Ms Joanne Beginov v PMH Auto Tech Pty Ltd T/A Paradise Luxury Motor Homes
[2018] FWC 6026
•12 DECEMBER 2018
| [2018] FWC 6026 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Joanne Beginov
v
PMH Auto Tech Pty Ltd T/A Paradise Luxury Motor Homes
(U2018/5093)
COMMISSIONER HUNT | BRISBANE, 12 DECEMBER 2018 |
Application for an unfair dismissal remedy – whether a valid reason for dismissal – Applicant accredited person under Heavy Vehicle Registration Assessment Scheme – Applicant directed to take actions contravening legal obligations – Applicant dismissed for failing to comply with duties as accredited person – Respondent failed to take its own misconduct into account – Applicant not afforded opportunity to respond to investigation conducted by Respondent director – valid reason for dismissal but dismissal harsh, unjust or unreasonable – compensation ordered – amount reduced for Applicant’s misconduct.
Introduction
[1] On 16 May 2018 Ms Joanne Beginov made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from PMH Auto Tech Pty Ltd T/A Paradise Luxury Motor Homes (PMH) was harsh, unjust or unreasonable.
[2] Ms Beginov was employed on 17 November 2015 as an Office/Administration Manager by the previous owners of PMH. Between March 2017 and May 2017, Mr Shannon Burford and Mr Michael Samarasinghe negotiated the successful purchase of PMH. Mr Burford and Mr Samarasinghe became Directors of PMH in or about May 2017.
[3] On 4 May 2017 Ms Beginov signed a contract of employment confirming her position as Office/Administration Manager of PMH. Her service with PMH from 17 November 2015 was agreed to be recognised. Her annual salary rose from $49,400 to $75,000, requiring work to be performed over at least 43 hours per week, plus any additional hours reasonably necessary to fulfil the requirements of the role.
[4] Ms Beginov was dismissed from her employment on 26 April 2018. The application for unfair dismissal was made within 21 days of the dismissal.
[5] PMH did not raise any jurisdictional objection to the application. I am satisfied there are no threshold issues required to be determined. Accordingly, Ms Beginov is a person who is protected from unfair dismissal.
Hearing
[6] The hearing of this matter commenced on 17 August 2018. Ms Beginov was represented by Mr Hunter Trotman of Queensland Workplace Law. PMH was represented by Dr Cathryn McConaghy of Counsel, instructed by Affinity Lawyers. Leave was granted for both parties to be represented.
[7] The following witnesses gave evidence and were cross-examined:
• Ms Joanne Beginov;
• Ms Kaylene Wadey, Receptionist of PMH - ordered to attend by the Commission;
• Mr Shannon Burford, Managing Director of PMH;
• Mr Leon Oostendorp, Production Manager of PMH - ordered to attend by the Commission;
• Mr Clinton Ward, Sales and Service Manager of PMH - ordered to attend by the Commission.
[8] A witness statement of Mr Michael Samarasinghe, Director of PMH, was admitted into evidence for PMH. He was not required for cross-examination.
[9] The hearing of this matter was reconvened on 23 August 2018. The following witnesses gave evidence and were cross examined at the reconvened hearing:
• Ms Joanne Beginov, recalled;
• Ms Josephine Burford, Change Manager of PMH.
Background
[10] Ms Beginov’s duties with PMH under the ownership of Mr Burford and Mr Samarasinghe were similar to the duties that she completed for PMH prior to 4 May 2017.
[11] PMH manufactures and sells customised motorhomes which PMH customises on-site. It employs approximately 45 people across its enterprise, in sales, manufacturing and administration.
[12] Up until July 2017 PMH undertook the certification of the vehicles it manufactures by driving the vehicle to the Department of Main Roads to have the vehicle certified and registered. The scheme providing for authorisation of such manufactured vehicles is called the Heavy Vehicle Registration Assessment Scheme (HVRAS).
[13] The evidence before the Commission is that employees of PMH would travel in the new vehicle to the Department of Main Roads, typically at Southport. Dealer number plates would be on the vehicle to allow it to be driven for registration. Most commonly Mr Oostendorp drove the vehicles as Ms Beginov was not licensed to drive the oversized vehicles. Ms Beginov attended along with Mr Oostendorp. This was an inconvenience to the business as it required two people to be out of the business for some time. The employees would then need to wait for the Department of Main Roads officer to measure the vehicle and certify it for registration.
[14] Ms Beginov’s evidence is that she proposed to Mr Burford that she could become trained and authorised to be a HVRAS inspector. She sought Mr Burford’s approval and then attended a two day training course on 18 and 19 July 2017. She received written certification approximately two weeks later.
[15] Having Ms Beginov authorised to complete the HVRAS form would allow Ms Beginov to travel to a more conveniently located Queensland Transport office, rather than the office at Southport. The manufactured vehicle would not need to be on the road, resulting in reasonable efficiencies for the business.
[16] The documentation for the course describes the methods for measuring vehicles, dimensional limitations and load limitations, and provides information on how to locate vehicle identifiers. Relevant extracts from the course documentation are outlined below: 1
“The Heavy Vehicle Registration Assessment Scheme (HVRAS) accredits persons to inspect and measure motor vehicles more than 4.5 tonnes Gross Vehicle Mass (GVM) and trailers more than 750 kg Aggregate Trailer Mass (ATM) prior to registration. This is to ensure that these vehicles comply with:
• Dimensional limits
• Approved load sharing axle systems
• Safe tyre limits
• Vehicle identifiers (engine number, VIN, chassis number, modification plates).
…
Training
You must successfully complete the department’s HVRAS training course to become a HVRAS accredited person.
The training course includes methods for measuring vehicles, dimensional limitations and load limitations and provides information on how to locate vehicle identifiers.
…
Approval
Once you have successfully completed the department’s HVRAS training course, and your application is approved, an approval document (including any conditions of accreditation) will be emailed or posted to you by the HVRAS Administrator. Once you have received your approval document, you may then commence your duties as a HVRAS accredited person.
…
Operation
As a HVRAS accredited person, you are responsible for the accuracy of the inspections you carry out and the recording of the information on the inspection sheets. To ensure accuracy, all details must be from the vehicle itself and not from documentation relating to the vehicle of advice from the client.
Inspections
When inspecting and measuring a vehicle you must complete the appropriate inspection sheet and a Vehicle Details form [form number]. The inspection sheets and vehicle details form required you to record your full name, customer reference number (Queensland driver licence number), signature and date…
If you make a mistake on any of these forms, you are required to complete a new form.
The forms are invalid when they contain alterations and may be retained by CSC staff.
If you require any technical assistance to complete these forms when carrying out an inspection, contact the department’s Vehicle Standards Unit.
…
Voluntary surrender of accreditation
To voluntarily surrender your accreditation, you must notify the HVRAS Administrator in writing via email or post.”
[17] The HVRAS form declaration requires the measurement data to be personally measured from each vehicle. As a HVRAS authorised inspector, Ms Beginov was responsible for this task and ensuring the measurements were accurately entered into the relevant HVRAS forms on behalf of PMH. Ms Beginov understood this requirement as consistent with the training received.
Dismissal
[18] On 26 April 2016 Ms Beginov was issued with the following Notice of Termination:
“On 27 November 2017, we provided you with a written warning in respect of your employment, in addition to the verbal warnings we have given.
On 24 April 2018, we met with you to discuss the allegations contained in the Notice to Show Cause and invited you to bring a support person (“the meeting”). We confirm that you did bring a support person.
At the conclusion of the meeting, we advised you that we would consider your responses and inform you of the outcome of our decision in due course.
Outcome and basis of decision – Measurement requirements during Vehicle Registration process
As a Queensland Department of Transport and Main Roads – Heavy Vehicle Registration Assessment Scheme (HVRAS) accredited person, you are responsible for the accuracy of the inspections you carry out and the recording of the information on the inspections sheets. All details must be from the vehicle itself and not from documentation relating to the vehicle or other persons.
On 23 April 2018 and/or at the meeting, you did admit to the following:
(a) that you had not physically measured all vehicles;
(b) that you knew of intentionally recorded measurements without including attachments to the vehicles to those measurements;
(c) that you marked “Yes” on Queensland Department of Transport Main Roads forms when you should have marked “No”.
Notably, it is an offence to give false or misleading information under the Transport Operations (Road Use Management) Act 1995 (Qld).
We find that, on the balance of probabilities, you did fail to comply with your duties and obligations as a HVRAS accredited person which has or may cause serious and imminent risk to the health and safety of another person or to the reputation or profits of the company.
Ultimately, your conduct is incompatible with your employment duties and obligations and has undermined the trust and confidence reposed in you – meaning the relationship cannot continue.
We hereby give notice of termination of your employment with immediate effect.
Other matters
Further or alternatively, we find that, on the balance of probabilities, you have, despite previous warnings, failed to improve and/or persist in engaging in the following conduct:
(a) Incomplete record keeping relating to payroll records;
(b) Not complying with reasonable management instructions.
…….”
Evidence of Ms Beginov
[19] On 20 July 2017 Ms Beginov had a conversation with Mr Oostendorp regarding Ms Beginov’s recent completion of the HVRAS course.
[20] It is Ms Beginov’s evidence that during the conversation Mr Oostendorp said words to the effect that Ms Beginov “didn’t need to worry about personally measuring the motorhomes” manufactured by PMH. Mr Oostendorp then handed her a document, in the form of an information sheet, naming each model PMH manufactured with corresponding measurements for the purpose of completing the HVRAS forms. He informed her that the measurements she needed were on the piece of paper, and she could use those measurements for the purposes of completing the HVRAS form.
[21] Approximately two weeks after this conversation Ms Beginov conducted her first HVRAS inspection with assistance provided by Mr Oostendorp who held the tape measure. Ms Beginov recalls an attachment to the rear of the motorhome, similar to a bike rack, which she intended to include in the final measurements on the HVRAS form. It is Ms Beginov’s evidence that Mr Oostendorp said words to the effect that because the attachment was “an aftermarket addition there was no requirement for it to be included in the HRVAS measurements.”
[22] Ms Beginov said to Mr Oostendorp the measurement needed to be included, in accordance with the training she received. It is her evidence that Mr Oostendorp demanded that she complete the HVRAS form using the measurements from the information sheet without measuring the motorhome. Ms Beginov contends that, as subordinate to Mr Oostendorp’s management position, she complied with his direction.
[23] Relevant to direction given by Mr Ward to Ms Beginov, it is her evidence that in or about January 2018, Mr Ward was helping Ms Beginov to measure a motorhome for the purposes of Ms Beginov completing a HVRAS form. She stated that because there was an attachment the length measurement needed to take the attachment into account. Mr Ward stated, “Don’t worry about it.”
[24] Ms Beginov responded, “You have to include it.” Mr Ward demanded that Ms Beginov comply with his directions and not include the attachment as part of the length measurement. It is Ms Beginov’s evidence that because of Mr Ward’s insistence, she did not include the attachment in the measurements before completing the HVRAS form.
Ms Josephine Burford becomes Ms Beginov’s manager
[25] In approximately January 2018, Mrs Josephine Burford, Mr Burford’s wife, became Ms Beginov’s manager.
[26] Ms Beginov’s evidence is that in the short time Mrs Burford was her line manager, she was subjected on a number of occasions to intimidation and harassment by Mrs Burford. Ms Beginov stated that on an unspecified date she had been delayed at Queensland Transport while completing the duties of her employment, and as a result had been late for a weekly administration team meeting conducted by Mrs Burford. Ms Beginov stated that Mrs Burford ridiculed and embarrassed her in front of other staff members and repeatedly said to her in a raised voice, “Do you know that I’m your manager and you have to do what I tell you?” Ms Beginov stated that she had been reduced to tears by Mrs Burford. 2
Emails directing Ms Beginov to sign blank HVRAS forms
[27] On 8 April 2018 Mrs Burford sent an email to Mr Ward and Mr Mark Rixon, Salesman for PMH, copying in Ms Beginov and Mr Burford, which stated: 3
“Hi Clint and Mark,
As you may or may not be aware of, Jo will be on leave from Wednesday. Given her last working day is Tuesday, if further registrations are required during this period, can they be finalised for Monday. This will ensure that Jo and I have adequate time to conduct some handover to ensure the smooth operation of Administration during her leave period…”
[28] On 9 April 2018 at 6:33am Mr Ward replied by email to Mrs Burford, copying in Mr Rixon, Mr Burford and Ms Beginov and stated: 4
“If you could just ask jo to sign off 2-3 HAVRAS forms I can fill in the rest if registration is required…”
[29] On 9 April 2018 at 8:29am Ms Beginov sent an email in response to Mr Ward’s email, which stated: 5
“You know I’m still here right.”
[30] Ms Beginov stated that she understood complying with Mr Ward’s request would have been a breach of the declaration appearing in the HVRAS form that she had inspected the relevant vehicle and certified that the information was true and correct and had been taken from the vehicle itself, as she understood Mr Ward’s intention to be that a person other than Ms Beginov would complete the forms while she was on leave.
[31] On 10 April 2018 Ms Beginov was approached at her desk by Mrs Burford, who asked, “Have you signed those forms? Where are they?” Ms Beginov understood that Mrs Burford expected Ms Beginov to comply with Mr Ward’s request. Ms Beginov was fearful that if she refused or hesitated it would most likely result in Mrs Burford subjecting her to an outburst intended to humiliate her. Ms Beginov stated that she reluctantly agreed to and did sign approximately five blank HVRAS forms and gave them to Mrs Burford.
Show cause letter issued 23 April 2018
[32] Ms Beginov returned from annual leave on 23 April 2018 and was directed by Mrs Burford to go upstairs for a meeting. Mr Ward was in attendance. Mrs Burford handed to her a letter upon Ms Beginov entering the room; the ‘show cause’ letter. Mrs Burford had not earlier indicated that Ms Beginov’s employment was in jeopardy. She was not given an opportunity to read the letter before the meeting commenced.
[33] The show cause letter reads:
“The purpose of this letter is to provide you with an opportunity to review the issues raised in respect of your employment below, so that you can consider your response to them.
Specifically, in relation to the following alleged matters:
• Measurement requirements during the Vehicle Registration process
• Incomplete record keeping relating to payroll records
• Inadequate instructions provided prior to leave handover
• Not complying with reasonable management instructions
Despite you having been previously warned in respect of your employment on 27 November 2017 (specifically relating to issues with the Vehicle Registration process and non-compliance with reasonable management instructions), it is alleged that you have failed to improve and/or you persist to engage in the same or similar conduct – which may or has adversely affected the company, its operations and its business.
It is important that you take the allegations seriously as they could lead to disciplinary action up to and including dismissal. Accordingly, we recommend that you take the opportunity to properly consider your response as it will be taken into account when deciding what disciplinary action should be taken, if any.
Show Cause Meeting
We require that you attend a meeting at our office at 3:00pm on Tuesday, 24 April 2018 for you to put forward your response to the allegations.
Please be advised that you are allowed to have a support person to assist you during the meeting. However, the support person is not to act as your advocate and should not speak on your behalf. In the event that a support person attends the meeting with you, please provide us with your support person’s details prior to the meeting.
Further, we are prepared to consider any formal written submission you may wish to provide, at or prior to the meeting, that shows cause why you should not face disciplinary action up to and including dismissal of your employment.
At the conclusion of the meeting, our next step will be to:
1. consider your response;
2. consider your written submissions (if any);
3. take into account any explanation you have for your performance and/or conduct and/or lack thereof;
4. consider what disciplinary action should be taken, if any; and
5. advise you of the outcome of our decision
Confidentiality
We advise you that you are not to discuss this matter with any other employee of the company or client of the company (directly or indirectly). A failure to comply with this direction could result in disciplinary action being taken against you, including dismissal.
Yours sincerely,
Shannon Burford
Managing Director”
[34] Without affording Ms Beginov the opportunity to read the show cause letter issued to her, Mrs Burford then read from another document. The beginning of that document commenced:
“It has come to our attention that a measurement for the Parkinson Vehicle may be incorrect. We would like to understand how the measurement was taken for this particular vehicle. We are in the position to that we may need to rectify this vehicle and the estimate cost to rectify is approximately $10,000 and not including the reputational and commercial implications that this may have to the business.”
[35] Ms Beginov states although she did not specifically recall the Parkinson vehicle, Mrs Burford asked for a response. Ms Beginov answered:
(a) that it was common sense the HVRAS measurements did not determine motorhome length as it is determined by those who built the motorhome not the HVRAS authorised person.
(b) any inconsistency with the Parkinson vehicle between the measurements taken and the actual length of the motorhome was at the direction of either Mr Oostendorp or Mr Ward to instead:
(i) not measure the motorhome and take the measurements from the information sheet or customer folders; and
(ii) not measure motorhome attachments as they are post-production accessories.
[36] The document referred to above at [34] described several other matters not relating the measurement of the Parkinson vehicle or otherwise to Ms Beginov’s HVRAS related duties:
“Management instruction
Leave forms were handed off to me for sign off by the MD. Details required for MD’s review were not included, specifically leave hours available as recorded in Xero. The MD has mentioned that he has verbally requested these details be provided prior to sign off.
The Bundy system has been questioned regarding access a number of times and I have indicated that it does not make sense why a system would not be set up with a username and password. The Bundy system does not have access controls.
Email from [redacted] – Transeng RV Accessories regarding invoice [number] and the monthly statement. He has not been informed of the change of email address to send communication to PMH, as requested multiple times in Admin Weekly Meetings and in person.
Email from [redacted] relating to ME Christensen. Referring to the same issue highlighted above (not changing email address).
Call from [redacted] regarding Cristio Aranda. Shari has made a claim that Jo had provided advise regarding Cristito’s final pay, specifically will be paid. However, as advised to [redacted], as written notice was not provided and the notice period not worked through, a remedy under the contract and award is for unpaid work and entitlements to be held back. Jo as the Payroll Clerk, should have discussed these issues with her manager and the MD at the time.
Record Keeping
[Redacted] has Time in Lieu recorded in Xero. However, the Time in Lieu form was not approved and there are no notes added on this employee record in Xero. The form has now been approved.
[Redacted] clocked in to a paid smoko break for Friday 6 April. However, this is an unpaid break of 30 minutes. This should have been picked up in the review of daily wrong clockings.
An audit log has been produced for the week beginning 5 April and the following had no evidence to support the adjustment:
• [Redacted] – Change to clock out for lunch break
• [Redacted] – Change to clock in from lunch break
• [Redacted] – an adjustment made to his time at 6:15am without a Time Variance Form or wring clockings evidence
• [Redacted] – no evidence for 7:23AM or 8:31AM clocking
• Cristito Aranda – No time variance form for manual clock in from lunch break
• [Redacted] - incorrect smoko break manually adjusted for 9 April
• Jo Beginov – manual adjustment made at 8:52AM for Friday 6 April
• Kaylene Wadey – no Time Variance Form for 9 April for not clocking out (manual adjustment made)
• [Redacted] – no evidence for manual adjustment made on 11 April
• [Redacted] – no evidence of 8:21AM adjustment on 5 April
Inadequate handover
[Redacted] from WorkCover Queensland called on 12th of April, following up on [Redacted] claim. As information was not passed to me, it was very difficult to assist with her enquiries. I also had to ask multiple staff members if they had any information to provide, which could have been avoided if discussed in our handover meeting.
Phone call from the Department of Human Services regarding child support payments. I provided the receipt details which determined what happened with the payment. (incorrect reference number used). Michael provided you with information to resolve on April 3. However, only corrected on April 18.
Other issues
Statement Reconciliations – specifically Dunlop Foams and Harts [sic]”
[37] Ms Beginov states that the matters relating to leave forms, access to the ‘Bundy’ payroll system, the changed email address for PMH, the entitlements of Mr Aranda and inaccurate record keeping were all matters that she had brought to Mr Burford’s attention prior to taking leave. Ms Beginov stated that she did not consider any of those matters to be attributable to her.
[38] Ms Beginov states that it was her impression at the end of the meeting on 23 April 2018 that Mrs Burford had no interest in Ms Beginov’s responses and had already decided to terminate her employment. This was despite requiring Ms Beginov to attend a second meeting scheduled for 3:00pm on 24 April 2018.
Meeting 24 April 2018
[39] On 24 April 2018 Ms Beginov intended to go to work and recover the copies of the HVRAS forms for the motorhomes. In her view this would assist her in demonstrating that Mr Oostendorp and Mr Ward had directed her to either use the information sheet or omit the post-production measurements.
[40] She was, however, sent a text message from Mr Burford directing her not to attend for work until the meeting at 3.00pm.
[41] Ms Beginov requested Ms Wadey attend the meeting as her support person, and she did so.
[42] Ms Beginov stated that the second meeting ran an identical course to the first meeting. Mrs Burford read out allegations and Ms Beginov responded. It is Ms Beginov’s evidence that the answers she gave at the second meeting were, in large, the same answers that she gave at the first meeting.
[43] Mr Burford stated to Ms Beginov at the end of the meeting that he would make inquiries into Ms Beginov’s assertions that Mr Oostendorp and Mr Ward had directed her not to measure the motorhomes and include the post-production accessories in the measurements. Ms Beginov was directed not to attend for work pending the outcome of the investigation.
Termination letter sent by email
[44] No further contact was made with Ms Beginov other than to issue the termination letter extracted at [18] above by email. The email is as follows:
“Mr Burford: 26 April 2018: Hi Jo, After considerable deliberation we have determined that your conduct is incompatible with your employment duties and obligations and has undermined the trust and confidence reposed in you. Please see attached notice of termination…”
[45] Ms Beginov responded by email the next day:
“Hi Shannon…Prior to going on annual leave, I was asked by management to sign blank registration/hvras forms, I would please like these shredded and not used. Thanks.”
[46] Ms Beginov gave short evidence-in-chief in relation to a second statement made by Mr Burford on 16 August 2018, the day prior to the first day of hearing. Appearing as annexures to Mr Burford’s second statement were a series of text messages passing between Ms Beginov and Mr Burford, reproduced here:
“[Unknown date]
Ms Beginov: Hey Shannon I won’t be able to come to work for a few days. Brad was in an accident. I will call you Wednesday. Sorry for the txt. Not really up to talking atm.
Mr Burford: No worries hope he is ok. Take care”
12 March 2018 @ 6.35am:
Mr Burford: Hi Jo we have the HVRAs report to do for the Hunter delivery today. If we do the report is it possible for someone to drop round and get you to sign? Otherwise we will go and do it at Southport. Sorry to ask, no worries either way. Hope Brad is on the mend. Cheers.”
12 March 2018 @ 9.52am:
Ms Beginov: I don’t mind of you forget my signature
13 March 2018 @ 7.29am
Ms Beginov: Oh crap. I just noticed what I wrote. I meant I don’t mind if you forged my signature for the rego. Stupid predictable txt. Sorry”
[47] Ms Beginov stated in her evidence-in-chief that her boyfriend had had a serious motorbike accident and ‘was a bit touch and go’ at the time that those text messages were sent. Ms Beginov’s predominant concern at that time had been the condition of her boyfriend. Ms Beginov stated that she ‘just wasn’t in the right frame of mind at that time’. Ms Beginov stated further that she had not been serious in her suggestion that Mr Burford forge her signature. 6
Cross examination
[48] In cross-examination, Ms Beginov agreed that she was bound by the terms of her employment contract as of 4 May 2017. Ms Beginov agreed that she had a duty to comply with reasonable directions given to her by PMH. Ms Beginov indicated that she had understood that her employment could be terminated as a result of any serious or persistent breach of any of the terms of the contract or as a result of her refusal to comply with the reasonable instructions or directions of PMH.
[49] Ms Beginov agreed that from the commencement of her employment contract on 4 May 2017 until around January 2018, she had reported to Mr Burford in the course of her employment. Ms Beginov stated that Mrs Burford had become her line manager in approximately January 2018 and she had then been required to report to Mrs Burford in the course of her employment. 7
[50] Counsel for PMH referred Ms Beginov to an organisational chart showing the reporting structure of PMH. The organisational chart showed Ms Beginov as being required to report to Mr Burford, and as holding the same level of seniority as Mr Ward, Mr Oostendorp and as Mr Steve Zeeman, Purchasing Officer.
[51] It was put to Ms Beginov that she was not required to report to Mr Ward or Mr Oostendorp in the course of her employment. Ms Beginov stated that she had been required to report to Mr Ward regarding HVRAS registrations and requests and had been asked to complete tasks by Mr Oostendorp in the course of her employment. Ms Beginov acknowledged that she had never been supervised by Mr Ward or Mr Oostendorp in the course of her employment. 8
[52] Ms Beginov confirmed in cross-examination that PMH had paid all associated costs for the HRVAS training and had paid Ms Beginov at her ordinary rate while she completed the training. She recalled that the training had consisted mostly of measuring large trucks and vehicles with box trailers. The training had included instruction on how to complete and submit the relevant HVRAS forms. Ms Beginov stated that she had been made aware of her obligations as a HVRAS accredited person to record information accurately and not to provide false information, although she clarified that the training had not included detailed instruction regarding the applicable sections of the relevant legislation.
[53] Counsel for PMH referred Ms Beginov to two paragraphs extracted from the HVRAS accreditation training documentation, which states:
“The training course includes methods for measuring vehicles, dimensional limitations and load limitations and provides information on how to locate vehicle identifiers.” 9
…
“As an HVRAS accredited person you're responsible for the accuracy of the inspections you carry out and the recording of the information on the inspection sheets. To ensure accuracy all details must be from the vehicle itself and not from documentation relating to the vehicle or advice from the client.” 10
[54] Counsel for PMH also referred Ms Beginov to s.53(2) of the Transport (Operations) Road Use Management Act 1995 (Qld) (TORUM Act), which states:
“53 False or misleading documents, generally
…
(2) A person must not give, for a transport Act, an official a document containing information the person knows is false or misleading in a material particular.
Penalty: Maximum penalty—
(a) if paragraph (b) does not apply—60 penalty units; or
(b) if the information relates to a heavy vehicle, a prescribed dangerous goods vehicle or the transport of dangerous goods—100 penalty units.”
[55] Ms Beginov’s clarification was sought that she had been aware that providing false or misleading information in a HVRAS document could contravene the TORUM Act and result in penalties. Ms Beginov stated that she had not been aware of any possible penalty against her as a result of providing false or misleading information in a HVRAS form. Ms Beginov stated that she had considered that she had a moral obligation not to provide false or misleading information, but had not understood her legal obligations. 11
[56] Counsel for PMH took Ms Beginov to paragraphs [26] and [27] of Ms Beginov’s statement of 10 July 2018, where she stated:
“As the authorised HVRAS inspector for PMH I was required to personally measure the motorhomes and insert those measurements into the HVRAS forms. The declaration at paragraph 9 of the form is a declaration that I, the HVRAS authorised officer was the person who personally measured the motorhome and inserted those measurements into the HVRAS form.
Notably the declaration requires the information to have been taken from the vehicle itself. This is consistent with the training I received during my HVRAS course.”
[57] In cross-examination, Ms Beginov admitted that there had been occasions in her employment with PMH when she had included dimension information in HVRAS forms without physically inspecting a vehicle and had taken that dimension information from other sources, but had indicated within HVRAS forms that she had physically inspected the relevant vehicle. Ms Beginov acknowledged that by doing so, she had made false declarations on HVRAS forms in the course of her employment.
[58] It was put to Ms Beginov that she had made a false declaration on the HVRAS form submitted in respect of the Parkinson vehicle, which had been put to her by Mr Burford at the meeting of 24 April 2018. Ms Beginov confirmed that she had informed Mr Burford at that meeting that she had not always physically inspected vehicles before completing associated HVRAS forms, but maintained that she had informed Mr Burford that she had physically inspected the Parkinson vehicle with Mr Ward before completing the associated HVRAS form. 12
[59] The ‘letter of concern’ relevant to the November 2017 issues were addressed with Ms Beginov in cross-examination. Ms Beginov recalled allegations being put to her that she had lost a set of vehicle registration plates and that she had failed to attend the meeting with Mr Ward. Ms Beginov denied that any of the other matters described were raised with her at the meeting of 27 November 2017 or in the letter of concern.
[60] Ms Beginov stated that she had not admitted to losing the vehicle registration plates or to refusing to attend the meeting with Mr Ward. Ms Beginov considered that she had not underperformed or lacked care in respect of her work following the meeting of 27 November 2017.
[61] PMH was unable to produce the letter of concern at the hearing of this matter on 17 August 2018. A document alleged to be the letter of concern presented to Ms Beginov on 27 November 2017 was subsequently produced by PMH at the continued hearing of this matter on 23 August 2018. Ms Beginov’s evidence regarding the letter of concern is set out in her evidence in cross-examination below.
[62] Ms Beginov confirmed in cross-examination that the next meeting regarding her performance had been the meeting of 23 April 2018. Ms Beginov confirmed that the issues discussed at that meeting were the issues described in the show cause letter of 23 April 2018. Ms Beginov denied that any mention of the meeting of 27 November 2017 or the concerns raised in that meeting was made during the meeting of 23 April 2018.
[63] Counsel for PMH put to Ms Beginov generally that the issues set out in the document provided to Ms Beginov by Mrs Burford as set out in part at paragraph [34] – [36] above were put to her in the meeting of 24 April 2018. Ms Beginov agreed that the matters relating to the Bundy system were put to her.
[64] Relevant to the Bundy system, Ms Beginov recalled that she had been asked by Mrs Burford whether a log-in and password could be created for access to the Bundy system. Ms Beginov stated that she had not been aware whether a log-in and password could be created in the system and had said as much to Mrs Burford. Ms Beginov stated that management of the Bundy system had been the responsibility of Ms Wadey, not her.
[65] Further, Ms Beginov stated that it had not been her responsibility to ensure records of time worked within the Bundy system were correct prior to pay runs being issued. Ms Beginov stated that she had been responsible for processing pay runs, but that Ms Wadey had been responsible for correcting ‘clock-ins’ in the Bundy system prior to Ms Beginov processing a pay run.
[66] Regarding the change of email addresses, Ms Beginov stated that it had not been her responsibility to inform motor home part suppliers of PMH of the change to PMH’s contact email address. Ms Beginov stated that it had been her responsibility to notify other suppliers of the changed email address, such as office material suppliers and utility companies, but not suppliers of motor home parts. Ms Beginov stated that she had been shown a letter that had been emailed to all motor home suppliers from Mrs Burford advising them of PMH’s new email address.
[67] Regarding the entitlements of Mr Aranda, Ms Beginov stated that she and Mr Oostendorp had met with Mr Aranda regarding his final pay. Ms Beginov stated that Mr Oostendorp had left the meeting to consult with Mr Burford and upon his return had said to Mr Aranda that ‘he would be paid all of his entitlements’. Further, Ms Beginov had clarified to Mr Aranda that PMH would still need to calculate the relevant amount to be paid. Ms Beginov acknowledged that it had been put to her at the meeting of 24 April 2018 that she should have raised the issue of Mr Aranda’s entitlements to Mr and Mrs Burford.
[68] Regarding the inadequate handover relating to an outstanding matter before WorkCover Queensland, Ms Beginov stated that there had been nothing to discuss in relation to WorkCover at the handover, as the relevant employee had returned immediately to work and Ms Beginov had had no expectation that WorkCover would contact PMH regarding a WorkCover claim.
[69] Regarding the issue of child support payments, Ms Beginov recalled that she had received an email from ‘Michael’ on 3 April 2018 stating that he had made the relevant payments, but had not been requested to resolve an issue of failed payment on that date.
[70] Ms Beginov stated that the issues regarding statement reconciliation in relation to ‘Dunlop Foams’ and ‘Harts’ had not been raised with her during the meeting of 23 April 2018 or 24 April 2018.
[71] In answering questions in relation to discussions involving the physical measurement of vehicles during the meeting of 23 April 2018, Ms Beginov stated that she had admitted to failing to take physical measurements in respect of a limited number of vehicles, which did not include the Parkinson vehicle.
[72] Ms Beginov stated that she had said at the meeting at 23 April 2018 that she had been instructed by ‘other management’, namely Mr Ward, that she was not to take the physical measurements of the Parkinson vehicle before completing the HVRAS form. Ms Beginov recalled that Mr Ward had admitted to instructing Ms Beginov to that effect at the meeting on 23 April 2018. Ms Beginov recalled that Mrs Burford had been ‘quite surprised that this is what was said’ at the meeting of 23 April 2018. 13
[73] Counsel for PMH took Ms Beginov through issues that had been raised with her regarding the physical measurement of vehicles during the meeting of 24 April 2018. The following relevant discussion between Counsel for PMH and Ms Beginov is reproduced: 14
McConaghy: He was on the smart end, you were on the zero, or dumb end, of the measuring tape. And then after you spoke about the Parkinson vehicle you then spoke about your interactions generally with Leon and Clint?
Beginov: Yes.
McConaghy: The issue of you being the HVRAS accredited officer came up, and you said that they were not accredited officers and that attachments on the back of vehicles are not included in the measurements of vehicles, so you raised that with them in this meeting?
Beginov: With Leon and Clint, yes.
McConaghy: You said at the meeting of 24 April that you had also raised that in conversations with Leon and Clint?
Beginov: Yes.
McConaghy: That it was suggested by Leon and Clinton that as the attachments were after-market products they shouldn't be measured, and you said you openly disagreed with that?
Beginov: Yes.
McConaghy: That they should be measured?
Beginov: Yes.
McConaghy: But in spite of that you said that you recognise that you intentionally recorded the measurement without including the attachments?
Beginov: Yes.
McConaghy: [Ms Beginov] then went back to the Parkinson vehicle and there was discussion about the fact that the measurements were incorrect. You were aware that there was concern about the cost of rectification in relation to the Parkinson vehicle, weren't you?
Beginov: Yes.
McConaghy: And you then also indicated that you had not physically measured each vehicle, that you relied on measurements including technical drawings…?
Beginov: They were drawings, as such. It was a – like an A4 sheet of paper showing each vehicle – each model, sorry, and the measurements for each model.
McConaghy: But you relied on other sources other than physical inspection?
Beginov: As – yes.
McConaghy: And we established previously that you knew that was wrong?
Beginov: Yes.
[74] By referring to the ‘smart end’ of the tape measure, Dr McConaghy referred to the end of the tape measure at which a person using the tape measure can read the distance measured, as opposed to the ‘dumb end’ of the tape measure which serves as the starting point for the distance measurement.
[75] Further in cross-examination, Ms Beginov stated that she had held both the ‘smart end’ and the ‘dumb end’ of the tape measure while taking measurements for the purpose of completing HVRAS forms during the course of her employment. Where Ms Beginov had used the ‘dumb end’ of the measure, either Mr Ward or Mr Oostendorp had used the ‘smart end’ and had read the distances measured out to Ms Beginov. In the case of the Parkinson vehicle, Ms Beginov had used the ‘dumb end’ and Mr Ward had used the ‘smart end’. 15
[76] Ms Beginov gave the following evidence in cross-examination regarding her understanding of directions given to her by Mr Ward and Mr Oostendorp to complete HVRAS forms: 16
McConaghy: In your witness statement at 36 you acknowledge that you completed – on two occasions you incorrectly completed two forms. You say that Leon demanded that you complete the forms incorrectly, but at the meetings on the 23rd and particularly the 24th, you said that nobody held a gun to your head, I think that was your expression?
Beginov: No, but they pressured me, yes.
McConaghy: You said that there was peer pressure?
Beginov: It wouldn't have been peer pressure, it was just pressure from management that were higher up than me.
McConaghy: But they weren't higher up than you, were they, we've established that?
Beginov: Well, they were. They were.
McConaghy: According to the - - -
Commissioner: She's disagreed with you, Ms McConaghy.
McConaghy: Yes, okay.
Commissioner: She says originally they were but when Josephine comes to work she gets put down a rung? Yes.
McConaghy: I think, Commissioner, we also established that they were never directly supervising her.
Commissioner: I understand that.
McConaghy: Yes?
Beginov: No, they weren't supervisors but I had to follow their instruction.
McConaghy: To the point where you falsified Queensland Transport documents?
Beginov: Based on Leon saying that it doesn't have to be measured, it's an after market product, I have – I did say, "No, you can't do that, it's illegal, we have to measure it." And he has said, "Just do it, it's an after market product, don't worry about it, just do it." Leon has worked for the company for twelve years. He knew more about motorhomes than me, even though he wasn't HVRAS, but he was management, he was more experienced and he told me just to do it, just do it. And after going back and forth, I did do it.
McConaghy: But at the meeting on 24 April, and you said you pretty much said the same on 24 April as you what you said on 23 April - - -?
Beginov: Yes, yes.
McConaghy: That these notes recorded by Josephine say, and you agreed to this just when I asked you about them, that you indicated you felt peer pressure to make decisions but nobody threatened you or, "held a gun to my head"?
Beginov: They didn't threaten me. They just pressured me.
McConaghy: This was the language that you used in the meeting of 24 April and I suggest that now, following the termination, you have now changed your view in relation to what happened and you are now saying it was no longer peer pressure but that in fact you were demanded to do things?
Beginov: Yes, I was pressured, it was - yes, I felt to me it was, yes.
McConaghy: That was not the language that you used at the meetings of 23 April or 24 April?
Beginov: Those words?
McConaghy: You said you felt peer pressure - - -?
Beginov: Well, not peer pressure, because they were not my peers.
McConaghy: I suggest that Leon never made you do anything and that would be consistent with these notes of the meeting on 24 April - that he never made you do anything?
Beginov: He did - not in a threatening way but he pressured me and he said, "Just do it." Going back and forth with him a few times, I did end up doing it.
McConaghy: I would suggest to you that although Clint said that you should not include the attachments in your vehicle measurements, that at no time did he demand - - -?
Beginov: Yes, he did.
McConaghy: - - - you not do so. I suggest to you there is a difference between your colleagues saying that you shouldn't include attachments in measurements and you then responding, "Well, you should," according to your understanding and your training. I suggest that that's quite a different situation to being demanded to do something?
Beginov: Well, I've - they have demanded it.
McConaghy: So they had conversations with you - - -?
Beginov: Yes.
McConaghy: - - - you had conversations with them - - -?
Beginov: Yes.
McConaghy: - - - at which they said, "No, we shouldn't include the measurements of the attachments," and you said, "Well, no, we should, I've done the training," and that was the extent of what happened?
Beginov: And I said that you have to include - I said, "You can't do that, it's illegal. We have to do it, I don't want to get in trouble," and, "Just do it, it's fine. Just do it, it's an after-market product, just do it."
McConaghy: But I'm suggesting to you that a conversation around what should happen is not demanding that you do something. You've said that you had conversations with them at which they said, "No, don't measure the attachments, we shouldn't measure the attachments." You say, "No, I'm accredited, I know we should measure the attachments." That is not them demanding that you do things, is it?
Beginov: It is when they, after I say that, when they persist on this happening.
McConaghy: Then you say to them - you would have said to them, wouldn't you, that you are an accredited person and you knew your obligations?
Beginov: Not in those words - I didn't use those words. I said, "It's illegal not to do it, we have to do it and I don't want to get in trouble for not doing it."
McConaghy: So you knew it was illegal?
Beginov: Yes.
McConaghy: Before you said you knew it was morally not the right thing to do?
Beginov: Well, illegal, like - that's just a term. I don't know, like - yes.
McConaghy: So you didn't say to them it was illegal?
Beginov: I guess in those - yes.
McConaghy: Yes?
Beginov: I'm not exactly sure of the words I used. But it was - yes, I said you can't do that.
McConaghy: They had not been trained?
Beginov: No.
McConaghy: You were the only person trained?
Beginov: Yes.
McConaghy: Despite your training, you allowed them to pressure you?
Beginov: I did, especially like with Leon because like I said he's been working for that company for 12 years. He knows a lot more and he was management and after going back and forth, yes, I did finally not include it.
[77] Ms Beginov was cross-examined further on the alleged pressure put upon her by Mr Ward and Mr Oostendorp to omit attachments to vehicles from measurements taken in relation to HVRAS forms and her failure to raise her concerns to Mr Burford’s or Mrs Burford’s attention: 17
McConaghy: …In relation to Clint, he said that - isn't it correct - that he requested you not to include attachments in the measurements of the Parkinson vehicle, is that correct?
Beginov: Yes.
McConaghy: But at no time did he put any pressure on you?
Beginov: Yes, he did put pressure on me.
McConaghy: Are you saying he put pressure on you in relation to the Parkinson vehicle?
Beginov: And every other vehicle that we've measured with an attachment.
McConaghy: Now, I would put to you that no one pressured you to not physically measure the vehicles?
Beginov: Yes, they did - Clint and Leon. Leon did it in the way of giving me the form when I first did my HVRAS course. He said not to do it. He said, "I'm going to get you a form." He walked over and got a print-out, an A4 sheet of paper. He got it from our CAD drawer and he came back and he gave it to me and he said, "Don't measure them, just use this form. All the models are the same size." Clint has done it in the way of, "Just get the information from the customer folders because they're all the same size."
McConaghy: I would put to you that when Mr Shannon investigated in relation to this matter and had conversations with Leon and Clint, that he did not find that you were under any duress or pressure from Leon or Clint?
Beginov: I don't know what investigation was held, if any, about that, so I don't know any outcome of any investigation that took place. I don't know what anyone said up until this was issued to us.
McConaghy: Now, you didn't take - if you had concerns about being peer-pressured, as you referred to it - if you had concerns you would imagine that you would take that to your line manager, your supervisor, wouldn't you? You'd take that to Josephine or Shannon?
Beginov: No.
McConaghy: You're claiming that what you were asked to do was illegal, in your words. Wouldn't you go to talk to Josephine or Shannon about that?
Beginov: Well, I haven't done that, no.
McConaghy: You didn't do it?
Ms Beginov: No, I didn't do it.
McConaghy: Now, there was an organisational chart, if you like, in relation to - there was within the organisation at JCV1, a flow chart, if you like, in relation to anybody experiencing any problems within the organisation. If you could turn, please, to JCV1 of Josephine's witness statement - you're aware of this document?
Beginov: Can you just hold it up? Yes, I am aware of that document.
McConaghy: If you have an issue at work, such as breaches of law, policies and procedures, which this certainly would have been, in the first instance you contact your leading hand or manager but you didn't do that, did you?
Beginov: No, I didn't.
McConaghy: You don't think that if you had done that, then the issue in relation to the measure of vehicles could have been discussed and resolved?
Beginov: No, I actually would have thought that Shannon would know about the whole aspect of that so I didn't - like, with the attachments, with the non-attachments, with the whole production area, that I didn't think he - I didn't think it would be something that he wasn't aware of so I didn't bring it up or discuss it.
McConaghy: Or is it the case that you didn't think it was a serious problem - - -?
Beginov: No, it was - - -
McConaghy: - - - serious enough for you to take to your manager?
Beginov: I thought it was a serious issue but, no, I didn't take it.
McConaghy: But you had avenues to take it to your manager? You could have taken it - - -?
Beginov: Yes, I could have.
McConaghy: - - - it was certainly an avenue available to you?
Commissioner: What did you think Mr Burford's understanding of the attachments was?
Beginov: Just as a general - the whole production. He's the general manager and I just thought that he was aware of every aspect of the whole production.
Commissioner: What did you think his knowledge was, that attachments are to be included or not?
Beginov: Well, I don't know, actually.
Commissioner: So why didn't you go to him?
Beginov: I don't actually have an answer for that. I - I don't.
[78] In relation to the text messages between Ms Beginov and Mr Burford extracted above at [44] – [46], Dr McConaghy put to Ms Beginov that after stating that she didn’t mind if Mr Burford ‘forget her signature’, Ms Beginov had realised her mistake and had sent another text message clarifying that her intended statement had been she didn’t mind if Mr Burford ‘forged her signature’. Dr McConaghy put to Ms Beginov that by correcting her error, she had shown that it had not been a ‘momentary lapse’ on Ms Beginov’s part to suggest that Mr Burford forge her signature on HVRAS forms.
[79] Ms Beginov reiterated that her predominant concern at the relevant time had been the health of her boyfriend, and that it had not been her intention in sending the text messages to suggest to Mr Burford that he should literally forge Ms Beginov’s signature. Ms Beginov stated that nothing had been mentioned to her about the text messages after she returned to work and she was not aware of any employee of PMH having forged her signature during the course of her employment.
[80] Ms Beginov stated in cross-examination that she had attended a Queensland Transport office in Helensvale, Queensland around lunch-time on 27 April 2018, the day after her dismissal, and sought to cancel her registration as a HVRAS accredited person and have her name taken off of the list of HVRAS accredited persons. 18
[81] It was put to Ms Beginov that as of 25 July 2018 her name remained on the list of HVRAS accredited persons. Counsel for PMH produced a register of HVRAS accredited persons as of 25 July 2018. Ms Beginov’s name appeared within that register as a HVRAS accredited person. 19 Ms Beginov acknowledged that her name remained within the HVRAS register shown to her, but maintained that she had attempted to cancel her registration as a HVRAS accredited person on 27 April 2018.
[82] Finally, in cross-examination it was put to Ms Beginov that blank vehicle registration forms had not been presented to her for her signature prior to Ms Beginov going on leave. The following relevant discussion occurred:
McConaghy: Yes, I put to you where you say, "The following morning Josephine approached me at my desk and she asked me, 'Have you signed those forms, where are they,'" I put to you that that didn't happen?
Beginov: That did happen, yes - that did happen, because she came in - because she comes in around I think 9.30-ish and she came in and I had already done it at that stage. I put them in Clint's office. She came in and she said, "Have you signed those forms?" I said, "Yes." She said, "I need to see them, where are they?" I went into Clint's office and I got them, brought them in to her. She had a flick through them all and then she handed them back to me and I put them back into Clint's office.
Commissioner: Were they empty forms with your signature?
Beginov: Yes, yes.
McConaghy: It's correct, isn't it, that there are about four or five forms that are required in order to register a heavy vehicle?
Beginov: To register any vehicle - it's a handful of forms.
McConaghy: Yes?
Beginov: Only one is the measuring form but there is about four or five different forms that have to be filled in.
McConaghy: And some of that information pertains to information that other people can get, for example, the make of the vehicle, the body type or so on - that here is information that can be populated by other people in the forms?
Beginov: Yes, there is - well, by Clint, yes. Clint is authorised to fill those forms in as well, except the HVRAS - just all the other registrations. He is the dealer principal.
[83] Ms Beginov was recalled to give further evidence on the second day of the hearing of this matter on 23 August 2018. Further examination of Ms Beginov was confined to the meeting of 27 November 2017 and the letter of concern presented to her by Mr Burford.
[84] Dr McConaghy produced a document alleged to be the letter of concern provided to Ms Beginov on 27 November 2017. Ms Beginov denied that the document shown to her was the letter of concern that had been presented to her by Mr Burford. 20
[85] Dr McConaghy took Ms Beginov through the allegations set out in the document alleged to be the letter of concern. Ms Beginov agreed that it had been put to her during the meeting of 27 November 2017 that: 21
• She had ignored a direct instruction to attend a meeting with Mr Ward relating to the termination of another staff member;
• She had lost a set of vehicle registration plates and had failed to bring the loss of those plates to Mr Burford’s attention.
[86] Ms Beginov denied that the following matters set out in the document alleged to be the letter of concern had been put to her during the meeting of 27 November 2017:
• That Ms Beginov needed to take more time to listen and absorb instructions and that there had been an erosion of trust in her performance;
• That Ms Beginov had failed to follow Mr Burford’s instructions to convey a message to one Mr Alan Dow;
• That Ms Beginov was to receive a formal job description as ‘office manager’ and a position description for ‘office manager’ was attached to the document alleged to be the letter of concern;
[87] It was put to Ms Beginov that during the meeting of 27 November 2017, Mr Burford had discussed her duties as a member of PMH’s management team and outlined his expectations of Ms Beginov in that respect. Ms Beginov denied that Mr Burford had discussed her duties or her position within PMH’s ‘management team’ at the meeting of 27 November 2017.
[88] Further, Ms Beginov denied that she had held a ‘management position’ within PMH at any time during her employment, and certainly not after the commencement of Mrs Burford in the ‘Change Manager’ position. Ms Beginov denied that she had been responsible for managing incoming and outgoing communications, for improving PMH’s HR practices and denied ever having been responsible for supervising Ms Wadey. 22
[89] Ms Beginov maintained that the only matters that had been discussed with her during the meeting of 27 November 2017 had been her alleged failure to attend the meeting with Mr Ward and the issue regarding the lost vehicle registration plates. 23
[90] In answering questions from Mr Trotman in re-examination, Ms Beginov stated that she recalled the letter of concern document that had been presented to her on 27 November 2017 to have comprised of a single page, whereas the document that had been produced by PMH had been two pages. Ms Beginov confirmed that the document produced by PMH included a place for Ms Beginov’s signature but had not been signed by Ms Beginov. 24
[91] In answering questions from me, Ms Beginov stated that she and Mr Burford had been in a meeting with another employee of PMH on 27 November 2017. At the conclusion of that meeting, the other employee had left the room and Mr Burford had asked Ms Beginov to stay in the room and it was at that time that Mr Burford had presented Ms Beginov with the letter of concern.
[92] Ms Beginov confirmed her recollection that the document presented to her had been only one page long, and there had not been a position description or any similar outline of Ms Beginov’s duties and responsibilities attached to the letter of concern. Ms Beginov stated that she was not asked to sign the letter of concern and had not signed it.
[93] Ms Beginov confirmed her understanding that as of 27 November 2017, Mrs Burford had fulfilled the role of ‘office manager’ for PMH. Ms Beginov could not give any reason why she would have been given a position description for an ‘office manager’ role, given that she did not hold that position. 25
Mitigation
[94] Ms Beginov stated that from 23 April 2018 to 31 May 2018 she applied for 19 other jobs in attempting to secure alternate employment. Ms Beginov applied for those jobs using an online employment advertisement website. Ms Beginov provided a printout of an electronic record showing the times and dates of job applications that she had made through that website.
[95] Ms Beginov was invited to participate in four job interviews. She accepted a position of part-time employment offered in one of those job interviews and commenced further employment on 18 June 2018. Ms Beginov stated that her preference remained to be employed full-time, but that she had accepted a part-time position as she needed to return to paid work quickly. Ms Beginov provided evidence of her payslips in her new employment for the period of 2 July 2018 to 12 August 2018.
[96] Ms Beginov stated that she would not have voluntarily resigned from her employment with PMH. She stated that she had enjoyed her work there and had no reason to leave.
Evidence of Ms Wadey
[97] Ms Wadey is the receptionist at PMH, and she was ordered to attend the Commission and give evidence in this matter. She was a reluctant witness, however I accept in its entirety all of the evidence given by Ms Wadey. It is true that Ms Wadey was uncomfortable giving evidence, largely against her current employer, however I consider that she was honest.
[98] As she had been ordered to attend and give evidence it was necessary to hear evidence-in-chief and then allow for Ms Wadey to be cross-examined. She had not prepared a witness statement.
[99] Ms Wadey agreed to be Ms Beginov’s support person as she considered that Ms Beginov required support in the meeting she had been asked to attend. She did not know the nature of the meeting on 24 April 2018 until she attended the meeting. Once in the meeting she understood it was a show cause meeting.
[100] Ms Wadey agreed that Ms Beginov stated in the meeting of 24 April 2018 that she felt peer pressure to make decisions. She agrees that she heard her say, “However, nobody held a gun to my head.”
Mrs Burford
[101] Ms Wadey accepted that Mrs Burford is her manager, and Mrs Burford was Ms Beginov’s manager whilst she was employed. The three women attended weekly administration team meetings together where Mrs Burford would issue directions to the team.
[102] Ms Wadey agreed in questions from Mr Trotman that she had seen Ms Beginov cry at work. She attributes the cause of Ms Beginov’s tears to be due to the treatment of her by Mrs Burford. Ms Wadey comforted Ms Beginov on occasions when she was crying at work. Further, Ms Wadey stated to Ms Beginov on relevant occasions, expressions such as, “I can’t believe that she [Mrs Burford] has spoken to you that way” and “She [Mrs Burford] has got it in for you.” She agreed that she stated to Ms Beginov, “She [Mrs Burford] has been trying to get rid of you since the day that she came in.”
Mr Ward
[103] Ms Wadey agreed that at a weekly administration meeting she informed Mrs Burford that Mr Ward had asked her to change the weight, relevant to the second stage of a vehicle registration. She felt uncomfortable doing so as she was not sure if it was the correct thing to do.
[104] Ms Wadey agreed that Mr Ward had directed Ms Beginov not to physically measure a motorhome for HVRAS registration. She stated that Mr Oostendorp was present at the meeting in Ms Wadey’s office, and both men gave such direction to Ms Beginov. 26
[105] In cross-examination, Ms Wadey’s evidence is that the following conversation occurred between Ms Beginov, Mr Ward and Mr Oostendorp during the middle or end of 2017: 27
Ms Beginov: I need to measure this vehicle.
Mr Ward: You don’t need to measure the vehicle. They’re all the same size.
Mr Oostendorp: Yeah, they’re all the same size. You don’t need to measure it.
[106] Ms Wadey stated that Ms Beginov responded that she did need to, and then went upstairs. Ms Wadey is not aware of what occurred following the conversation. She is unsure if the statements made by Mr Ward and Mr Oostendorp were directions, or whether they were just conversational. 28
[107] After the meeting of 24 April 2018, Ms Wadey approached Mr Burford. Having heard what was discussed with Ms Beginov, Ms Wadey became concerned that she too had followed a direction from Mr Ward to change the weight on registration forms on the ‘second stage’ of registration. She was concerned and fearful that she would be put in the same position as Ms Beginov, all because she had been asked to do something by Mr Ward. Mr Burford assured her that she would not be in trouble because she was only altering the second stage.
Bundy system
[108] Ms Wadey’s evidence is that during Ms Beginov’s employment, Ms Wadey had sole responsibility to do Bundy system entries. If corrections were required, Ms Wadey was required to attend to it, not Ms Beginov.
Evidence of Mr Burford
[109] Mr Burford provided two witness statements in this matter. He is the Managing Director of PMH. He agrees that Ms Beginov proposed to become HVRAS accredited around July 2017.
[110] PMH paid the course fees for Ms Beginov to attend the HVRAS training. At all times, following her becoming an authorised person to complete HVRAS forms, it was the respondent’s expectation that she would comply with her statutory obligations. Mr Burford was not aware during Ms Beginov’s employment (until around April 2018) of the personal statutory obligations that flow to an authorised person. 29
[111] On 27 November 2017 Mr Burford held a meeting with Ms Beginov in the presence of Mr Oostendorp. Mr Burford stated that the following issues were raised with her:
(a) ignoring direct instructions, specifically in relation to assisting with the termination of a casual detailer. Mr Ward had required her assistance to effect the termination, however she did not attend the meeting;
(b) the loss by Ms Beginov of vehicle registration plates and her failure to notify Mr Burford; and
(c) general communication issues, specifically to Ms Beginov’s position of trust and responsibility to ensure instructions issued to her will be completed.
[112] It is Mr Burford’s evidence that Ms Beginov admitted the allegations and she was warned about her underperformance and conduct.
Show cause notice
[113] Mr Burford considered that Ms Beginov continued to underperform in some parts of her role and showed a lack of care for her job. This lead to Ms Beginov being provided with a show cause notice. 30
[114] In Mr Burford’s second witness statement he stated that on or around 20 April 2018 he became aware that one of the large motorhomes manufactured by the respondent to the value of $370,000 was too long to be registered. He recalled another motor home that had been manufactured of a similar length being registered in late 2017. He discovered the HVRAS form completed by Ms Beginov relevant to that earlier vehicle, allowing the over-size vehicle to be registered.
[115] Mr Burford undertook inquiries to learn the responsibilities of a HVRAS authorised person and at this time discovered that it was a personal responsibility of the individual to undertake the steps in measuring the vehicles etc. The authorised person cannot rely on another person for the information and must obtain it first-hand.
[116] Mr Burford was not present at the meeting on 23 April 2018, however he approved the show cause letter being issued to Ms Beginov.
Show cause meeting
[117] The show cause meeting was held on 24 April 2018. It is Mr Burford’s evidence that at no time did Ms Beginov declare that Mr Ward or Mr Oostendorp ‘forced or demanded that she not measure motor homes, or force or demand her to incorrectly complete and sign HVRAS forms.’ She did state during the meeting that she understood her obligations as a HVRAS authorised person to ensure the forms are completed properly.
[118] Mr Burford agrees that Ms Beginov stated during the meeting, “I just did what I was asked to do by Leon and Clint.” Further, she said that nobody had held a gun to her head.
[119] It is Mr Burford’s evidence that during the meeting Ms Beginov:
(a) admitted she did not personally measure motor homes;
(b) admitted she knowingly recorded measurements without including attachments to the vehicle;
(c) admitted she marked “Yes” on Queensland Department of Transport and Main Roads forms when she should have marked “No”; and
(d) admitted to knowing that she should not have engaged in such conduct.
Investigation undertaken
[120] On the same day, Mr Burford and Mrs Burford met with Mr Oostendorp. Mr Burford recalls that Mr Oostendorp stated words to the effect:
“I never made Joanne do anything, I only said what was my understanding, I believe that you measure the back of the vehicle and you do not include the attachments in the measurement, however, I have not completed the HVRAS course and a HVRAS accredited officer would know what should be included in the measurement.”
[121] Following that meeting, Mr Burford and Mrs Burford met with Mr Ward. Mr Ward stated words to the effect that he did recall requesting Ms Beginov not to include attachments in the measurement of the Parkinson vehicle, but at no time did he put any pressure on her.
[122] Mr Burford then made inquiries relevant to any breaches by Ms Beginov of the law. It became apparent to Mr Burford that she may have engaged in a criminal offence and she knew or should have known her obligations that were personal upon her as a HVRAS authorised person.
[123] The HVRAS form required to be completed declares:
“I have inspected the vehicle indicated on this form and certify the information contained in this form is complete, true and correct and has been taken from the vehicle itself.”
[124] Mr Burford understood it is an offence under the TORUM Act for a person to give an official a document containing information the person knows is false or misleading.
[125] He held concerns that somebody could have been injured or killed with the incorrect information provided, or that financial loss could flow from the deceit.
[126] It was Mr Burford’s considered view that on the information before him, Ms Beginov had not been under any duress or pressure to incorrectly complete the forms, and she admitted her obligations as a HVRAS authorised person. He considered that she had knowingly breached her obligations and caused or potentially caused serious and imminent risk to the health and safety of others and/or to the reputation or profits of the company.
[127] It is Mr Burford’s evidence that Ms Beginov was ‘high up in the management’ of PMH and ‘was required to report to’ Mr Burford. Mr Burford provided an organisational chart which he said demonstrates that Ms Beginov is at the ‘top of the chain in the management team.’
[128] The organisational chart Mr Burford produced as evidence has himself and Mr Samarasinghe at the top. It has four direct reports to Mr Burford; Mr Ward, Mr Oostendorp, Mr Zeeman, and Ms Beginov. Clearly the organisational chart does not represent the chart in place at the time of the dismissal as Mrs Burford is not on the chart. The evidence before the Commission is that Mrs Burford reported to Mr Burford, and Ms Beginov reported to Mrs Burford.
[129] Mr Burford’s evidence is that he considered the information and evidence available to him and resolved to terminate Ms Beginov’s employment on account of serious misconduct and her ongoing performance. He took into account the warning issued to her in November 2017. He emailed her the termination letter.
Text message sent by Mr Burford – 12 March 2018
[130] In the second witness statement, Mr Burford provided evidence of a text message exchange between himself and Ms Beginov. It is Mr Burford’s evidence that at the time of sending the message he was of the belief that Ms Beginov ‘was entitled to sign off HVRAS forms if she was satisfied the contents of them were true and accurate or that they would be completed accurately to her satisfaction such as by an agent or trusted person.’ 31
[131] The text messages are extracted above in the evidence of Ms Beginov at [44] – [46].
[132] Mr Burford’s evidence is that Ms Beginov came into work and signed the form. He reprimanded her on her return to work, advising her that under no circumstances should someone forge a signature. In any event, the vehicle was instead taken to the Department of Main Roads in Southport and registered there, requiring a HVRAS inspection there.
[133] Mr Burford did not take serious disciplinary action at the time because he understood that Ms Beginov was going through a very difficult time with her boyfriend having been involved in a serious motor vehicle accident. He considered at the time that she had made such an offer due to her distraction and being emotionally upset.
[134] Relevant to Mr Ward’s request for Ms Beginov to complete blank HVRAS forms when she was about to go on annual leave, Mr Burford was not aware of this prior to the dismissal. His evidence is as follows: 32
“Even if I had of [sic] seen the email, in my experience it is not unusual in business for forms to be signed by one person and completed by another, such as an agent. As examples, business documents such as share certificates can be signed incomplete and banks often require customers to sign blank loan draw-down forms to be filled out once bank account numbers are generated. So it was no unusual, especially as the Applicant was the only one to have been trained on her personal HVRAS obligations.
Further, that email was at no time mentioned to me by the Applicant during the disciplinary process some two (2) weeks later.”
[135] It is Mr Burford’s evidence that following the dismissal Ms Beginov wrote to him to advise him that she wished for the pre-signed HVRAS forms to be shredded and not used. His evidence is that she stated in the email that she had been ‘asked’ by management to sign blank forms. She was not under pressure or duress.
[136] Mr Burford considers that Ms Beginov, in continuing the proceedings and seeking Ms Wadey’s attendance to give evidence, demonstrates that she is seeking to blame everyone else in the ‘most contrived manner’. He is comfortable with his decision to have dismissed Ms Beginov as he considers it protects the business from liability, and also protects the livelihood of 45 employees, whom would suffer if the respondent’s reputation was harmed.
Cross-examination
[137] In cross-examination, Mr Burford agreed that he was not present on the occasion where Ms Beginov had been directed to assist Mr Ward in the dismissal of a casual detailer. Ms Beginov had informed him prior to the meeting that she did not wish to be involved in the meeting. He directed her that she needed to be there to assist Mr Ward.
[138] Mr Burford agreed that at the meeting of 27 November 2017 he had not given Ms Beginov any forewarning of the disciplinary meeting that he intended to immediately hold with her. He had been holding a meeting with Ms Beginov and other people in the business, and following that meeting he had asked her to stay behind.
[139] Mr Burford stated that a document that he described as a ‘letter of concern’ had been produced as a result of the meeting of 27 November 2017. Mr Burford stated that he knew the ‘letter of concern’ to exist and stated that he would attempt to locate the document and produce it as it was not produced by the first hearing.
[140] He agreed that when he put to Ms Beginov that Mr Ward had advised that she had refused to attend the meeting, Ms Beginov responded that at the time she was required to attend the meeting with Mr Ward, she had been requested to serve a customer at the front counter.
[141] Ms Beginov explained to him that it had taken approximately two minutes to serve the customer, and Ms Wadey was not in the office. Upon finishing serving the customer, she immediately went upstairs to Mr Ward’s office to attend the meeting. Mr Burford agreed that Ms Beginov responded to him that she had taken those steps at the relevant time. 33
[142] Ms Beginov informed Mr Burford that by the time she reached Mr Ward’s office, the dismissal had been effected. Mr Burford agreed that Ms Beginov responded this way.
[143] In cross-examination, Mr Burford considered that Ms Beginov should have given priority to the assistance she needed to give to Mr Ward to effect the dismissal. He considered that she should have been at the meeting five minutes earlier and done ‘absolutely..nothing else.’ 34 He considered that her earlier statement that she didn’t want to be there meant that she had found a reason not to be there.
[144] When Mr Burford was seeking Ms Beginov’s response on this issue, she encouraged Mr Burford to bring Mr Ward down to discuss it. She said to him, “Get Clint back here and Clint can give you an explanation.” She said it approximately three times. Mr Burford agreed that was probably said by Ms Beginov, but he gave priority to the fact that the dismissal occurred with Mr Ward having to undertake the process himself, not being trained in HR. He considered that it was ‘something that should not have occurred.’ He determined that she deliberately did not attend the meeting. 35
[145] Relevant to the lost registration plates, it was Mr Burford’s contention that Ms Beginov had lost the registration plates and not informed him as her direct report (at the time). In cross-examination Mr Burford agreed that Mr Ward was in charge of when a registration was required, and would, if necessary, direct Ms Beginov to collect the registration plates.
[146] When Mr Burford put the allegation to Ms Beginov that she had lost registration plates, she responded that she had put the plates on Mr Ward’s desk. He recalls her saying, “I thought I gave them to Clint.” It was put to Mr Burford that his earlier evidence is that when these issues were put to Ms Beginov, she ‘admitted’ to these issues, including having lost the registration plates. He agreed that her response above does not admit the allegation, but is providing a response to the allegation. 36
[147] In cross-examination Mr Burford was asked how he came to determine the appropriateness of issuing a show cause letter to Ms Beginov. He recalled that Mrs Burford had quite a few issues with Ms Beginov, and he asked his wife to list out all of the issues that she had. He considered that the issues with Ms Beginov were ‘going on for a significant amount of time.’
[148] He considered that there had been previous discussions with Ms Beginov’s performance, and PMH had ‘thrown a lot of support behind [her]’. Mr Burford considered that she was sure she would come around and be able to fix those issues if ‘we worked through those’. 37
[149] His evidence is that Mrs Burford prepared a list. He did not ask his wife what was on the list, as he places trust in people who work for him, and no-one greater than Mrs Burford. Mr Burford did not have knowledge relevant to the leave form issue on the top of the list of issues Mrs Burford wished to discuss with Ms Beginov.
[150] Relevant to the Bundy issue, Mr Burford’s evidence is that he understood at the time, and during the hearing of this application that Ms Beginov and Ms Wadey had dual responsibility relevant to Bundy adjustment issues. In answering a question from me, Mr Burford stated, “My recollection, and I don’t recall when it’s from, was that they were both doing that. I put all of my trust in my wife to run that area….so I relied completely on her assessment of what the scenario was with [Ms Beginov’s] performance.” 38
[151] When I referred to Ms Wadey’s evidence, for which he was present in the hearing room, Mr Burford repeated that he put his full trust in Mrs Burford to run that area.
[152] Relevant to the criticism by Mrs Burford of Ms Beginov not providing appropriate information to creditors of the former liquidated company, Mr Burford again stated that this concern was Mrs Burford’s. He did not have direct knowledge of the issue.
[153] On the issue of Mr Aranda, and whether there was an entitlement to withhold annual leave from his termination pay, Mr Burford did recall that Ms Beginov said there was about 51 hours of annual leave owed. He agrees that immediately following a conversation with Ms Beginov, Mrs Burford saw him and explained that the respondent does not need to pay to Mr Aranda annual leave and three days of wages. 39 There was some to and fro as to what was owed to Mr Aranda, and Mr Aranda’s wife rang to complain. Mr Burford’s evidence is that he again put his trust in Mrs Burford to address these issues.
[154] Mr Burford agreed that at the meeting of 24 April 2018 he did not speak; all of the talking was done by Mrs Burford 40 other than to let Ms Beginov know that following the conclusion of the meeting Ms Beginov’s assertions that she had been directed to not take measurements by Mr Ward and Mr Oostendorp would be investigated.
[322] Mr Burford did not make known to Ms Beginov the views of Mr Oostendorp or Mr Ward as part of Mr Burford’s investigation following the meeting of 24 April 2018. I consider that Mr Burford’s decision to terminate Ms Beginov’s employment was made without affording Ms Beginov with an opportunity to respond to the views of Mr Oostendorp and Mr Ward, and was procedurally unfair in that respect.
[323] I do not accept Mr Burford’s evidence that the allegations put to Ms Beginov during the meeting of 27 November 2017 were admitted by Ms Beginov. Mr Burford walked away from that earlier evidence. He agreed that Ms Beginov repeatedly suggested that Mr Ward should be invited to attend the meeting, as Ms Beginov was steadfast in her denial of refusing to attend the meeting.
[324] I note that Mr Burford originally gave evidence in his first statement that Ms Beginov had admitted to him during the meeting of 27 November 2017 that she had lost a set of vehicle registration plates. However, Mr Burford confirmed under cross-examination that Ms Beginov had not admitted to losing the registration plates, but had instead given her response to Mr Burford that she thought that she had provided those plates to Mr Ward. I consider that Ms Beginov did not admit to Mr Burford that she had lost the registration plates during the meeting of 27 November 2017.
[325] I note Mr Burford’s statements given in cross-examination regarding the decision to issue Ms Beginov with the Show Cause letter, that he considered PMH to have ‘thrown a lot of support behind [Ms Beginov]’ and was ‘…sure that she would come around be able to fix those issues…’. 113 I am not persuaded by Mr Burford’s statement. There is nothing before me to indicate that PMH or Mr Burford had ‘thrown support’ behind Ms Beginov to address purported issues with her performance, and I do not consider that there had been ‘previous discussions’ about issues with Ms Beginov’s performance other than the meeting of 27 November 2017. It appears to me that there had been no substantive performance issues at all between 27 November 2017 and when the investigation commenced in April 2018.
[326] I note that in cross-examination Mr Burford gave evidence as to his understanding that both Ms Beginov and Ms Wadey had maintained dual responsibility for the management of the Bundy system following Mrs Burford’s commencement with PMH. The evidence of Ms Wadey that she alone held responsibility for the management of the Bundy system after Mrs Burford’s commencement shows that Mr Burford was incorrect regarding Ms Beginov’s responsibility for the Bundy system.
[327] I note further Mr Burford’s statement in cross-examination that he ‘put all of my trust in [Mrs Burford] to run that area…I relied completely on her assessment of what the scenario was with Joanne’s performance’. 114 I consider Mr Burford’s statement to be quite telling of the level of authority that he had delegated to Mrs Burford and his lack of oversight over the management of Ms Begniov’s role. Mr Burford appears to me to have been told by Mrs Burford concerns that she held, and then given Mrs Burford a high degree of autonomy to challenge Ms Beginov, and ultimately influence Mr Burford’s decision to dismiss Ms Beginov.
[328] Mr Burford’s evidence is diminished by the evidence of Ms Wadey. I found Ms Wadey to be a truthful witness in every respect, and consider her evidence to be persuasive. I accept her evidence that she was witness to Mr Ward and Mr Oostendorp stating to Ms Beginov that she did not need to physically measure a vehicle for HVRAS registration. I accept that Ms Wadey approached Mr Burford with her concerns about her own completion of registration form, and that Mr Burford assured her that she would not ‘be in trouble’. I accept Ms Wadey’s evidence that she held sole responsibility for the operation of the Bundy system, not Ms Beginov.
Instructions or directions given to Ms Beginov by Mr Oostendorp and Mr Ward for measuring vehicles
[329] I have considered Mr Oostendorp’s evidence that he could not recall ever instructing or directing Ms Beginov to take dimensional measurements for motor homes from technical information and vehicle ‘specification sheets’ available to PMH, and that the technical information available to PMH did not include ordinary dimensional measurements of vehicles commonly modified by PMH.
[330] The best evidence in support of Mr Oostendorp’s evidence would be technical information and vehicle ‘specification sheets’ referred to, which I consider would remain in the possession of PMH. However, at no time during this matter has PMH sought to submit evidence of such technical information or vehicle ‘specification sheets’. Had the technical information available to PMH not included the full dimensions of vehicles, or included sufficient information for those dimensions to be drawn from that technical information, PMH could have effectively and simply addressed this point by submitting that information.
[331] I found Mr Oostendorp’s and Mr Ward’s ignorance of technical matters relating to the inclusion of ‘attachments’ in a vehicle’s overall dimensions to be surprising given the decades of industry experience between them. This is particularly concerning given the apparent ease with which Mr Oostendorp and Mr Ward directed or instructed Ms Beginov to include or not to include certain attachments to vehicles in the dimensional measurements within HVRAS forms, and Mr Ward’s own evidence that he ‘lost faith’ in Ms Beginov’s capacity as a HVRAS accredited person after coming to his own conclusion that Ms Beginov had made an error in the measurement of a vehicle’s dimensions merely a week after obtaining her accreditation.
[332] I consider that both Mr Oostendorp and Mr Ward are accustomed to being correct in the course of their employment and to having their directions or instructions followed. Indeed, I consider that Ms Beginov would have ordinarily deferred to Mr Oostendorp’s and Mr Ward’s technical expertise in the course of her employment. However, it was Ms Beginov that had undergone the relevant training to become a HVRAS accredited person, not Mr Ward and Mr Oostendorp. Rather than pressure Ms Beginov to complete HVRAS forms without the necessary information or to instruct Ms Beginov to include certain attachments in a vehicle’s dimensions, it would have been far more preferable for Mr Ward and Mr Oostendorp to assist Ms Beginov to compete her duties as a HVRAS accredited person rather than overriding her authority in that respect.
[333] In the circumstances that PMH has not submitted that information, I prefer Ms Beginov’s evidence that she was told throughout her employment that certain vehicles were of certain dimensions and that she should include those dimensions in HVRAS forms without the need to physically measure the relevant vehicles. Whether that information came from specification sheets or from previous customer files is not important; Ms Beginov was instructed not to bother measuring vehicles because the dimensions were known.
[334] I accept that neither Mr Oostendorp nor Mr Ward supervised Ms Beginov, per se. They did, however, exert operational influence, resulting in the impression that they were correct, given their vast experience, and Ms Beginov was incorrect. I accept that this had the impression on Ms Beginov that she was being directed, or required to do what Mr Oostendorp and Mr Ward said, despite her views on the issues. Whilst she correctly pointed out that she didn’t consider that she had a ‘gun put to her head’, I accept that she felt pressured to follow the direction of the two senior managers.
Demeanour of Mr Ward
[335] I note the extracted conversation between myself and Mr Ward taken from the hearing of this matter on 17 August 2018 appearing at [185] above. I consider Mr Ward’s demeanour during his evidence to have been aggressive and overbearing. I consider it likely that Mr Ward conducted himself toward Ms Beginov in the course of her undertaking HVRAS responsibility in a similar manner. It is not necessary for Ms Beginov to have claimed similar adjectives; it is enough to have evidenced Mr Ward and understand that he considers himself to be very authoritative.
[336] Mr Ward had no confidence in Ms Beginov at all in her HVRAS duties, was dismissive of her authority on the subject of attachments being included in the measurements, and took lengths to satisfy himself that he was correct and she was not. Tellingly, he held the ‘smart’ end of the measuring tape, when Ms Beginov should have been the one to do so.
Failure by Ms Beginov to raise issues within her employment to Mr Burford
[337] I have considered the evidence regarding the reporting structure of PMH following Mrs Burford’s commencement. I consider that it was made clear to Ms Beginov that if she had an issue in relation to her employment, she could raise her issues to Mr Burford in the first instance.
[338] There is no evidence before me that Ms Beginov raised or attempted to raise issues in respect of her employment with Mr Burford at any time during her employment. I consider that it was open to Ms Beginov to raise the issues that she was experiencing to Mr Burford. Given the severity of the issues within her employment, such as the possible repeated breaches of the TORUM Act and the impact on her position as a HVRAS accredited person, Ms Beginov should have brought her concerns to Mr Burford.
Conduct of the parties in the course of employment
[339] The conduct of all of the parties is relevant to my decision in this matter. On one hand, Ms Beginov acknowledges that she has by her conduct likely breached the terms of the TORUM Act and acted in contravention of her duties as a HVRAS accredited person.
[340] On the other hand, I consider that Mr Burford and Mrs Burford have both conducted themselves poorly in the management of Ms Beginov’s employment. I consider that the allegations presented to Ms Beginov were poorly particularised, and in some cases, particularly in relation to the Bundy issue, not fully attributable to her. Mr Burford’s investigation following the meeting of 24 April 2018 was severely lacking in probity and the further information he garnered from Mr Oostendorp and Mr Ward was not only accepted without contest, it was not presented to Ms Beginov at all prior to her termination.
[341] I do not doubt that Ms Beginov was under significant pressure to complete HVRAS forms in a timely manner. I consider that each of Mr Burford, Mrs Burford, Mr Oostendorp and Mr Ward all contributed to that pressure and influenced Ms Beginov to complete HVRAS forms without personally taking the physical measurements of relevant vehicles. In particular, I consider that Mrs Burford and Mr Ward pressured Ms Beginov to sign incomplete HVRAS forms and breach her duties as a HVRAS accredited person.
[342] Ms Beginov’s misconduct cannot and should not be excused, but I consider that it should be assessed in light of the conduct directed towards Ms Beginov in the course of her employment.
Conclusion
[343] Whilst I am satisfied there was a valid reason for the dismissal, because of the important responsibilities Ms Beginov was required to meet, she did so under an inappropriate influence of senior management.
[344] As noted above, I am surprised at Mr Oostendorp’s and Mr Ward’s apparent ignorance of how attachments to vehicles were to be treated in respect of a vehicle’s dimensional measurements, given their significant experience and the nature of the business conducted by PMH. It is concerning that Mr Oostendorp and Mr Ward stated to Ms Beginov their opinions on how vehicles were to be measured in the circumstances that until April 2018, both of them misunderstood how ‘fixed attachments’ were to be treated in respect of a vehicle’s length. It is also concerning that Mr Oostendorp and Mr Ward instructed Ms Beginov on multiple occasions to use the ‘dumb end’ of the tape measure when measuring vehicles, when they ought to have known that Ms Beginov needed to personally measure a vehicle and be satisfied as to its dimensions.
[345] Mr Burford’s text message to Ms Beginov of 12 March 2018 requesting that she sign HVRAS forms that were to be completed by another person is indicative of the approach taken by PMH towards Ms Beginov’s responsibilities as a HVRAS accredited person. Mr Burford himself in his text message identified the appropriate course of action that PMH should have taken in the circumstances that Ms Beginov was not available to conduct the HVRAS assessment; the vehicle should have been taken to an appropriate Queensland Transport office for the HVRAS assessment to be conducted.
[346] I am highly critical of Mr Ward’s and Mrs Burford’s actions in requiring that Ms Beginov complete blank HVRAS forms prior to going on leave. Their actions put Ms Beginov in a very difficult position; that she either contravene her obligations as a HVRAS accredited person or that she refuse the directions of her employer. Regardless of whether Ms Beginov needed to follow the direction to complete the blank HVRAS forms considering its lawfulness, Mr Ward and Mrs Burford expected Ms Beginov to sign the blank HVRAS forms and indeed Mrs Burford demanded that Ms Beginov sign the blank forms prior to going on leave.
[347] I find that:
(a) the influence of Mr Oostendorp and Mr Ward in requiring Ms Beginov to limit her calculations to the vehicle only, without attachments; and
(b) the various times Ms Beginov was not afforded the opportunity by Mr Oostendorp or Mr Ward to hold the ‘smart’ end of the measuring tape; and
(c) the act of Mr Ward requesting Ms Beginov complete blank HVRAS forms prior to going on leave; and
(d) the act of Mrs Burford demanding Ms Beginov complete blank HVRAS forms prior to going on leave; and
(e) the act of Mr Burford suggesting by text that Ms Beginov could sign off on HVRAS forms not completed by her
was not properly taken into consideration by PMH, and renders the dismissal harsh, unjust and unreasonable.
[348] I find that the dismissal was harsh and unreasonable because if Mr Burford had called a meeting with all relevant personnel upon discovering in April 2018 the responsibilities Ms Beginov had, I am certain the matter would have been resolved, and compliance met immediately thereafter. Mr Oostendorp and Mr Ward would have been properly informed that they were incorrect, and their influence on Ms Beginov’s responsibilities should cease.
[349] I find that the dismissal was unjust because of the improper conduct of Mr Ward in requesting Ms Beginov complete blank HVRAS forms, and the improper conduct of Mrs Burford in demanding the blank forms be completed by Ms Beginov. It is a disturbing turn of events for Ms Beginov to lose her employment when her own manager has demanded she sign-off on blank HVRAS forms so that they can be completed by Mr Ward. It appears to me to be an illegal act by both Mr Ward and Mrs Burford, and is furthermore unethical and unpalatable.
Remedy
[350] Section 390 of the Act reads as follows:
‘390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.’
[351] Ms Beginov is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.
[352] Ms Beginov does not seek reinstatement, and I am satisfied in all of the circumstances that reinstatement is inappropriate.
[353] I now turn to consideration of compensation.
Compensation
[354] Section 392 of the Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.’
Authorities
[355] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket. 115 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;116 Jetstar Airways Pty Ltd v Neeteson-Lemkes117 and McCulloch v Calvary Health Care (McCulloch).118
[356] I have had regard to the above authorities, and I have considered the submission of each party. It is not necessary to summarise the submissions.
The effect of the order on the viability of PMH
[357] An award of compensation in this matter would not affect the viability of PMH, and there were no submissions made that it would.
The length of Ms Beginov’s service
[358] PMH incorrectly submitted that Ms Beginov’s service commenced in May 2017. Ms Beginov’s service with her previous employer is counted, and as such, her service was from November 2015 to April 2018, a period of approximately 2.5 years. This is not a substantial period of time.
[359] I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd[2010] FWA 4342. His Honour determined at [140]:
“As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)”
The remuneration that Ms Beginov would have received, or would have been likely to receive, if she had not been dismissed
[360] I am of the view that Ms Beginov’s employment would have continued for a reasonable period of time. Only approximately one year earlier she had benefited from a substantial salary increase, to take into account all reasonable additional hours above her ordinary hours of work.
[361] In my view, if Ms Beginov had been issued with a written warning relevant to her breaches of her HVRAS responsibilities, and Mr Burford had made it clear to Mr Oostendorp and Mr Ward that they were to allow Ms Beginov to meet her responsibilities without their influence, I determine that Ms Beginov would have continued in her employment for a period of 26 weeks.
The efforts of Ms Beginov (if any) to mitigate the loss suffered because of the dismissal
[362] Ms Beginov did not secure alternative employment until 18 June 2018. I am satisfied she made suitable attempts to mitigate her loss during this period of time. PMH has implored the Commission to reduce any compensation that may be payable on account of Ms Beginov securing a part-time role, and whilst continuing to be HVRAS accredited, not obtaining a similar role.
[363] I decline to make any reduction on the above two accounts. Ms Beginov has made commendable efforts to mitigate her loss, including 19 applications and four interviews. Further, I am not at all surprised Ms Beginov did not seek to be employed in a role requiring duties of HVRAS accreditation. That is to because there appears to be so few roles requiring this accreditation, and I accept Ms Beginov’s evidence that she attended upon the transport department and sought to be removed from the roll of accredited assessors.
The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[364] Ms Beginov’s evidence was that she was earning $75,000 per annum, an amount of $1,442.31 per week while employed with PMH. In the role commenced by her on 18 June 2018 she is earning $850.20 per week. I accept Ms Beginov’s evidence on this issue.
[365] The period of 26 weeks from the dismissal is the date 18 October 2018. It is necessary to have regard to the remuneration earned by Ms Beginov for the period 18 June 2018 to 18 October 2018 at the rate of $850.20 per week. This is an amount of 13 weeks x $850.20 = $11,052.50.
[366] On a payslip provided in evidence, it is noted that Ms Beginov received $850.20 for a fortnight’s pay, instead of a week’s pay. It is assumed that Ms Beginov was on a period of unpaid leave in her role in that particular fortnight, likely on account of not having enough annual leave to cover an absence. I will deduct a further $850.20 from the amount of $11,052.50 to provide a total of $10,202.30 remuneration in the relevant period.
The amount of any income reasonably likely to be so earned by Ms Beginov during the period between the making of the order for compensation and the actual compensation
[367] This factor is not relevant in the circumstances of this matter.
Other relevant matters
[368] The parties did not make submissions in relation to this criterion. It is noted that Ms Beginov was not paid any payment for notice in lieu on termination.
Misconduct reduces amount
[369] Section 392(3) requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
[370] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced. 119
[371] I have found earlier that there existed a valid reason for the dismissal, as Ms Beginov’s actions in breaching her responsibilities as a HVRAS authorised person is serious.
[372] Ms Beginov’s conduct in suggesting she would allow a person at PMH to forge her signature on the HVRAS forms is reprehensible, and most certainly misconduct. Ultimately she did not allow a person to forge her signature, nor did it form part of the employer’s reasoning for the dismissal. If Ms Beginov’s suggestion had formed a temporal context to the dismissal, the reduction I would make below would be significantly higher.
[373] Having regard to the material before me, I consider it appropriate to make a reduction of 30% to the amount of compensation I would otherwise order on account of Ms Beginov’s misconduct.
Shock, distress etc. disregarded
[374] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Ms Beginov by the manner of the dismissal.
Compensation Cap
[375] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
[376] The high income threshold immediately prior to the dismissal was $142,000, and the amount for 26 weeks was $71,000. The amount of compensation the Commission will order does not exceed the compensation cap.
Payment by instalments
[377] No submissions were made by PMH for a compensation order to be paid by instalments. I am satisfied it is appropriate that PMH pay the amount of compensation within 14 days of the date of this decision.
Order of compensation
[378] I have determined that PMH is to pay to Ms Beginov the following amount of compensation less tax as required by law:
26 weeks’ compensation: $37,500.00
Less other earnings
18 June 2018 – 18 October 2018: -$10,202.30
Amount: $27,297.70
Deduction of 30% for misconduct: -$8,189.31
Total amount: $19,108.39
[379] In addition, PMH is to pay superannuation on the amount of $19,108.39 at the rate of 9.5% into Ms Beginov’s superannuation fund.
[380] An Order [PR703067] to that effect will be issued with this decision.
Ms Wadey
[381] I am confident PMH will ensure that its directors and employees, including those who gave evidence before the Commission, do not take adverse action in breach of the protections within the Act against Ms Wadey on account of her evidence in support of Ms Beginov.
COMMISSIONER
Appearances:
Mr Hunter Trotman, QLD Workplace and Workplace Injury Law, for the Applicant;
Mr Nathan Kershler, Affinity Lawyers, for the Respondent
Dr Cathryn McConaghy of Counsel, for the Respondent
Hearing details:
Brisbane, 17 August 2018;
Brisbane, 26 August 2018
Final written submissions:
Final submissions in Reply for the Applicant, 21 September 2018;
Final submissions for the Respondent, 17 September 2018.
Printed by authority of the Commonwealth Government Printer
<PR700854>
1 Heavy Vehicle Registration Assessment Scheme, Department of Transport and Main Roads, February 2018; Statement of Mr Shannon Burford, 16 August 2018, Annexure SCB6.
2 Statement of Ms Joanne Beginov, 10 July 2018, [46] – [47].
3 Statement of Mr Shannon Burford, 16 August 2018, Annexure SCB9.
4 Ibid.
5 Ibid.
6 PN69 – PN80.
7 PN220 – PN230.
8 PN231 – PN241.
9 PN264.
10 PN268.
11 PN274 – PN285.
12 PN289 – PN318.
13 PN395 – PN397.
14 PN470 – PN479.
15 PN520 – PN527.
16 PN619 – PN649.
17 PN678 – PN695.
18 PN714.
19 PN715 – PN729.
20 PN1693 – PN1696.
21 PN1697 – PN1712.
22 PN1746 – PN1762.
23 PN1718; PN1763 – PN1765.
24 PN1768 – PN1774.
25 PN1775 – PN1792.
26 PN941
27 PN965 – PN966.
28 PN969
29 Statement of Mr Shannon Burford, 16 August 2018, [7].
30 Statement of Mr Shannon Burford, 7 August 2018, [16].
31 Statement of Mr Shannon Burford, 16 August 2018, [17].
32 Statement of Mr Shannon Burford, 16 August 2018, [26].
33 PN1032.
34 PN1042.
35 PN1052.
36 PN1070.
37 PN1083.
38 PN1109.
39 PN1129.
40 PN1176.
41 PN1180.
42 PN1215.
43 PN1186.
44 PN1193.
45 PN1194 – PN1214.
46 PN1246 – PN1270.
47 PN1331 – PN1349.
48 PN1360 – PN1375.
49 PN1380 – PN1390.
50 PN1395.
51 PN1433.
52 PN1445 – PN1456
53 PN1467.
54 PN1483.
55 PN1495.
56 PN1509.
57 PN1510.
58 PN1526 – PN1558.
59 PN1565.
60 PN1568.
61 PN1574.
62 PN1878.
63 PN1937.
64 PN1940.
65 PN1899.
66 PN1913.
67 PN1953.
68 PN1974 – PN1982.
69 Statement of Mrs Josephine Burford, 7 August 2018, [22].
70 Ibid, [23] – [24].
71 [1995] HCA 24; (1995) 185 CLR 410 at [465].
72 Sayer v Melsteel[2011] FWAFB 7498 at [20].
73 Statement of Ms Joanne Beginov, 10 July 2018, [29], [32] – [35], [39] –[41], [43]; PN505; PN635-636, PN640, PN667 – PN668; PN679; PN681.
74 Statement of Ms Joanne Beginov, 10 July 2018, [29]; PN650.
75 PN940-941.
76 Statement of Ms Joanne Beginov, 10 July 2018, [34]; PN629.
77 PN635-PN636.
78 Statement of Mr Shannon Burford, 16 August 2018, Annexure SCB8
79 PN411.
80 Wadey v YMCA Canberra [1996] IRCA 568.
81 PN932-PN933.
82 RMIT v Asher (2010) 194 IR 1.
83 [2014] FWCFB 2593.
84 PN86; PN304-305; PN313-316; PN324; PN478-479; PN540-542; PN607-609.
85 Fair Work Regulations 2009, r 1.07 (2)(a).
86 Fair Work Regulations 2009, r 1.07 (2)(b).
87 PN572; PN2056.
88 PN2084.
89 23 Crozier v Palazzo Corporation Pty Ltd Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [62].
90 Lambeth v University of Western Sydney [2009] AIRC 47 (Hamberger SDP, 16 January 2009) at [70].
91 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995).
92 Crozier v Palazzo Corporation Pty Ltd Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [70]-[73].
93 RMIT v Asher (2010) 194 IR 1, 14.
94 Crozier v Palazzo Corporation Pty Ltd Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [75].
95 Statement of Ms Joanne Beginov, 10 July 2018, Annexure JB3.
96 Affidavit of Mr Shannon Burford, 6 September 2018, Annexure SCB10.
97 PN334; PN338.
98 Williams v The Chuang Family Trust [2012] FWA 9517 at [40].
99 Sexton v Pacific National (ACT) Pty Ltd PR931440 (AIRC, Lawler VP, 14 May 2003) at [33].
100 Darvell v Australia Post [2009] FWA 1406 (Hamilton DP, 2 March 2010).
101 Streeter v Telstra Corporation Limited [2008] AIRCFB 15 at [25].
102 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
103 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
104 [2015] FWCFB 8205 (18 December 2015).
105 [2015] FWCFB 1033.
106 Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].
107 He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15] as per Gray and Mansfield JJ.
108 [2001] VSC 150; (2001) 107 IR 117.
109 Ibid at [240], [250]-[257].
110 [2007] FCA 1903; (2007) 168 IR 375.
111 [2014] FWCFB 2593 at [43].
112 Sexton v Pacific National (ACT) Pty Ltd PR931440 (AIRC, Lawler VP, 14 May 2003) at [33].
113 PN1083.
114 PN1109.
115 (1998) 88 IR 21.
116 [2013] FWCFB 431.
117 [2014] FWCFB 8683.
118 [2015] FWCFB 2267.
119 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].
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