate.
[26] Mr McColl said that he started working Saturday overtime in December 2009 and had an arrangement with Mr Napper whereby he could start Saturday overtime at 6.00 am and work until 2.00 pm. Mr McColl said that Mr Napper told him to book a standard day of 8.00 am to 4.30 pm and at the same time said it was ok for Mr McColl to finish work early on a Saturday if he completed 40 re-seal meter jobs, 20 maintain meter jobs or all the jobs on his Tough Book. Mr McColl worked for two and a-half years under those arrangements and was not questioned or admonished by Mr Napper or anyone else, for completing and submitting time sheets in this way.
[27] In February 2012, Mr McColl was asked to clear up a discrepancy in his time sheets. Mr McColl said that he was concerned at this request because Mr Napper was aware of the discrepancy, and this concern lead to Mr McColl contacting Mr Malone for assistance. On 15 February 2012, Mr McColl sent an email to Mr Malone detailing the alleged arrangement with Mr Napper. This was not accepted by Formway and Mr McColl was required to show cause why his employment should not be terminated. Mr McColl attended a meeting for this purpose on 21 February 2012, with Mr Malone and Mr Batrachenko. Mr McColl said that at that meeting, Mr Batrachenko said that he and other employees had also performed Saturday overtime work in line with the same instructions from Mr Napper.
[28] Under cross-examination, Mr McColl said that he approached Mr Napper about how Saturday overtime was worked after being told by Mr Snyman and Mr Batrachenko that he could finish early if he did a certain number of jobs or completed all of the jobs on his Tough Book. According to Mr McColl, Mr Napper confirmed that this was correct. Mr McColl said that he had this conversation on a site with Mr Napper at some point before he started to work Saturday overtime.
[29] Mr Snyman said that he approached Mr Napper not long after he commenced working for Formway in May 2008, and discussed implementing a system whereby employees could work overtime on Saturdays and claim a full 8 hours payment at overtime rates, provided that they finished a certain number of jobs. According to Mr Snyman, Mr Napper responded positively to the idea and said he would speak to Mr Linney about the number of jobs that would have to be completed. Within a short time, Mr Napper advised Mr Snyman that employees would have to do 20 jobs on a Saturday to claim a full day’s pay. Mr Snyman said that he advised Mr Batrachenko about his when he trained Mr Batrachenko.
[30] An email dated 10 February 2010 from Mr Snyman to Mr Linney in the following terms, was tendered by Mr Batrachenko:
“Hi Darren
Iv [sic] been doing Saturday work for 12 months and have been doing any meter job weather seal, replace meter, replace relay or RPU and have done 20 jobs and nothing was said. Then it was increased to 22 jobs now its 40 jobs. Please could you give the job times so we can work according.
Kind regards
Barry”
[31] A response from Mr Linney was also tendered as follows:
“Need to do 20-22 meter jobs and 40 reseal jobs. This means that if you only do reseals for the day you would be required to complete 40.
Regards Darren” 21
[32] Mr Snyman did not give evidence about this email. Mr Linney said that the email was one of a chain of emails exchanged with Mr Snyman on that date, and the reference to the number of jobs was a guideline to employees who worked on Saturday that they need to complete a certain number of jobs to make it productive and financially viable for Formway. Mr Linney said that 20 to 22 meter jobs or 40 re-seal meter jobs was a benchmark for employees, and said that this did not indicate that he was suggesting that employees knock off work on a Saturday having completed the requisite number of jobs, and claim payment for a full eight hour day for work if they finished early.
[33] Mr Linney appended all of the emails in the chain to his statement, including an email from Mr Snyman setting out questions about the time frame for a “maintain meter job no. 12” and whether travel was part of the 8 hours or extra. In response, Mr Linney told Mr Snyman that:
“All meter jobs are the same ... You get to travel to and from the job as per the zones and then 8 hrs OT (8 hours of work).” 22
[34] Mr Napper and Mr Linney denied that there had been an arrangement in effect whereby Customer Service Officers could complete a set number of jobs on Saturday, knock off early and claim payment for 8 hours of overtime.
[35] Monitoring of the start and finish times of Customer Service Officers was undertaken by Mr Linney until November 2011 when Mr Napper assumed sole responsibility for this. Mr Napper organised Saturday overtime by sending a text message to CSOs on Wednesday or Thursday of each week, asking if they were available to work Saturday overtime. Employees who indicated their availability would be told by Mr Napper that they were required to work a full day on Saturday from 8.00 am until 4.30 pm and that he would do his best to allocate them work in an area close to where they lived.
[36] On the Friday prior to the planned Saturday overtime work, Mr Napper would send an email to Energex with a list of jobs and suburbs recommended to be allocated to each Customer Service Officer. Usually Mr Napper would allocate in excess of 40 meter jobs to each CSO. Mr Napper said that for productivity reasons, he focused on making sure CSOs commenced and completed work at the correct times. As evidence of this Mr Napper appended an email to his witness statement, sent to Mr Linney on 21 March 2010, suggesting the following topic for discussion at an upcoming toolbox meeting:
“start and finish times are compulsory, any previous or assumed arrangements are void now.”
[37] Mr Napper said that the “previous or assumed arrangements” referred to in this email related to flexible start and finish arrangements that Mr Linney had previously approved for some employees enabling them to start and finish work earlier because of the distance they were travelling to and from home.
[38] Mr Napper said that the issue of starting and finishing times and productivity on Saturdays was discussed at a toolbox meeting earlier in 2010. At that meeting, Mr Napper had a discussion with Mr Snyman, during which Mr Snyman questioned the incentive for working Saturdays and said that if he finished all his jobs he wanted to go home and still book 8 hours, Mr Napper said that he told Mr Snyman that the incentive to work Saturdays was that he was being paid overtime rates, and that if he claimed 8 hours he was required to work 8 hours.
[39] Mr Napper denied that he had ever told Mr Batrachenko, Mr Snyman or any other employee that when working Saturday overtime, they could go home early if they finished 20 meter jobs and still log 8 hours on their time sheets. Mr Napper also denied the assertion made by Mr Batrachenko that on Saturday overtime he required employees to complete 20 maintain meter jobs or 40 re-seal meter jobs or all the jobs on their Tough Book. Mr Napper said that he told Mr Batrachenko what he had told all technicians working Saturday overtime - he is required to work from 8.00 am until 4.30 pm.
[40] Mr Napper disputed Mr Batrachenko’s assertion that he monitors Tough Books all day, and said that he periodically monitors Tough Books to ensure that technicians have enough time to complete allocated and due date jobs. Further, Mr Napper disputed the assertion made by Mr Batrachenko that he instructed staff to record Saturday hours as 8.00 am to 4.30 pm to make it easier for office staff and said that if he ever told staff to record hours worked on Saturdays as being worked between those times, it was because he was of the view that those were the hours to be worked.
[41] Under cross-examination, Mr Napper said that in some cases employees were permitted to start early, provided they worked their 8 hours. Mr Napper also maintained that the targets for Saturday jobs were set by Mr Linney and only related to productivity. The target of 40 jobs on Saturday was to allow Formway to cover its costs and did not relate to a target employees were required to complete before they could go home.
[42] Mr Napper agreed that Energex paid Formway on the basis of the number of jobs completed, and that it would be possible to calculate how many jobs are necessary to make it financially viable to work on a weekend. Mr Napper said that Mr Linney would have that information. Mr Napper maintained that a job and knock arrangement would be detrimental to Formway because CSOs were paid by the hour and the more jobs they complete in a day, the more money the Company makes.
[43] In response to a question from the Commission, Mr Napper said that the Tough Book records in evidence show the jobs employees completed in a day and not all the jobs they were allocated for that day. There was no strict rule that Customer Service Operators were required to call in for additional work if they finished all the jobs on their Tough Books for the day and this was something they could do at their discretion.
[44] The CSOs who gave evidence on behalf of Formway said that they were not told by Mr Napper or Mr Linney that they could claim payment for 8 hours of overtime on Saturdays when they had completed a set amount of work, and maintained that they had never worked under such an arrangement. Mr Nell said that he was told about this practice by Mr Snyman and heard a lot of rumours about it. Mr Nell also said that he telephoned Mr Napper around the middle of May 2010, and had a conversation with Mr Napper in the following terms:
“...I heard a lot of rumours about the amount of jobs you can do on a Saturday and you can still book some full time and he said to me I think his words was, ‘No, there’s nothing like that. The hours you work you can work and get paid for that’.” 23
[45] Mr Nell said that Mr Napper did not ask him about the source of the rumours. Mr Nell also said that he told Mr Snyman about Mr Napper’s response to this matter. Mr Nell said that he had this discussion with Mr Napper around the middle of May 2010. Mr Roets said that he was present when Mr Nell telephoned Mr Napper, and that Mr Nell did this because he and Mr Roets were discussing how many hours they were expected to work on Saturdays.
[46] Mr Dinham was cross-examined about some apparent discrepancies between his Tough Book records and his time sheets. Mr Dinham’s Tough Book records indicate that on Saturday 12 June 2010 he started work at 6.08 am and finished at 12.51 pm. Mr Dinham maintained that he travelled from the last job at Tallebudgera Valley to his home and was paid for that time.
[47] Mr Dinham was also cross-examined about a notation on his time sheet for Saturday 12 June 2010, stating: “Doing Maintain meters, did not get 20 done as had four jobs.” In relation to that notation, Mr Dinham said that he put that notation on the time sheet because he liked to do a number of jobs each day, and that the number 20 was just “something I had in my head.” Mr Dinham rejected the proposition that Mr Napper had a target of 20 jobs for Saturday overtime, and maintained that he had always worked to that number himself.
[48] In relation to his Tough Book record and time sheet for Saturday 10 April 2010, Mr Dinham agreed that he started his first job on site at 7.46 am and finished for the day at 2.59 am, but claimed 8 hours payment for that day. In relation to his time sheet for 21 November 2010, Mr Dinham said he did not know who made a notation on that time sheet saying: “No travel on Saturday overtime”. Mr Dinham said that his understanding was that on Saturday overtime, he had a half hour window to travel home after he finished his last job, and that he used the last part of his 8 overtime hours on Saturday to travel home.
[49] In cross-examination Mr Napper was referred to Mr Dinham’s time sheets and Tough Book records and agreed that there were a number of occasions when Mr Dinham appeared to have 20 jobs on Saturdays and was paid for 8 hours work when 8 hours work was not performed. Mr Napper said that travel time was also incorporated within the 8 hours when employees travelled outside the zone in which they lived to perform their work. Accordingly, Mr Dinham would have been paid half an hour travel time to and from work on the basis of where he lived, so that Formway could have him on the job and being productive for a full 8 hours.
[50] Mr Walker was cross-examined about discrepancies between his Tough Book Records and time sheets for a number of Saturdays when he claimed 8 hours payment at overtime rates as follows:
● 3 July 2010 start on site at 6.59 am and finish at 1.22 pm;
● 17 July 2010 start on site at 6.59 am and finish at 12.45 pm; and
● 24 July 2010 start on site at 6.57 am and finish at 12.45 pm.
[51] Mr Walker explained these discrepancies by stating that he was going back and checking his work in circumstances when at the relevant time, he was having issues with reading metres correctly. Mr Walker was not able to state whether the 8 hours was inclusive or exclusive of travel time. Mr Walker said that these discrepancies were not raised with him by Mr Linney or Mr Napper.
[52] Mr Meyer was cross-examined about a discrepancy between his Tough Book record and his pay sheet for 23 January 2010, and agreed that on that date he was “en route” to his first job at 6.55 am and completed work at 11.10 am, and wrote on his time sheet that he worked 8 hours. Mr Meyer said that this was the first Saturday he had worked since starting with Formway, and he was not familiar with how the Tough Book worked. Mr Meyer also said that he was told by Mr Snyman and Mr Batrachenko that it was the “norm if you do all these jobs you can go home.” Later, Mr Meyer decided that this was wrong and did not do it again. Mr Meyer said that he reached this conclusion without having any discussion with a supervisor.
[53] Ms Holden was called to give evidence after Mr Batrachenko raised issues with the accuracy of his time sheets during cross-examination. Ms Holden said that Mr Batrachenko submitted time sheets by email, telephone and on one occasion, by handing it in to the office. According to Ms Holden, when Customer Service Officers telephoned to provide details of their jobs and working hours, the only information filled in on a daily time sheet by staff responsible for administering time sheets, was the information provided by the Customer Service Officers. Ms Holden maintained that she had not changed hours of work reported to her by employees but had completed time sheets in accordance with their instructions.
[54] With respect to the changes to notations on time sheets, Ms Holden said that these related to the type of job being performed by Customer Service Officers and changes were made by Mr Linney. In response to questions from the Commission, Mr Linney said that it was his practice to check time sheets submitted by Customer Service Officers and adjust the code for the jobs in light of the Tough Book report. Mr Linney said that for this purpose he was interested in the type of job performed rather than the time it took.
Investigation of the overstatement of hours
[55] Mr Batrachenko said in his evidence that at a show cause meeting on 21 February 2012 in relation to Mr McColl’s dismissal, he admitted to management of Formway that he had been doing the same thing as Mr McColl by finishing work after completing a set number of jobs on Saturdays, and claiming 8 hours of overtime.
[56] Mr Batrachenko appended to his witness statement in these proceedings, a Statutory Declaration made by him on 21 February 2012 in support of Mr McColl, in which he states that Mr Napper permitted him to finish work early if he carried out a specified number of jobs - 40 re-seal meters or 20 maintain meter jobs or all the jobs on his tough book - but to book 8 hours of work. The Statutory Declaration goes on to state that because this is not standard procedure, Mr Napper instructed him to complete the time sheet as if he had worked the normal 8 hours, so that if he actually worked from 6.00 am to 2.00 pm he was asked to fill out the time sheet to indicate that he worked from 8.00 am to 4.30 pm. 24
[57] Mr Batrachenko said that he provided this statutory declaration to other employees of Formway to attempt to persuade them to also support Mr McColl, but did not provide the statutory declaration to Mr Linney or Mr Napper. Mr Batrachenko also appended a witness statement signed on 2 June 2012 (but provided to Formway on 18 May 2012) in connection with an unfair dismissal application by Mr McColl wherein he stated:
“I started carrying out Saturday overtime work shortly after being made a full time permanent employee. Mr Carl Napper, my supervisor, stated to me that a minimum of 20 maintain meter jobs was required to be done on a Saturday in order to satisfy Formway’s ability to pay a full 8 hours at overtime rates...
At the start of the agreement myself and Barry Snyman were both simultaneously working 20 meter reseals on a Saturday and would book 8 hours overtime. We would generally finish in a shorter time.
After becoming acquainted to the work, Barry Snyman and I asked to start work earlier e.g. 7 am instead of 8 am. This was authorised by Mr Napper and came with one condition. He stated that we could not tell the office ladies we were to state that we worked a standard 8 am to 4.30 pm to eradicate any confusion, as under the contract, this was the required service time. Also that 8 am was the earliest time that we could enter a customer premises.
I worked that system for Saturday overtime for several years.
When training other employees I also told them this information if they were interested in overtime.
The reason that Barry Snyman asked Mr Linney for clarification about the number of jobs to be completed on a Saturday was because during a team meeting Mr Napper announced to employees that the goal posts had been moved to now requiring 20 maintain meter jobs or now 40 meter reseals. This was seen by the employees as unfair because whenever Mr Napper felt like it he would change the goal post to any overtime that he saw fit.” 25
[58] Mr Malone also maintained that during the show cause meeting on 21 February 2012 in relation to Mr McColl’s dismissal, Mr Batrachenko stated that he worked to the same arrangement under the instruction of Mr Napper and also asked why Mr Napper suggested that this arrangement was ok, if it was not. Mr Malone said that despite making this admission on 21 February 2012, Mr Batrachenko was not dismissed until 28 August 2012, some 6 months later. A diary note of the meeting made by Mr Malone does not record that Mr Batrachenko admitted to working under the same arrangement as Mr McColl with respect to Saturday overtime.
[59] Mr Linney disputed the assertion that Mr Batrachenko stated that he had engaged in the same practice as Mr McColl during the show cause meeting on 21 February 2012 in relation to the dismissal of Mr McColl. Mr Linney said that he did not know that Mr Batrachenko had engaged in this practice until 18 May 2012 when Mr Batrachenko provided a witness statement to the Commission in support of Mr McColl’s unfair dismissal application.
[60] On 21 February 2012, Mr Linney sent an email to all employees headed “Important Announcement from the Board of Directors” in the following terms:
“Recently an employee was found to have dishonestly completed their time sheet and dishonestly claimed wages in which they were not entitled to (sic). The employee was ultimately dismissed, after due consultation and discussions with the employee and included the ETU (sic).
The Board takes these matters very seriously and has a zero tolerance to this behaviour.
The Board wishes to remind all employees of its continued and ongoing policy of zero tolerance where employees blatantly misuse their position of trust to the detriment of the best interests of the team and the company shareholders.
Any future incidents of dishonesty, will result in summary dismissal, court action and/or police involvement as appropriate.” 26
[61] Under cross-examination, Mr Linney agreed that this was a general warning to all employees to fill in time sheets and enter information into Tough Books correctly, and that Mr Batrachenko had not overstated his hours after that email was sent. Mr Linney also agreed that the last occasion on which Mr Batrachenko overstated his hours was 25 June 2011.
[62] In May 2012, after receiving Mr Batrachenko’s witness statement in relation to Mr McColl’s unfair dismissal application, Mr Linney conducted an audit involving a comparison of Tough Book records and time sheets for each employee who worked overtime on Saturdays during the period of Mr Batrachenko’s employment. Mr Linney said that the audit indicated that the only employees who had dishonestly overstated their hours were Mr Batrachenko, Mr Snyman and Mr McColl, and that other employees had claimed only for the hours actually worked. Mr Linney maintained that it had never been suspected that employees were dishonestly overstating overtime hours worked on Saturdays, and there was no cause for an audit to be undertaken prior to the events with respect to Mr McColl.
[63] On 30 May 2012, Formway’s legal representatives corresponded with the ETU in relation to Mr Batrachenko stating that as a result of Mr Batrachenko providing a witness statement in relation to Mr McColl’s unfair dismissal application it had “transpired” that he had claimed payments to which he was not entitled and that this may constitute gross misconduct, making Mr Batrachenko liable for disciplinary action.
[64] The letter goes on to state as Mr Batrachenko is a witness in Mr McColl’s unfair dismissal application, Formway would refrain from taking disciplinary action against Mr Batrachenko as such action may be interpreted as adverse action within the meaning of s.340 of the Act and that upon the proceedings in relation to Mr McColl being determined or resolved, Formway intended to take disciplinary action against Mr Batrachenko by reason of his alleged misconduct. 27
[65] On 23 August 2012, Mr Linney wrote to Mr Batrachenko setting out an allegation of serious misconduct on the basis that as evidenced by his witness statement in Mr McColl’s unfair dismissal application, Mr Batrachenko had regularly and systematically overstated the hours he had worked on Saturdays. The letter states that an audit has been conducted, and has a table attached showing hours claimed and worked on a series of 17 Saturdays from 6 June 2009 to 25 June 2011. That table indicates that in the period in question, Mr Batrachenko has claimed periods ranging from 1.15 and 4.31 hours in excess of those actually worked, totalling 79.50 hours. The letter goes on to state that Mr Batrachenko has been paid $5,724.00 in additional wages as a result of claiming those hours.
[66] The letter also informs Mr Batrachenko that his employment is suspended with pay, and that he is required to submit a written response to the allegations and to attend a meeting with Mr Linney on 28 August 2012 to offer an explanation for the conduct. The letter concludes with an invitation to Mr Batrachenko to bring a support person or Union representative to the meeting to act as a witness. 28
[67] Mr Linney said that he built in some tolerances when he conducted the audit of Mr Batrachenko’s time sheets and Tough Book data, and that this was to take into account travel or the possibility that he forgot to push a button on the Tough Book. In relation to travel, Mr Linney said that travel on Saturdays was incorporated into the 8 hours overtime, and that a half hour lunch break was also included which some employees would not take. Travel time was counted when an employee crossed a zone.
[68] Mr Batrachenko provided a written response to the allegations, wherein he stated that he had been offered Saturday overtime work by Mr Napper in circumstances where other employees did not want to work Saturdays, and Mr Napper “suggested that in order to complete a Saturday I was to complete 20 jobs and then go home for full days pay i.e. 8 hours.” Mr Batrachenko also said in his response that this arrangement was explained to him by Mr Snyman, and although it seemed a “strange arrangement” it became the norm. Mr Batrachenko also raised other allegations about bullying on the part of Mr Napper. Further, Mr Batrachenko pointed out that he had won awards for service, had gone above and beyond the Company’s expectations and that to suggest he was “fleecing” the Company was outrageous.
[69] Mr Linney said that the meeting of 28 August 2012 at which Mr Batrachenko was given an opportunity to explain his conduct, went for 30 to 40 minutes. Mr Batrachenko did not deny that he had overstated hours worked on Saturdays, but maintained the position that Mr Napper had authorised him to do this. Mr Linney raised this matter with Mr Napper who stated that he did not authorise Mr Batrachenko to overstate his hours in the manner he claimed.
[70] Mr Batrachenko was told by Mr Linney that his employment was terminated for gross misconduct and dishonestly claiming hours that he was not entitled to as he had never worked those hours. Mr Batrachenko was summarily dismissed.
BANKING OF JOBS
[71] On the afternoon of the third day of the hearing of this case, prior to Mr Linney giving his evidence, Counsel for Formway informed the Commission that two employees of Formway, Mr Meyer and Mr Walker, who had provided witness statements on behalf of Formway, and were required for cross-examination by the CEPU, had informed his instructing solicitor and Mr Linney that Mr Batrachenko had also engaged in a practice of “banking” jobs. Leave was given for Formway to lead evidence in relation to this matter from Mr Linney, Mr Meyer and Mr Walker. Mr Batrachenko was recalled to give evidence about this matter.
[72] Essentially this practice was said to have involved Mr Batrachenko accessing his Tough Book on Friday to draw details of jobs scheduled for Saturday. Mr Batrachenko would then perform those jobs on the Friday when he accessed the details, but refrain from entering data into his Tough Book until Saturday, so that it gave the appearance that he performed the jobs on Saturday when he did not.
[73] Mr Linney said that after becoming aware of these allegations, he had re-examined the Tough Book entries and identified that information about jobs recorded as having been performed by Mr Batrachenko on Saturday 13 June, 4 July, 8 August and 3 October 2009, was “received” by Mr Batrachenko at various times on the preceding Friday in each case - 12 June, 3 July, 7 August and 2 October 2009. Mr Linney said that the Tough Book record in showing when a job was received, indicates when the CSO opened the job by clicking on it and downloading relevant data.
[74] With respect to Saturday 13 June 2009, the column in the Tough Book record indicating when the 24 jobs said to have been done on that date were received, indicated a time of 2.21 pm on Friday 12 June. A similar pattern is evidenced on 4 July 2009 when 18 jobs said to have been performed on that date were opened between 3.39 pm and 3.47 pm on 3 July.
[75] With respect to Saturday 8 August 2009, the Tough Book record indicates that 17 jobs were opened at 9.46 pm on 7 August and 1 job at 11.17 pm on 7 August. With respect to jobs said to have been performed on Saturday 3 October 2009, 19 jobs were opened at 4.18 pm on Friday 2 October. Of the 18 jobs opened on the evening of 8 August, 13 jobs were wasted calls whereby Mr Batrachenko claimed to have gone to the property and been unable to gain access due to factors such as a locked gate.
[76] Mr Linney said that the Tough Book has a “future” tab which contains jobs that are pre-allocated the day before they are to be done. To get all the details of the job such as meter numbers, access issues, the address and customer name, an employee could select the job and ask for all the data. Mr Linney said that the data may also indicate previous issues associated with accessing a particular site. When a CSO clicked on a job to say that he was on site, there was no way of knowing whether that was actually the case, and the CSO could be anywhere when he clicked the button. Mr Linney also said that the Tough Book records the actual time the button is pushed and there is no way of altering the time. The Tough Book does not record where the CSO is physically located when the button is pushed.
[77] Mr Linney also pointed to a range of comments in the entries for the dates in question to indicate that there was no-one home to allow access to the site. Mr Linney agreed that there were a number of entries which would have required Mr Batrachenko to access the particular site, but said that he could have done that on Friday and simply recorded the data on Saturday. Under cross-examination, Mr Linney agreed that he could not tell whether or not Mr Batrachenko was on site on any of the days in question, and that there were a number of jobs which would have required him to be on site at some stage. However, Mr Linney maintained that there was also a high level of wasted visits in those jobs.
[78] Mr Walker said that he was aware that Mr Snyman and Mr Batrachenko were banking jobs because he had a discussion in 2010 with them and Mr Myer about this practice. Mr Snyman said in his evidence that he had engaged in banking jobs “now and then” but was not aware of whether Mr Batrachenko had also engaged in this practice.
[79] Mr Batrachenko was re-called to give evidence about this matter and denied that he had banked jobs. Further, Mr Batrachenko maintained that he did not know that the Tough Book could be opened the day before Saturday overtime, or that the “received” column on the Tough Book showed the date and time at which jobs were opened. Mr Batrachenko also maintained that he did not know whether he was going to work overtime on Saturdays and understood that jobs would not appear on his Tough Book until after midnight on the Friday before they were to be done. Mr Batrachenko later said that he knew in advance that he would be working overtime on Saturdays, but did not know where he would be working.
[80] Under cross examination, Mr Batrachenko said that he could not remember having a conversation about banking jobs with Mr Myer and Mr Walker. In relation to examples of wasted calls put to Mr Batrachenko in cross-examination, Mr Batrachenko said that it was his understanding that as soon as he “rocked up to a property it was completing the task by being there.” In relation to the notation that he had left a card, Mr Batrachenko said that this could mean he had some form of engagement with the customer, but agreed that conversations with customers would not have occurred on occasions when the fact that the customer was not at home was recorded in the Tough Book. Mr Batrachenko also agreed that on Saturdays where it was alleged that banking had occurred, there were a number of jobs that were not actually done and that various reasons were cited for this including inability to access premises or customer not being home.
LEGISLATION
[81] In deciding whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account procedural and substantive matters set out in s.387 of the Act as follows:
“387 Criteria for considering harshness etc.
(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.”
[82] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 29 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts30, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.31 The matters in s.387 go to both substantive and procedural and substantive fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 32
[83] In defending an unfair dismissal application, an employer is entitled to rely on facts that existed at the time of the dismissal, and were not known to the employer at the time the dismissal was effected. 33 However, it is also the case that where an employer seeks to defend an unfair dismissal application by relying on facts which reasonably should have been known, or could have been ascertained with reasonable inquiry, before the decision was made to dismiss an employee, the dismissal may be found to be unfair, notwithstanding that the conduct might have justified dismissal.
CONSIDERATION OF S.387 CRITERIA
Was there a valid reason for Mr Batrachenko’s dismissal?
[84] Mr Batrachenko was dismissed for misconduct. As the applicant, Mr Batrachenko bears the onus of establishing that his dismissal was unfair. Mr Batrachenko contends that his dismissal was unfair because there was not a valid reason for his dismissal. In so contending, Mr Batrachenko does not deny the conduct upon which the dismissal was based, and at the time he was dismissed, accepted that he had engaged in the conduct. Mr Batrachenko accepts that he was paid for at least an amount of $5,724.00 for 207 hours of Saturday overtime (and concedes that this figure could be higher) in circumstances where he did not work those hours.
[85] Generally, an employee who knowingly and deliberately claims payment for hours not worked would be guilty of misconduct. In the present case, Mr Batrachenko contends that his conduct in this regard was not a valid reason for his dismissal because he had an agreement with his supervisor Mr Napper, that he could do a set number of jobs on Saturday overtime and then knock off, while claiming payment for 8 hours work, in circumstances where he worked for less than 8 hours.
[86] Mr Batrachencko does not assert that there may have been a misunderstanding between himself and Mr Napper or that the person who trained him - Mr Snyman - mislead him by telling him that he could work in this way. Rather, Mr Batrachenko contends that he had a discussion with Mr Napper, during which Mr Napper specifically agreed that he could claim payment for overtime in circumstances where he worked less than the hours claimed.
[87] I am of the view that Mr Linney and Mr Napper were extremely lax with respect to managing overtime and the practices associated with working it. Both Mr Linney and Mr Napper knew, or should reasonably have known that there were irregularities with respect to completion of time sheets, Tough Book records and the application of travelling time when employees were working overtime. Both Mr Linney and Mr Napper also knew that an employee who was responsible for training other CSOs was agitating about overtime and the way in which it was worked. Mr Linney and Mr Napper failed to take reasonable steps at an early stage to address the situation which lead to Mr Batrachenko’s dismissal.
[88] However, I am unable to accept that poor management and failure on the part of Mr Linney and Mr Napper to address the situation with respect to Saturday overtime, is evidence that either Mr Linney or Mr Napper knew of or agreed to the job and knock arrangement. I have reached this conclusion for the following reasons.
[89] The evidence directly linking Mr Napper to such an agreement is tenuous. The only direct evidence in relation to this matter came from Mr Batrachenko, Mr Snyman and Mr McColl. None of these witnesses were convincing.
[90] I do not believe that Mr Batrachenko was untruthful in giving his evidence. He was evasive, and the overwhelming impression I gained was that he was protecting other persons. This may have been as a result of civil action that Formway is taking against him, and a desire not to expose other persons to similar action. Whatever the reason for the manner in which Mr Batrachenko’s case was conducted, the result is that I am unable to accept his evidence that Mr Napper agreed to the job and knock arrangement.
[91] Mr Batrachenko changed his version of events and added in information under cross-examination that he had not previously mentioned and which would have been critical to his case. Mr Batrachenko was also generally non-responsive to questions and raised matters that were not relevant to the questions he was asked. The existence of the agreement with Mr Napper was critical to Mr Batrachenko’s case, both before the Commission and in the show cause process preceding his dismissal. Mr Batrachenko’s evidence about this critical point contained significant inconsistencies.
[92] In his evidence before the Commission, Mr Batrachenko said that the agreement with Mr Napper was reached during a three way telephone conversation in which he participated with Mr Napper and Mr Snyman. Mr Batrachenko did not mention such a conversation until his evidence in these proceedings. This is despite Mr Batrachekno providing a 6 page written response to the allegations of overstating his hours, and attending a show cause meeting with representatives of the Company at which he asserted that his conduct had been authorised by Mr Napper.
[93] Mr Batrachenko did not provide any information about this conversation during the show cause process in relation to Mr McColl’s dismissal. In his initial response to the allegations during his own show cause process, Mr Batrachenko asserted that the conversations with Mr Napper and Mr Snyman about the arrangements for Saturday overtime took place separately, and that he thought that it was a strange arrangement. Further, Mr Snyman - who according to Mr Batrachenko’s evidence participated in the three way conversation - did not support Mr Batrachenko’s version of events and had no recollection of such a conversation. Mr Snyman said that he did not know how Mr Batrachenko became aware of the Saturday overtime arrangement, and did not agree with the proposition that he had a discussion with Mr Batrachenko about it.
[94] Mr Batrachenko changed his description of the alleged agreement with Mr Napper throughout the course of events that preceded his dismissal. In the statutory declaration he made in support of Mr McColl, Mr Batrachenko said that Mr Napper permitted him to finish early if he finished a specified amount of jobs. In the witness statement made in connection with Mr McColl’s unfair dismissal application, Mr Batrachenko said that Mr Napper stated that a minimum of 20 jobs was required to be done on Saturday to satisfy Formway’s ability to pay 8 hours of overtime. In his written response to the show cause letter in relation to the termination of his employment, Mr Batrachenko said that Mr Napper “suggested” that he could complete 20 jobs on a Saturday and go home.
[95] Mr Batrachenko also changed his evidence about his time sheets. During the entire show cause process, Mr Batrachenko did not query the accuracy of the time sheets or the process by which they were submitted. Mr Batrachenko raised no issue with his time sheets until he was cross-examined, and then questioned the accuracy of his time sheets to the extent that Formway was required to seek leave to call additional evidence about the process of completing time sheets.
[96] The time sheets indicate the times at which Mr Batrachenko started and finished work and the categories or types of jobs he performed. The time sheets do not contain any information about how long each job took. That information is found in the Tough Book records, about which Mr Batrachenko raised no issue. At the end of the day, any changes made to the information on Mr Batrachenko’s time sheets related to the coding of the jobs he undertook, rather than the time he took to do those jobs or his starting and finishing times on the Saturdays in question.
[97] These changes were not relevant to the matters in dispute in these proceedings, but instead, related to the way in which Mr Linney calculated the invoices to Energex rather than payments to Mr Batrachenko. It is clear that Mr Batrachenko communicated the information on his time sheets about starting and finishing times and the number of jobs he performed, to pay staff either by telephone or email, and there is no basis upon which I could be satisfied that this information was altered by pay staff.
[98] I did not find Mr Snyman to be a convincing witness. The common denominator in the evidence about the job and knock arrangement appears to be Mr Snyman. Mr Snyman claimed that the arrangement was his idea, and that he suggested it to Mr Napper. Mr Snyman trained Mr Batrachenko, and Mr Nell who gave some evidence of rumours about such an arrangement. Mr Snyman also trained Mr Meyer and told him to work under the job and knock arrangement. Further, Mr Snyman told Mr McColl about the arrangement. There is uncontested evidence to the effect that Mr Snyman communicated the job and knock arrangement to those who engaged in this practice, while the evidence of Mr Napper’s involvement is contested. Mr Snyman’s evidence about the discussion he had with Mr Napper on the day that he ceased employment, confirms that Mr Napper denied the arrangement.
[99] There is also evidence from Mr Nell that in May 2010 he told Mr Snyman that Mr Napper did not agree that there was an approved job and knock arrangement for Saturday overtime. Further the emails between Mr Linney and Mr Snyman about numbers of jobs required to be performed on Saturday overtime make it clear that 8 hours work is required to be performed on Saturdays. It is also the case that a general instruction was issued on 21 March 2010 that start and finish times are compulsory and that any previous arrangements are void. If Mr Snyman was under any illusions about the job and knock arrangement being sanctioned, this view could not have continued after May 2010.
[100] I did not find Mr McColl a convincing witness. The fact that Mr Napper discovered the discrepancy between Mr McColl’s time sheets and Tough Book entries, and communicated with Mr McColl about the matter, is indicative that Mr Napper did not agree to the job and knock arrangement. Mr McColl’s reaction to Mr Napper raising the issue is inconsistent with Mr McColl’s assertion that he had an agreement with Mr Napper. It is incongruous that Mr McColl would not have responded to Mr Napper’s inquiry about this discrepancy by simply stating that the discrepancy was a result of the agreement he had with Mr Napper. Instead, Mr McColl contacted the CEPU immediately and responded through the Union to Mr Linney. Mr McColl’s reaction to Mr Napper’s inquiry is inconsistent with someone who genuinely believed that he had an arrangement with Mr Napper in relation to Saturday overtime.
[101] The other evidence of a job and knock arrangement at Formway is at best, circumstantial. I accept that there was a standard spread of overtime hours on Saturdays - 8.00 am to 4.30 pm - and that this spread of hours was not always observed. Some employees were allowed to start and finish work earlier. At some point, Mr Napper and Mr Linney were prepared to allow employees to start work before 8.00 am on Saturdays and to indicate that they had worked from 8.00 am to 4.30 pm on their time sheets. However inappropriate such arrangements are, the evidence suggests that they were designed to conceal from Energex the fact that employees were starting work before 8.00 am, rather than a job and knock arrangement.
[102] Further, there is nothing unusual about employees who worked Saturday overtime being expected to work for an 8 hour period. In the context of a Company working Saturday overtime to clear a back log of jobs, setting a standard overtime period on Saturday is unremarkable. It is also unremarkable that a Company requiring employees to regularly work Saturday overtime would provide a full days work on the basis that once an employee’s Saturday was to be disrupted by working overtime, an 8 hour period would be more attractive than a shorter period.
[103] There was also evidence that the policy and practice of Formway with respect to travel time was inconsistently applied and not clearly understood, even by Mr Napper. However, these matters are a sufficient basis upon which I could be reasonably satisfied that there was a job and knock arrangement in place at Formway sanctioned by Mr Napper and/or Mr Linney.
[104] It does not follow from the fact that Mr Linney set productivity targets for Saturday overtime that he or Mr Napper accepted that employees could finish work when they had completed the target number of jobs, and claim 8 hours overtime, when they had not worked 8 hours. When all of the emails in the exchange between Mr Linney and Mr Snyman about the number of jobs required to be worked on Saturday is considered it is equally probable that Mr Snyman is complaining about the fact that the jobs assigned to him on Saturdays are taking up the entire 8 hour overtime period, and nowhere in this email does Mr Snyman raise the fact that he has an agreement whereby he can finish early if he finishes the required number of jobs.
[105] The notation made by Mr Dinham on his time sheet to the effect that he did not get 20 jobs done is consistent with the evidence that 20 jobs was a productivity target for Saturdays. The fact that a productivity target is set does not lead to a conclusion that employees were permitted to cease work after they reached the target and claim payment at overtime rates for more hours than they worked.
[106] It does not follow that because Formway gets paid by its customers for the number of jobs performed rather than the time taken to do those jobs, Formway would benefit from allowing employees to finish early when they complete a set number of jobs and claim overtime payments in excess of hours actually worked. It is equally probable, as was asserted by Mr Linney, that Formway would want employees to do as many jobs as possible on Saturdays to maximise productivity, given that CSOs are paid by the hour.
[107] The emails and meetings in relation to flexibility being removed and starting and finishing times being strictly observed, can also be explained by the evidence of Mr Linney to the effect that the Company wanted to standardise the spread of hours in which Saturday overtime could be worked, and stop employees working their 8 hours overtime outside that spread.
[108] There was evidence that other employees had discrepancies between the information in their Tough Books and time sheets. However, these discrepancies were partly explained by the confusion about travel time and it is equally probable that this is the reason for them, rather than that these employees were working under a job and knock arrangement. If Mr Dinham, Mr Walker and Mr Meyer did dabble with the job and knock arrangement, there is no evidence that they did so with the agreement of Mr Napper. Rather the evidence suggests that if this is what occurred, it was as a result of discussions with Mr Snyman.
[109] It is also the case that the discrepancies between Mr Batrachenko’s Tough Book records and time sheets are more significant and consistent than those of other employees such that a comparison would be akin to comparing apples with pears. As such, Mr Batrachenko cannot claim that there is inconsistency in the manner in which he was treated compared to Mr Meyer and Mr Dinman and other employees who had minor discrepancies when their time sheets and Tough Book records were compared.
[110] I am unable to accept that the evidence establishes to the required degree that Mr Batrachenko engaged in the practice of banking jobs. The Tough Book records indicate that on four occasions jobs were opened on the Friday before they were scheduled to be performed. The most probable explanation is that the jobs were opened by Mr Batrachenko on the Friday before he was scheduled do those jobs.
[111] There may have been very good reasons why Mr Batrachenko would want to know in advance about the location in which he would be working on Saturday overtime for the purposes of planning, and there is no suggestion that it was inappropriate to access information about Saturday overtime on the Friday before overtime is worked.
[112] Mr Batrachenko’s evidence in relation to this matter was unconvincing and inconsistent. On the one hand Mr Batrachenko said that he did not access the jobs scheduled for Saturday before the morning on which they were scheduled to be performed, because he knew when he would be working on Saturday. Later in his evidence, Mr Batrachenko said that he knew in advance that he would be working on Saturdays but not where he would be working.
[113] It is also the case that there are a disproportionately high number jobs on these dates where the work was not performed and it is not possible to know whether Mr Batrachenko attended at the premises or not. Mr Batrachenko’s evidence in response to the questions about “wasted calls” was unresponsive to the questions he was being asked.
[114] However, the evidence suggesting that banking jobs occurred was at all times obvious on the face of the Tough Book records and on this point the manner in which Mr Batrachenko responded to questions about this issue was undoubtedly impacted by the fact that it was unexpectedly raised at the end of day three of a lengthy hearing, when his evidence had been concluded.
[115] In these circumstances I am unable to be reasonably satisfied Mr Batrachenko did engage in the practice of banking jobs and that this is a valid reason for dismissal. I am however of the view that had this matter been put to Mr Batrachenko during the show cause process, a response such as the one he gave in his evidence in this hearing, would have resulted in a finding that this matter was a valid reason for his dismissal.
Was Mr Batrachenko notified of the reason for his dismissal?
[116] Notification to a person facing dismissal of the reason for the dismissal, is fundamentally linked to the principles of natural justice and procedural fairness encapsulated within the considerations in s.387. Notification of the reason for dismissal underpins the ability of a person whose job is at risk, to respond to allegations and to attempt to convince the employer that the reasons are not a basis for dismissal. An employee cannot properly defend allegations or have a proper opportunity to convince the employer that the allegations do not constitute a reason for dismissal in circumstances where the employee is not properly notified of the allegations.
[117] In the present case, I am not satisfied that Mr Batrachenko was notified of the reason for his dismissal. Before requesting Mr Batrachenko to show cause why he should not be dismissed in relation to the overstatement of hours, Mr Linney conducted an analysis of time sheets and Tough Book records for all employees who had worked Saturday overtime for the same period as Mr Batrachenko. There is no evidence that Mr Linney put any comparative information to Mr Batrachenko at the meeting. This is notwithstanding the fact that Mr Batrachenko’s defence was that other employees had engaged in the same conduct and that it had been sanctioned by Mr Napper.
[118] Mr Batrachenko had no notice of the allegation that he had banked jobs. Evidence about this matter was apparent from the Tough Book records and I do not accept the explanation provided by Mr Linney for his failure to note that evidence when he was conducting an audit of Mr Batrachenko’s Tough Book records and time sheets. Mr Linney was conducting an audit in circumstances where he was looking for evidence of irregularity on the part of Mr Batrachenko in relation to hours of work. The irregularity is obvious from the Tough Book records and Mr Linney should have noticed it and put allegations about the matter to Mr Batrachenko.
[119] As a result of Mr Linney overlooking this matter, Mr Batrachenko was not notified of an allegation that has now been found to be a valid reason for his dismissal, in circumstances where it should reasonably have been expected that a manager in Mr Linney’s position would have noted this matter.
Was Mr Batrachenko given an opportunity to respond to the reason for his dismissal?
[120] Because Mr Batrachenko was not notified of the reasons for dismissal, he was not given an opportunity to respond to those reasons. Instead of having an opportunity to defend against the allegations that he had banked jobs, prior to his dismissal, Mr Batrachenko was confronted with allegations at the end of a lengthy hearing, brought to the attention of Mr Linney by two employees who were probably disgruntled at having to attend the Commission to give evidence in these proceedings.
[121] Nothwithstanding the fact that Mr Batrachenko was unable to provide a satisfactory explanation in his evidence in these proceedings about why information about jobs scheduled for Saturday were opened on the preceding Friday, he should have had an opportunity to provide such an explanation before he was dismissed. That opportunity was denied to him in circumstances where the information upon which the allegation was based should have been reasonably apparent to Mr Linney before he dismissed Mr Batrachenko.
Presence of support person
[122] Mr Batrachenko was assisted by an official of the CEPU at discussions relating to his dismissal and there was no refusal for him to have a support person.
Warning about unsatisfactory performance
[123] Mr Batrachenko was dismissed for misconduct rather than unsatisfactory work performance, and his claim that he was unfairly dismissed centres on whether he engaged in misconduct. Accordingly, this criteria is not relevant.
Impact of the size of the enterprise on procedures to effect dismissal
[124] Formway is a large employer and there is no evidence that the size of the Company had any impact on the procedures to effect dismissal.
Impact of absence of human resource management specialists or expertise on procedures to effect the dismissal
[125] There was no evidence as to whether the presence or absence of human resource management specialists had any effect on the procedures used to effect Mr Batrachenko’s dismissal. The Company did have access to legal advice and received advice about how to deal with Mr Batrachenko before he was asked to show cause about the matter that lead to his dismissal.
Other relevant matters
[126] As will be apparent I have considered the evidence in this case in detail. Mr Batrachenko is a relatively young employee and there is no doubt that his dismissal has had devastating consequences on him.
[127] Notwithstanding my findings that there was a valid reason for the dismissal of Mr Batrachenko, I have concerns about the events that preceded the dismissal and the way in which the matter was dealt with by Mr Linney and Mr Napper. In my view, these matters make the dismissal of Mr Batrachenko unfair.
[128] Both Mr Linney and Mr Napper knew, or should reasonably have known that there were irregularities associated with the working of Saturday overtime. Both of those managers knew that employees were indicating on their time sheets that they worked on Saturdays from 8.00 am to 4.30 pm when this was not the case. There is clear evidence that employees were allowed to start and finish at different times to those indicated on their time sheets as evidenced by the tool box discussion at which employees were told “previous or assumed arrangements” about start and finish times were now void. There is also clear evidence that the rules about travelling time were inconsistently applied.
[129] Mr Linney said in his evidence that after conducting an audit of time sheets and Tough Book records in May 2012, he formed a view that only Mr Batrachenko, Mr McColl and Mr Snyman had claimed for overtime hours not worked. Under cross-examination, Mr Linney accepted that there were some irregularities with respect to the records relating to Mr Meyer, Mr Walker and Mr Dinham. Mr Linney acknowledged that he made some allowances for travelling time when he audited the records of other employees.
[130] There is no evidence that this was discussed with Mr Batrachenko or that he was invited to comment on whether similar allowances for travelling time should have been made on at least some of the days where he was accused of overstating his hours.
[131] Mr Napper was in a senior position with Formway and was responsible for allocating and supervising Saturday overtime. Mr Napper had run his own company which did similar work to that done by Formway. He had access to the Tough Book data including the length of time each job took to perform, the numbers of jobs performed and the times at which CSOs logged on and off. Although I accept that he did not approve the arrangement, at very least Mr Napper should have had suspicions about how Saturday overtime was being worked by some employees.
[132] In my view, the evidence establishes that Mr Napper knew, or should reasonably have known, that there were some irregularities with respect to Saturday overtime. Mr Napper did not dispute Mr Snyman’s evidence that Mr Snyman discussed the job and knock proposal with him - albeit Mr Snyman may not have used that term - and was not happy with the outcome of the discussions. Given that Mr Snyman was responsible for training new employees, it is surprising that Mr Napper let this matter slide.
[133] It is also the uncontested evidence of Mr Nell, that in or around May 2010, he informed Mr Napper that there were rumours in the workplace about the amount of jobs employees could do on a Saturday and still claim payment for 8 hours of overtime in circumstances where they did not work that overtime. At very least, a supervisor with Mr Napper’s experience should have heard alarm bells when Mr Nell gave him this information, particularly when Mr Snyman had raised the same issue with Mr Napper at an earlier date. Mr Napper should have taken immediate steps to investigate whether Mr Snyman had informed employees he was training that they were permitted to work Saturday overtime on this basis or to issue a general Statement to employees to correct any misapprehension that they may have been under. Mr Napper did not take these steps and in my view this was not reasonable in the circumstances.
[134] It is also unclear why, in circumstances where Mr Napper allocated more than 20 jobs to CSOs each Saturday that Mr Napper did not issue a direction that employees were to request more jobs if they met the productivity target.
[135] Mr Linney had all the data from the Tough Books at his finger tips for the entire period of Mr Batrachenko’s employment. Mr Linney also had direct access to the time sheets submitted by employees, and inserted references to the types of jobs performed onto those time sheets. Even without comparing the time sheets and the Tough Books it is apparent that the full 8 hours of scheduled Saturday overtime was not being worked and Mr Linney’s failure to notice this discrepancy was not adequately explained.
[136] Mr Napper was not present at the meeting where Mr Batrachenko responded to the allegations, notwithstanding that Mr Batrachenko had alleged that Mr Napper approved the job and knock arrangement. There is no evidence that Mr Linney gave any real consideration to Mr Napper’s involvement in the situation, including omissions on the part of Mr Napper with respect to managing the way in which Saturday overtime was worked.
[137] Mr Linney said that he raised Mr Batrachenko’s allegations about Mr Napper’s involvement with Mr Napper but there is no indication when this occurred or that Mr Napper’s response was put to Mr Batrachenko. It is also significant that Mr McColl had raised exactly the same allegation about Mr Napper’s involvement as early as February 2012. There is no evidence that Mr Linney questioned Mr Napper about this matter before it was raised by Mr Batrachenko. In my view, Mr Linney should have known that there was some irregularity in relation to Saturday overtime, well before the dismissal of Mr Batrachenko and given more consideration to Mr Napper’s failure to address this matter at an earlier point.
[138] There is also no evidence that Mr Linney considered the involvement of Mr Snyman in the series of events that lead to Mr Batrachenko’s dismissal. Mr Snyman was involved in training CSOs and trained Mr Batrachenko and Mr McColl. Presumably Mr Snyman undertook this training role at the request of Mr Napper or Mr Linney. When two employees, both trained by the same person, are dismissed for the same allegedly dishonest behaviour, it would be expected that some consideration would be given to whether the person who trained those employees, had some responsibility for the conduct in which they engaged.
[139] It is also the case that Mr Batrachenko did not engage in the job and knock arrangement after a general warning was issued by Mr Linney, which indicated that future occurrences would result in dismissal. Mr Batrachenko was dismissed for past incidents, notwithstanding the declaration made by Mr Linney.
[140] I accept that the delay between Mr Linney becoming aware of Mr Batrachenko’s involvement in the job and knock practice and the allegations being put to Mr Batranchenko has been explained by the fact that Mr Linney received legal advice that he should wait until the McColl case was concluded. I also accept that Mr Batrachenko’s absence from the workforce on account of an injury and his wife having given birth contributed to that delay. However, in my view that delay was a source of unfairness to Mr Batrachenko and denied him the opportunity to have his version of events corroborated by Mr McColl and to a lesser extent Mr Snyman, both of whom had ceased employment under acrimonious circumstances before Mr Batrachenko’s dismissal.
CONCLUSIONS
[141] After weighing the evidence in relation to the matters set out in s.387 of the Act, I have concluded that on balance Mr Batrachenko’s dismissal was unfair. Mr Batrachenko’s dismissal was unreasonable, because it was decided on inferences that could not reasonably have been drawn from the material before the employer, and without proper consideration of all relevant matters.
[142] As required by s.390 of the Act, I am satisfied that Mr Batrachenko was protected from unfair dismissal and that he has been unfairly dismissed. Mr Batrachenko should have a remedy for his unfair dismissal. In response to a question about whether he was seeking reinstatement, Mr Batrachenko said that he had wanted to be reinstated but now did not know whether that was still the case. Mr Batrachenko also said that he had just been made an offer of employment which furthered his ability, and was considering whether to accept that offer.
[143] In those circumstances, and given that I am satisfied that there was a valid reason for Mr Batrachenko’s dismissal, I have concluded that reinstatement is not appropriate.
[144] Accordingly, I consider that an award of compensation should be made. The remedy of compensation is dealt with in s.392 of the Act in the following terms:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[145] Considering the circumstances of the case, including the factors in s.392 of the Act, I have determined that Mr Batrachenko should be compensated for his unfair dismissal by the payment of 4 weeks wages at his ordinary rate at the time of dismissal. The parties have agreed that if an order for compensation is made, it should be based on a weekly rate of $2282.31 per week.
[146] There is no evidence that an order for compensation will affect the viability of Formway. Mr Batrachenko has over three years service with Formway. Despite the unfairness of his dismissal, I am not able to conclude that Mr Batrachenko would have remained in employment for longer than 4 weeks. Had all of the allegations, including those relating to banking jobs been put to Mr Batranchenko, it would have been open to Formway to reject his responses and to dismiss him. In this regard, I have taken into consideration the fact that even with the benefit of time and assistance from the CEPU in these proceedings, Mr Batrachenko was unable to provide a reasonable explanation for the matters that lead to his dismissal.
[147] Mr Batrachenko obtained some casual employment with a labour hire company commencing on 24 October 2012 and at the time his application was heard had obtained full time permanent employment. I make no deduction for these earnings on the basis that they relate to a period outside the period covered by the amount of compensation I have decided to award. I have also decided that no deduction should be made on account of misconduct, given that the amount of compensation is reflective of the fact that there was a valid reason for Mr Batrachenko’s dismissal.
[148] The amount of $9129.24 being four weeks wages, less taxation at the appropriate rate is to be paid to Mr Batrachenko within fourteen days of the date of this Order. An Order to this effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms K. Inglis and Mr B. Malone on behalf of the Applicant.
Mr J. Dwyer of Counsel on behalf of the Respondent.
Hearing details:
2013.
Brisbane:
March 11, 12, 13, 14, 15, 22.
1 Witness Statement of Corey Batrachenko Exhibit 1. Affidavit of Corey Batrachenko Exhibit 3.
2 Witness Statement of Ross Franks Exhibit 1.
3 Witness Statement of Shane McColl Exhibit 4.
4 Witness Statement of Beau Malone Exhibit 5.
5 Witness Statement of Barry Snyman in U2012/424 Exhibit 13.
6 Witness Statement of Mark Dinham Exhibit 7.
7 Witness Statement of Gillian Holden Exhibit 8.
8 Witness Statement of Carl Napper Exhibit 9
9 Witness Statement of Darren Linney Exhibit 11.
10 Witness Statement of Jeremy Walker Exhibit 12.
11 Witness Statement of Jacobus Nell Exhibit 14.
12 Witness Statement of Troy Meyer Exhibit 15.
13 Witness Statement of Johan Roets Exhibit 16.
14 Witness Statement of David Johnston Exhibit 17.
15 Witness Statement of Adrianus Derks Exhibit 18.
16 Witness Statement of Bruce Simpson Exhibit 19.
17 Witness Statement of Kosta Papastergos Exhibit 20.
18 Witness Statement of James Gray Exhibit 21.
19 Witness Statement of Paul Street Exhibit 22.
20 Witness Statement of Morne Oberholzer Exhibit 23.
21 Witness Statement of Corey Batrachenko Exhibit 2 Annexure “CB2”.
22 Witness Statement of Darren Linney Exhibit 11 Annexure “DL5”.
23 Transcript PN3655
24 Witness statement of Corey Batrachenko Exhibit 2 Annexure “CB12”.
25 Ibid Annexure “CB13”.
26 Ibid Annexure “CB14”
27 Witness Statement of Darren Linney Exhibit 11 Annexure “DL2”.
28 Witness Statement of Corey Batrachenko Annexure “CB15”; Witness Statement of Darren Linney Annexure “DL2”.
29 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
30 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
31 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
32 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
33 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; Concut v Worrell 176 ALR 693.
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