Mr Lawrence Massaquoi v Break Thru People Solutions

[2016] FWC 8928

[2016] FWC 8928

FAIR WORK COMMISSION

DECISION

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

Mr Lawrence Massaquoi
v
Break Thru People Solutions
(U2016/10861)

COMMISSIONER ROE MELBOURNE, 14 DECEMBER 2016

Application for relief from unfair dismissal.

[1] Mr Massaquoi was employed by Break Thru People Solutions Pty Ltd (Break Thru) for just over 11 months as a Mental Health Practitioner. Break Thru is a large mental health service provider. Break Thru terminated Mr Massaquoi’s employment on 10 August 2016 for alleged serious misconduct being intentionally falsifying time recordings for the services provided. It was alleged that inflated service hours were being reported in order to improve Mr Massaquoi’s KPIs. Mr Massaquoi was paid one week in lieu of notice.

[2] The small business code is not relevant and it is not suggested that the dismissal was for reasons of redundancy. It is accepted that Mr Massaquoi is protected from unfair dismissal and that the issue to be determined is whether or not taking into account the criteria in Section 387 of the Act the dismissal was harsh, unjust or unreasonable.

[3] Mr Massaquoi says that:

● He did not intentionally falsify his time recordings.
● That he did not gain financially from making the recordings in the manner he did.
● That there was no clear policy about what is or is not client facing time.
● That the manner in which he recorded times was consistent with what he had been told and was a common practice in the firm.
● That the issue of the manner in which he recorded times was never raised with him until the allegations were made which led to his dismissal.

[4] Break Thru raised the allegations concerning time recordings at a meeting on 26 July 2016 and they were confirmed in writing on 26 July 2016. The instances of time recording which were of concern to Break Thru were set out in considerable detail including relevant dates and amounts. The letter clearly stated that termination of employment was a possible outcome of the consideration of the allegations. Break Thru gave Mr Massaquoi time whilst suspended on pay to consider the allegations and respond to them. Break Thru agreed to Mr Massaquoi’s request to postpone the meeting at which Mr Massaquoi was to respond and also agreed to his ASU union representative being present.

[5] The meeting was held on 1 August 2016. On the following day the ASU organiser wrote to Break Thru. He was very critical of the conduct of management during the meeting. He said that it was not clear exactly what Break Thru’s concerns were in respect to the instances of time recording raised. He set out the time recording practices which he said were encouraged by Break Thru. Break Thru responded on 3 and 5 August 2016 confirming that the issue of rounding the time for services to 15 minutes was not in issue and that the main concern was with instances of significantly inflated hours for tasks that might only take a few minutes as well as activities with no client contact (such as phone calls being made but which were not answered) being recorded as both non-client facing and client facing time. The ASU organiser and Mr Massaquoi responded in writing on 9 August 2016 to each of the alleged instances of false time recording. They reiterated that the practices were Break Thru common practice and that phone calls and text messages to clients whether answered or not are considered client facing. He denied any intentional falsification of time recordings. In a letter dated 10 August 2016 Break Thru said that they had considered the responses but did not accept them and dismissed Mr Massaquoi.

[6] I am satisfied and it is not in contention that:

● The time recordings were made in the manner alleged by Break Thru. What is in contention is whether or not these recordings were contrary to normal practice and condoned by the employer. What is also in contention is the motivation for the recordings.
● Mr Massaquoi was told in detail about the conduct which was of concern, was told that his employment was in jeopardy, was given the opportunity to respond to the allegations, and was able to have his union representative be present.
● Break Thru is not a small business and has access to human resources management expertise.
● The dismissal was for reasons of serious misconduct and so the issue of warning concerning unsatisfactory performance is not relevant.

[7] At the start of the hearing of this matter the parties agreed with my summary of the matters which were not in contention. However, during Mr Massaquoi’s evidence and his cross examination of Ms Vella, Mr Massaquoi raised the possibility that the complete entries he had made into the case management data base in respect to the contentious time recordings may not have been included. Ms Vella gave evidence that the material in the document provided to Mr Massaquoi on 3 August 2016 outlining 20 examples of time recordings which were of concern 1 was taken directly from the entries Mr Massaquoi had made into the case management system in respect to each of those examples. Ms Vella confirmed that she had copied and pasted the entire entry made by Mr Massaquoi in respect to each incident into the document provided. Although Mr Massaquoi was suspicious he did not point to anything specific that he believed was missing from the document or anything else which might raise doubt about the accuracy of Ms Vella’s statement. I accept the evidence of Ms Vella on this point.

The matters in contention

[8] In deciding whether or not the dismissal was unfair I am required to consider the following:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[9] Given the uncontested facts of this matter the factors in Section 387(b) and (c) stand in favour of a finding that the dismissal was fair. The factors in Section 387(d), (e), (f) and (g) are neutral factors.

[10] The relevant factors to be determined are Section 387(a) and (h): was there a valid reason for the dismissal related to Mr Massaquoi’s conduct and are there any other relevant factors.

[11] Under the heading of other factors Mr Massaquoi argues that I should find that the dismissal was harsh because he had recorded times in this manner throughout his employment and it was never raised with him, he did not profit from the conduct and was motivated to do what he thought was expected by the employer, and because the impact of the dismissal on him has been particularly harsh given he had been unable to find further employment prior to early November 2016 despite significant effort over the three months following the dismissal.

[12] Break Thru argues that I should take into account the potential impact of the conduct on the viability of the business. They say that the conduct threatened the reputation of Break Thru with its clients and potential clients. Break Thru argues that I should also take into account that the conduct was confirmed by an audit which was not just targeted at Mr Massaquoi and that another employee was dealt with in a consistent manner at the same time.

Was there a valid reason for the dismissal due to Mr Massaquoi’s conduct in inflating time recordings?

[13] Mr Massaquoi sought to include in the evidence certain text message and email exchanges between himself and other employees and former employees. I decided that these messages did not assist in determining the matters in contention. The messages were evidence that Mr Massaquoi and some other former employees were dissatisfied with the management of Break Thru and felt that Mr Massaquoi had not been treated fairly. The other persons involved in the exchanges were not available to give evidence.

[14] There was one email exchange which may have had some relevance to the issue of whether or not the time recording practices of Mr Massaquoi that formed the basis for his dismissal were common practice condoned or encouraged by Break Thru. Mr Massaquoi sent a message to another employee who was dismissed that “as per the time rostering documents I sent you, time rostering in 15 minute blocks is a standard practice across BTS. I have only been recording time as I was oriented on how to do it.” The other employee replied within the hour that “considering btps stated in their response there are 2 only that were found to be recording this way we both know this to be false.”

[15] Break Thru accepts that short activities of less than 15 minutes may be recorded as 15 minute activities and that this was communicated to employees including Mr Massaquoi and was common practice. This was not the issue of concern with Mr Massaquoi’s time recording practice. Considered in this context the email exchange does not assist in establishing that the matters which formed the basis for Mr Massaquoi’s dismissal were common practice or condoned by Break Thru.

[16] On 3 August 2016 Break Thru provided 20 examples arising from its audit of time recordings by Mr Massaquoi during the period from 8 June to 13 July 2016 which it said demonstrated the problems with Mr Massaquoi’s conduct. 2 Mr Massaquoi provided a written response to this document and to each of these instances on 9 August 2016.3 These two documents were the major focus of the hearing.

[17] Break Thru audited a sample of 7 employees who, Ms Vella gave evidence, were randomly selected from across the teams. Ms Vella gave evidence that the audit revealed questionable recording practices by two employees one of whom was Mr Massaquoi. Ms Vella gave evidence that none of the other employees showed any examples of the problematic practices engaged in by these two employees. The second employee who was found to have engaged in questionable recording practices was also dismissed.

[18] Mr Massaquoi was critical of the audit on two grounds: firstly, he considered that the entire period of his employment should have been examined; and secondly, he considered that all the employees who were employed around the same time as him should have been examined. Break Thru said that the sample included a number of employees who had been employed at the time he had been first engaged. Break Thru says that subsequent checks have shown that Mr Massaquoi engaged in the same problematic time recording practices prior to the audit period. Mr Massaquoi agrees that he was consistent in his recording practices throughout the period of his employment. I accept that it is possible that a larger audit over a longer period of time may have revealed that there were other employees who were engaged in questionable time recording practices and this might have added weight to Mr Massaquoi’s argument that the conduct was condoned or encouraged by the employer. However, I am satisfied that the audit established that since June 2016 only two out of the 7 health professionals audited were engaged in the time recording practices objected to by Break Thru. I am satisfied that this is sufficient to establish that these time recording practices were not the policy of Break Thru as communicated to employees or the common practice of employees in June/July 2016.

[19] Break Thru say that Mr Massaquoi was specifically asked at the 1 August 2016 meeting to provide details of who told him to record times in the manner which he did and that he failed to provide details. Break Thru argue that his evidence in the proceedings that he was following the practices of those he shadowed during his orientation and also the instructions of Ms Corrigan which were confirmed when he raised the issue at a meeting should not be accepted because Mr Massaquoi never raised these details in his responses prior to the dismissal. I do not accept this argument. Mr Massaquoi’s union representative regarded the 1 August 2016 meeting as one where information was being obtained about the nature of the allegations against Mr Massaquoi. In those circumstances he did not believe it appropriate for Mr Massaquoi to answer detailed questions. This was the subject of some disagreement between the union representative and Break Thru management.

[20] Break Thru conducted an orientation process for new employees, including Mr Massaquoi. Mr Massaquoi was provided with the Direct Service Staff Training Manual. 4 Mr Massaquoi referred to page 29 of that manual which states that: "it is important for Team Leaders to regularly run an “Employee – Service Hours” report to check for correct input of hours (not over 8 hours and in 15 minute blocks) unapproved shifts which will be displayed for selected or all employees. This report will list those employees with Rostered Shifts (Hours) that they haven’t approved whilst writing the file notes.” I am satisfied that the report referred to does not contain the details of individual time entries and therefore would not reveal the problematic time recording practices of concern to Break Thru. However, I do accept that the manual suggests that team leaders should take some responsibility for supervising the time recording practices of those in their team.

[21] I am satisfied that during the orientation process Mr Massaquoi was advised of the critical importance of recording times and notes on the case management system. Mr Massaquoi was aware that Government funding for clients was based on client facing time and that Break Thru sought to maximise the proportion of health professional time spent client facing. I am satisfied that he was advised that this was important both for financial reasons for Break Thru and also because maximising direct contact time would improve care and support for the clients who were required to have been diagnosed with a mental illness to be eligible for the program. I am also satisfied that Mr Massaquoi was aware that fraudulent recording of hours on the case management system could put the viability of Break Thru at risk as it would damage its reputation and its capacity to access government funding. Mr Massaquoi accepted the substance of these points in cross examination.

[22] Mr Massaquoi gave evidence that he was told to be creative in the recording of times. He clarified that he understood this to be a request to be creative in finding new ways to increase opportunities for interaction with clients and hence client facing times. This would improve support to clients and income for Break Thru. There was no suggestion that being creative with the recording of times was about false recording of hours or artificial inflation of hours.

[23] Mr Massaquoi says that the time recording practices that he understood included that:

● Activities which lasted less than 15 minutes should be recorded as 15 minutes.
● Travel time was to be recorded as non-client facing time unless the client was in the vehicle.
● Time spent in the presence of the client was to be recorded as client facing time.
● Telephone calls with the client were to be recorded as client facing time.
● Time researching, reading the file and making notes in the case management system were to be recorded as non-client facing time.

[24] Break Thru broadly agrees that this was the approach communicated to employees. One qualification was raised by Ms Corrigan who was Mr Massaquoi’s team leader and the person responsible for his orientation. She said that employees were told that phone calls should not be recorded as client facing time unless there was interaction of substance. Confirmation of an appointment she said was not a phone call of substance which should be recorded as 15 minutes of client facing time. Mr Massaquoi does not agree that this qualification was ever raised with him. Ms Corrigan referred to a team meeting on 9 March 2016 where the issue of recording of phone calls was discussed. The minutes of that meeting 5 include the following “KPIs discussion about what constitutes Client Facing Hours, Only phone calls and visits counted at the moment.” Mr Massaquoi is recorded in the minutes as being present at this meeting. Ms Vella, the Territory Manager, was more restrictive about the definition of client facing time. She says that “to record a task as client facing time the customer has to be physically with you’ and “the only time BTPS and the Department would permit a telephone call to count as client facing time would be a situation where the customer rings in an absolute crisis and you have to give immediate care and advice, or if for some reason a therapeutic session is scheduled to be conducted by telephone.”6

[25] Mr Massaquoi says in his 9 August 2016 response to the allegations that “exchange of text message with a client is considered CF (client facing) as per orientation and common Break Thru practice”. 7 Regardless of the impression Mr Massaquoi might have gained on this matter during his orientation, I am satisfied on the basis of the minutes of the 9 March 2016 team meeting that Mr Massaquoi was aware after March 2016 that text messages should not be recorded as client facing hours.

[26] Break Thru object to several aspects of Mr Massaquoi’s time recording practice as illustrated by the 20 examples provided. The major issues are the following:

● There are two examples which involve what Break Thru describe as legitimate client contact time which Break Thru say involve grossly inflated recording of times (Cases 1 and 15).
● There are two examples of a phone conversation which is claimed as 30 minutes of client facing time and 15 minutes non-client facing time for the recording of the note in the case management system (Case 16).
● There are numerous examples where an unanswered phone call is claimed as 30 minutes time – 15 minutes client facing time for the phone call and 15 minutes non-client facing time for recording the fact of the unanswered phone call in the case management system.
● There are a number of examples where the sending or receipt of a text message exchange is recorded as 30 minutes time – 15 minutes client facing time and 15 minutes non-client facing time for recording the fact in the case management system. In some cases the action is no more than the reading and recording of a text message confirming an appointment. In other cases Mr Massaquoi sends a text message in response to a message from a client.
● There are a few examples where there is an actual telephone conversation but it is restricted to the confirmation of an appointment (or the like) which is recorded as 30 minutes (15 minutes client facing and 15 minutes non-client facing for the recording of the fact).

[27] The majority of instances relate to the manner in which short phone calls, unanswered phone calls, and text message exchanges are claimed. Mr Massaquoi has adopted a systematic approach to the recording of these instances. Mr Massaquoi did not provide convincing evidence that he was told to record short phone calls, unanswered phone calls, and text message exchanges in the manner he did. The highest his evidence reaches is:

● His claim that he was instructed that tasks of less than 15 minutes were to be rounded to 15 minutes.
● His claim that he was told that phone calls whether answered or unanswered were to be recorded as client facing time. He says that a colleague explained that this was the approach they were taking at a meeting. He says that he queried this during the meeting and that Ms Corrigan confirmed that this was correct.
● His claim that he was instructed that time researching, reading the file and making notes in the case management system were to be recorded as non-client facing time.

[28] Break Thru accepts the first and the third of these points. However, Break Thru suggests that they should be implemented in a common sense and reasonable manner. That is, instances such as making an unanswered phone call and then entering a record of an unanswered phone call in the case management system notes should not be claimed as separate activities. There is no evidence that Mr Massaquoi was specifically told to record 15 minutes client facing time and 15 minutes non-client facing time for an unanswered phone call or for a brief phone call confirming an appointment. There is no evidence that Mr Massaquoi was told to record client facing time in respect to sending or reading text messages after March 2016. In fact the evidence is clear that only phone calls and direct contact were to be included in client facing time.
[29] Mr Massaquoi says that as part of his orientation he was required to shadow other employees. He says that he followed their recording practices. I can accept this evidence to some extent. In his defence when the allegations were first put to him by Break Thru Mr Massaquoi put great emphasis on his claim that he was instructed that tasks of less than 15 minutes were to be rounded to 15 minutes. I accept that he was told this and this was generally the practice of those he was shadowing in his orientation.

[30] Mr Massaquoi denied that Ms Corrigan told him and other employees that phone calls should not be recorded as client facing time unless there was interaction of substance. He argued that his practices had been consistent and that Ms Corrigan as a team leader had a responsibility, particularly during the early period of his employment, to check his time recording practices and draw attention to any shortcomings. He says that no issues were raised about his recording practices prior to the investigation which led to his dismissal. Ms Corrigan says that there was one instance raised with Mr Massaquoi relating to an instance when he claimed travel time as client facing time. Ms Vella gave evidence that on 28 June 2016 she told employees at a team meeting that “client facing time is when the client is actually with you” and in response to questions said that phone calls could only be counted where it was a therapeutic call. 8 Ms Vella said that there was considerable resistance from the mental health professionals to the increased requirement for client facing time.

[31] I am prepared to accept Mr Massaquoi’s evidence that he never heard Ms Corrigan issue an instruction that phone calls should not be recorded as client facing time unless there was interaction of substance. There is no mention of this qualification in the minutes of 9 March 2016 where staff were reminded that “only phone calls and visits counted at the moment.” Ms Corrigan in cross examination said that she assumed that it would have been understood that a missed call could not be recorded as client facing time. However, even if Mr Massaquoi was not specifically told that a missed call was not client facing time I accept that it is common sense that it is inappropriate and illogical that unanswered phone calls should be claimed as client facing time. I do not accept that Mr Massaquoi was ever told explicitly that they should be recorded as client facing time. His evidence on this point lacked specificity. I accept that Mr Massaquoi may have chosen to interpret the policy that phone calls can be client contact time and the policy that contact of less than 15 minutes can be rounded up to 15 minutes as licence to claim unanswered calls as 15 minutes client contact time. However, I consider that his decision to do this to be both careless and unreasonable. I also consider his decision to claim both 15 minutes for the unanswered call and 15 minutes to record the fact to be both careless and unreasonable.

[32] Mr Massaquoi in cross examination was asked about the recording of phone calls by the employees he shadowed during his orientation period. He said that on his second day the employee he was shadowing, Jamone, rang a client about coffee club attendance and to tell them that he was on his way and recorded this call as client facing. This example does not support Mr Massaquoi’s practice of recording 30 minutes of time for an unanswered phone call. It may call into question Ms Corrigan’s claim that only a phone call of substance should be recorded as client facing but it does not support Mr Massaquoi’s practice.

[33] I also accept to some extent Mr Massaquoi’s point that Ms Corrigan as a team leader had a responsibility, particularly during the early period of his employment, to check his time recording practices and draw attention to any shortcomings. Ms Corrigan gave evidence that she did check Mr Massaquoi’s approach to time recording during the period of his orientation. It is possible that this checking was inadequate because I consider it likely that Mr Massaquoi has approached the recording of phone calls in a similar manner throughout his employment. However, it is not necessary to determine this matter. I accept that the regular reports from the case management system used by Break Thru management give times at a more aggregated level and do not allow easy checking of individual entries. This explains why Mr Massaquoi’s time recording practices were not discovered earlier.

[34] Break Thru claimed that Mr Massaquoi deliberately falsified the time recordings. Mr Massaquoi strenuously denies this. Mr Massaquoi is a well-qualified health professional. He can be expected to act responsibly and with common sense. I am satisfied that his actions in recording numerous unanswered phone calls as 15 minutes client facing time and 15 minutes non-client facing time are both irresponsible and lacking in common sense. I am also satisfied that his actions in recording text message exchanges as client facing time was contrary to policy of which he was aware and was also irresponsible and lacking in common sense.

[35] I am satisfied that taken together these actions are misconduct. However, I am not satisfied that these were instances of deliberate falsification of time recordings. In my view the conduct was negligent not dishonest. Mr Massaquoi was not paid piece rates. His income did not depend upon the meeting of KPIs. His actions did not lead to direct financial gain. Break Thru suggested that Mr Massaquoi deliberately inflated this client contact time in order to meet the KPIs. I accept that management was putting reasonable pressure on the employees to meet KPIs so as to improve service to clients through greater quality contact time and also to meet the requirements of public funding. Break Thru suggests that Mr Massaquoi may have been avoiding the necessity to increase real contact with clients through the questionable time recordings. I was not satisfied that there was sufficient evidence to reach such a conclusion. Despite some of the suggestions in Ms Vella’s statement, I found no reason to doubt Mr Massaquoi’s competence or dedication as a health professional. I also accept that there was some lack of specificity in the instructions given to employees about the time recording of short phone contacts with clients.

[36] There were five other instances where Break Thru alleges Mr Massaquoi has deliberately inflated times.

[37] The first of these instances was on 8 June 2016. The case note records that Mr Massaquoi drove from the Melton office to a client’s home in Sydenham. Both these locations are in the outer north western suburbs of Melbourne and the distance between them is about 17 kilometres. Upon arrival Mr Massaquoi says he discovered a text message cancelling the appointment and requesting rescheduling to Thursday. Mr Massaquoi attempted to ring the client but there was no answer. He sent a text advising that rescheduling the appointment to Thursday was not possible. He then drove back to Melton. Mr Massaquoi claimed 3 hours for this event: 15 minutes client facing time for the unanswered phone call and text message response and 2 hours and 45 minutes non-client facing time. In his response of 9 August 2016 9 Mr Massaquoi said that the travel time is 45 minutes each way. Break Thru estimated the time as 45 minutes return. I am satisfied that travel time would be about 20 minutes in light traffic and up to double that in very heavy traffic each way. Even allowing for heavy traffic and 15 minutes documentation time, I am satisfied that the time is inflated by at least one hour without explanation.

[38] The second of these instances was on 7 July 2016. The case note records that Mr Massaquoi received a brief text message from a client about a missed appointment. This is recorded as 45 minutes time: 30 minutes client facing time and 15 minutes non-client facing time. In his response of 9 August 2016 Mr Massaquoi says that there was in fact also a brief phone call to the client. The phone call is not referred to in the case management note. I am satisfied that the task of reading the text message and recording the fact in the case management system is not client facing time. I am satisfied that the time recorded in this case is inflated. The total activity, even if there was a phone call, was less than 15 minutes in duration.

[39] The third of these instances was on 13 July 2016. The case note records that Mr Massaquoi met with the team leader and discussed a new case allocation, read through the referral notes and then rang the client. The notes then summarise the content of the conversation which ended with confirmation of an appointment. This is recorded as 2 hours: 1 hour and 45 minutes client facing and 15 minutes non-client facing time. Ms Corrigan gave evidence that the conversations totalled no more than 15 minutes. Even if I did not accept Ms Corrigan’s estimate of the time I am satisfied that the time recorded is inflated.

[40] The fourth of these instances was on 21 June 2016. The case note records that there was a phone conversation with a client. This is recorded as 45 minutes: 30 minute’s client facing time and 15 minutes non-client facing time. Break Thru argued that this should have been recorded as 15 minutes non-client facing time only. I am satisfied from the note that the conversation was a contact of substance with the client and was therefore appropriately recorded as client facing time. Mr Massaquoi said in his response of 9 August 2016 that the phone call lasted more than 15 minutes. I am not satisfied that the time recorded in this instance is inflated.

[41] The final instance was on 4 July 2016. The case note records that Mr Massaquoi phoned a client to remind him of an appointment and the client confirmed that they would attend the appointment. This is recorded as 45 minutes: 30 minute’s client facing time and 15 minutes non-client facing time. Mr Massaquoi in his response of 9 August 2016 says that the phone conversation went for longer than 15 minutes. It is difficult to see how that could have been the case given the case note record. However, as this was not put to Mr Massaquoi during the proceedings I do not make a finding on that matter. However, the recording of the case note time and the phone call times separately means that the time claim is inflated.

[42] There are three instances where I am satisfied that Mr Massaquoi’s recording of times involved significant inflation. I am satisfied that Mr Massaquoi was not instructed to inflate his times. I am satisfied that these instances taken together constitute misconduct.

[43] I am satisfied that 19 of the 20 examples provided by Break Thru are examples of inappropriate time recording. They are inappropriate because:

● The amount of time claimed is far in excess of the actual time expended.
● The amount of time claimed as client facing contact hours in a number of cases artificially inflates the degree of contact between the health professional and the client. This could be dangerous for the care of the client.
● Mr Massaquoi was aware that the times claimed in the case management system were utilised by Break Thru in claiming funds from the Government for services provided and as evidence that Break Thru was meeting its Key Performance Indicators in respect to the quality and quantity of services provided. The number of instances in a period of a little more than one month are such that they can be properly described as not isolated errors but systematic. Given that the instances are not isolated the amounts claimed put the reputation of Break Thru at risk.

[44] I am satisfied that Mr Massaquoi’s misconduct in respect to time recordings does constitute a valid reason for dismissal. The potential consequences of Mr Massaquoi’s conduct for clients and for the viability of the business are significant. I accept that there should have been better checking of Mr Massaquoi’s recording methods at the start of his employment and better training of Mr Massaquoi. I also accept that there was some lack of clarity in the recording policy and in the instructions given. However, this does not excuse the conduct. In my view it was reasonable for the employer to expect Mr Massaquoi not to engage in the objectionable time recording practices.

Were there other factors which impact on the fairness of the dismissal?

[45] I have taken into account that Mr Massaquoi had engaged in the objectionable time recording practices for a considerable time and that the issue was never brought to his attention by the employer. I have also taken into account that I am not satisfied that the conduct was wilful fraudulent behaviour. I accept that Mr Massaquoi did not directly profit financially from the conduct and that he may have been motivated in part to do what he thought was expected by the employer. I accept that Mr Massaquoi was unable to find alternative employment for about three months and that the dismissal in this sense had a harsh impact upon him and his family.

[46] Break Thru told Mr Massaquoi that they were dismissing him for serious misconduct. However, they paid one week in lieu of notice. It is not necessary to determine if the misconduct was serious misconduct given that the notice was paid and there was adequate opportunity and time to respond to the allegations.

[47] There is a possible argument that the shortcomings in the process of recording times on the case management system is about the adequacy of Mr Massaquoi’s performance, rather than an issue of his conduct. If I reached that conclusion then the issue of whether or not Mr Massaquoi was warned would become of greater relevance. However, even though I have not concluded that Mr Massaquoi was engaged in wilful fraudulent behaviour I am satisfied that the recordings were misconduct because the actions were both careless and irresponsible. The claiming of time for the purposes of accounting for public money and client care is a matter which goes to integrity. I am satisfied that it is appropriate to deal with this matter as an issue of misconduct rather than of underperformance. Regardless of whether or not the matter is seen as one of conduct or performance, I do not consider that the absence of a warning is relevant because it should have been self-evident that the method of time recording was inappropriate.

Was the dismissal unfair?

[48] Break Thru had a valid reason for the dismissal based upon Mr Massaquoi’s misconduct. The procedures used to carry out the termination were fair and reasonable. I do not consider that the other matters considered earlier outweigh the seriousness of the conduct and its potential adverse impact on both clients and the employer. For these reasons, taking into account all of the factors listed in Section 387 of the Act I am satisfied that the dismissal was fair. The application is dismissed and an Order to that effect is published separately.

COMMISSIONER

Appearances:

Mr L Massaquoi represented himself.

Ms K Jones appeared for the Respondent.

Hearing details:

2016

Melbourne

December 5

 1   Exhibit B1 Statement of Ms Vella, Annexure RV 12.

 2   Exhibit B1 Statement of Ms Vella, Annexure RV 12.

 3   Exhibit M2.

 4   Statement of Ms Vella, Annexure RV1.

 5   Statement of Ms Corrigan, Annexure JC 2.

 6   Exhibit B1 Statement of Ms Vella, at paras 26 and 27.

 7   Exhibit M2, at page 2.

 8   Exhibit B1, at para 33.

 9   Exhibit M2.

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