Ms Hayley Lingard v UnitingCare Community

[2013] FWC 1403

Note: An appeal pursuant to s.604 (C2013/4231) was lodged against this decision.

[2013] FWC 1403

FAIR WORK COMMISSION

DECISION

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

Ms Hayley Lingard
v
UnitingCare Community
(U2012/1006)

COMMISSIONER ASBURY BRISBANE, 6 MARCH 2013

Application for unfair dismissal remedy.

OVERVIEW

[1] This is an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) by Ms Hayley Lingard (the Applicant) with respect to her dismissal by Uniting Care Community (the Respondent). The Applicant was employed in the capacity of Manager Foster Care Services at Chermside, from September 2008 until her dismissal on 30 April 2012.

[2] The application for an unfair dismissal remedy was made on 3 May 2012, within the time required in s.394(2) of the Act. The Applicant is a person protected from unfair dismissal as defined in s.382 of the Act. The Respondent is not a small business and the dismissal was not a redundancy.

[3] The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, taking into account the matters set out in s.399 of the Act and the views of the parties. The Applicant represented herself. The Respondent was represented by Mr Bennett, a Solicitor with Ashurst Australia Lawyers, permission having been granted by a member of the Commission to whom the file was originally allocated.

[4] There was email correspondence on the file from the Applicant seeking suppression of her name in these proceedings. That correspondence indicated that it had been copied to the Respondent. When I raised this issue at the hearing, the Respondent objected to the suppression of the Applicant’s name and indicated that the Applicant had been told by the member of the Commission to whom the matter was originally allocated, that suppression of her name would be unlikely. The matter has now been listed for some time, and the Applicant’s name and the matter number are linked. In my view, there is now no utility in suppressing her name and I do not intend to do so.

EVIDENCE

Witnesses

[5] The Applicant gave evidence on her own behalf. 1 Evidence was also given in support of the Applicant by Mrs Michelle McBride, the Applicant’s external supervisor.2 Evidence for the Respondent was given by:

• Ms Barbara Lewis, Director People Services, Marketing and Communication; 3

• Ms Clare Dall’Osto, Team Leader; 4 and

• Ms Kim Probin, Team Leader. 5

[6] The evidence of those witnesses comprised written statements, supporting documentation and oral evidence. Statements were tendered from Ms Carmen Bonner, 6 Manager SKAFS and Foster and Kinship Care and Ms Kylie Colvin,7 Team Leader. Ms Bonner was available to attend the Commission for cross-examination. A medical certificate was provided with respect to Ms Colvin, indicating that she was not able to attend the Commission due to a medical condition. The Applicant indicated that she had not sought to press for the attendance of Ms Bonner because she had recently given birth, and that she accepted that Ms Colvin was unable to attend.

Events leading to the dismissal

[7] The events leading to the Applicant’s dismissal were set in train by an email from her Manager Ms Bonner, forwarded to Ms Lewis and the Respondent’s Director Individual and Personal Support, Mr Pini, on 19 April 2012. 8 That email set out a number of concerns about the Applicant’s conduct and work performance, including an issue referred to as “the timesheet issue”.

[8] The Respondent operates a system whereby employees are able to accrue additional hours and to take them as paid time off in lieu (TOIL). The timesheet issue involved an allegation that on Friday 23 March 2012 the Applicant directed two employees under her management, Ms Dall’Osto and Ms Probin to fill in timesheets recording additional time they had requested to work on Saturday 24 March 2012, as being worked Monday to Friday. It was also asserted in relation to this issue, that the Applicant gave this direction to Ms Dall’Osto and Ms Probin, in circumstances where she told her manager, Ms Bonner that those employees would not be working on the weekend, following concerns raised with her about this by Ms Bonner.

[9] It is not in dispute that the Applicant approved requests by Ms Dall’Osto and Ms Probin to work on the weekend of 24 and 25 March 2012, and that such time was to be taken as TOIL. It is also not in dispute that the Applicant directed Ms Dall’Osto and Ms Probin to record the hours that were to be worked on that weekend as though they had been worked between Monday and Friday.

[10] Both Ms Dall’Osto and Ms Probin worked on Saturday 24 March 2012, and recorded the time they worked on that day on Tuesday 27 March and Wednesday 28 March respectively. The periods of time worked were 1.5 hours by Ms Dall’Osto and 1 hour by Ms Probin. Ms Probin’s timesheet indicates the name of a case and Ms Dall’Osto’s timesheet simply indicates that the hours worked related to QA.

[11] Ms Dall’Osto and Ms Probin said there were two discussions with the Applicant about working on the weekend of 24 and 25 March. During the first discussion, the Applicant approved their requests to work on that weekend, and during the second discussion the Applicant told them that they should record on their timesheets that the time worked on that weekend was worked Monday to Friday. Ms Probin and Ms Dall’Osto also said that they held a discussion with Ms Bonner during which they told her that they would be working on that weekend, between the two discussions with the Applicant. Their evidence was that the Applicant told them to record the time on their timesheets as having been worked during the week, after they told Ms Bonner that they would be working on the weekend. The evidence of Ms Dall’Osto and Ms Probin in relation to this sequence of events, was supported by Ms Colvin.

[12] Ms Probin also gave evidence about a third conversation with the Applicant later on the afternoon of 23 March, which took place in the Applicant’s office. Ms Probin said that during that conversation, the Applicant asked her whether she had told Ms Bonner that she would be working at home on the weekend. Ms Probin said that she responded by stating that: “I don’t think I specifically said anything...maybe Carmen [Bonner} overheard us”, because she was concerned that the Applicant might be upset with her for telling Ms Bonner something that she was not supposed to tell her.

[13] Ms Bonner’s evidence as set out in her witness statement, is that on 23 March 2012 she held a discussion in an office shared by Ms Colvin, Ms Dall’Osto and Ms Probin and asked those persons how their week was going. Ms Probin and Ms Dall’Osto told her that they were going to work over the weekend. Ms Bonner told both employees that this matter needed to be sorted out and that they could not continue to work weekends and long hours without a break. Ms Bonner also said that she stated that the employees should not work for too many hours on the weekend, and that if they could not think of another way to complete their work, she was happy for them to work on a weekend as a “once off”. Ms Bonner’s version of this conversation is supported by Ms Colvin, Ms Probin and Ms Dall’Osto.

[14] After this conversation, Ms Bonner said that she telephoned the Applicant and told her that she was concerned that staff would be working on a weekend, and that she wanted the Applicant to come back to her by the end of the day and advise her as to when those staff would have time off. Ms Bonner said that the Applicant telephoned her a few hours later and said that Ms Bonner did not have to worry because the Applicant had made arrangements so that neither Ms Dall’Osto nor Ms Probin would be working over the weekend.

[15] In relation to Ms Bonner’s evidence, the Applicant said that she had two conversations with Ms Bonner on 23 March: a face to face conversation and a telephone conversation. The Applicant agreed that she told Ms Bonner that Ms Probin and Ms Dall’Osto were not going to work on the weekend, but said that she told Ms Bonner that this was the case because it was her knowledge at the time.

[16] The Applicant also said that the conversation during which she told Ms Probin and Ms Dall’Osto to record time worked on the weekend as being worked during the week, occurred after the conversation with Ms Bonner during which she told Ms Bonner that they were not going to work on the weekend. In response to the proposition that upon becoming aware that Ms Probin and Ms Dall’Osto were going to work on the weekend, the Applicant did not call Ms Bonner back to correct what she had earlier told Ms Bonner, the Applicant said that this was not the focus of her conversation with Ms Bonner on that day.

[17] The Applicant denied that she told Ms Bonner that she did not need to worry because she had made arrangements whereby Ms Probin and Ms Dall’Osto did not have to work on the weekend, and said that:

“The circumstances of the day were that Carmen and I had met in my office and spoken about another matter and we’d agreed to communicate to each other about that matter later in the afternoon by telephone. Carmen then left the office, which I can only assume is the time where she’s spoken with the other two parties, and then when she spoke to me on the telephone she questioned me as to whether they were working on the weekend, at which time I responded, “No, they are not,” because it wasn’t my awareness at that time.”

[18] In her responses to the allegations prior to her dismissal, and her evidence in these proceedings, the Applicant made a number of assertions about the circumstances surrounding the timesheet issue. The Applicant asserted that the request by Ms Dall’Osto and Ms Probin to work additional hours was made on Tuesday 3 or Wednesday 4 April, and that the hours were to be worked over the Easter weekend. The Applicant also asserted that as TOIL was not her preferred approach she sat with both employees individually in front of their computers to attempt to find time they could work from home or have time off line in the Office to complete the tasks, and that she approved only two hours of TOIL. Further, the Applicant stated that while she was sitting with Ms Dall’Osto and Ms Probin trying to find alternative times to do the work, she spoke to both employees about self care and their stress levels.

[19] In the face of evidence to the contrary from Ms Dall’Osto and Ms Probin, the applicant altered her version of events and agreed under cross-examination that the discussion with Ms Dall’Osto and Ms Probin about working on a weekend occurred on 23 March 2012, and that the additional work was to be performed on Saturday 24 March or Sunday 25 March 2012. The Applicant agreed that during the discussions on 23 March 2012, she did not sit down with Ms Dall’Osto and Ms Probin in front of their computers and attempt to find other times at which the work they were seeking approval to perform on the weekend could be done.

[20] The Applicant also changed her evidence about when she had discussions with Ms Dall’Osto and Ms Probin about stress levels and self care, to the point that it was not apparent whether in fact she had such discussions. Further the Applicant agreed that she did not limit the amount of work to be performed on the weekend of 24 and 25 March 2012 by placing a two hour limit on the TOIL that could be accrued by those employees.

[21] Further, the Applicant asserted that she took work off Ms Probin to lighten her workload. Ms Probin agreed in cross-examination that the Applicant took some files off her but maintained that the Applicant gave them back without completing the work stating that she had run out of time.

[22] The Applicant’s explanation for telling Ms Dall’Osto and Ms Probin to record hours worked on the weekend as being worked Monday to Friday, was that early in her role with the Respondent she was asked to nominate a spread of hours for her programs and sought advice as to how this might impact the TOIL arrangements of her staff. When the General Manager could not provide her with advice in relation to this matter, the Applicant consulted the Respondent’s Human Resources department and discussed the spread of hours, the needs of her team and the TOIL agreement.

[23] The Applicant said that it was “inferred” during this discussion that “discretionary TOIL” should fall within the spread of hours between 8.00 am and 8.00 pm Monday to Friday. The Applicant also said that she was told that TOIL applied on a 1:1 basis - that is one hour TOIL for one hour worked regardless of when work was performed. The Applicant provided no explanation for the timesheets appended to Ms Bonner’s witness statement indicating that she had worked on the weekend of 7 and 8 January 2012 reviewing files, and claimed TOIL for that work. 9

[24] The Applicant also said in her oral evidence that in directing Ms Probin and Ms Dall’Osto to record time worked on the weekend as being worked during the week, she also told them to add a notation to their timesheet to identify the hours. The Applicant said that she had not recorded this in her written responses to the allegations, but had raised it at the show cause meeting.

[25] Ms Dall’Osto said that the Applicant did not instruct her to put an annotation on the timesheet to indicate that the time had actually been worked on Saturday, and Ms Probin said she could not recall being asked to do this but did so anyway. Ms Probin’s timesheet indicates that she worked on a particular case, and Ms Dall’Osoto’s timesheet contains an annotation “QA”. Ms Dall’Osto and Ms Probin said under cross-examination that they had previously altered timesheets, but did not do so on this occasion because the Applicant had directed them as to the way in which the time was to be recorded, and she was their manager.

[26] The Applicant asserted in her evidence that there is a lack of consistency between the enterprise agreement covering the Respondent’s employees and the Respondent’s TOIL policy, because the enterprise agreement provides that TOIL does not apply to employees classified at levels 6, 7 and 8. Ms Probin and Ms Dall’Osto are classified at level 6, and the Applicant who was classified at level 8, was paid her accrued TOIL on termination, despite not being eligible to accrue TOIL.

[27] However, the Applicant acknowledged that, the accrual and use of TOIL has been widely supported across these levels and it is common practice within the organisation. The Applicant also tendered an email from her previous line manager Ms Shah, which she said was advice that despite it being against the agreement, “flex” could be an individual arrangement between managers and their staff.

[28] Further, the Applicant said that she was not provided with training either informal or formal with respect to timesheet records or TOIL management, other than general informal guidance. The Applicant also said that she has responded to requests for information about the management of TOIL in her program and has never had any advice that changes have been required to timesheets and TOIL arrangements she has authorised to date.

[29] In discussions with Ms Lewis and Mr Pini about the allegations, and in her evidence to the Commission, the Applicant raised issues with the complexity of the timesheets and maintained that it was difficult to accurately record additional hours on the timesheets, when those hours were worked outside the “spread of hours”. The timesheets in question were in evidence. They have columns or cells in which hours worked on weekends which is to be taken as TOIL can be recorded.

[30] There was evidence that in some cases the cells in which weekend work can be recorded are “locked” but that they can be unlocked on request. However, the uncontested evidence of Ms Dall’Osto and Ms Probin was that the weekend cells on their timesheets were not locked, and there was no impediment to the time worked by them on Saturday 24 March being recorded as having been worked on that date. Further, Ms Dall’Osto, Ms Probin and Ms Colvin all gave evidence to the effect that timesheets are adequate to record time worked during work hours Monday to Friday; outside work hours Monday to Friday; and on the weekend.

[31] Ms Bonner said that at a management meeting on 18 April 2012, at which the Applicant was not present, Ms Probin and Ms Dall’Osto told her that they had recently worked on a weekend. Ms Bonner was subsequently told by one of those employees that the Applicant told them to record time worked that weekend as time worked Monday to Friday. Ms Bonner said that she had serious concerns about this because the Respondent operates in an industry where everyone needs to be honest about time keeping to help justify government funding, and to ensure that staff manage their complex workloads.

[32] Ms Probin and Ms Dall’Osto confirmed that at the meeting of 18 April 2012, they told Ms Bonner that they had worked on Saturday 24 March and that Ms Bonner seemed surprised to hear this, and said that she was not aware that they had worked on that weekend.

The dismissal process

[33] Ms Lewis said that on receiving the email from Ms Bonner dated 19 April 2012, she held a discussion with Mr Pini to discuss the issues raised. Ms Lewis and Mr Pini agreed that the timesheet issue in particular, raised a number of questions and concerns for the Respondent, including the Applicant’s honesty and the ability to trust her moving forward. Ms Lewis also sought and obtained confirmation from Mr Pini that Ms Dall’Osto and Ms Probin had not recorded time worked on Saturday 24 March 2012 on their timesheets, and that the Applicant had signed the timesheets. 10

[34] Ms Lewis prepared the “show cause” letter 11 to the Applicant asking her to respond to allegations, including that the Applicant had:

• Instructed staff to not log actual hours worked on a weekend for the purpose of avoiding those hours being shown on their timesheets;



• Taken this action following an instruction from the Applicant’s manager to ensure that staff who had been working long hours were provided with Time Off In Lieu (TOIL)



• Advised her manager that staff were not required to work on a weekend when in fact they did so;

 [35]  These matters are said to amount to:

• Failure on the part of the Applicant to meet her duty of care to employees by not managing their workload and ensuring adequate time off;



• Deliberate contravention of the terms and conditions of staff employed under the Applicant’s supervision and leadership; and



• Instructing staff to deliberately falsify timesheets by providing incorrect information.

[36] It was also asserted in the “show cause” letter of 23 April 2012, that the Applicant had instructed staff not to copy her Manager (Ms Bonner) or share information with Ms Bonner on important matters including a licensing process. Ms Lewis said that the other concerns in Ms Bonner’s email were not pursued. As the “show cause” process developed, the emphasis was on the timesheet issue, rather than on the allegation that the Applicant had instructed staff not to communicate with Ms Bonner. Further, the ultimate reason for the dismissal was the timesheet issue and the manner in which the Applicant responded to it.

[37] As part of the “show cause” process, the Applicant was advised that she was stood down with pay and that a meeting had been scheduled for 26 April 2012, at which she would be given the opportunity to respond to the allegations. The Applicant was encouraged to bring a support person to the meeting. The Applicant said that a request to Mr Pini that she be allowed to respond immediately to the issues was refused as was her request to remain in the office during the period before the meeting. Mr Pini agreed to her request to be allowed to answer messages received on her Blackberry during the period she was stood down.

[38] The show cause meeting on 26 April 2012 was attended by the Applicant, her support person Ms McBride, Mr Pini and Ms Lewis. The Applicant said that during the course of the meeting it became apparent that the intended outcome was to terminate her employment, and that Ms Lewis indicated that any explanation of the timesheet allegation would need to be exceptional for any alternative course to be considered, as in their view the Applicant had committed a “seriously fraudulent act”.

[39] The Applicant said that she responded to the matters raised at the “show cause”
meeting in an open, honest and transparent way. While accepting that there are provisions for recording weekend work on the timesheet, the Applicant said that her direction to staff in relation to discretionary TOIL had been consistent with general guidance provided by HR two years earlier. The Applicant provided an example where she had worked and accrued TOIL outside the spread of hours on a weekday and was told by Ms Lewis that she would need to inaccurately record the time worked on the timesheet and add some form of accompanying notation.

[40] The Applicant also provided a written response to the allegations. 12 In that response the Applicant said:

• She was deeply offended and disappointed by the organisation’s response to the issues outlined in the letter and with the statement that her behaviour is “extremely disturbing” as this demonstrates limited understanding of her ethics and morals;


• The statement that she “instructed staff to not log actual hours worked on a weekend for the purpose of avoiding those hours being shown on their timesheets” was false and inaccurate;


• Direction had been provided to her that the “spread of hours” for her program was 8.00 am to 8.00 pm Monday to Friday with the only identified exception being the provision of carer/training events conducted on weekends;


• The instruction to staff to record time worked on weekends had been to ensure that all and any hours they worked were funded and acknowledged by the organisation and staff were remunerated for the hours they worked;


• The requests for the staff members to work up to two hours each over the weekend was provided once she had confirmed with each of them, by sitting down with them and reviewing their calendars, that there were no times available in their work week to perform the work;


• In the conversations about the weekend work she had spoken to both staff members about self care and their stress levels and had taken tasks off Ms Probin and completed them herself prior to her own leave.

[41] The Applicant also sent an email to Ms Lewis and Mr Pini on 27 April 2012 13 in which she stated that:

• She continued to be shocked and disappointed by the organisation’s response to her actions;


• The matter is common-sense and does not warrant disciplinary action and could have been resolved by guidance and training;


• She has not been orientated/trained or mentored in relation to the process for keeping timesheets other than that they should adequately reflect the amount of time devoted by staff to the organisation for work duties;


• The reference to her actions as fraudulent was a slur on her reputation and an inaccurate representation of her actions;


• Her actions were not deceptive and she had not gained a tangible benefit or prospered by them;


• In ensuring that staff accurately reflected the time that they dedicate to the organisation, her actions were only to ensure that they were credited in regard to the hours they worked.

[42] Under cross-examination the Applicant agreed that the meeting on 26 April 2012 went for the best part of an hour. The Applicant also agreed that she had stated in the meeting that she was not aware of what Ms Dall’Osto and Ms Probin had written on their timesheets because she was on leave at the time, when in fact she had signed off on the timesheets. The Applicant said that she made this statement because of her confusion about the date on which the events occurred and whether they had coincided with a period during which she was on leave.

[43] Ms McBride said that during the meeting on 26 April 2012, Ms Lewis stated that the organisation viewed the Applicant’s direction to the staff in relation to the recording of TOIL, as a serious act of fraud, and that the organisation had little choice but to terminate the Applicant’s employment. Ms Lewis also told the Applicant that her actions were in breach of her employment contract and that the reasons justifying her actions would need to be exceptional to change the course of action they were taking regarding her termination. Ms McBride also said that Mr Pini stated that the Applicant’s actions caused him to see her as untrustworthy making their future working relationship untenable.

[44] Ms McBride said that the Applicant was teary and upset during the meeting, and defended her actions by explaining that her reasons for giving the direction to staff were due to the limitations on the timesheet for recording other types of work done on the weekends outside carer training and carer events. Ms McBride also said that the Applicant stated that she had received previous advice from HR that this was the only type of work that was approved for weekends, and as this was not the type of work being done by the two staff members, she told them to record it during the week.

[45] Ms McBride also confirmed that the Applicant had raised an example of the difficulty in recording TOIL for work done at home in the evenings after 8.00pm, because of limitations associated with the timesheet. According to Ms McBride, Ms Lewis accepted that this would be difficult to do and either Ms Lewis or Mr Pini said that an extra notation would be needed on the timesheet to explain how the time was being recorded if it fell outside the spread of work hours. Ms McBride said that she asked Mr Pini and Ms Lewis whether the Applicant’s overall work performance would be taken into consideration in making a final decision about terminating her employment, and was told that this factor would not be taken into account.

[46] Ms Lewis said that she advised the Applicant at the beginning of the meeting, of the seriousness of knowingly falsifying or instructing a person to falsify an employment document. According to Ms Lewis, the Applicant did not appear to be willing to accept responsibility for her actions or to acknowledge that she had behaved inappropriately. In relation to the timesheet issue, the Applicant provided various explanations for her conduct including:

• That she had not personally benefited from instructing Ms Probin and Ms Dall’Osto to incorrectly record the hours that they had worked;


• She had not received training in how to complete timesheets;


• There was no provision on the timesheet to correctly record weekend work or time off in lieu;


• She was not aware of what was recorded on the timesheets because she was away at the time.

[47] In relation to these matters, Ms Lewis said that they did not provide sufficient justification for the Applicant’s conduct. Ms Lewis also said that the explanation about lack of training in relation to filling out a timesheet was not plausible as time recording is a matter of common sense. In relation to assertions that the timesheets did not have provision to accurately record the time, Ms Lewis said that at very least a handwritten notation could have been made. Ms Lewis also said that she noted that the Applicant had signed the timesheets and accordingly did not believe that her explanation that she was away at the time and not aware of what was on the timesheets, was plausible.

[48] In response to the evidence of the Applicant and Ms McBride, Ms Lewis denied stating at the meeting of 26 April that any explanation of the timesheet would need to be exceptional for any alternative action to be considered. Ms Lewis said that her mind was not closed to the possibility that the Applicant may have had explanation or excuse which would have resulted in a different outcome - for example if the Applicant had acknowledged that what she did was wrong and shown genuine remorse, that would have been taken into account.

[49] Ms Lewis said that she recalled stating that falsification of timesheets is a very serious matter and that the Applicant needed to provide a very good explanation for her conduct. Ms Lewis denied that she said time should be inaccurately recorded on a timesheet and maintained that she said that notations could be made in the comments section to indicate the hours worked. Ms Lewis also said that she formed the view that the Applicant’s conduct had seriously eroded the trust and confidence between the Applicant and her employer, and in those circumstances she formed the view that the Applicant’s conduct was not a relevant consideration.

[50] Under cross-examination, the proposition was put to Ms Lewis that the enterprise agreement did not allow for level 6 employees to accrue TOIL. Ms Lewis said that this was not the issue. Ms Lewis also said that she appreciated that the Applicant was trying to obtain information about timesheets at the meeting of 26 April, but what was being sought from the Applicant was an explanation of why she had asked people to falsely fill out a timesheet. In response to the proposition that the Applicant was emotional on the day and that she should have tried to get a clear explanation from the Applicant, Ms Lewis said that she repeatedly tried to get the Applicant to focus on the issue at hand in the meeting of 26 April 2012, by returning to it and repeating what the meeting was intended to discuss.

[51] In response to the proposition that the Respondent’s view was based on the belief that the Applicant’s intent was to hide and deceive the organisation, Ms Lewis said:

“No. The allegations were about the fact that you had lied to your manager; that you had instructed people to falsify their timesheets and those were the actions that were the key allegations that we discussed and that continued to be discussed and during the meeting, I made several attempts to try and get you to explain those actions. Unfortunately your responses - and I say this in my statement - continued to be of a different nature and in fact, was further lies.”

[52] In response to the proposition that there was no reference at the meeting to the Applicant lying to her manager, Ms Lewis said that in the show cause letter it is stated that the Applicant incorrectly advised her manager that the employees had not worked on the weekend, and that in her book this was lying. In response to a proposition from the Commission that it was not put to the Applicant in the meeting that she had lied to Ms Bonner about the staff not being required to work on the weekend, Ms Lewis said:

“Whether the term - whether Mr Pini or I said, “You lied to Ms Bonner and said that those staff didn’t need to work when in fact they did,” or whether it was said, “We said to you that you advised Ms Bonner that those staff didn’t need to work and that was incorrect;” I don’t recollect the exact wording but we certainly covered off on the point that Ms Bonner was told that those staff didn’t need to work by Ms Lingard when the fact of the matter was that they did work and she had actually lied about that.”

[53] The Applicant was dismissed by letter dated 30 April 2012. 14 The reasons for the dismissal as set out in the letter of 30 April 2012, are that explanations provided by the Applicant in relation to the recording of time off in lieu of overtime (TOIL) on timesheets, by staff under her management, are not accepted and that in view of the Applicant’s actions the Respondent has lost trust and confidence in the Applicant.

[54] Ms Lewis also said in her evidence that she formed the view that the Applicant had lied to Ms Bonner and had instructed staff to falsify their timesheets. There was also uncontested evidence from the Applicant and Ms McBride during the show cause meeting on 26 April 2012, that Mr Pini asserted that the Applicant’s conduct in relation to the timesheets was fraudulent.

LEGISLATION

[55] By virtue of s.385 of the Act, a person has been unfairly dismissed if FWA is satisfied that:

“(a) the person has been dismissed;

(b) the dismissal was harsh, unjust or unreasonable; ..” and

[56] In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account procedural and substantive matters set out in s.387 of the Act as follows:

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

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

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

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

(e) If the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal; and

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

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

(h) Any other matters FWA considers relevant.

[57] A dismissal may be:

• Harsh - because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

• Unjust -because the employee was not guilty of the misconduct on which the employer acted; and/or

• Unreasonable - because it was decided on inferences which could not reasonably have been drawn from the material before the employer. 15

S.387 MATTERS

Was there a valid reason for the dismissal?

[58] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 16 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts17, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.18 In determining whether a reason is valid:

“It is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...”. 19

[59] I am satisfied that there was a valid reason for the Applicant’s dismissal. The recording of working time is an important matter, and has particular significance for the Respondent in light of the nature of the work performed by employees, its obligations to ensure that they work reasonable hours and the fact that its activities are funded by Government. The Respondent has in place systems for recording working time and I accept the necessity for all employees to follow those systems.

[60] The Applicant was in a position of authority over Ms Dall’Osto and Ms Probin. She was classified at level 8 in the enterprise agreement and Ms Dall’Osto and Ms Probin were classified at level 6. Ms Lingard was the manager to whom Ms Dall’Osto and Ms Probin reported and was responsible for approving their timesheets.

[61] It is clear from the evidence that the Applicant directed Ms Dall’Osto and Ms Probin to fill in their timesheets to indicate that additional hours they had worked, and which would attract an entitlement to TOIL, had been worked on a week day, in circumstances where the Applicant knew that the hours were actually going to be worked on the weekend. In essence, the Applicant directed Ms Dall’Osto and Ms Probin to include information on their timesheets that she knew to be incorrect.

[62] In a meeting with managers of the Respondent on 26 April 2012 and in written responses provided to the Respondent on that day and 27 April 2012, the Applicant provided a range of explanations for giving this direction to Ms Dall’Osto and Ms Probin. The Applicant also provided an explanation for her conduct in her evidence in these proceedings. After considering all of the matters advanced by the Applicant to explain her conduct, I am unable to accept that those explanations are reasonable. I am also of the view that some of the Applicant’s explanations for her conduct are improbable.

[63] In reaching this conclusion I prefer the evidence of Ms Dall’Osto and Ms Probin to that of the Applicant. Both witnesses were clear in their evidence and did not depart from the essential points. In contrast, the Applicant made assertions which she departed from in the face of evidence to the contrary from Ms Dall’Osto and Ms Probin.

[64] I accept that the Applicant may have been in error about the date that the incidents in question occurred. However, in my view the Applicant made the other assertions in an attempt to put a spin on her actions and to cast her in favourable light. It is telling that the Applicant asserted that she put a two hour limit on the time to be worked, and took steps to exhaust alternatives to weekend work before approving work by Ms Dall’Osto and Ms Probin on the relevant weekend. These assertions are indicative that the Applicant knew that it was unsatisfactory for Ms Dall’Osto and Ms Probin to work on a weekend and that Ms Bonner was concerned about this matter.

[65] The Applicant’s assertion that her direction in relation to the timesheet was simply to ensure that Ms Dall’Osto and Ms Probin would be rewarded for the additional work they did, is improbable. The fact that TOIL is taken on the basis of one hour of time off for one hour of additional time worked, means there is no financial incentive for the Respondent to limit TOIL to weekdays, or refuse to provide an entitlement to TOIL when it is worked outside the weekly spread from Monday to Friday. This makes it probable that managers of the Respondent senior to the Applicant would be more likely to be concerned about the impact of working on weekends on the leisure time of employees, than about paying them for TOIL. It is also more probable that the real motive for the direction issued by the Applicant to Ms Dall’Osto and Ms Probin, was to conceal from Ms Bonner, the fact that they worked on a weekend.

[66] I am also unable to accept the Applicant’s evidence about the inadequacies of timesheets. There does not appear to be any reason why the days on which the hours were worked could not have been correctly recorded on the timesheet. There are columns where hours worked on both week days and weekends can be recorded, and there appears to be no reason why hours outside 8.00 am to 8.00 pm cannot also be recorded on the timesheet. Further, there is uncontested evidence, in the form of a timesheet relating to hours worked by the Applicant, indicating that she undertook work described as “file review” on Saturday 7 and Sunday 8 January 2012. The Applicant completed her timesheet indicating that she worked for 4 hours on Saturday 7 and 3 hours on Sunday 8 January 2012. This is inconsistent with her evidence that core activities of her program could not be performed on weekends.

[67] It is clear from the evidence that the Applicant told Ms Bonner that Ms Dall’Osto and Ms Probin were not working on the weekend of 24 and 25 April 2012. The Applicant’s evidence that she made this statement at a time when she did not know that those employees would be working on the weekend, is improbable. The evidence of Ms Probin and Ms Dall’Osto is that there was an initial discussion during which the Applicant approved them working on the weekend, and a later discussion during which the Applicant directed them to record time to be worked on that weekend as being worked during the week.

[68] Ms Dall’Osto and Ms Probin also said that the second discussion with the Applicant occurred after the discussion with Ms Bonner during which they told Ms Bonner of their plans to work on the weekend. The Applicant did not contest Ms Probin’s evidence that she asked Ms Probin why she had told Ms Bonner that she would be working on the weekend. The Applicant’s evidence on this point is also inconsistent with the surprise of Ms Bonner at the news that Ms Dall’Osto and Ms Probin had in fact worked on that weekend.

[69] In short, the evidence points to a conclusion that the Applicant directed Ms Dall’Osto and Ms Probin to incorrectly record time worked on the weekend after being told by Ms Bonner that she was concerned at those employees working on the weekend. While the Applicant did not gain a financial benefit from the direction she gave to Ms Dall’Osto and Ms Probin, it is clear that she mislead her Manager, Ms Bonner, about the fact that work had been performed on the weekend, with the probable result that she avoided Ms Bonner’s displeasure about those employees working excessive hours or during their leisure time.

[70] The Applicant’s evidence about her direction to Ms Dall’Osto and Ms Probin being consistent with advice received from the Respondent’s HR department is also improbable. If the Applicant was given advice that her program was to be conducted between 8.00 am and 8.00 pm Monday to Friday, that advice did not amount to an inference that additional hours could only be worked during that period. It is also the case that the Applicant did not direct Ms Dall’Osto and Ms Probin to record the hours in question as being worked between the hours of 8.00 am and 8.00 pm. Further, if the Applicant did receive such advice from the Respondent’s HR department, her conduct with respect to the direction she gave Ms Dall’Osto and Ms Probin about recording additional time worked, was inconsistent with that advice and indicated an intention not to comply.

[71] I am also of the view that the Applicant’s explanation of her conduct at the meeting of 26 April 2012 was not reasonable and was riddled with inconsistencies. The Applicant said that she did not know what was on the timesheets, in circumstances where she had signed them. The Applicant raised the irrelevant issue of the application of TOIL under the Agreement, in circumstances where it is apparent that she knew that all employees enjoy TOIL notwithstanding that it is not an entitlement under the Agreement for all levels. The Applicant’s contention that she did not understand how to fill in the timesheets is not borne out by those documents which are straightforward and provide for hours to be correctly recorded.

[72] Faced with those inconsistencies it was not unreasonable for Ms Lewis to conclude that the Applicant’s explanation for her conduct should not be accepted and was untruthful. The Applicant showed no remorse and refused to accept that she had done anything wrong. In light of the assertions made by the Applicant in the meeting on 26 April 2012, the written responses to the allegations and her evidence in these proceedings which she accepts was incorrect, the loss of trust and confidence on the part of the Respondent, as expressed by Ms Lewis, has a reasonable basis.

Was the applicant notified of the reason for the dismissal?

[73] The Applicant was notified of the reason for her dismissal in the letter of 30 April 2012. That letter makes it clear that the reason for the dismissal is that the Applicant’s explanations for her conduct with respect to the timesheet issue were not accepted and that the Respondent has lost trust and confidence in the Applicant.

Was the applicant given an opportunity to respond to the reasons related to her capacity or conduct?

[74] I have some concern about the connection between the allegations as articulated in the show cause letter of 23 April 2012 and the conclusions drawn from the responses provided by the Applicant to the allegations. The allegations put to the Applicant in the show cause letter were that she instructed staff not to log hours worked on the weekend to avoid those hours being shown on their timesheets, and that she told Ms Bonner that staff were not working on a particular weekend when they were in fact working. Ms Lewis also said in her evidence that the conclusion that was drawn following the meeting on 26 April 2012 at which the allegations were discussed, was that the Applicant’s conduct was fraudulent and she had been untruthful in her responses.

[75] It is clear that at the meeting of 26 April 2012, the allegation that the responses were untruthful and that the Applicant had lied about her conduct, was not put to the Applicant. There was also uncontested evidence that during a break in the meeting, Mr Pini said that the Applicant’s conduct was fraudulent. If conclusions that the Applicant’s conduct was fraudulent or that she lied were under consideration, those allegations should have been put directly to the Applicant during the meeting of 26 April 2012.

[76] However, I am unable to accept that the Applicant was not given a reasonable opportunity to respond to the allegations. Although the “show cause” letter of 23 April 2012 was somewhat convoluted, it includes the essential elements of the allegations. In particular, it is clear from the terms of the letter that the Respondent viewed the alleged conduct as serious and that in the absence of an acceptable explanation for her conduct, the Applicant was liable to have her employment terminated.

[77] That letter also made it clear that the allegation was that the Applicant instructed staff not to log the hours correctly to avoid the hours being shown on their timesheets. There is a reference to “falsification” of timesheets, and an allegation that the Applicant gave the instruction to staff after she had been instructed by Ms Bonner to ensure that they were provided with TOIL is set out. Further, the letter raises the issue of the Applicant telling Ms Bonner that the staff would not be working on the weekend in question, when they did in fact work.

[78] In all of the circumstances I accept that the reasons for the dismissal, related to the Applicant’s conduct, were set out in the “show cause” letter, and that the Applicant was given an opportunity to respond to those reasons.

Presence of a support person

[79] The Applicant was allowed to have a support person present to assist at discussions relating to the dismissal.

Warnings

[80] The dismissal related to an incident of misconduct, and not to unsatisfactory performance. Accordingly it is not relevant that the applicant was not warned about the misconduct. That a manager should not direct an employee to record false information on a timesheet goes without saying, and does not require a warning.

Impact of size of employer’s enterprise on procedures followed in effecting dismissal

[81] The Respondent has in excess of 2000 employees, and there is no evidence that the size of the enterprise had any impact on the procedures followed in effecting the dismissal.

Impact of human resource management specialists

[82] There is no evidence that the presence of human resource management specialists had any impact on the procedures followed in effecting the dismissal.

Other relevant matters

[83] I accept that the dismissal has had an adverse impact on the Applicant and has caused her considerable distress. I also accept that she has, and will likely continue to have difficulty in obtaining other employment because of the dismissal. However, these are matters that the Applicant has substantially brought upon herself, through her conduct and the manner in which she responded to allegations about it. The Applicant received payment in lieu of notice on termination of her employment.

CONCLUSION

[84] After weighing the matters in s.387, I have concluded that the dismissal of the Applicant was not harsh, unjust or unreasonable. The Applicant engaged in misconduct in that she directed staff members under her management to record on their timesheets that hours worked on a weekend were worked during the week. If that had been the extent of the misconduct, the outcome of this hearing may have been different, and it would have been arguable that dismissal was an excessive response to a mistake or a misunderstanding on the part of the Applicant.

[85] However, the Applicant’s misconduct is compounded by the fact that she directed those staff members to include false information in their timesheets to conceal from her manager, the fact that staff she was responsible for managing would be working on the weekend. Further, the Applicant took these steps after her manager had expressed concern about the particular staff members working on the weekend.

[86] The Applicant went on to make misleading and improbable assertions to managers of the Respondent at a meeting where she was required to show cause why her employment should not be terminated, and repeated those assertions in written responses to the allegations provided to the Respondent. The Applicant continued to make misleading and improbable assertions in her evidence in these proceedings. Those assertions were withdrawn while the Applicant was under cross-examination, notwithstanding that the Applicant had been served prior to the hearing, with witness statements from the Respondent’s witnesses, which contradicted her evidence on a number of significant points.

[87] The Respondent maintains that it has lost trust and confidence in the Applicant and in all of the circumstances, the Respondent’s position in this regard is reasonable. The application for an unfair dismissal remedy is dismissed, and an Order to that effect will issue with this Decision.

COMMISSIONER

Appearances:

H. Lingard, Mr J. Ogden and Mr K. Scherf on behalf of the Applicant.

Mr S. Bennett and Ms K. Anderson on behalf of the Respondent.

Hearing details:

2012

Brisbane:

December 19.

 1   Exhibit 1 - Statement of Hayley Lingard, filed on 6 August 2012 with Appendices A-E and G-I.

 2   Exhibit 2 - Statement of Michelle McBride, filed on 6 August 2012.

 3   Exhibit 3 - Witness Statement of Barbara Lewis, made on 30 August 2012.

 4   Exhibit 5 - Witness Statement of Clare Dall’Osto, made on 30 August 2012.

 5   Exhibit 6 - Witness Statement of Kim Probin, made on 30 August 2012.

 6   Exhibit 4 - Witness Statement of Carmen Bonner, made on 30 August 2012.

 7   Exhibit 7 - Witness Statement of Kylie Colvin, made on 30 August 2012.

 8   Exhibit 3 - Statement of Barbara Lewis Annexure BL- 1.

 9   Exhibit 4 Statement of Carmen Bonner Annexure CB-3.

 10   Exhibit 3 Witness Statement of Barbara Lewis Annexure BL-3.

 11   Exhibit 3 - Statement of Barbara Lewis Annexure BL-2.

 12   Exhibit 1 Annexure C.

 13   Exhibit 1 Annexure D.

 14   Exhibit 3 - Statement of Barbara Lewis Annexure BL-2.

 15   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.

 16   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 17   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 18   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 19   Walton v Mermaid (1996) 142 ALR 681 at 685.

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