Mr Rippon Singh v Busways Blacktown Pty Ltd
[2015] FWC 6684
•13 OCTOBER 2015
| [2015] FWC 6684 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Rippon Singh
v
Busways Blacktown Pty Ltd
(U2015/4874)
DEPUTY PRESIDENT BULL | SYDNEY, 13 OCTOBER 2015 |
Application for relief from unfair dismissal, summary dismissal, serious misconduct, claim for overtime not worked, application dismissed
[1] In this matter, Mr Rippon Singh (the applicant) alleges he was unfairly terminated from his employment by Busways Blacktown Pty Ltd (the respondent/ Busways). Mr Singh was represented by Mr Warnes from the Transport Workers’ Union of Australia - NSW Branch (TWU) and the respondent by Mr Izzo, a solicitor from Australian Business Lawyers and Advisers.
[2] An application to seek leave to appear as a solicitor pursuant to s. 596 of the Fair Work Act 2009 (the FW Act) was made by Mr Izzo and not opposed by Mr Warnes. I considered Mr Izzo’s written submissions of 15 July 2015, and was satisfied that Mr Izzo’s appearance would enable the matter to be dealt with more efficiently.
Background
[3] Mr Singh was employed by the respondent as a full time bus driver from October 2013 to 1 April 2015. As a bus driver, he was also the TWU Co-Delegate at the respondent’s Penrith depot where he worked. On 30 March 2015, the respondent sent correspondence to Mr Singh requesting him to attend a disciplinary meeting. The correspondence alleged that Mr Singh had claimed payment for overtime not worked. On 1 April 2015, Mr Singh was summarily terminated by the respondent.
[4] Mr Singh now alleges that there was no valid reason for his termination and that the decision to terminate him was harsh. The applicant submits that the respondent failed to consider other penalties available and that the impact of the dismissal was significant, due to Mr Singh’s personal and economic circumstances.
[5] The respondent denies that the applicant was terminated unfairly and points to written warnings concerning Mr Singh’s poor performance which expressly indicated that any further indiscretions could lead to the termination of his employment.
[6] The respondent states that in around mid-March 2015, irregularities concerning overtime claims by Mr Singh in February 2015 were identified. An investigation was conducted and meetings were held with Mr Singh seeking his explanation. Following Mr Singh’s inability to provide a satisfactory explanation, it was concluded that Mr Singh had knowingly claimed overtime for periods that he did not work. On this basis, it was determined that Mr Singh’s employment should be terminated summarily.
[7] The termination letter sent to Mr Singh dated 2 April 2015, specifies three allegations as follows:
“1. On 18 February 2015, you claimed 30 minutes of overtime. The basis you provided for making this claim was that you had to changeover a bus on that particular day. It is alleged that this claim was fraudulent and that you did not have to change buses on 18 February 2015 and accordingly did not work any overtime that day.
2. On 19 February 2015, you claimed that you finished work at 9.12am (instead of your scheduled finish time of 8.51am) and accordingly claimed 21 minutes overtime. However, it is alleged that you actually parked your bus at 8:52am. Even allowing 5 minutes for you to leave the bus, 8:57am should have been your latest possible finish time. This means that you have claimed 15 minutes of overtime to which you were not entitled.
3. On 20 February 2015, you claimed 2 hours and 1 minute of overtime. This is because you claimed that you finish work at 6:35pm. However, it is alleged that you actually parked your bus at 5:41pm. Even allowing 10 minutes for you to leave the bus, 5:51 pm should have been your latest possible finish time. This means that you have claimed 44 minutes of overtime to which you were not entitled. These allegations were thoroughly investigated by reference to the overtime sheets completed, PTIPS data, the Penrith Control Room diary, the changeover log and ticket machine data. You were also provided two opportunities to respond to the allegations during the meetings on 26 March 2015 and 1 April 2015.”
[8] The termination letter went on to state that the above behaviour was dishonest and destroys Busways’ ability to have any trust and confidence in the applicant.
Applicant’s submissions
[9] It was submitted on behalf of Mr Singh that he had been very active in industrial activities at the Penrith Depot. For example in December 2014, he participated in dispute proceedings before the Fair Work Commission as a witness. It was submitted that from mid-2014, Busways began to take particular interest in the actions of Mr Singh until his termination.
[10] It was put that each instance of alleged fraudulent claim of overtime relied upon by Busways for the termination of Mr Singh is without foundation. It was alleged that Buswaysdismissed Mr Singh for reasons other than those set out in the letter of termination. Mr Warnes, on behalf of the TWU argued that there was an onus on Busways to demonstrate that Mr Singh was not performing any work during the period he claimed overtime.
[11] It was also put that Mr Singh received a sanction disproportionate to those of other employees due to his participation in industrial activities. It was argued that termination was an extreme reaction for conduct that would not ordinarily be found to be serious misconduct warranting dismissal. On this basis, the Commission was invited to draw an inference that there was another reason for the dismissal, namely Mr Singh’s industrial activities. This was said to be reinforced by the exemplary employment record of Mr Singh. It was said that there was a sudden onset of disciplinary proceedings commenced against Mr Singh following a heightened role in his industrial activity from mid-2014.
[12] It was also put on behalf of Mr Singh that the system Busways used to pay employees for overtime was inadequate and led to the situation that caused Mr Singh to be dismissed. Further, the fact that Mr Singh’s supervisor signed off on his overtime slips indicated that the supervisor was satisfied that the work had been performed.
[13] Mr Warnes submitted that as Mr Singh had been terminated summarily, there was an onus on the respondent to demonstrate that the conduct complained of actually occurred. It was submitted that there was no evidence that Mr Singh was not actually performing work when he claimed the disputed overtime. As Mr Singh’s overtime claims had been signed off by a supervisor on 20 February 2015, it was unreasonable to expect Mr Singh to have an accurate recollection of his overtime claims on 26 March 2015.
[14] Mr Singh gave evidence on his own behalf and was supported by the evidence of Mr Nimrod Nyols, an official of the TWU.
Evidence of Mr Singh
[15] Mr Singh tendered a witness statement 1, gave oral evidence and was subject to cross-examination. Mr Singh explained that he was a member of the TWU and as a TWU Co- Delegate was responsible for advocating members’ interests and representing members in their interactions with management.
[16] In mid-2014 Mr Singh took on a greater leadership role in the Penrith Yard where he worked in respect to his TWU activities. He was of the belief that because of his union activities he was unfairly targeted by Busways. On 5 September 2014, he was issued with a warning for taking a full meal break without authority. Mr Singh states that this warning was without justification as he had the relevant authority. On 4 March 2015, he received a warning letter for misconduct in relation to deliberately starting a bus trip late. Mr Singh did not accept that he deliberately tried to make a bus run late.
[17] In respect to the particular incidents that led to Mr Singh’s termination, Mr Singh’s responses are outlined below.
18 February overtime
[18] On 20 February 2015, Mr Singh completed a weekly overtime sheet and claimed 30 minutes overtime for a bus change over on 18 February 2015. He recalled leaving the depot around 30 minutes after returning to the depot from his last run and states he must have been mistaken about doing a bus change on the day. Mr Singh was unable to check whether he actually did perform a changeover i.e. change from one bus to another. In cross examination Mr Singh stated he was not sure and could not recall whether he actually completed a bus changeover which resulted in 30 minutes overtime. 2
19 February overtime
[19] Mr Singh recalls finishing late on 19 February 2015, and that the bus was running six minutes late. When he arrived back at the depot he swept out the bus as required but the time provided by Busways is only five minutes, whereas realistically a driver needs 15 minutes to finish off tasks after their shift. Mr Singh could only estimate that it took longer to perform this task on 19th of February which is why he signed off at 9:12am. 3
[20] However, at the 1 April 2015 meeting, Mr Nyols from the TWU speaking on Mr Singh’s behalf stated the overtime may have resulted from having a discussion with Mr Gowndar, his supervisor. The discussion was in regard to a letter that Mr Gibson had asked Mr Gowndar to give to Mr Singh at the end of his shift. This explanation was not provided by Mr Singh on 26 March 2015, nor contained in his witness statement or given in evidence by Mr Singh. Although Mr Warnes’ cross examination of Mr Gowndar implied that a conversation regarding the letter occurred 4. Mr Singh’s statement was that he had issues with the brake and accelerator pedals on his bus that may have contributed to the overtime claimed.5
20 February overtime
[21] On 20 February 2015, Mr Singh was rostered on a broken shift requiring him to work in the morning and night. After the first shift was completed, he attended the depot to complete a union induction for new employees and this was reflected on the overtime slip. Mr Singh was told at his disciplinary interview on 1 April 2015 that he was not permitted to claim overtime for conducting union inductions.
[22] Mr Singh recalled that prior to commencing his 20 February 2015 shift; he went and spoke to the bus controller at Penrith, Mr David Austin who asked him whether he would be available for overtime after his second shift on 20 February 6. Mr Singh’s evidence was that he agreed to perform overtime only if it was for a minimum of two hours otherwise it would not be worth his while. Mr Singh states that Mr Austin agreed with this condition and advised him to put in his overtime claim. Mr Singh went on to state in his evidence that on 20 February 2015, during the second half of his split shift, he was asked by Mr Austin to cover for two trips due to the absence of a driver that afternoon. Mr Singh responded that this was not a problem and he was doing it for Mr Austin and not the Pymble depot7. After completing these shifts Mr Singh arrived back at the depot at 5:41pm. Mr Singh states he was still at the depot at 6:15pm as this was when he filled out his driver occurrence report. Mr Singh then filled out an overtime claim for two hours and one minute. The additional minute was added to ensure that he would be paid a meal allowance as he was of the view that Busways would not pay the meal allowance even though he believed he was entitled to a meal allowance without working the additional minute.
[23] Mr Singh agreed in cross examination that he was not aware of any other employee being able to claim a minimum of two hours overtime regardless of how much overtime they worked. 8 Mr Singh stated that he was never previously challenged in the completion of his overtime claims and could never recall any random audits taking place.
[24] At the meeting held on 1 April 2015, which Mr Singh attended with Mr Nyols from the TWU, he allowed Mr Nyols to do most of the talking, however he never conceded that his overtime claims were incorrect. Mr Singh stated that he did recall stating to Busways management that as his overtime slips are checked by his supervisor and secondly by head office, they should be knocked back if there was something wrong at either of those two levels. On this basis he didn’t understand how it would be his fault if the overtime claims were inaccurate.
[25] Mr Singh stated he had applied for other jobs and had obtained a job as a taxi driver on an ad-hoc basis and was awaiting the outcome of a number of job applications and forthcoming interviews. However, Mr Singh stated that he wished to be reinstated to his position at Busways.
Evidence of Mr Nyols
[26] Mr Nyols prepared a witness statement 9, gave oral evidence and was subject to cross-examination. Mr Nyols is employed as an official by the TWU and is responsible for the bus industry in New South Wales. Mr Nyols confirmed that Mr Singh was active in his role as the TWU Co-Delegate at the Penrith Busways site. Mr Nyols provided examples of Mr Singh’s union activities commencing in mid-2014.
[27] Mr Nyols stated that he questioned why Mr Singh was being targeted and that the events of 19, 20 and 21 February 2015, had occurred some time ago. He further stated that Mr Singh did not fill out his timesheets until the end of the week which was as per the Buswayssystem and that his overtime claims had been approved by his supervisor.
[28] Mr Nyols stated to Busways management that the first two allegations were baseless and in relation to the third allegation, Mr Singh’s explanation was ‘completely believable’. Following a 10 minute adjournment and despite Mr Nyols’ representations, Busways advised that Mr Singh would be summarily terminated for fraudulent conduct against the company.
Submissions of the Respondent
[29] On 30 March 2015, Mr Singh was sent correspondence from the respondent’s Contract 1 Operations Manager Mr Robert Gibson, inviting Mr Singh to attend a disciplinary meeting and outlined allegations of serious misconduct relating to the claiming of payment for overtime not worked.
[30] The background to these allegations arose from an audit of overtime records which were initiated as a result of a complaint received from Roads and Maritime Services (RMS). The complaint related to allegations that drivers were performing work in excess of maximum driving hours. During the audit of hours worked, five drivers were identified as having discrepancies pertaining to their overtime claims. Following further investigations, Mr Singh was identified as having claimed overtime for which he was not entitled.
[31] Busways stated categorically that there was no targeting of Mr Singh and that the alleged fraudulent claims by Mr Singh were inadvertently discovered due to the complaint received from RMS. Busways submitted that during the investigation process Mr Singh was not honest in his responses and failed to provide any credible or rational reasons that justified his conduct. The respondent refutes the allegation that Mr Singh’s industrial activities were in any way connected to his dismissal directly or indirectly. While the respondent acknowledges that improvements can be made to its time recording processes, it states that it is entitled to expect its employees to act with honesty and integrity, irrespective of what recording system is in place. The concepts of honesty and integrity of employees in the respondent’s submissions are reinforced through its Code of Conduct. 10 This was the reason Mr Singh’s supervisor Mr George Pellatt signed off on the applicant’s overtime sheets as he was relying on Mr Singh’s honesty in completing his timesheets.
[32] Busways relied on the evidence of a number of its employees; these being:
● Mr Robert Gibson: Contract 1 Operations Manager Busways
● Mr Randall Horton: Operations Manager Penrith Blacktown Depots
● Mr George Pellatt: Senior Controller Penrith
● Mr Michael Gowndar: Senior Controller Penrith
● Mr David Austin: Controller Penrith
Evidence of Mr Gibson
[33] Mr Gibson prepared a number of witness statements 11, gave oral evidence and was cross-examined by the applicant’s representative. Mr Gibson advised he had been employed by Busways for approximately five years and in June 2014 was promoted to Contract 1 Operations Manager. He was based at the Busways head office at Pymble. Mr Gibson came into contact with Mr Singh as Mr Singh was a union delegate and worked at the Penrith depot.
[34] In 2011, Busways implemented the Public Transport Information and Priority System (PTIPS). PTIPS is a GPS computer-based tracking system installed on board buses and wirelessly communicates with a central set of servers together with information about bus/route/timetable data provided by bus organisations and government authorities. The PTIPS can identify the location of any bus performing a trip at any point in time. If Buswaysdoes not achieve its ‘on time running’ target of 95%, it is liable to be sanctioned by the government agency, Transport for NSW.
Written Warning
[35] Mr Gibson recounted that Mr Singh had filed a ‘Driver Occurrence Report’ on 17 February 2015. The report allows a driver to notify Busways of problems or incidents involving a bus run. All Driver Occurrence Reports are investigated by Busways in order to determine whether there are issues to be rectified. On becoming aware of Mr Singh’s 17 February 2015 report, Mr Gibson started taking steps to obtain information to enable him to determine how Mr Singh’s bus ended up travelling late while the Operations Control Centre failed to deploy a standby bus to cover for Mr Singh’s bus not running on schedule.
[36] Based on a review of CCTV footage, Mr Gibson concluded that the bus departed late for its first trip because Mr Singh was using his mobile phone and made two unscheduled stops. This behaviour caused him concern as it affected Busways ‘on time running performance’. A meeting was held with Mr Singh on 24 February 2014, following which Mr Gibson was particularly concerned with Mr Singh’s admission that he attended union matters which prevented him departing for his shift on time. Further, Mr Singh had no reason for making an unscheduled stop for 10 minutes which had caused the bus to run late. Accordingly a disciplinary warning letter was provided to Mr Singh dated 4 March 2015, 12 which identified the following performance issues:
● “As per your admission, on 17/02/2015 you deliberately departed at the depot eight minutes late at the start of shift 342Z.
● Deliberately falsifying late running on shift 342Z by pulling up prior to the interchange and not entering the interchange until after the scheduled departure time.”
Anonymous complaint
[37] In March 2015, Busways was notified by RMS that a person had complained that Busways drivers were exceeding their maximum permissible driving hours. RMS did not reveal the identity of the complainant. RMS requested certain driver records be provided to them in order to determine the validity of the complaint. During the review conducted by Busways, Ms Golding the Regional Operations Supervisor identified that five drivers including Mr Singh, had issues with respect to overtime that had been claimed. Other than Mr Singh, the issues with the other bus drivers were resolved to Busways’ satisfaction.
[38] Mr Gibson stated that on 26 March 2015, Mr Singh was questioned by Mr Horton about his overtime claims for 18, 19 and 20 February 2015. Mr Singh’s responses were deemed inadequate by Mr Horton.
[39] Following the 26 March 2015 meeting with Mr Horton, Mr Gibson wrote to Mr Singh on 30 March 2015, inviting him to a disciplinary meeting to be conducted on 1 April 2015, at the Penrith Depot. The invitation letter set out what was described as allegations of serious misconduct.
[40] The 1 April 2015 meeting was arranged to allow Mr Singh to provide any further explanation for his overtime claims other than what he had told Mr Horton. At the meeting, Mr Horton and he attended together with Mr Singh and Mr Nyols. Each incorrect overtime claim was dealt with and explained to Mr Singh. Prior to Mr Singh responding, a break was provided to Mr Singh at Mr Nyols’ request and after the break Mr Singh provided his explanations. Mr Gibson dealt with Mr Singh’s overtime claims and his explanations, as follows.
18 February 2015 claim
[41] On 20 February 2015, Mr Singh completed a weekly overtime sheet 13 and claimed 30 minutes overtime on 18 February 2015 on the basis of a ‘bus changeover’. A bus changeover occurs when a bus has an issue through its shift and requires a driver to change buses. A review of the PTIP’s GPS tracking data and other documentation demonstrated that there was no bus changeover. At the meeting with Mr Horton on 26 March 2015, Mr Singh could not recall who had asked him to do a bus changeover and had no personal written record of this.14 At the 1 April 2015 meeting, Mr Singh was still unable to provide any explanation as to why he claimed the overtime but maintained that there was a bus changeover.
[42] Based on Mr Singh’s response and the respondent’s records, Mr Gibson concluded that Mr Singh had not been asked to perform a bus changeover and had fraudulently claimed overtime. Mr Gibson stated further that the respondent’s records indicated that Mr Singh had not been required to undertake any bus changeovers in 2015.
19 February 2015 claim
[43] Mr Singh had also claimed overtime on 19 February 2015. His weekly overtime sheet stated that his shift finished at 9:12am which was 21 minutes in excess of his expected finish time of 8:51am, which he claimed as overtime. The PTIP’s GPS tracking data indicated that Mr Singh had arrived at the depot at 8:52am and both the ‘Close Shift Report’ and ‘Cash Register Report’ indicated they were closed off at 8:52am
[44] Mr Gibson stated that Mr Singh, when interviewed by Mr Horton 15 could not recall why he finished late or incorrectly claimed 21 minutes of overtime. At the 1 April 2015 meeting Mr Nyols, on Mr Singh’s behalf stated the overtime was claimed because he had met with Michael Gowndar in relation to a letter Mr Gowndar had given him to do with Fair Work Commission proceedings. Mr Gibson acknowledged that he had asked Mr Gowndar to pass on a letter to Mr Singh, however there were no instructions for a meeting or discussion.
[45] Based on this new response from Mr Singh, Mr Gibson made enquiries with Mr Gowndar who advised him that Mr Singh took the letter off him and stated he would read the letter later. Mr Gibson advised that he then formed the view that Mr Singh had lied about his discussion with Mr Gowndar and had made up the explanation.
20 February 2015 claim
[46] On 20 February 2015, Mr Singh claimed that he was due to finish his shift at 4:34pm but actually finished at 6:35pm. He subsequently claimed two hours and one minute of overtime. The first two hours were claimed at 150% of his hourly rate and the one minute at 200%. On reviewing the hours worked on 20 February 2015 by Mr Singh, the PTIPS and other data did not reflect the time claimed by Mr Singh as overtime worked. The respondent’s records indicated that Mr Singh arrived at the depot at 5:37pm. The ‘Close Shift Report’ run by Mr Singh’s ticketing machine and the ‘Cash Register Report’ both indicated the bus being closed at 5:41pm. The Depot Controllers Diary for 20 February 2015 recorded Mr Singh as being required to perform overtime from 4:54pm to 5:54pm. There was no reference to Mr Singh being required to work till 6:34pm.
[47] When interviewed by Mr Horton, Mr Singh could not explain the difference between the PTIPS data and his overtime claim of two hours and one minute 16 . This was significant as it relates to the actual day the claim was completed. At the 1 April 2015 meeting, Mr Nyols on Mr Singh’s behalf stated that he had a conversation with Mr David Austin (bus controller) who asked him to perform overtime on 20 February 2015, and that there would be a two-hour minimum if Mr Singh finished early. When asked where this conversation took place, Mr Singh could not recall.
[48] Mr Gibson stated that he found this explanation ‘astonishing’ as there was no such practice of a two-hour minimum overtime period regardless of time worked. Busways policy and practice was that employees are only paid for time worked. Mr Gibson subsequently obtained the two-way radio recording which contained a conversation between Mr Austin and Mr Singh on 20 February 2015. The recorded conversation did not include any discussion between Mr Singh and Mr Austin where he was advised he could claim two hours of overtime. Mr Gibson stated that Mr Singh was entitled to some overtime but not the two hours and one minute that he claimed.
[49] Following the 1 April 2015 meeting, Mr Gibson formed the view that Mr Singh had made up the conversation with Mr Austin regarding a guaranteed two-hour minimum overtime payment. Mr Gibson then had regard for all the responses provided by Mr Singh and concluded that:
1. Mr Singh had improperly and dishonestly claimed overtime; and
2. Mr Singh had lied throughout the investigation process.
[50] Mr Gibson had regard to the fact that Mr Singh had received a formal written warning letter on 4 March 2015, in regard to deliberately making buses run late. Mr Gibson concluded that he no longer had trust in Mr Singh based on Mr Singh:
● having deliberately made the operations run late for no apparent reason;
● dishonestly claiming overtime he was not entitled to; and
● subsequently lying about his overtime claims during the investigation process.
[51] Mr Gibson concluded that Mr Singh’s employment needed to be terminated immediately on the basis of his dishonesty and this view was supported by Mr Mark Rizzardo, Mr Gibson’s supervisor who authorised Mr Singh’s termination.
[52] In respect to the allegation of victimisation due to Mr Singh’s industrial activities, Mr Gibson refuted this primarily in his Reply Statement 17 which amongst other things stated that both the written warning on 4 March 2015 and the investigation into the overtime claims arose from queries generated outside of Busways management.
Evidence of Mr Randall Horton
[53] Mr Randall Horton, the Operations Manager for the Penrith and Blacktown Depots gave evidence on behalf on the respondent and provided a witness statement. 18 Mr Horton described part of his duties as overseeing and assisting with investigations into ‘Driver Occurrence Reports’.
[54] On 17 February 2015, Mr Singh filed a ‘Driver Occurrence Report’ which enquired as to why no standby bus was deployed to cover his late running trips. The Operations Control Centre conducted an investigation and uncovered some deviations from the shift roster by Mr Singh, the deviations included:
● a late departure at the beginning of the shift;
● an unscheduled stop at Kendall Street for 13 minutes; and
● an unscheduled stop at North Parade for a period of 10 minutes.
[55] Mr Horton was given the task of further investigating this matter which resulted in a formal written warning being issued to Mr Singh on 4 March 2015.
[56] On 23 March 2015, Mr Horton received an email from Ms Golding, the Regional Operations Manager; which identified a number of anomalies in respect to overtime claims by five bus drivers. Mr Horton subsequently met each driver, including Mr Singh to discuss the anomalies. He was satisfied with the responses from all drivers other than the response from Mr Singh. Mr Horton stated that Mr Singh had consistently told him that he could not recall what happened on the dates that he was questioned about. Nor could Mr Horton find any supporting records that indicated that Mr Singh had worked the hours he claimed.
[57] Mr Horton in his evidence stated that he was unaware of any non-driving duties that were assigned to Mr Singh on the days in question and was not aware of any authorised overtime performed on those days.
[58] In late March 2015, Mr Gibson requested that Mr Horton attend the meeting with himself and Mr Singh, to follow-up on the interview that he had held with Mr Singh on 26 March 2015. The meeting was conducted on 1 April 2015.
Evidence of Mr George Pellatt
[59] Mr Pellatt is employed as a Senior Controller at the Busways Depot in Penrith. His role is to supervise two controllers, build rosters, allocate work to drivers, approve any leave and sign off on time sheets which are submitted by bus drivers. Mr Pellatt described what he called an honour system where he would review timesheets to ensure they did not look out of the ordinary. The system relied on bus drivers entering times that were both honest and accurate. Mr Pellatt stated he had reviewed Mr Singh’s timesheet on Saturday 21 February 2015, and on the basis that nothing looked extraordinary, he assumed that Mr Singh had worked the overtime he claimed and on this basis was signed off by him.
[60] Mr Pellatt in cross examination stated that he had never previously had to question any drivers’ overtime claims. 19
Evidence of Mr Michael Gowndar
[61] Mr Gowndar is employed as Acting Assistant Operations Manager at the Busways Depot in Penrith. Mr Gowndar recalled that on 18 February 2015, Mr Gibson sent him an email asking him to print out a letter that was attached to the email to give to Mr Singh. He understood this was for ease of convenience, as Mr Gibson was based in Pymble, whereas he was located at Penrith where Mr Singh was also based.
[62] On 19 February 2015, he handed the letter to Mr Singh in the drivers’ room at the Penrith Depot telling Mr Singh that Mr Gibson had asked him to pass it on. Mr Singh replied that he would read it later.
Evidence of Mr David Austin
[63] Mr David Austin is one of two Controllers at the Busways Depot in Penrith. One controller operates in the morning and the other works afternoon shifts. The position of controller requires the handling of any issues that arise in relation to roster changes as well as reorganising buses and drivers where an issue arises with a bus. This would include where a driver is ill and cannot attend work which requires the controller to organise cover. In organising cover for a route or shift from the pool of drivers already on the road, Mr Austin stated he needed to consider the amount of hours they had already worked and breaks that they had taken to ensure that it would be safe and legal for them to continue to perform additional driving hours. The controller communicates with bus drivers face-to-face and via a two-way radio.
[64] On 20 February 2015, at around 2:35pm, he became aware that a bus driver had failed to arrive for his afternoon shift on the ‘351Z run’. The school run, which lasts between 2:30pm and 3:30pm was his first priority to arrange cover for. Once he had secured cover for the school run, he then attempted to organise coverage for the remainder of the shift. This required coverage for two short trips commencing at 4:54pm. Mr Austin determined that Mr Singh was the best person to cover the ‘351Z run’ which commenced at 4:54pm and was scheduled to arrive back at the depot at 5:44pm. Mr Austin contacted Mr Singh via the two-way radio to confirm whether he was available and would agree to the additional hours. The two-way radio recorded the following conversation and was played during the hearing of this matter: 20
“Mr Austin: Rippon, (Mr Singh) are you available to do a 785 out of Penrith at 4:54 and then one return?
Mr Singh: No worries Dave.
Mr Austin: Okay, so 785 at 4:54 to Warrington and then a 785 out of Warrington at 5:15.
Mr Singh: What shift number is it Dave?
Mr Austin: It’s shift 351
Mr Singh: No worries mate. Just for you, not Pymble 21”
[65] Mr Austin stated this was the only conversation he had with Mr Singh that day in relation to overtime. Mr Austin further stated that at no time, had he told Mr Singh there would be two hours of overtime available, nor did he guarantee, promise or otherwise indicate he would be paid a minimum of two hours overtime.
[66] Mr Austin stated that there was no practice of Busways paying minimum periods for overtime and no bus driver had ever been paid for overtime not worked. The only exception to this is Sunday work where there is a five hour minimum engagement period. 22
[67] Mr Austin stated that he would have expected to be disciplined had he ever guaranteed any bus driver a minimum of two hours overtime irrespective of the hours they worked. 23
Consideration
[68] Pursuant to s.387 of the Act, the Commission must determine whether the applicant’s dismissal was harsh, unjust or unreasonable and sets out the matters the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:
“(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.”
[69] I will deal with the criteria for consideration established by s.387 of the Act below.
a) Was there a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees)?
[70] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 24, in relation to s.170DE of the Industrial Relations Act 1988. Northrop J stated:
“Section 170DE(1) refers to ‘a valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”
[71] The holding of the word ‘valid’, as meaning sound, defensible or well founded continues to be applied by this Commission.
[72] In cases of summary dismissal, the respondent bears the evidentiary onus of establishing the serious misconduct that justifies the summary termination as having occurred. While under an earlier statutory context, the comments of Moore J in Edwards v Justice Giudice (1999) 94 FCR 561 at paragraphs 4 and 7 remain relevant:
‘4. In the present case the Full Bench concluded that Commissioner Tolley had failed to determine whether Ms Edwards was guilty of misconduct in the way alleged by Telstra Corporation Ltd and that the Commissioner should have done so as part of ascertaining whether her termination had been harsh, unjust or unreasonable. The approach of the Full Bench was, in my opinion, unexceptionable. When the reason for a termination is based on the misconduct of the employee, the Commission must, if it is an issue in proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s170CG(3)(a). That is, the Commission must determine whether the alleged conduct took place and what it involved. …
7. The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Second the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh unjust or unreasonable on assumed facts and not facts found [my emphasis].’
[73] In King v Freshmore 25, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at paragraphs [24], [26], [28] and [29]:
‘[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination 26.
...
[26]As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.
...
[28]It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission's obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.
[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King's employment.’
Serious Misconduct
[74] The Act makes reference to the meaning of serious misconduct at s.12:
“12 The Dictionary
In this Act:... serious misconduct has the meaning prescribed by the regulations.”
[75] The regulations referred to are the Fair Work Regulations 2009, (the ‘Regulations’). Regulation 1.07(1)-(3) and is expressed as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work; or
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”
[76] In this application, the respondent argues in the first instance that the conduct of Mr Singh was dishonest constituting serious misconduct capable of justifying summary termination.
[77] The respondent refers to the decision in Concut Pty Ltd v Worrell (2000) 27wherein Kirby J stated that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily falls within the class of conduct which, without more, authorises summary dismissal.28
[78] What constitutes misconduct was discussed in O’Connor v Palmer and Others (No I) (1959) 1 FLR 397, (O’Conner v Palmer) where the Commonwealth Industrial Court held at page 401:
“Without attempting to define exhaustively the word “misconduct” it involves something more than mere negligence, error of judgment or innocent mistake.”
[79] In Pillai v Messiter (No 2) (1989) 16 NSWLR 197, the New South Wales Court of Appeal, at page 200 under the heading ‘“Misconduct” means more than mere negligence’, stated:
“The words used in the statutory test (“misconduct in a professional respect”) plainly go beyond that negligence which would found a claim against a medial practitioner for damages: Re Anderson, (at 575). On the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient: cf Re Anderson (at 575). Departures from elementary and generally accepted standards, of which a medial practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: ibid. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allison (at 760 – 761). These are the approaches which have been taken in our courts. They have been taken in the courts of England where such misconduct is alleged. And they have similarly been taken in the courts of the United States. The entry in Corpus Juris Secundum, vol 58, (1948) at 818, reads:
“Both in law and in ordinary speech the term ‘misconduct’ usually implies an act done wilfully with a wrong intention, and conveys the idea of intentional wrongdoing. The term implies fault beyond the error of judgment; a wrongful intention, and not a mere error of judgment; but it does not necessarily imply corruption or criminal intention, and, in the legal idea of misconduct, an evil intention is not a necessary ingredient. The word is sufficiently comprehensive to include misfeasance as well as malfeasance, and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences.”
Reference to United States authority is provided to support this passage. In the 1988 supplement to the Corpus, reference is made to Beaunit Mills Inc v Board of Review, Division of Employment security, Department of Labor and Industry 128 A 2d 20 (1956). In that case, the New Jersey Superior Court held that “misconduct” does not mean mere mistakes, errors in judgment or in the exercise of discretion or minor but casual or intentional, carelessness or negligence. It did not mean mere inefficiency, unsatisfactory conduct, failure of performance as a result of inability or incapacity inadvertent in isolated instances or errors of judgment which were not made in bad faith or some other ingredient. Numerous other recent cases are cited to support the proposition that, in the United States, “misconduct” generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts. Similar approaches to the meaning of the word “misconduct” have been taken in Australia, outside the context of professional discipline: see, eg, O’Connor v Palmer (No 1) (1959) 1 FLR 397. The primary dictionary meanings confirm that this is also the way “misconduct” is used in everyday speech.”
[80] I have had the benefit of listening to all the evidence and find that the applicant, Mr Singh did wrongly complete his weekly overtime sheet on 20 February 2015 in claiming overtime for work not performed on the 18th 19th and 20th of February 2015. While it is correct for the applicant to submit that he was questioned about time worked nearly five weeks after it had allegedly been performed, what is at issue is the inaccurate and misleading completion of the weekly overtime sheet claiming overtime for work completed on the same day or 24 and 48 hours earlier. At the time of completing the weekly overtime sheet, Mr Singh ought to have known what he was completing was incorrect.
[81] On 20 February 2015, Mr Singh stated that on 18 February 2015, he was entitled to 30 minutes overtime because he was involved in a bus changeover. All the evidence indicates (and it was not contradicted) that there was no bus changeover on that day. Mr Singh provided no rational explanation for making this claim and further stated that he had not been involved in a bus changeover at all in 2015.
[82] In respect of the 19 February 2015 overtime claim, Mr Singh’s defence relies on discussing the contents of a letter handed to him by Mr Gowndar at the end of his shift. Mr Gowndar states this did not occur. And/or in the alternative, Mr Singh stated that it took him longer than allowed to complete his tasks, and there may have been brake and accelerator pedal issues in the evening which made him run late in the evening. He may have included that time in his morning shift. 29
[83] I accept the respondent’s conclusion that the PTIPS, GPS tracking data indicated that Mr Singh did not return to the depot late and that there was no satisfactory explanation as to why the overtime was claimed. 30
[84] On 20 February 2015, Mr Singh claimed two hours and one minute in overtime; the one minute was added to ensure a meal allowance was paid. Mr Singh did not work the full two hours, and his explanation that Mr Austin had guaranteed a two-hour payment was rebutted by Mr Austin. In determining whether Mr Singh’s overtime claim of 20 February 2015 was wrongly claimed amounting to serious misconduct, I have had regard to:
● Mr Singh’s initial explanation to Mr Horton on 26 March 2015, that he could not recall how the two hours overtime claim had arisen;
● Mr Nyols’ explanation on behalf of Mr Singh at the 1 April 2015 meeting that Mr Austin had guaranteed the payment of two hours overtime;
● Mr Singh not being able to recall where the conversation with Mr Austin on the minimum two hour guarantee had taken place;
● the recorded conversation between Mr Singh and Mr Austin during which Mr Austin enquired whether Mr Singh was available for overtime and there being no reference to the minimum two-hour period; and
● Mr Austin’s vehement denial of such a conversation occurring.
[85] I find that the overtime claimed on 20 February 2015 was unauthorised and falsely made; this claim alone provides a valid reason for Mr Singh’s dismissal for serious misconduct. However, the three incidents of incorrect overtime claims made by Mr Singh when taken together also provide a valid reason for his dismissal for serious misconduct. The three separate, incorrect claims of overtime evidence a pattern of conduct by the applicant.
b) Was the person notified of that reason?
[86] The applicant was provided with notice of the eventual reasons for his dismissal both on 26 March 2015, when interviewed by Mr Horton and again on 1 April 2015, when interviewed by Mr Horton and Mr Gibson. In addition, the applicant received correspondence from the respondent dated 30 March 2015, outlining the reasons for a possible dismissal.
c) Was the person given an opportunity to respond to any reason related to the capacity or conduct of the person?
[87] Mr Singh was provided with an opportunity to respond to the allegations that resulted in his eventual dismissal at meetings held on 26th of March 2015, and 1 April 2015.
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.
[88] There was no refusal by the employer to allow Mr Singh to have a support person.
e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal.
[89] Mr Singh had been subject to prior performance warnings, he was provided with a verbal warning regarding ignoring an instruction about when to start work after a meal break. On 4 March 2015, he was given a written warning in regard to deliberately causing the respondent’s buses to run late. As with Mr Singh’s unfair dismissal claim, Mr Singh disputed the validity of the previous verbal and written warnings. This criterion has limited application here because he was terminated on the grounds of gross misconduct.
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.
[90] The respondent is a large employer and ought to have adopted and implemented appropriate procedures in effecting the dismissal of an employee, which in this matter did occur.
(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.
[91] This was not a relevant factor in the dismissal of Mr Singh.
(h) Any other matters that the FWC considers relevant.
[92] Despite the submissions on behalf of Mr Singh by his TWU representative, I am unable to conclude that Mr Singh was in any way victimised or targeted due to his industrial activities as a co-delegate for the TWU. The investigation into Mr Singh’s overtime claims arose from a mandatory investigation stemming from an unexpected outside anonymous complaint.
[93] I have found that the employer, Busways had a valid reason to dismiss Mr Singh for serious misconduct. I have considered all other factors under s.387 and have had regard for Mr Singh’s personal circumstances. Nothing presented in the hearing leads me to conclude that the dismissal was harsh, unjust or unreasonable.
[94] On the basis of the conclusions reached above, Mr Singh’s application claiming unfair dismissal is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Toby Warnes (TWU) on behalf of the applicant
Mr Luis Izzo, Solicitor (Australian Business Lawyers and Advisors) for the respondent
Hearing details:
Sydney
2015
16 and 17 July
1 Exhibit A1
2 PN132-136
3 Exhibit A1 at 13 (Mr Singh’s witness statement)
4 PN1321 to PN1326
5 Exhibit A1 at 12 (Mr Singh’s witness statement)
6 PN212
7 PN377
8 PN344
9 Exhibit A2
10 Exhibit R9 states that employees are to behave honestly with integrity, care and diligence
11 Exhibits R1, R2 and R3
12 RG8 of Exhibit R1
13 RG10 of Exhibit R1
14 RG17 of Exhibit R1
15 RG24 of Exhibit R1
16 RG30 of Exhibit R1
17 Exhibit R2
18 Exhibit R4
19 PN1278
20 PN1837-40
21 The number 785 refers to a bus schedule and the number 351 refers to the shift number
22 The applicant is covered by the Busways Group (Sydney) and the Transport Workers’ Union of Australia Fair WorkAgreement 2012 (AG 2013/5505) see clause 13 (c) Format
23 PN1433
24 (1995) 62 IR 371 at 373
25 Print S4213
26 See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) 88 IR 408; AustralianMeat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1. Format
27 103 IR 160
28 Ibid at (51)
29 PN193-194
30 See Mr Gibson’s witness statement Exhibit R1 at (49) to (51)
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