Mr Ranjan Mohapatra v Acciona Energy Australia Global Pty Ltd T/A Acciona

[2015] FWC 5976

[2015] FWC 5976 [Note: An appeal pursuant to s.604 (C2016/2509) was lodged against this decision - refer to Full Bench decision dated 1 April 2016 [[2016] FWCFB 2059] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Ranjan Mohapatra
v
Acciona Energy Australia Global Pty Ltd T/A Acciona
(U2015/1137)

COMMISSIONER ROE MELBOURNE, 2 SEPTEMBER 2015

Termination of employment – alleged unfair dismissal.

[1] Mr Mohapatra was employed as a Quality and Commissioning Engineer by Acciona Energy Australia Global Pty Ltd T/A Acciona (Acciona) from September 2013 until he was dismissed without notice for serious misconduct on 27 February 2015. Mr Mohapatra was stood down with pay from 11 February 2015. Mr Mohapatra was provided with the opportunity to respond to the written allegations which he did through his lawyer on 16 February 2015. There was a meeting to discuss the matters on that day and Acciona requested a further response in a letter of 18 February 2015. Mr Mohapatra’s lawyer responded on 22 February 2015. This was considered prior to the termination at a meeting on 27 February 2015. Acciona found that Mr Mohapatra purchased non-business related items using the company credit card, deliberately tried to cover up the purchases by obscuring the detailed description on the tax invoice and misrepresented the expenses claims by stating on the expense claims that they were for meals whilst travelling for work.

[2] The issues in contention in this case are whether or not there was a valid reason for the termination and whether or not summary termination of employment was a disproportionate response to the conduct. Acciona considered whether or not summary termination was a disproportionate response and whether an alternative disciplinary response would have been more appropriate and decided that summary termination was the appropriate response. In the termination letter they stated that they had considered the service of Mr Mohapatra and the submissions raised by Mr Mohapatra’s representative.

[3] In the submission for the Applicant provided in response to directions on 18 May 2015 the only issues addressed are whether or not there was a valid reason and whether or not summary termination was proportionate. A few days before the hearing Mr Hull on behalf of Mr Mohapatra requested an order for production of certain documents. This included documents relating to a bullying complaint on the grounds that this could have been the real reason for the dismissal. The submissions and statements for the applicant had not previously raised this as a relevant consideration and Acciona had not addressed this hypothesis in their response. I refused the request for an order for production of documents but said that the issues concerning the relevance of the bullying matter could be re-raised at the hearing and would be considered at that time. Mr Hull ceased to act for Mr Mohapatra the day before the hearing. At the hearing I was not persuaded that it would be fair or appropriate to allow further evidence concerning the bullying complaint. The complaint did not relate to the conduct of the witnesses in the proceedings. I was also not convinced it was necessary or relevant to determining whether or not there was a valid reason in the circumstances of this case.

[4] Acciona gave notice a few days prior the hearing that they wished to introduce recently discovered evidence concerning insurance claims for damaged luggage made by Mr Mohapatra. A copy of the documents was provided to Mr Mohapatra. After hearing the submissions of the parties, I decided to allow the evidence to be introduced and Mr Mohapatra was cross examined in respect to those matters. Some of the expenses claims in dispute relate to the replacement of damaged luggage and the replacement of damaged items from within the luggage. I considered that the history of similar fact claims in 2014-15 relating to private and business travel was relevant to the main issues in contention. I considered that the evidence concerning the damaged luggage claims could be of significant probative value in drawing conclusions about Mr Mohapatra’s behaviour.

[5] I am satisfied that Mr Mohapatra is protected from unfair dismissal and that:

● Acciona is a national system employee.
● Mr Mohapatra had the minimum employment period for making an application and made that application within 21 days after the dismissal.
● Acciona is not a small business.
● Acciona is a sophisticated global corporation with access to human resource management expertise (Section 387(f) and (g)).
● Mr Mohapatra was dismissed at the initiative of the employer and it was not for reasons of redundancy but was for reasons related to his conduct.
● There was no issue raised concerning Mr Mohapatra’s performance.
● Mr Mohapatra was notified of the reason for his dismissal (Section 387(b)).
● Mr Mohapatra was given an opportunity to respond to the reason for the dismissal which related to his conduct. The exchange of correspondence demonstrates that the opportunity was provided prior to any decision being made and was clearly considered in some detail prior to the decision being made. The decision maker was not called to give evidence but given the issues which were in contention I am satisfied that this was not required (Section 387(c)).
● There was no unreasonable refusal to allow Mr Mohapatra to have a support person during the process leading up to the dismissal and in fact Mr Mohapatra was legally represented during the process. Mr Mohapatra’s lawyer was unable to attend the meeting on 16 February 2015 (Section 387(d)).
● The dismissal did not relate to unsatisfactory performance and Section 387(e) is not relevant.

Was there a valid reason for the termination of Mr Mohapatra’s employment? (Section 387(a))

[6] Acciona has a Travel Policy which states that “travel expenses include any reasonable, necessary and duly documented expenses which an employee incurs during a business trip and which have been approved in line with this policy”. The policy says that taxi costs will be reimbursed. There are specified limits in respect to meals and accommodation. Beverages are included in the meals limits. “All work related travel expenses must be substantiated by receipts or tax invoices regardless of payment method.” For expenses up to $75 “receipt, invoice or tax invoice including amount, supplier, name and date of expense.” For expenses over $75 “tax invoice including amount, GST amount, supplier name, date of expense and ABN – note credit card receipts do not typically include ABN and will not be sufficient to meet requirements.” In respect to meal expenses “reimbursement will be made for the amount actually incurred up to the limit (i.e. the maximum amount is not paid in all cases) subject to the provision of a receipt”. In the event that the maximum allowance for an item is insufficient it is necessary to obtain approval from your manager prior to submission of claims.

[7] Acciona has a Credit Card policy which allows employees “to purchase business approved travel and minor expenditure” and “during the travel and minor expenses reconciliation process, the Company will pay for all approved business expenditure, however personal and non-approved expenditure will be the responsibility of the card holder”. The company will seek recovery of costs and any interest where expenditure is deemed by the employer to not conform to the policy. Mr Mohapatra was provided with a credit card for authorised business travel expenditure.

[8] Both the Travel and Credit Card policies require the use of the Concur system to make claims and to enter receipts or invoices.

[9] Mr Mohapatra made a point of reading the policies as he had a requirement in his job for frequent travel.

[10] Mr Mohapatra purchased the following items using his company credit card and in the Concur system claimed reimbursement for these items as meals consumed while travelling: a blender, an Australia Day t-shirt, 2 Australia Day boxer shorts, a pair of gym shoes, a pair of gym shorts, a 3 meter extension lead, a backpack, a duffle bag, 2 bathmats, a cooler bag, an Australia Day singlet, vitamins, a heater and 14 massages. Most of the items were purchased on 13, 14 and 15 January 2015. The massages were purchased between July and November 2014, the mens fitness items were purchased on 21 November 2014, the vitamins were purchased on 13 August 2014 and the heater was purchased on 16 July 2014.

[11] Mr Mohapatra also purchased and claimed $51.36 of food items for dinner on 15 January 2015 when the purchases were made at 8.36pm after his return from Canberra. The flight arrived at 6.20pm on that day and the policy provides that the meal can only be claimed if the travel concludes after 7.30pm.

[12] The alleged discrepancies were first brought to Mr Mohapatra’s attention following an investigation by his immediate manager, Mr Fyfield, which commenced after 15 January 2015.

[13] When Mr Mohapatra entered the documentation to substantiate his claims in respect to the disputed events into the Concur system he often did not copy the merchants receipt and the credit card chit separately. Often he folded the merchant’s receipt under the credit card chit so that there was no visible record of the items purchased.

[14] Mr Mohapatra is a strict vegetarian and often prepared his own meals when travelling. He carried a blender and a kettle with him when travelling for this purpose. Mr Mohapatra was encouraged by his doctor to take vitamins.
[15] Mr Mohapatra claims that his understanding of the relevant policies is affected by the fact that English is his second language and due to cultural differences. I have observed Mr Mohapatra in the witness box. I also observed him make competent and complex submissions to the Commission. I note that he has been a resident in Australia for 20 years. He completed an MBA and a Phd at an Australian university. He has held a variety of senior roles, including management roles, whilst in Australia. I accept that English is Mr Mohapatra’s second language but I am satisfied that he has a good capacity to understand and read English and I am satisfied that he understood the relevant policies. I do not consider that cultural differences are relevant to this case. All cultures value honesty and accountability and freedom from corruption. What is acceptable as a business related travel expense is not a cultural question, it is a question of common sense standards which are sometimes supplemented by local employer policies and/or practices.

[16] Mr Mohapatra claims that he was not trained on the Concur tool and that he was not aware that it allowed the user to provide the details of unusual expenditure. I accept the evidence of Mr Fyfield that he explained how to use the tool at the beginning of Mr Mohapatra’s employment. I also accept that Mr Mohapatra received an email with access to an on-line how to guide. Mr Mohapatra claimed that the system automatically selected the “reason for expenditure”. I am satisfied by the evidence of Mr Fyfield that there is no capacity for the program to identify and select the reason for expenditure using the information from the scanned in receipt. There is a capacity for the vendor name and the transaction date to be automatically entered based on the receipt information. Mr Mohapatra accepted that he used the drop down box for expense type to select “accommodation” when the expense related to that item but maintained his position that when it was a meal expense it was automatic. Mr Mohapatra also said that he was unaware that the comments box and reasons for expenditure box allowed for free text to be entered to provide details of unusual items. He also said that he was told that the text box was only to be used when a receipt was not available. I reject Mr Mohapatra’s evidence for a number of reasons:

● Firstly, the event which led to Acciona’s concerns was when the system picked up claims for two identical amounts of $20.08 from an Aldi store with both purchases being made at 12:13 on 13 January 2015. The items purchased were a backpack which was claimed as “breakfast” and a duffle bag which was claimed as “lunch”.

● Secondly, Mr Mohapatra gave evidence that he deliberately asked the cashier at the Aldi store to provide two separate receipts because he was aware that the maximum allowable claim for breakfast was $30.

● Thirdly, I accept and prefer Mr Fyfield’s evidence that the expense type must be selected from the drop down box. About 20 options are available including items such as staff amenities and other employee expenses. I observed the system myself and I accept the evidence of Mr Fyfield that there has been no recent change to the system.

● Fourthly, Mr Mohapatra claims that he paid for a visit to the doctor on one occasion and spoke with his manager about this and the manager told him that this was acceptable. On that occasion Mr Mohapatra selected the “staff amenities” option from the drop down menu for expense type.

● Fifthly, I accept the evidence that Mr Mohapatra on occasion typed additional notes or details in free text. Mr Mohapatra says that this was when he was instructed to do so. However, it demonstrates that he was aware that it could be done and he knew how to do it and that it was not only for cases when receipts were not available.

[17] Mr Mohapatra says that he was instructed to use three particular codes in the “reason for expenditure” column. Those codes were 96.2.1 for airfares, 96.2.2 for meals and accommodation and 96.2.3 for car hire and fuel. I accept that Mr Mohapatra was advised about the use of these codes for work related to the Canberra site. However, I am satisfied by the evidence of Mr Fyfield that the use of those codes did not prevent selection of the appropriate “expense type” from the drop down box and did not prevent the addition of free text comments. Furthermore if a literal approach were to be taken to the request to use these three codes it meant that only expenditure related to airfares, meals and accommodation and car hire and fuel could be claimed. Anything outside of this could clearly not be entered under these headings. This made it clear that anything outside of these headings would require special and prior approval from the relevant manager.

[18] I am satisfied that Mr Mohapatra consciously and deliberately made claims for the disputed items and he described their expense type as Breakfast, Lunch or Dinner knowing that none of the items, except for the 15 January dinner after return from Canberra, were in fact breakfast, lunch or dinner.

[19] The incident where Mr Mohapatra accepts that he used his work credit card twice in the same minute and asked the cashier at Aldi for two separate receipts in order to keep the cost of the items under the maximum limit allowable for the meal claim is of particular importance. I am satisfied that Mr Mohapatra deliberately selected breakfast as the expense type for the first purchase and selected lunch as the expense type for the second purchase in order to achieve a benefit to which he knew he was not entitled. I am satisfied that he also deliberately selected breakfast and lunch in order to deliberately disguise the true nature of the item purchased. I am satisfied that he did not believe that the travel bags purchased were breakfast and lunch. I am also satisfied that the approach taken in this case is representative of the approach taken in respect to the other claims except the 15 January dinner claim.

[20] Mr Mohapatra raises four matters in defence of his practice of folding the vendors receipt or invoice under the credit card chit and thereby not providing the information concerning the nature of the item purchased:

● Mr Duffy suggested that he could copy more than one receipt on a page when entering information into the Concur system in order to save time when dealing with a number of claims. He therefore commenced a practice of putting four items on one page and folded the vendor receipt under the credit card chit in order to achieve this.

● This was his consistent practice throughout the year and Mr Fyfield never raised an objection.

● The policy identifies the evidence requirement as follows: For expenses up to $75 “receipt, invoice or tax invoice including amount, supplier, name and date of expense.” For expenses over $75 “tax invoice including amount, GST amount, supplier name, date of expense and ABN – note credit card receipts do not typically include ABN and will not be sufficient to meet requirements”. Mr Mohapatra’s interpretation of this is that the credit card chit is sufficient for expenses under $75.

● Mr Mohapatra says that in the termination letter Acciona wrongly suggest that he could have used his work issued iphone to photograph receipts in order to reduce the work required. Mr Mohapatra says that his work phone was a different brand and that he did not have it for all of his employment and that he had not been trained how to use it.

[21] I have no reason to doubt that Mr Duffy suggested that more than one receipt could be put on a page. I do not accept that this meant that Mr Mohapatra was told he could or should obscure the nature of the expenditure item. I consider the issue of the particular brand of phone issued to Mr Mohapatra to be an irrelevant detail.

[22] There are a number of occasions when Mr Mohapatra did provide receipts for expenditure which show what the items purchased were. I accept that on a significant number of other occasions Mr Mohapatra obscured the information on the receipts which provided the information about the item purchased. On the occasions when he did this, he was not told it was wrong. Claims in this form had been accepted by Mr Fyfield without question. However, I am satisfied that no reasonable person would ever expect that an employee would describe the purchase of a bag or a mat, heater or massage as expenditure for a meal. There was no reason for Mr Fyfield to suspect that Mr Mohapatra was not using the system properly.

[23] I am satisfied that the policy requires information to substantiate the expenditure and this cannot be done unless the receipt confirms what it is that has been purchased in addition to the amount, supplier name and date of the expense. I accept that the requirement to include the detail of what has been purchased is not explicit in the policy but I am satisfied that it is part of the normal meaning of the word receipt. As the Macquarie Dictionary identifies a receipt in this sense is “written acknowledgment of having received money, goods etc., specified”. The items need to be specified. The requirement for a receipt in the policy is clearly linked to the requirement for expenditure to be substantiated. The fact that the employer did not require such evidence in a consistent manner is relevant. However, when dealing with an unusual item or an item which does not clearly fit the category of expenditure claimed, I am satisfied that the expenditure could not be said to be substantiated without the receipt which shows what was in fact purchased.

[24] In the circumstances of the disputed items I am satisfied that it was not consistent with the policy to fail to provide a receipt which included verification of the items which had been purchased. Even though previous items had been accepted without this information I am satisfied that Mr Mohapatra should have been aware that the particular items claimed could not be substantiated without detail of what had been purchased. I am satisfied that it was inappropriate conduct by Mr Mohapatra to fail to provide substantiation of expenditure claims that I am satisfied he knew were both unorthodox and tendentious.

[25] Acciona urge me to go further and conclude that the folding of the receipts was done deliberately to conceal the nature of the purchase. This is a strong possibility. I am satisfied that Mr Mohapatra did fold the receipts to deliberately conceal the bag purchases, the blender and the kettle. I reach this conclusion because I find later in this decision that the whole basis for these claims was flawed. However, it is not necessary to finally determine this matter in respect to the other instances.

[26] Mr Mohapatra claims that the expenses were unavoidable and were only incurred because he was required to be away from his home place of employment. He believed that they were legitimate business expenses claimable under the employer’s policy.

[27] I am not satisfied that most of the expenses were legitimate business expenses claimable under the policy. I accept that taken in isolation a small number of the items could conceivably be legitimate claims, if they were specifically brought to the attention of management as a special and unusual request. For example, it is conceivable that the purchase of an electric extension lead to enable work to be completed in a hotel or apartment room may be a reasonable business expense. It is possible that in some circumstances a claim for replacement of personal items which are damaged in transit for work could be a reasonable business expense. However, I cannot conceive of how a reasonable person could believe that purchase of clothing because an employee forgot to pack certain items for travel, or purchase of a heater or a bath mat when staying in a high quality hotel or apartment could be a reasonable business expense. It is inconceivable that 14 massages and the purchase of vitamins could be regarded as business expenses regardless of whether or not a doctor recommended them.

[28] The purchase of the blender, the kettle, the back pack and the duffle bag are all alleged to be related to damage of Mr Mohaparta’s possessions by the airline when travelling from Melbourne to Canberra for work. There are a number of reasons why I do not accept Mr Mohapatra’s evidence in respect to these items:

● Firstly, Mr Mohapatra says that he spoke to Ms Watt from Acciona in early 2014 about whether or not a claim for damaged luggage could be covered on the company’s insurance and was told that it was not possible because of the level of “excess” on the policy. Mr Mohapatra says that he spoke to her again when the event happened in January 2015 which led to the alleged damage to the luggage, the kettle and the blender. She confirmed that the position in respect to excess still applied. However, Mr Mohapatra did not ask Ms Watt or any other manager about whether or not he could claim these items as an expense. Mr Mohapatra proceeded to purchase the items and claim them as meal expenses.

● Secondly, Mr Mohapatra did not purchase the kettle until two hours before returning back to Melbourne so it clearly was not used for the purpose of preparing meals whilst in Canberra as alleged by Mr Mohapatra.

● Thirdly, the purchased items were retained for Mr Mohapatra’s personal use after his business trip.

● Fourthly, the claim of damage to items whilst in air transit is part of an extraordinary pattern of similar claims. No photographic or physical evidence of the damaged goods was produced in respect to any of these claims and no receipts evidencing the purchase of the original items said to be damaged was produced. In each case it is alleged that the items were no longer usable and were disposed of.

[29] In the twelve months from February 2014 to February 2015 Mr Mohapatra took 4 international trips, for personal not for business purposes. He agreed it is likely that these were the only international trips he took that year. Mr Mohapatra made insurance claims for damage to bags on each of those flights. On two of the flights there were two bags damaged on the same flight. In each case the damage was such that the bags were said to be unusable and had to be replaced. Mr Mohapatra cannot recall which of the insurance claims were accepted. In addition to the four international incidents Mr Mohapatra says that his bags were damaged on domestic flights in February 2014 and then again in January 2015. In no case were receipts for the damaged bags available. In each case the damaged bags were said to have been disposed of.

[30] In three cases we have in evidence the statutory declarations which accompanied the claims. The first statutory declaration dated 13 November 2014 relates to damage to two bags on a flight to Hong Kong on 2 September 2014. The value of the bags is described as “Luggage one is Polo Victory brand - $249 – 12 months (rarely used) and Luggage 2 is Hard Cover (Disney Parks Mickey Mouse Cartoon Comic Hard Shell Large Rolling Suitcase NEW) - $599 (18 months rarely used)”. The second statutory declaration dated 11 February 2015 relates to damage on 23 December 2014 at Bangkok airport. The value of the damaged bag is described as “Luggage 2 is Hard cover (Hard Shell Large Rolling Suitcase (NEW) $599” The third statutory declaration is signed on 22 January 2015 and the values of the damaged luggage is described as “Luggage one is $249 (new) and Luggage 2 is Hard cover $599 (new)”.

[31] I am satisfied that the chances of Mr Mohapatra having his bags damaged on every trip and in some cases more than one bag on a trip in one year is infinitesimally low. The similarities in the claims and values attributed to the bags add to the implausibility. I am not satisfied that the bags were damaged in the manner claimed by Mr Mohapatra and I am satisfied that the claims raise significant questions about his credibility as a witness.

[32] I do not accept that Mr Mohapatra had his bags, his blender and his kettle damaged in transit to Canberra in January 2015. I am therefore not satisfied that Mr Mohapatra believed that these were legitimate business expenses covered by the policy when he made the claims.

[33] In July 2014 Mr Mohapatra stayed in the Waldorf Apartments in Canberra. This accommodation is described as 4.5 stars. Mr Mohapatra says that he was cold and needed to purchase a heater. He says that he did not take the heater back to Melbourne with him. It is conceivable that Mr Mohapatra was cold in Canberra in winter. However, it is strange that he could not adjust the heating in the apartment or seek assistance to do so. The heater was clearly not a meal as claimed. I am not satisfied that it was a legitimate business expense. It may be that Mr Mohapatra thought it was a legitimate business expense but I am satisfied that he deliberately disguised the nature of the item by describing it as a meal expense and by not seeking the advice of his manager for such an unusual request.

[34] Mr Mohapatra points to the fact that he claimed $40 for a doctor’s visit in Canberra on 27 June 2014. He coded this expense type at “staff amenities” and the reason for expenditure as “96.2.2 meals”. The claim was paid. He says that he discussed this matter at the time with Mr Fyfield. Mr Fyfield does not recall the discussion. Mr Mohapatra says that the fact that this item was approved encouraged him to believe that his subsequent massage claims would be alright. I accept that Mr Mohapatra may have been working hard and may have been tired and in need of a massage. However, this does not make the 14 massages reasonable business expenses. I am not satisfied that the doctor’s visit was knowingly approved as a business expense. It is so contrary to common sense that I am satisfied that it was approved unknowingly. The receipt provided for the doctor’s visit does not provide any detail of the item purchased although many of the other receipts from that period of time do. Given his level of education, I consider it extremely unlikely that Mr Mohapatra thought that the massages would be accepted as a legitimate business expense under the policy. However, even if I am wrong, I am satisfied that he deliberately disguised the nature of the items by describing them as meal expenses and by not seeking the advice of his manager for such an unusual request.

[35] In January 2015 Mr Mohapatra says that he purchased bath mats rather than asking the hotel staff for an extra towel. He says that he needed added protection in the kitchen area to avoid slipping when preparing his food. Even if Mr Mohapatra’s story is accepted the purchase of the bath mats is not a meal as claimed and it is not a reasonable business expense. I consider it extremely unlikely that Mr Mohapatra thought that the bath mats would be accepted as a legitimate business expense under the policy. However, even if I am wrong, I am satisfied that he deliberately disguised the nature of the items by describing them as meal expenses and by not seeking the advice of his manager for such an unusual request.

[36] I am not satisfied that the purchase of clothing items on 13 and 14 January 2015 and on 21 November 2014 because Mr Mohapatra had failed to pack properly for his work trip are legitimate business expenses. If an employee has their clothing damaged at work or if they are required to unexpectedly extend their stay then the purchase of clothing could be a legitimate business expense. However in such an unusual situation it would be necessary and appropriate to contact management and discuss the issue before making such a claim. I consider it extremely unlikely that Mr Mohapatra thought that the clothing purchase would be accepted as a legitimate business expense under the policy. However, even if I am wrong, I am satisfied that he deliberately disguised the nature of the items by describing them as meal expenses and by not seeking the advice of his manager for such an unusual request.

[37] I am not satisfied that the purchase of the vitamins on 13 August 2014 was a legitimate business expense. Employees often have particular health or dietary needs. These may affect their living standards. However, in the main these are not the responsibility of the employer. In some circumstances, after the discussion with the employer, particular accommodation might be agreed to which could include the capacity to claim certain unorthodox items as expenses. However, without some agreed arrangements I cannot accept that the purchase of vitamins is a legitimate business expense. I consider it extremely unlikely that Mr Mohapatra thought that the vitamins purchase would be accepted as a legitimate business expense under the policy. However, even if I am wrong, I am satisfied that he deliberately disguised the nature of the items by describing them as meal expenses and by not seeking the advice of his manager for such an unusual request.

[38] The travel policy says that dinner can only be claimed in respect to situations where travel finishes after 7.30pm. Acciona say that means the aircraft arrival time which in this case on 15 January 2015 was before 6.30pm. Acciona argue that the claim for meal expenses was therefore neither legitimate nor necessary. I accept Mr Mohapatra’s submission that there is room for debate about this matter. I am not satisfied that Mr Mohapatra was guilty of misconduct in respect to this matter.

[39] It is common in these matters to focus too closely on the details of the corporate policies and procedures. In the real world of work, employees cannot be expected to read and remember detailed documents which are designed to protect the employer. In most cases common sense and reasonable and consistent standards and practices are the best test.

[40] In the circumstances of this case I am satisfied that Mr Mohapatra understood that his company credit card was not to be used for personal expenses. I am satisfied that he knew that he needed to provide adequate information to substantiate expenses when making a claim. It might be adequate information to provide the credit card chit when claiming normal items like meals and accommodation. The employer may trust this as reasonable. However, when claiming something unusual it is obvious that transparency is required. It is common sense to ask before making an unusual claim but failing that it is totally inappropriate to make the claim if full details are not provided.

[41] The failure to correctly characterise the expenditures when the system clearly requires you to select the category demonstrates a failure to act appropriately. If Mr Mohapatra did not know how to select the category, and I reject the submission that this was the case, then when the wrong category was showing he should have asked.

[42] The failure to provide details of an unusual or unorthodox expenditure claim demonstrates a failure to act appropriately. The fact that it was not a couple of isolated incidents reinforces my conclusion that it was a failure to act appropriately.

[43] I am satisfied that the history of baggage claims demonstrates that the failure in respect to the expenses claims was not out of character or a simple error.

[44] I have no hesitation in concluding that Mr Mohapatra’s conduct in respect to the expense claims was serious misconduct and a valid reason for termination without notice. I am satisfied that most of the purchases were not legitimate business related expenditures. In some cases Mr Mohapatra knew that they were not legitimate business related expenditures. In the cases where Mr Mohapatra believed that they were legitimate business related expenditures it was serious misconduct to not seek approval for such unorthodox expenditures in a transparent manner either by speaking to a manager or by clearly and transparently describing the unusual situation in the claim form. Mr Mohapatra knowingly misrepresented the expenditures as meal expenditure when they were not and he knew they were not.

[45] Even if the behaviour was motivated by a lack of judgment and understanding it is such an extreme case, having regard to the level of education, responsibility and seniority of the employee, that it has to be regarded as serious misconduct. An employer has to be able to trust that a senior employee who is expected to work and travel autonomously will use the employer’s credit card responsibly.

Are there other relevant matters? (Section 387(h))

[46] Mr Mohapatra’s period of service was not so long as to be a relevant consideration in respect to harshness. Neither are issues of age or employability relevant given his relative youth and high level of qualification. Mr Mohapatra says that his good performance and hard work should be taken into account. I accept that Mr Mohapatra’s performance was good and I have taken that factor into account in assessing whether or not the termination was a proportionate response.
[47] Mr Mohapatra says that at the termination meeting he alleged that another employee had breached the travel expense claim policy but he had not been dismissed. There are inadequate details in respect of this matter to suggest that Acciona acted inconsistently. However, even if it was established that there had been some inconsistency that would not be sufficient to satisfy me that the termination was harsh in the circumstances of this case. As discussed earlier Mr Mohapatra sought to bring evidence about his bullying complaint in order to establish that his bullying complaint was the real reason for the termination. I am satisfied that the valid reason for termination in this case is so clearly established by the evidence that there is no need to explore alternative hypotheses.

Was Mr Mohapatra’s dismissal harsh, unjust or unreasonable?

[48] The findings in respect to Section 387(b) to (h) do not suggest that the dismissal was unfair. The finding in respect to valid reason also does not support a finding that the dismissal was unfair. Termination of employment was a proportionate response to the conduct in all of the circumstances.

[49] Considering all of the factors I am satisfied that the dismissal for serious misconduct was fair. The application is dismissed.

COMMISSIONER

Appearances:

Mr R Mohapatra represented himself.

Mr N Harrington appeared for the respondent.

Hearing details:

2015

Melbourne

August 18 and 19

Printed by authority of the Commonwealth Government Printer

<Price code C, PR571344>