Omar Katrib v Commonwealth Insurance Limited T/A CommInsure

[2020] FWC 6872

[2020] FWC 6872

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Omar Katrib
v
Commonwealth Insurance Limited T/A CommInsure
(U2020/11931)

COMMISSIONER BISSETT MELBOURNE, 31 DECEMBER 2020

Application for an unfair dismissal remedy – valid reason – procedural fairness afforded – whether the conduct amounts to serious misconduct – dismissal not harsh, unjust or unreasonable – dismissal not unfair – application dismissed.

[1] Mr Omar Katrib (Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. Mr Katrib was employed by Commonwealth Insurance Limited T/A CommInsure (Respondent). His employment with the Respondent came to an end on 18 August 2020.

[2] The matter did not settle at conciliation and was allocated to me. I issued directions for the filing of material, and the matter was listed for Hearing by video on 18 November 2020. Both parties were granted permission to be legally represented at the Hearing with Ms Jennifer Holdstock of Holdstock Law appearing for the Applicant and Ms Ruth Nocka of Dentons appearing for the Respondent.

[3] The Applicant filed submissions and a witness statement 1. The Applicant sought to file a late witness statement of Mr Mahmoud Ali2 and to rely on statutory declarations (also attached to the late witness statement) of Mr Mahmoud Ali3 and Mr Ahmad Al Lakiss.4

[4] The Respondent filed submissions and witness statements of Mr Miles Sowden 5, Ms Beatrice Sim-Sing6, Ms Gabrijela Susak7, Ms Kylie Dunphy-Brown8 and Mr Gary Mac Kenzie.9

BACKGROUND

[5] The Applicant commenced employment with the Respondent on 1 April 2019 as a Motor Assessor in the Respondent’s Wealth Management business. His duties involved assessing and organising repairs for vehicles involved in motor vehicle accidents.

[6] On 28 December 2019 claim 700259003 (also referred to as claim 003) was created in the Respondent’s supplier’s case management system, Estimage, following a motor vehicle collision between two cars on 27 December 2019 (the Collision).

[7] On 6 January 2020 a claim for the third-party vehicle involved in the Collision was added as ‘Vehicle 2’ to Estimage. Attached to the file was an estimate for the repairs by MJ Auto Body Works (MJ Auto) for $3,743.50.

[8] On 14 January 2020 the Applicant was allocated the claim to assess the damage to Vehicle 2 involved in the Collision.

[9] On 16 January 2020 the Applicant completed a Motor Vehicle Assessment Report and an On-Road Assessment for MJ Auto and listed the cost of repairs for Vehicle 2 as $6,965.75. The initial quote provided by MJ Auto was listed as $3,734.50.

[10] On 17 January 2020 the Applicant authorised the repair of Vehicle 2.

[11] On 20 January 2020 the Applicant received a payment of $500 into his bank account held with Commonwealth Bank of Australia (CBA) with the description “Transfer from AHMAD AL LAKISS CommBank a gift”. Mr Al Lakiss is the owner of MJ Auto.

[12] On 22 April 2020 Mr Gary Mac Kenzie, Quality Assurance Motor Auditor for the Respondent undertook a detailed audit of claim 003. Mr Mac Kenzie reviewed the detailed report of the assessment the Applicant had completed for the damages and repairs for Vehicle 2, as well as the repair estimate produced from MJ Auto and the photographic images of Vehicle 1 (It is noted that Vehicle 1’s claim had been cancelled).

[13] Mr Mac Kenzie’s review made the following two comments:

a) “2 Incidents. Neither Consistent with TP Damage”; and

b) “There is No Recent Damage to correspond with the Incident Claim.”

[14] Mr Mac Kenzie’s report also observed that the Applicant had failed to add images for the damage for Vehicle 2 to the file and there was a lack of source of parts and part numbers detailed for the repair of Vehicle 2. The report provided that the Applicant’s assessment also introduced damage that was not included in MJ Auto’s quote and doubled up on items.

[15] A review of the General Insurance Conflicts of Interest Register showed that the Applicant failed to disclose the $500 payment he received from the owner of MJ Auto.

[16] On or about 15 May 2020 the Group’s Investigation function (GI) was notified of concerns by David Cooper, the Respondent’s General Insurance Investigator, that the Applicant had uplifted the cost of repairs for Vehicle 2 from $3,734.50 to $6,965.75 and that the Applicant received a $500 ‘gift’ payment into his CBA bank account from the owner of MJ Auto.

15 July Meeting

[17] On 15 July 2020 the Applicant attended an interview conducted by GI regarding allegations of misconduct (15 July Meeting). During the meeting the Applicant told the Respondent that he increased the cost of repairs from $3,734.50 to $6,965.75 “to authorise a complete job”. He also said that the $500 payment he received was a debt that his brother in law Mr Mahmoud Ali was repaying, and that he did not know Mr Al Lakiss.

[18] On 22 July 2020 the Respondent provided the Applicant with a letter setting out the allegations against him (Allegations Letter). The letter set out the two allegations in writing as advised in the 15 July Meeting:

1. On 16 January 2020, you uplifted the cost of repairs for claim number 700259003, from $3,734.50 to $6,965.75. As a result of your actions, on 20 January 2020, you received a $500 payment from the owner of the repair company, Ahmad Al Lakiss; and

2. On 20 January 2020, you breached the Conflicts of Interest Policy and Group Gifts and Entertainment Procedure, by failing to disclose the $500 “gift” payment you received from Ahmad Al Lakiss.

[19] On 28 July 2020 the Applicant provided a written response to the Allegations Letter.

[20] On 13 August 2020 the Respondent sent the Applicant a letter (Show Cause Letter) advising that the investigation found that on the balance of probabilities each of the allegations was substantiated and that he had breached the Code of Conduct and the Groups Management Policy. The Respondent advised the Applicant it was considering disciplinary action and invited the Applicant to make representations as to why the Respondent should not terminate his employment. Further, the letter stated that the Applicant’s conduct may be captured by the ‘Banking Industry Conduct Background Check Protocol’.

[21] The Applicant was stood down on full pay and provided an oral and written response to the Show Cause Letter on 17 August 2020.

18 August Meeting

[22] On 17 August 2020 the Respondent invited the Applicant to attend a meeting on 18 August 2020, to provide the Applicant with the disciplinary outcome (18 August Meeting).

[23] On 18 August 2020 the Applicant attended the meeting with his legal representative. The Applicant was advised that the Respondent had decided to terminate his employment for serious misconduct with immediate effect and was provided with a termination letter.

EVIDENCE

Uplifting cost of repairs

The Applicant

[24] The Applicant said that on 6 January 2020 the claims department added the third-party vehicle (Vehicle 2) that was involved in the collision under claim 003 and included an estimate for the repairs by MJ Auto for $3,743.50.

[25] On 16 January 2020, he assessed Vehicle 2, completed an on-road assessment for MJ Auto and listed the cost of repairs for $6,965.75. He said there was an increase in the cost as he noticed that the previous quote was incomplete.

[26] The Applicant said when he removed the front bumper of the vehicle, he noticed damage to the inner component of the vehicle that was not included in the original quote. The Applicant said he took photos of the damage which he later provided to the Respondent as he had unfortunately forgotten to include the information at the time he increased the quote as he was ‘overwhelmed’ with work.

[27] On 15 July 2020 the Applicant provided the Respondent with emails regarding claim 003 including 12 images to provide evidence as to why he had increased the quote. The Applicant said he could not provide this email as an exhibit as the Respondent had suspended access to his work emails.

[28] The Applicant told the Respondent this was not the only assessment where he had uplifted the cost of repairs and that his job is to assess complete claim damages to a vehicle. 10 He said that if a repairer has missed damages his job is to add them on, just like if they were to add unreasonable items or costs to their quote he would remove or adjust them. The Applicant said this is quite a standard practice in his role and is actually expected of him. The Applicant said he has uplifted incomplete quotes multiple times in his four odd years of motor assessing.11

[29] The Applicant added that approximately a month after the transaction into his bank account from Mr Al Lakiss from MJ Auto, he assessed a claim for MJ Auto at approximately half of the claimed value. He said that if he was receiving a kick back from MJ Auto as alleged by the Respondent, he would not have done that.

[30] The Applicant was asked if he had ever increased any other assessments during his nine months with the Respondent. He said he believed he would have and that it was common although he could not say how often he would do so.

[31] The Applicant was taken to Mr Mac Kenzie’s report. The Applicant maintained in his oral evidence that he disagreed with Mr Mac Kenzie’s evidence that his assessment doubled up on items. He also disagreed that the charge he included for the radiator support panel should have been $433.50 and the charge he included of $1725 was too much. . He said that as he mentioned in the interview, the radiator support panel comes in multiple parts, and Mr Mac Kenzie’s quote was only for one part but not the whole part of it that he priced up.

Mr Gary Mac Kenzie

[32] Mr Gary Mac Kenzie, Quality Assurance Motor Auditor for the Respondent provided a witness statement. Mr Mac Kenzie said the role of motor assessors is to review the estimated repair costs and determine whether there are any discrepancies between the quoted damage and the actual damage to the vehicle.

[33] Mr Mac Kenzie said that in undertaking an audit he reviews the estimated cost of repairs provided by the auto-repairer and then reviews the assessor's assessment of that claim. This involves reviewing the photos and the costs submitted by the repairer and any amendments to those costs submitted by the assessor.

[34] Mr Mac Kenzie said in his experience working for the Respondent he has reviewed very few insurance claims where the motor assessor conducting the assessment has increased the estimated cost of repairs quoted by the auto-repairer. He said it is a rarity, and of the few he has reviewed, the increase in the costs has been minimal. During cross-examination, in response to evidence of the Applicant, Mr Mac Kenzie said it was common for assessors to decrease quotes, however, he did not agree it was common for an assessor to increase a quote.

[35] Mr Mac Kenzie said that upon conducting an audit on claim 003 he found the Applicant’s assessment “very concerning” for a number of reasons: 12

•  firstly the Applicant had authorised a $400 repair cost to the right-hand side skirt of the vehicle as quoted by MJ Auto where the images indicated very minor damage to the skirt.

•  secondly, the Applicant had authorised a new bonnet and the painting of the inside and outside of the bonnet when, in his review he could only identify a minor chip to the bonnet. Mr Mac Kenzie said he therefore could not justify the replacement of the bonnet and increased painting of the bonnet.

•  thirdly, the Applicant had introduced the replacement of the radiator support panel to MJ Auto's quote and then priced this part at $1,725.00 with no part number provided to explain how he reached this figure. He said during his audit, he obtained a quote from a Hyundai dealer for the cost of this part which was $476.85. 13

[36] Mr Mac Kenzie said the introduction of the replacement of the support panel, particularly at the price quoted, was his biggest concern with the assessment.

[37] Mr Mac Kenzie provided a full copy of his report with his statement. 14

[38] Mr Mac Kenzie also said of the few audits he has conducted where the repair costs have been increased by the assessor, this is the first of this magnitude, particularly with no clear images to support the increase.

[39] Mr Mac Kenzie noted that in his statement the Applicant asserted that the cost of repairs increased after he removed the front bumper of the vehicle and discovered additional damage to the inner component of the vehicle which was not factored into the quote provided by MJ Auto. Mr Mac Kenzie said this is inconsistent with his understanding of what the Respondent’s motor assessors do during their onsite vehicle inspection. Motor assessors do not and should not remove car parts when inspecting a damaged vehicle and it is beyond the scope of their role. Mr Mac Kenzie said that where deemed necessary, normal practice would be for the assessor to request the repairer to remove a part, not for the assessor to remove the part.

[40] Mr Mac Kenzie accepted that on this occasion he conducted a “desktop” audit, and that he did not see the vehicle in person.

[41] Mr Mac Kenzie was asked if he did a second audit after the Applicant provided the photos for the claim as requested. Mr Mac Kenzie said he never saw the additional photos and was not privy to any after they were uploaded. Mr Mac Kenzie said it was the responsibility of the assessor to upload photos relevant to a claim, and that if the Applicant did not upload all of the photos at the time of making the assessment then he has not fulfilled his responsibility.

Mr Miles Sowden

[42] Mr Miles Sowden, General Manager of General Insurance for the Respondent, gave evidence that an assessor increasing repairs was “extremely unusual.” 15 He said normally a CommInsure motor assessor will either verify the costs of repairs estimated by the repairer or decrease the value of the repairs. It was Mr Sowden’s evidence that very rarely would an assessor increase the cost of the repairs from the estimate provided by the repairer, and by this amount, and said that from a business perspective, it did not make sense.

[43] During his oral evidence, Mr Sowden said that while it wasn’t necessarily a “blanket no”, it was rare for an assessor to increase a quote. Mr Sowden said it was surprising to him that the Applicant gave evidence that it was common for an assessor to do this.

Ms Beatrice Sim-Sing

[44] Ms Beatrice Sim-Sing, Investigator in the Groups Investigation function of the Respondent, gave evidence that in the meeting of 15 July 2020 she questioned the Applicant in detail about the estimate provided by MJ Auto in relation to the repairs of Vehicle 2 and about each of the 'findings' made by Mr Mac Kenzie to which the Applicant provided detailed responses. Ms Sim-Sing set out in detail the Applicant’s responses as part of her evidence. 16

[45] Ms Sim-Sing said that when questioned about the quote provided by MJ Auto in relation to the repairs of Vehicle 2, the Applicant said:

“It was an incomplete quote which is where I've added costing to it and again it came back to me making that error of not uploading my documentation which is my images. So obviously it doesn't look good when you've just increased the quote and theres [sic] no reason as to why you've increased it. I've got the documentation and I can put that in there…” 17

[46] When asked to comment about each of the 'findings' made by Mr Mac Kenzie, the Applicant stated:

“It's the usual stuff that Gary will put in his audits. There's just always something he would have changed differently. Which is easy for someone to say that when they're sitting in their office in Sydney looking at photos. To some extent I do agree with him on certain things.” 18

[47] When asked to comment as to why the assessment introduced damage that was not included in the repairer's quote and the need to double up on items, the Applicant stated:

“Gary [ MacKenzie] says it's excessive and that it's doubling up on a lot of things but I disagree with that again. It's actually not doubling up on anything because what my Group Operation is, is anything associated with the Radiator Support to come on and off that car is included there and that's something I discussed with, I believe it was one of the workers when I was there on the day” and;

“Group Operation for me is Radiator, Air Condenser, all the associated bits and pieces with the Radiator Support. Most assessors with any common sense would look at that and understand what I mean.” 19

[48] When asked to comment on the $400 repair costs for the right hand side skirt of Vehicle 2, the Applicant said he could justify the cost with the additional photos he had, and that “Gary [MacKenzie] always thinks every cost of repair is excessive.” The Applicant further responded:

“This is something that I will always battle to and from with him. Even the way I've just noticed that he's changed it to the NTAR rates and times. You don't do that. We're not dictating how this repairer runs his shop, so we can't dictate that you need to use NTAR rate and times when that's not how his shop is running. So I disagree with how he's done that as well.” 20

[49] When asked to comment on the individual paint operation costs for the bonnet, the left

hand front Guard and right hand A Pillar, the Applicant stated that the cost for the bonnet was required as “the Bonnet was kinked on this one, the Bonnet frame.” The Applicant said:

•  “I've added a Bonnet and my note is there to justify why the frame is buckled. My image is missing so that's my fault again.”

•  “When you are replacing any new part you will need to blend the adjacent panel to get the colour right. So obviously the left-hand guard needed to be blended in that case.”

•  “The A Pillar I can't tell you why I authorised that. There would have been a chip in the A Pillar. I would have taken a photo of it.”

•  “I don't know why I authorised the paint on the A Pillar. I can't say with certainty why but there would have been a reason. So long ago but I can't tell you why.” 21

[50] When asked to comment about the polish allowance and the need to reseal any items, the Applicant responded:

•  “The bonnet gets resealed if you buy new bonnet.”

•  “The repair on the skirt needs to be resealed.”

•  “The polish is an acceptable charge when the assessor feels it is necessary.” 22

[51] When asked to comment on why he added the cost of a replacing a Radiator Support Panel at $1,725 without including a part number, the Applicant responded:

“I remember speaking to the Hyundai dealer about this part and it came in multiple parts and that's where it came from. So I put it down to a complete Radiator Support and that's the pricing that I got there. So Gary [MacKenzie] would have only priced one of the parts for that Radiator Support. But there's multiple parts.” 23

[52] When asked to comment about the lack of images present in Estimage, the Applicant said he had taken additional photographs of Vehicle 2 during the inspection however he had failed to upload those images onto Estimage. He said he would send copies of the additional photographs to Gl at the conclusion of the interview.

[53] Ms Sim-Sing said during the interview the Applicant accepted having performance discussions in the past with his manager Darren Kay and his previous manager Mark Perry, including discussions about failing to upload documents to the claim. 24

[54] Ms Sim-Sing said later that morning the Applicant sent her two emails attaching additional images to support his assessment of claim number 003. She said that he later uploaded these images onto Estimage.

Failure to disclose payment

The Applicant

[55] The Applicant did not dispute that he received a payment of $500 into his personal bank account from MJ Auto with the description ‘Transfer from AHMAD LAKISS CommBank a gift’. 25

[56] The Applicant said he did not notice the payment had come from Mr Al Lakiss and that he was not expecting to receive a payment from him. He said that his brother in law, Mr Mahmoud Ali, called him prior to the payment advising that he would be repaying a debt (of a loan to him) through bank transfer.

[57] The Applicant said he was unsure as to why Mr Al Lakiss referred to the payment as a “gift” and submitted it may have been the “suggested description” provided by the bank app that was selected at the time of the transfer.

[58] The Applicant said that “on or about 15 or 16 July 2020” he asked Mr Ali and his sister if they had any written confirmation about the money he loaned them to assist in paying their children’s school fees. He said that there was no written evidence, as all conversations regarding the loan were done over the telephone.

[59] The Applicant denied he had breached any policy of the Respondent. He said he had no way of knowing the personal debt from his brother in law was paid from an account of the owner of MJ Auto, and that he does not complete ASIC checks on every person or repair shop he deals with. 26

[60] The Applicant agreed he was obligated to comply with then Respondent’s Code of Conduct, Group Conflicts Management Policy and Procedure and the Group Gifts & Entertainment Procedure as per his employment contract and agreed he was provided a copy of these upon commencing employment.

[61] The Applicant said he could not recall if he underwent training in relation to the Code of Conduct but accepted he had when taken to records attached to Ms Sim-Sing’s statement 27 that showed he completed training in April 2019 and February 2020. He also accepted he attended training in relation to conflict of interest.

[62] The Applicant accepted that he knew that if he received a gift or payment from a supplier he needed to declare this.

[63] The Applicant was asked how it came about that his brother in law, Mr Ali, needed a loan for school fees. The Applicant said it was spoken about in conversation. When asked when this payment was made to Mr Ali, the Applicant said he knew it was early January, however after the investigation he conducted some research and saw on his statement it was 6 January 2020. When asked whether there was an internet banking transaction record, the Applicant said there was a cash withdrawal.

[64] The Applicant said he first heard of Mr Al Lakiss in the interview on 15 July 2020.

[65] The Applicant accepted he had a Skype conversation on 3 February 2020 with Ms Cary Wilson, a Case Manager for motor claims with the Respondent. He agreed that Ms Wilson referred to an ‘Ahmed,’ and when asked if she was referring to Mr Ahmad Al Lakiss, said he believed she was referring to someone at the repair shop. The Applicant accepted that Ms Wilson said that Ahmad was “pretty keen” and that he responded, “he usually is a four phone calls a day kind of guy”. When asked if he was referring to Mr Al Lakiss, he said he was under the impression it was the person at the repair shop, however, did not pay attention to the name in the message.

[66] The Applicant agreed that he was asked by Ms Sim-Sing to ask his brother in law if there was any evidence of the loan. He said he could not recall the exact conversation he had with his brother in law at the time but that he did ask him if he had evidence. He said his brother in law didn’t have any evidence as it was arranged verbally.

[67] When questioned, the Applicant said he did not ask Mr Ali why the payment of $500 did not come from him but rather from Mr Al Lakiss. He said he did not discuss this with his brother in law because it formed part of the investigation and he was told by Ms Sim-Sing not to discuss the investigation.

[68] The Applicant accepted that he was instructed to talk to Mr Ali, his brother in law, about whether there was any evidence of the repayment of the debt. The Applicant said that discussing evidence of the loan is one thing, discussing the investigation was another.

[69] It was put to the Applicant that the instruction from Ms Sim-Sing was not for the Applicant to obtain evidence of the loan, but evidence of the repayment of the debt. The Applicant was asked therefore, why he did not ask his brother in law at this time, whether there was any evidence of the reason for the payment coming from Mr Al Lakiss. The Applicant repeated that he did not ask Mr Ali this because it formed part of the investigation and the Respondent was clear to him not to discuss the investigation with anybody.

[70] It was further put to the Applicant that there was a specific instruction to him in the email from Ms Sim-Sing of 15 July 2020 to provide evidence of repayment of the debt. When questioned again as to why he did not ask his brother in law whether there was any evidence regarding the debt the Applicant said that during the interview he found out Mr Al Lakiss was part of the investigation against him and so he therefore couldn’t discuss that. The Applicant also said that the instructions were to speak to a family member about evidence of repayment of the debt, and that he knew there wouldn’t be any because the arrangement between himself and his brother in law was verbal.

[71] The Applicant said he did not ask Ms Sim-Sing if he could speak to his brother in law about why the payment came from somebody else because Ms Sim-Sing was “very specific” about not discussing the investigation and that he “assumed the investigator would investigate.”

[72] The Applicant denied that he did not ask Ms Sim-Sing if he could seek to clarify what happened, because there was not an innocent explanation. The Applicant also denied that he received the payment of $500 from Mr Al Lakiss as a direct result of increasing the price of the estimate provided by MJ Auto three days earlier.

[73] The Applicant was asked when he became aware of the arrangement for Mr Al Lakiss to repay the debt owed to him from his brother in law. The Applicant said it was after his termination when the Statutory Declarations “came to light”. The Applicant, when asked how the Statutory Declarations came to light, said that because he had been terminated he started to ask questions and therefore asked his brother in law about why the payment came from Mr Al Lakiss. It was at this point his brother in law explained everything and they all got talking and worked out what happened. He said he felt if the Respondent wasn’t going to investigate then he thought he should. The Applicant said he asked Mr Al Lakiss what happened with his brother in law and asked if he was happy to provide a Statutory Declaration to confirm this.

[74] In relation to whether he felt he should have declared the $500 payment, the Applicant repeated in his oral evidence that he did not think to make a declaration because he did not know that the payment came from Mr Al Lakiss at this time.

[75] It was put to the Applicant that as soon as he received the gift from Mr Al Lakiss he should have either declined the gift or raised it with his manager. The Applicant repeated that he did not know Mr Al Lakiss was the owner of MJ Auto and therefore a supplier. He only had dealings with another staff member at MJ Auto. The Applicant repeatedly denied having any relationship with Mr Al Lakiss.

Statutory Declaration of Mr Al Lakiss

[76] On 17 September 2020 the Applicant’s lawyer provided the Respondent and the Commission with signed and witnessed Statutory Declarations from his brother in law Mr Mahmoud Ali and from the owner of MJ Auto and Mr Ahmad Al Lakiss. 28

[77] The Statutory Declaration of Mr Ahmad Al Lakiss was also filed as an annexure to the statement of the Applicant 29 (noting this copy was not witnessed but that provided on 17 September was). The statement said:

“In January 2020 I owed a debt of $500 to Mahmoud Ali of [address supplied]. Mahmoud supplied me with the account details to repay the debt and I paid it.”

[78] Mr Al Lakiss was not available for cross examination by the Respondent. The Applicant’s lawyer said Mr Al Lakiss did not want further involvement in the matter, he had merely repaid a debt and did not understand why he should be involved in this process. The Applicant’s lawyer also said Mr Al Lakiss was fearful that any involvement in this matter would negatively impact the way the Respondent as well as their assessors view MJ Auto.

[79] The Respondent objected to the Statutory Declaration of Mr Al Lakiss being admitted into evidence on the basis Mr Al Lakiss was not available for cross examination. The Applicant argued that because the Statutory Declaration has been signed it should be admitted into evidence, but that it be a question for the Commission on how much weight it should be given.

[80] I ultimately decided to admit the Statutory Declaration of Mr Al Lakiss although, for reasons given below, I have not relied on it. The Respondent has a right to test the evidence being relied on by the Applicant. This is particularly so when the statement goes to a critical matter for determination and where credibility is critical. The Applicant wants to rely on the affidavit to support the claim of the Applicant as to the basis of the payment of the $500. In these circumstances Mr Al Lakiss should be available for cross examination. It is not otherwise acceptable to seek to rely on a signed affidavit.

[81] To the extent the unsigned statement on a statutory declaration form is attached to the witness statement of the Applicant I have, for the same reasons, accorded it no weight.

Mr Mahmoud Ali

[82] Mr Mahmoud Ali provided a witness statement in the proceedings. He attached to his witness statement a copy of the Statutory Declaration previously filed by the Applicant with the Commission. He said the Applicant is his brother in law and he has known him for approximately ten years.

[83] The Statutory Declaration of Mr Mahmoud Ali said:

“On Monday the 6th of January 2020 I borrowed a cash amount of $500 from my brother in law Omar Katrib for personal matters. Approximately 2 weeks later, I provided Omars [sic] bank account details to a friend of mine, Ahmad Al Lakiss, to repay the debt as Ahmad owed me money and to eliminate money jumping around to different accounts and clearing period for payment, I told him to pay it into the account details I provided.”

[84] In his witness statement dated 20 October 2020 (to which his affidavit was attached) Mr Ali said he could not remember the date the Applicant loaned him the money or when he arranged for the money to be paid into the Applicant’s bank account by Mr Al Lakiss.

[85] Mr Ali said the Applicant loaned him approximately $500 in cash because he was struggling to pay for both of his children’s school fees.

[86] Mr Ali said he has known Mr Ahmad Al Lakiss, owner of MJ Auto, for approximately seven years as he has had his cars repaired at MJ Auto on various occasions.

[87] Mr Ali said on 12 January 2020, he had a spare set of wheels that he sold to Mr Al Lakiss for $500. Mr Al Lakiss did not pay him for the wheels on that day as he did not have the cash. Mr Ali said that Mr Al Lakiss said to him “I’ll have the money in my account. I can transfer the money to you.”

[88] Mr Ali said that on or about late January 2020 (he could not recall the exact date) Mr Al Lakiss notified him that he was going to repay him the money for the wheels via bank transfer. Mr Ali said he called the Applicant to advise him he was going to transfer the $500 he owed to the Applicant via bank transfer.

[89] Mr Ali said that to eliminate money jumping around to different accounts he thought it would be a good idea for Mr Al Lakiss to transfer the money directly to the Applicant. Mr Ali said Mr Al Lakiss agreed to do so and he provided Mr Al Lakiss with the Applicant’s personal bank account details. He said on 20 January 2020, Mr Al Lakiss transferred $500 from his business account to the Applicant’s personal account.

[90] Mr Ali said he had no idea that Mr Al Lakiss was going to repay the Applicant via his business bank account. He said he was also unsure why the description of the transfer stated ‘gift’. He said he could “vouch” that it was certainly not a gift but rather a debt that Mr Al Lakiss was repaying on his behalf as he owed him money. When asked how he knew the transfer to the Applicant came from Mr Al Lakiss’ business bank account Mr Ali said he did not know Mr Al Lakiss was going to transfer the debt from his business account.

[91] Mr Ali said he called the Applicant to advise him he was going to repay the debt into his bank account and that this was how he got the Applicant’s bank account details to pass on to Mr Al Lakiss. Mr Ali was asked why at this time he did not advise the Applicant that the payment was going to come from someone else. It was put to Mr Ali that it would be reasonable to think if you owed a debt to someone, you would advise that person the repayment was going to come from someone else. Mr Ali said he didn’t really think about it and didn’t really give it much attention.

[92] Mr Ali said the Applicant told him in September that he had been called into a meeting at work on 15 July to discuss the $500 into his bank account. This was the time Mr Ali made the Statutory Declaration. Mr Ali said up until this time he didn’t know anything about it. When asked if he had a discussion with the Applicant regarding whether there was any written evidence of the loan, Mr Ali said that he didn’t have any evidence because they were family and didn’t have any written agreement. When asked when he had that discussion, Mr Ali repeated that he didn’t have any documents.

[93] Mr Ali was asked whether, on the day he was completing the Statutory Declaration, the Applicant told him that the payment came from Mr Al Lakiss. Mr Ali said yes the Applicant said the payment came from Mr Al Lakiss. Mr Ali asked the Applicant whether there was a problem with the payment and the Applicant said no.

[94] In re-examination, Mr Ali was asked to be more specific about time frames. Mr Ali was asked when the conversation where the Applicant told Mr Ali about the investigation occurred. Mr Ali then said the conversation occurred in September and he didn’t have a conversation with the Applicant about it any earlier.

Ms Kylie Dunphy-Brown

[95] Ms Kylie Dunphy-Brown, Executive Manager, General Insurance Claims at the Respondent, said that during the Show Cause Meeting on 17 August 2020 the Applicant did not provide an explanation as to why Mr Al Lakiss transferred $500 into his account. Ms Dunphy-Brown said that she recalled that the Applicant did not mention his brother in law, Mr Mahmoud Ali in his explanation.

[96] Ms Dunphy-Brown said the Applicant also failed to provide a proper explanation as to why he received the $500 payment from Mr Al Lakiss in his written responses to the show cause letter.

Mr Miles Sowden

[97] Mr Sowden gave evidence that throughout the investigation and subsequent disciplinary process, the Applicant did not provide any evidence to show that the payment of $500 from Mr Al Lakiss to him, only a few days after he assessed claim 003, was a repayment of a debt and not due to him uplifting the quoted repair costs.

[98] Mr Sowden said because of this, it was his view that the payment to the Applicant from Mr Al Lakiss was a benefit in exchange for the Applicant increasing the cost of the repairs to be performed by Mr Al Lakiss on the vehicle damaged as part of claim 003.

[99] Mr Sowden said that even if the payment of $500 was a genuine gift or repayment of a debt the Applicant failed to declare it and he should have done so. Even if it was to repay a debt from his brother in law Mr Sowden said that the Applicant received the payment from a supplier and for transparency it should have been declared. He said the Applicant’s conduct in this respect was a breach of the Code of Conduct and the Group Conflict Management Policy and Procedure.

Ms Beatrice Sim-Sing

[100] Ms Beatrice Sim-Sing said on 27 May she received an email from Annie David, Risk Manager of Risk & Enterprise Management, CommInsure attaching the Register. The Register showed that the Applicant had not declared any conflicts of interest. Ms Sim-Sing provided a copy of this email and the Register in her evidence. 30

[101] During her oral evidence Ms Sim-Sing said she noticed a shift in the Applicant’s demeanour when she mentioned the $500 payment. Ms Sim-Sing said that the Applicant appeared to be initially relaxed in the interview, and then when she mentioned the payment he was surprised. Ms Sim-Sing gave evidence that when the Applicant was asked about the relationship between his brother in law and Mr Al Lakiss, he became defensive. Ms Sim-Sing said she believes this shift in demeanour was captured on the recording.

[102] Ms Sim-Sing was asked if it was the case that the Applicant had provided an explanation for the $500 payment, how was it that the Second Allegation was found to be substantiated. Ms Sim-Sing said that though the Applicant claimed the payment was from his brother in law, he did not produce any evidence of that debt.

Investigation

Ms Gabrijela Susak

[103] Ms Gabrijela Susak, Investigations Coordinator, General Insurance for the Respondent. said her team is responsible for investigating fraudulent home and motor insurance claims made by customers of CommInsure.

[104] Ms Susak said that on 9 April 2020, Samantha Collins, Fraud Analyst sent her two consecutive emails about a collision involving two cars, one of which was insured with CommInsure. The owner of that vehicle was Mr Ahmad Al Lakiss. The number allocated the claim was 700267178. Ms Susak said she took a number of preliminary steps as part of investigating the claim where she discovered that Mr Al Lakiss was the owner of MJ Auto. Ms Susak said she then looked at Mr Al Lakiss’ bank account to see whether there had been any transactions from his account to a third party or repairer and saw that there was a transfer of $500 on 20 January 2020 to a person named Omar Katrib.

[105] Ms Susak said she logged onto Estimage to review claim number 700267178 and discovered that MJ Auto was the repairer assigned to carry out the repairs on Mr Al Lakiss’ vehicle. Ms Susak said she then searched Estimage for all other claims that had been allocated to MJ Auto. She said there was only one other claim that MJ Auto had been involved in, claim 003. Ms Susak said when she reviewed that claim she found that the original quote provided by MJ Auto of $3,734.50 had been increased to $6,965.75. Ms Susak said she also noticed that the assessment had been completed on 16 January 2020 by a motor assessor named Omar Katrib. Ms Susak said she noted this was the second time Omar Katrib’s name had come to light during her investigation.

[106] Ms Susak said the proximity in time of the increase in the cost of repairs of claim 003 and the payment of $500 from Mr Al Lakiss to an Omar Katrib was concerning and so she subsequently raised her concerns with her manager, David Cooper now Manager of Investigations. Ms Susak had a subsequent meeting with Ms Sim-Sing where she explained the different applications used by the General Insurance team to perform their roles and the actions she had taken when investigating claim number 700267178.

Ms Beatrice Sim-Sing

[107] Ms Sim-Sing said in her role as Investigator she is responsible for investigating internal misconduct, including fraud and dishonesty, of staff members within the Commonwealth Bank of Australia (CBA).

[108] Ms Sim-Sing said that on 15 May 2020 she received an email informing her that she had been allocated to a matter involving the Applicant by David Cooper, Manager for Investigations, Litigation and Recoveries at CommInsure.

[109] Ms Sim Sing said CBA publishes policies which are applicable to employees of CBA and the employees of other companies in the Group (which includes CommInsure). She said that based on her review of the issue, she considered that the following Group policies may be relevant to the investigation:

(a) Code of Conduct;

(b) Conflicts Management Policy and Procedure;

(c) Group Gifts and Entertainment Procedure.

[110] On 22 May 2020 Ms Sim-Sing commenced investigating whether the Applicant had declared any conflicts with Mr Al Lakiss. It was found that the Applicant had not declared any conflicts. 31

[111] On 23 June 2020 Ms Sim-Sing met with Gary Mac Kenzie and discussed the audit he had completed on claim 003. Mr Mac Kenzie explained his concerns in relation to the Applicant’s assessment of that claim.

[112] Ms Sim-Sing said on 26 June 2020 she searched Facebook to see if the Applicant or Mr Al Lakiss had an account. She said the search confirmed that they both did however she did not review their accounts at this time. Ms Sim-Sing said she later went back to check whether a relationship existed between the Applicant, Mr Al Lakiss, or the insured parties to the collision however as at 7 July 2020 the Applicant appeared to have deleted his Facebook account.

[113] Ms Sim-Sing also gave evidence that the Applicant had completed Code of Conduct training on 9 April 2019 and again on 10 February 2020 and Conflicts of Interest training on 9 April 2019.

[114] Ms Sim-Sing said on 14 July 2020 she telephoned the Applicant and invited him to a meeting and explained the purpose of the meeting. Ms Sim-Sing said she and the Applicant then had the following exchange (or to the following effect):

“Omar: “Am I in trouble? This does not look good.”

Me: “Well that’s the reason we want to have this interview. We have obtained this information and we need you to provide some context on the information that we have. We have gaps that we need to fill in.””

[115] Ms Sim-Sing said she then sent the Applicant an email confirming the details of the meeting and advising him, again, of the reasons for the interview. Ms Sim-Sing provided a copy of this email in her evidence. 32 Ms Sim-Sing also said she sent the Applicant an email attaching the policies she would be referring to in the interview.33 On 15 July 2020 at 7:36AM Ms Sim-Sing sent the Applicant a further email attaching additional documents she planned to refer to in the interview.34

[116] Ms Sim-Sing said that on 15 July 2020 she and Ms Shuwayhat conducted an interview with the Applicant via Skype video. Ms Sim-Sing provided her interview plan for the meeting in her evidence. 35

[117] At the start of the interview Ms Sim-Sing reminded the Applicant of a number of things, including that the interview could lead to further disciplinary action. She said she told the Applicant words to the effect of:

“Any information you provide during the interview will be considered as part of the Group’s investigation to determine, on the balance of probabilities, whether or not you have engaged in any conduct in breach of the Bank’s policies which may result in a formal allegation, disciplinary action or any other proceedings. Do you understand that?”

[118] Ms Sim-Sing said she then notified the Applicant of the allegations that had been made against him. The Applicant was then given an opportunity to respond to the allegations (outlined in detail earlier in this decision).

[119] At the conclusion of the interview Ms Sim-Sing said she and the Applicant had the following exchange (or to the following effect):

“Me: “A letter will be issued to you where you will have an opportunity to respond in

writing. You do not have to respond but can if you wish and we encourage you to do.”

Omar: “Ok”

Me: “All of the information we have gathered today will be compiled in a report to your General Manager and they will be responsible for making a business related decision at the end of the investigation. This will be based on the balance of probabilities in conjunction with Workplace Relations. We won’t make any recommendations. The potential outcomes of the investigation range from no further action, counselling, first and final warning, reduction in pay, up to dismissal.

You must keep this investigation and your participation in it strictly confidential. This includes not contacting or discussing the investigation with any Group employees, customers and/or clients of the Group or making enquiries with anyone mentioned in the interview or relating to what was discussed today. You may discuss the investigation with a family member/support person on the basis that they keep it confidential. You may also speak to Maria Bililis or Miles Sowden. They both have knowledge of the matter. If you fail to observe this direction, disciplinary action up to and including dismissal may be taken against you.

Based on what we’ve discussed today, we will need to make further enquires before we can start drafting the letter. Could you please provide me with additional photographs to justify the reason for uplifting the costs of repairs to Vehicle 2, correspondence between yourself, Mr El Massri and/or any other member of your family that would explain the reason for receiving the $500 payment in your Group account on 20 January 2020 and photographs and/or any written explanation to support the comment within the File Review which stated “the authorised the painting LHF Guard and the RH A Pillar which were Not required.”

Omar: “Sure”

Me: “Also confidential counselling and EAP is available to you.”

Omar: “Ok.””

[120] Ms Sim-Sing said she then asked the Applicant to provide her with the additional evidence she had asked for during and at the conclusion of the interview. Ms Sim-Sing then telephoned Mr Sowden Miles and provided him with an update of the interview. The Applicant provided (some of) the evidence requested on 17 July 2020.

[121] On 22 July 2020 Ms Sim-Sing sent the Applicant an email attaching the allegations letter and all supplementary evidence including the responses given by the Applicant in the interview of 15 July 2020 and the material he provided subsequent to this. Ms Sim-Sing said she reviewed the Applicant’s responses when he sent it on 28 July 2020.

[122] Ms Sim-Sing said she then commenced drafting the investigation report, and concluded that, based on the available evidence, the two allegations made against the Applicant had been substantiated. Ms Sim-Sing said one of the reasons she made this finding was because the Applicant never provided her with any evidence to support his assertion that the $500 payment was from his brother in law. Ms Sim-Sing said this seemed like a convenient excuse.

[123] On 10 August 2020 in accordance with standard procedure, Ms Sim-Sing commenced drafting a brief to send to the Victorian police. On 22 September 2020 the matter was referred to the Victorian Fraud Squad for assessment and allocation.

[124] During cross examination, Ms Sim-Sing was asked where the recording of the interview on 15 July 2020 was and whether the Applicant was provided with a copy. Ms Sim-Sing said the recording was on a file in the GI hard drive. She said a copy had not been provided to the Applicant, however at beginning of the interview he was offered the option of being provided with a copy of the recording but declined.

[125] Ms Sim-Sing was asked what other materials were used in the investigation that were not provided to the Applicant. Ms Sim-Sing said some material included financial analysis, including on group accounts of the Applicant, a copy of transfers in the form of financial analysis of Mr Al Lakiss, details of training records and the audio recording.

[126] Ms Sim-Sing was asked whether the Respondent sought to interview Mr Al Lakiss. She said a decision was made not to talk to Mr Al Lakiss so to not disrupt a separate investigation. Ms Sim-Sing said that it is not usual practice to speak to third parties. She also said the decision was made not to speak to Mr Al Lakiss as it was thought that the Applicant’s responses would be more valid.

[127] In relation to Mr Ali, Ms Sim-Sing said that she did not have any contact details for Mr Ali and had not contacted him.

[128] During cross examination Ms Sim-Sing was asked whether she had an obligation to read the Applicant his rights or advise him that anything he said could be used in evidence against him for a criminal matter. Ms Sim-Sing said she would be obliged to read rights as a police officer however different requirements applied for an investigator.

[129] Ms Sim-Sing was asked if it is standard procedure to refer a matter such as this to the police after the investigation had finished. Ms Sim-Sing said it was. She said if the Applicant came back with other evidence that confirmed no fraud occurred then it would not have been referred to the police.

[130] Ms Sim-Sing agreed that the Applicant was not aware the matter was going to be referred to Victoria Police. When whether she thought it was problematic for a person to be questioned without legal advice or without knowing their evidence could be used against him in criminal trial Ms Sim-Sing said she appreciated this but that the Applicant had the option to have a support person and did not have to answer questions if he did not want to.

[131] Ms Sim-Sing was asked whether the reasons provided for the Applicant’s dismissal were for breaches of policy and not criminal conduct. Ms Sim-Sing agreed.

Ms Kylie Dunphy-Brown

[132] Ms Dunphy-Brown said she did not have any involvement in the investigation until 7 August 2020 when she became aware that Group Investigations had completed their investigation into the Applicant. Ms Dunphy-Brown said she was asked by Mr Miles Sowden to manage the disciplinary process concerning the Applicant.

[133] Ms Dunphy-Brown said a show cause meeting was scheduled with the Applicant for 17 August 2020. Prior to the meeting the Applicant requested copies of all evidence and documents in relation to the investigation. Ms Dunphy-Brown also received a telephone call from the Applicant’s representative. Some of the requested documentation was provided but not all. Ms Dunphy-Brown did not dispute that she did not provide all of the requested documents to the Applicant 36 but said that if there was material the Applicant was entitled to it was provided to him.

[134] At the Show Cause meeting the Applicant provided a response to the allegations. The Applicant did not have a support person with him. Ms Dunphy-Brown said she had the sense the Applicant was reading from a prepared statement. Shortly after the conclusion of the meeting Ms Dunphy-Brown received a copy of a written response to the allegations from the Applicant. She said that this statement accorded with the notes she took of the Applicant’s statement during the Show Cause meeting.

[135] Ms Dunphy-Brown said that she noticed that, in his response, the Applicant failed to provide a proper explanation as to why he received the $500 payment.

[136] Ms Dunphy-Brown said that the Applicant did not give any additional information in the meeting that was different to what he had previously provided, and that as a result and after a discussion with Mr Sowden, the decision was made to terminate his employment.

[137] Ms Dunphy-Brown then met with the Applicant over Microsoft Teams on 18 August with Ms Holdstock present as his support person.

[138] Ms Dunphy-Brown said she commenced the meeting by advising the Applicant of the purpose of the meeting and said that the Respondent had taken his responses into consideration. Ms Dunphy-Brown said she read the substantiated allegations to the Applicant and advised him the conduct was in breach of the Code of Conduct, the Group Conflicts Management Policy and the Group Gift and Entertainment Policy.

[139] Ms Dunphy-Brown said she explained to the Applicant that these breaches posed a significant risk to the business and then advised the Applicant of the outcome being that his employment was terminated. Ms Dunphy-Brown confirmed a termination letter was sent later that day.

Mr Miles Sowden

[140] Mr Sowden confirmed he had been notified that David Cooper was referring a matter to Group Investigations involving the Applicant.

[141] Mr Sowden said after being informed by Ms Sim-Sing that she was allocated to the matter, he assigned Ms Bililis to assist Ms Sim-Sing with the investigation. He said after this, he was not involved in the process until the investigation had been completed on 30 July 2020 and Ms Sim-Sing sent him the Investigations Report.

[142] Mr Sowden said on 4 August 2020 he read the Investigations Report and on 5 August 2020, Annabel Anderson, Workplace Relations Specialist, Human Resources sent him an email recommending that the Respondent proceed with the show cause process for termination of the Applicant’s employment. On 7 August 2020 Mr Sowden sent Ms Anderson an email in reply agreeing with her recommendation and advising to “move ahead.” 37

[143] On 17 August 2020, following her meeting with the Applicant, Ms Dunphy-Brown contacted him to discuss what had occurred. He said Ms Dunphy-Brown confirmed the Applicant had not provided any new information or evidence and had not provided evidence about why he was paid $500 by Mr Al Lakiss. Mr Sowden said he considered that the Applicant had been given ample opportunity to produce evidence to support his defence but had failed to provide any.

[144] Mr Sowden said he advised Ms Dunphy-Brown to proceed with termination of the Applicant’s employment. Mr Sowden said in making this decision, he had regard to the Code of Conduct, and was of the view the Applicant’s conduct was inconsistent with that Code. He said in addition, the Applicant’s conduct in accepting a payment from a supplier and failing to disclose it constituted a breach of the Group Conflicts Management Policy and Procedure and the Group Gifts & Entertainment Procedure.

Applicant

[145] The Applicant said that he was not advised of any allegations in advance of the 15 July 2020 meeting, was not advised of his rights and did not know it was a meeting about possible disciplinary action to be taken against him. During that meeting the Applicant said he was asked a series of questions which he answered truthfully. He said that he was never given a copy of the recording or transcript of the interview. He said at no time was he advised that he was being investigated for possible fraud or bribery offences.

[146] The Applicant said that during the 15 July 2020 meeting he advised the Respondent that that the $500 payment he received was a debt that his brother-in-law, Mr Ali, was repaying, and that the reason for the increased quote was because the initial quote was incomplete.

[147] The Applicant said that on 16 July 2020 he sent an email to the Respondent stating that he had no evidence in relation to the personal debt owed by his brother in law. He further advised the Respondent that upon going out and assessing the vehicle he noticed that the repairer had failed to provide a complete quote, hence the increase in the quote.

[148] The Applicant said that on 22 July 2020 he received the Allegations Letter, and that this was the first time he saw the allegations against him. On 28 July 2020 the Applicant provided a written response to the allegations confirming what he had said in the meeting, being that that $500 was made as repayment of a debt from his brother in law, and that the reason the cost of repairs was uplifted was to cover complete cost of repairs. He also noted it was his job to add repairs if a repairer has missed some.

[149] The Applicant said he couldn’t explain why his brother in law paid him from someone else’s account, and he wasn’t able to find out, as the Respondent’s instructions were to not discuss this investigation with anyone involved.

[150] The Applicant said on 10 August 2020 he was suspended from his work duties and access to his work emails was suspended. He received the Show Cause Letter from the Respondent on 13 August and was advised the Respondent was considering their obligations in relation to the ‘Banking Industry Conduct Background Check’ Protocol.

[151] On 13 August 2020 the Applicant sent an email to Ms Kylie Dunphy-Brown requesting all evidence and documentation relating to the investigation be provided to him prior to the meeting on 17 August 2020. The Applicant said the Respondent refused to provide the documents to me him as it said the evidence was confidential information.

[152] The Applicant said the Respondent eventually provided a copy of the Allegation Letter the Group Conflicts Management policy and Group Gifts Entertainment procedure after being contacted by his lawyer, Ms Holdstock. However, he said the Respondent did not provide all the material relating to the investigation.

[153] The Applicant said he has not worked since 18 August 2020 when the Respondent terminated his employment for serious misconduct.

[154] the Applicant said that before receiving the Respondent’s material for these proceedings he was not aware that he was being referred to the police. He also said he was unaware MJ Auto was being investigated.

[155] The Applicant agreed that on 14 July 2020 Ms Sim-Sing invited him to a Skype call on 15 July 2020 and advised him that the purpose of the call on 15 July 2020 was to discuss his assessment of claim 003 and the $500 payment. The Applicant said that Ms Sim-Sing used words to the effect that the Applicant “needed to fill in the blanks.”

[156] The Applicant that he could not recall saying to Ms Sim-Sing that “this doesn’t look good” and that he does not believe that he did say that. The Applicant could also not recall saying that he could be in trouble.

[157] The Applicant said he did not recall any allegations being put to him until he received the allegation letter.

[158] The Applicant was taken to the email sent to him from Ms Sim-Sing following their telephone conversation on 14 July 2020 38 that stated:

“Thank you for speaking with me this morning, and accepting Group Investigations invitation to attend a formal interview scheduled for tomorrow morning at 9.30am. As discussed, Group Investigations is seeking to speak with you regarding a motor assessment you completed for claim number 700259003 and a $500 payment you received into your Group account on 20 January 2020.”

[159] The Applicant was asked whether, after receiving this email, he checked his bank statement and saw that the payment was from Mr Al Lakiss. The Applicant said he did not believe that he did. When asked why, after receiving that email, did he not call his brother in law to find out about the payment of $500, the Applicant said he did not have knowledge off the top of his head what occurred six months ago. When asked why he didn’t go to his bank account and look at the payment that was being referred to, the Applicant said that was because it wouldn’t have been transparent, and there was nothing in the email that referred to an allegation. He said he considered the meeting was purely a friendly conversation and this was how Ms Sim-Sing put it in the email. He said despite the email, he did not think anything was wrong and he would just have a friendly discussion in the interview.

[160] When asked to confirm that, despite Ms Sim-Sing raising the $500 payment in the email on 14 July 2020 and again at the meeting on 15 July 2020 that it was his evidence that he did not check his bank statement at this time, the Applicant then said “I can’t remember if I did but I would assume I did. I just can’t remember. I don’t want to give an answer that I did or didn’t. It was four months ago.” 39

[161] It was put to the Applicant that the tone of the email of 14 July 2020, referring as it did to a “formal interview” and offering counselling services, indicated he was not being invited to a friendly “chit chat”. The Applicant repeated that there were no allegations mentioned in the email. He repeated that he did not deem it necessary to check his bank account at this stage as he was just going to wait and see what happened at the interview.

[162] The Applicant agreed that later that day Ms Sim-Sing sent through policies that she would be referring to on 15 July 2020. He agreed that on the morning of 15 July 2020 he received a further email from Ms Sim-Sing containing documents that would be referred to at the interview, including his assessment of the motor vehicle, the review by Mr Mac Kenzie, a copy of the bank account showing the payment from Mr Al Lakiss and a record of a Skype conversation with Ms Wilson on 3 February 2020.

[163] The Applicant agreed that allegations against him were clearly set out in the letter from Ms Sim-Sing dated 22 July 2020. It was the Applicant’s evidence that this was the first time he realised that there was something serious happening.

[164] The Applicant confirmed that it was his evidence that he did not know the payment of $500 was from Mr Al Lakiss at the time it was made.

WAS THE APPLICANT UNFAILRY DISMISSED?

[165] It was not in dispute and I am satisfied that the Applicant is protected from unfair dismissal, the application was made within the statutory time, the dismissal was not a genuine redundancy and the Small Business Fair Dismissal Code does not apply.

[166] In order to determine if the Applicant was unfairly dismissed it is therefore necessary to determine if the dismissal was harsh, unjust or unreasonable.

[167] In order to decide if the dismissal was harsh, unjust or unreasonable it is necessary to consider each of those matters set out in s.387 of the FW Act:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[168] I have considered each of these matters below.

(a) a valid reason for dismissal related to conduct

[169] The Applicant’s employment was terminated on 18 August 2020. The letter of termination said, in part:

“As you were previously advised, based on the assessment of the evidence gathered during the course of the investigation and on the balance of probabilities the following findings were made:

1. On 16 January 2020, you uplifted the cost of repairs for claim number 700259003 from $3,734.50 to $6,965.75. As a result of your actions on 20 January 2020 you received a $500 payment from the owner of the repair company, Ahmad Lakiss. This allegation was substantiated.

2. On 20 January 2020 you breached the Conflicts of Interest Policy and Group Gifts and Entertainment Procedure by failing to disclose the $500 gift payment you received from Ahmed Al Lakiss. This allegation was substantiated.

Your conduct has been found to be in breach of:

1. The Code of Conduct (copy attached)…

2. The Group Conflicts Management Policy (copy attached)…”

[170] In Selvachandran v Peteron Plastics Pty Ltd 40 his Honour, Northrop J said:

“In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, common sense way to ensure that" the employer and employee are each treated fairly…”

[171] It is incumbent upon the Commission in a matter that involves misconduct to determine for itself, on the basis of the evidence before it, if the conduct relied on for the dismissal did, in fact, occur. 41 The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct.42

[172] It is not necessary for the Commission to determine if the conduct engaged in – should it be found to have occurred – amounts to serious misconduct in order to determine if there was a valid reason for dismissal. The inquiry under s.387(a) is if there was a valid reason for dismissal related to the conduct of the Applicant – not if that conduct amounts to serious misconduct. Submissions that only concentrate on the question of serious misconduct in relation to valid reason are misplaced. Whether the conduct amounts to serious misconduct is better considered under s.387(h) and to the broader question as to whether the dismissal was harsh, unjust or unreasonable.

Uplift in repair cost

[173] I am satisfied, based on the evidence before me, that the Applicant did uplift the cost of repairs in relation to claim 003 and that he did not have reasonable grounds to do so to the extent that he did. The Applicant did not satisfactorily explain the extent of the uplift, extent of the repairs, the pricing for parts or the failure to include part numbers in the uplifted quote.

[174] The Applicant further failed to adequately explain his failure to load images of the damage to the vehicle into Estimage at the time he undertook the assessment that he said justified the uplift in the cost of repairs.

[175] In reaching my conclusion I have preferred the evidence of Mr Mac Kenzie and Mr Sowden that it is unusual that an assessor would increase the cost of a quote and certainly to the extent seen in this case. I accept their experience in such matters and for this reason prefer their evidence to that of the Applicant. I consider that the Applicant’s attempts to brush aside the evidence of Mr Mac Kenzie as “the usual stuff Gary will put in his audits” as unconvincing. Further, I consider the Applicant’s unsupported statement that he had uplifted incomplete quotes multiple times to be exaggerated and designed to provide some semblance of support for his conduct. The Applicant said during the hearing that he could not access his work email once stood down so could not provide supporting material for this claim yet has not sought to have such material produced. The Applicant’s claim that uplifting was not unusual is not supported by the evidence before me and is therefore not accepted.

[176] I prefer the evidence of Mr Mac Kenzie to that of the Applicant in relation to the concerns identified of the assessment undertaken by the Applicant, particularly with respect to the cost for repairs and parts. The substantial variation in the costs associated with the radiator support panel between that proposed by the Applicant and the price sourced by Mr Mac Kenzie indicates a failure of the Applicant to undertake his task with the care and diligence required.

[177] The Applicant has also failed to adequately explain his comments to Ms Wilson that Ahmad was “pretty keen” and is usually a “four phone calls a day kind of guy.” His explanation that he thought Ahmad was “the person at the repair shop” is suggestive that the Applicant did have some knowledge Ahmad – whether a guy at the repair shop or the owner of MJ Auto. Whilst this factor is not decisive in my consideration it adds to a picture of evasiveness in the evidence of the Applicant.

[178] For these reasons I am satisfied that the Applicant did uplift the costs of repairs. Further I am satisfied that no justification has been provided for the extent of that uplift.

Receipt of $500

[179] I am satisfied that the Applicant did received, and failed to adequately explain, payment of $500 into his bank account on 20 January 2020 by Mr Al Lakiss.

[180] In reaching my conclusion I have had little regard to the evidence of Mr Ali, the Applicant’s brother in law. His memory was selective and his evidence therefore unreliable. Mr Ali completed a statutory declaration on 16 September 2020 in which he was clear as to the date on which the Applicant loaned him $500. A month later, on 20 October 2020, he could not recall this date. Further, Mr Ali said that when he sold the tyres to Mr Al Lakiss (which he remembered in October 2020 occurred specifically on 12 January 2020 even though no money changed hands that day) Mr Al Lakiss said he had the money in the bank to pay for the tyres but no cash. Instead of providing Mr Al Lakiss with his own bank account details that day Mr Ali instead called the Applicant on some unidentified later date to get the Applicant’s bank account details to then pass these on to Mr Al Lakiss. Further, he provided no plausible reason as to why he did not inform the Applicant that he had given the Applicant’s personal bank account details to a stranger to the Applicant or that he advised the Applicant that this was how the debt would be settled. The explanation of the reason for providing Mr Al Lakiss with the Applicant’s bank account details lack credibility. That transfer from Mr Al Lakiss to the Applicant’s bank account then occurred on 20 January 2020 with the description of “gift”.

[181] Further, I have not given any weight to the Statutory Declaration signed by Mr Al Lakiss. Mr Al Lakiss’ statement contains no detail that would assist in the resolution of the contested issues before me. Further, Mr Al Lakiss was not called to give evidence and was not available for cross examination by the Respondent.

[182] That Mr Al Lakiss and Mr Ali signed statutory declarations does not mean such evidence should be automatically accepted without testing. That Mr Al Lakiss was not available for cross examination by the Respondent (and his statement sought to be relied on by the Applicant) makes it unreliable The reliability of each of these statutory declarations is further diminished as they were written after, as the Applicant said in evidence, “we all spoke together about it and worked out what had happened” 43 in September 2020.

[183] I am satisfied that the Applicant was invited by the Respondent to provide information or evidence as the circumstances surrounding the payment of the $500 into his bank account but failed to do so. The Applicant’s failure to do so because he had been told to discuss the matter with no-one is unconvincing.

[184] When asked if he checked his bank account after receiving the email from Ms Sim-Sing on 14 July 2020 the Applicant initially said he did not because this would “not be transparent” and that he did not think it was necessary due to the “friendly” nature of the conversation with Ms Sim-Sing. However later, his evidence was that he most likely did check it, but that he couldn’t remember.

[185] The Applicant’s evidence as to why he did not look at the transfer details even after being alerted by the Respondent on 14 July 2020 that it was a subject for the meeting on 15 July 2020 is unconvincing. The Applicant was being called into a meeting with the investigations unit of the Respondent. Two issues were identified – both of which he could have investigated prior to the meeting of 15 July 2020. For reasons known only to himself – but do little to support his case – the Applicant chose not to look at the transfer of $500 that had pulled him into an investigation.

[186] I am satisfied that the Applicant was requested by Ms Sim-Sing to talk to his brother in law about any evidence that receipt of the $500 was repayment of a debt. Further, this was put in writing by Ms Sim-Sing. The Applicant’s reason for not doing so would be more convincing if he had explained this to Ms Sim-Sing such that a way around his dilemma may have been found. The Applicant was given a means of explaining the $500 but still failed to do so.

[187] The Applicant has also failed to provide an explanation as to why the transfer into his account from Mr Al Lakiss was a described as “a gift”. His explanation that the Commbank app provides this as a suggested description is not supported by evidence. I do not find the explanation convincing and have not accepted it as establishing the fact.

Failure to disclose receipt of $500

[188] I am satisfied that the Applicant did not declare to the Respondent the payment of $500 into his bank account by Mr Al Lakiss. Even if the transfer was as put by the Applicant he failed to declare a payment from a third party in circumstances where that third party was a beneficiary of the work of the Respondent. Such a failure is in breach of the requirement to disclose any actual, perceived or potential conflict of interest. This much is clear from the Group Conflicts Management Policy 44 and Group Conflicts Management Procedure.45

[189] The transfer of money has the hallmarks of inappropriate conduct – even though it may appear to be on a small scale. The policies and procedures of the Respondent are in place to guard against any perceptions of impropriety. The Applicant had been trained in these policies yet failed to bother to review his bank account when he became aware of the transfer (which he noted on a review of his balance well before July 2020) and again when he became aware that there was a question with respect to the transfer on 14 July 2020.

Conclusion as to valid reason

[190] There is no direct evidence that the Applicant received the $500 payment from Mr Al Lakiss as a result of his actions in uplifting the repair quote. However, I am satisfied that the Applicant:

•  Did uplift the estimate for repairs to the vehicle in claim 003 on 16 January 2020 from $3,734.50 to $6,965.75;

•  The repairs were to be carried out by MJ Auto, owned by Mr Al Lakiss;

•  Received a payment of $500 into his bank account from Mr Al Lakiss on 20 January 2020;

•  Failed to explain why the transfer was described as “a gift;”

•  Made no attempt, despite a request to do so, to gather information to explain the deposit of $500 to his bank account;

•  Failed to comply with the policies and procedures of the Respondent in not disclosing the payment of $500.

[191] The weight of the evidence before me supports a conclusion of an inappropriate connection between the uplift by the Applicant and the payment to the Applicant of $500. I am therefore satisfied, based on my findings, that it is reasonable for me to infer that, as a result of the uplift to the cost of repairs on claim 003 the Applicant received a payment of $500 from Mr Al Lakiss. Whilst the Applicant may have given an alternative reason for the payment of the $500 this is not supported by the evidence before the Commission.

[192] Further, I am satisfied the Applicant failed to report receipt of the $500 deposit into his bank account by Mr Al Lakiss. The timely reporting of such payments is fundamental to the trust and confidence the Respondent can have in its employees. Not only did the Applicant fail to report the deposit into his bank account but when he was alerted to the fact that there was a deposit in his bank account of $500 and the date of that deposit he did nothing to determine how the deposit came about.

[193] I am satisfied that the actions of the Applicant were in breach of the Code of Conduct and the Group Conflicts Management Policy.

[194] Whilst it is not always the case that a breach of an employer’s policy will provide a valid reason for dismissal, in this case I am satisfied that the breaches do provide such a valid reason. Those parts of the policies breached by the Applicant go to the core of the trust the Respondent must have in the Applicant that he is carrying out his duties in a diligent and appropriate manner with no sense of impropriety. In this case the reasons for dismissal are sound, defensible and well founded.

[195] I would observe that the Applicant, whilst submitting that he did not engage in the conduct complained of, did not put that, if I should find that he had engaged in such conduct, it did not amount to a breach of the relevant policies of the Respondent.

[196] For these reasons I am satisfied that there is a valid reason for the dismissal of the Applicant.

(b) whether the person was notified of that reason

[197] The Applicant was advised of the allegations against him on 15 July 2020 in a meeting and then, in writing, on 22 July 2020. Further, he was issued with a show cause letter on 13 August 2020 and his response, given orally and in writing, were considered prior to the decision being made to dismiss him.

[198] I am therefore satisfied that the Applicant was notified of the reason for his dismissal and this was provided before the decision was made to terminate his employment.

(c) whether the person was given an opportunity to respond to that reason

[199] On 14 July 2020 Ms Sim-Sing spoke to and then emailed the Applicant with respect to the meeting with him for the following day.

[200] The evidence before the Commission does not support a finding that the meeting on 15 July 2020 was just a “friendly” chat as suggested by the Applicant. The email from Ms Sim-Sing confirming the meeting for 15 July 2020 was clear that it was Group Investigations who sought to meet with the Applicant and that the purpose of the meeting was to discuss the uplift in estimated costs of repair and the payment into the Applicant’s bank account of $500 on 20 January 2020. The Applicant was advised he could bring a support person to the meeting.

[201] I am satisfied that at the commencement of the meeting on 15 July 2020 the Applicant was advised, amongst other things, that the meeting was being recorded, was encouraged to answer questions but also advised he could terminate the meeting if he so desired. Again, in this respect, the evidence does not support a finding that the meeting was a friendly chat.

[202] Following the meeting on 15 July 2020 the Applicant was invited to provide further information in relation to the $500 and the repair costs on Vehicle 2.

[203] On 22 July 2020 the Applicant was provided with a formal letter of allegations and the meeting notes from 15 July 2020. The Applicant was “invited to respond to these allegations in writing and also make any further representations to the Group as to why disciplinary action should not be taken …” In providing his response to the letter of allegations, beyond indicating that Ms Sim-Sing may have confused two separate brothers in law, the Applicant does not suggest that the notes of the meeting were inaccurate or not a reliable account of what was said by him or Ms Sim-Sing in the meeting.

[204] The Applicant was provided with a show cause letter in relation to findings associated with the allegations on 17 August 2020. He was invited to, and did, provide a response to that letter both orally and in writing. Following receipt of his response a decision was made to terminate the Applicant’s employment.

[205] I am satisfied that the Applicant was given multiple opportunities to put his version of events to the Respondent and that no decision was taken to terminate his employment until such time as he had provided his response to the show cause letter.

[206] The Applicant said that he was denied access to relevant documentation used in the investigation by Ms Sim Sing which meant he was unable to respond to the allegations. In her evidence Ms Sim-Sing said that the documents not provided to the Applicant that were used in the investigation were some financial analysis of account transfers, a copy of the Applicant’s training record and the audio recording of the meeting of 15 July 2020. Beyond general claims of a denial of procedural fairness the Applicant has not explained how the information he said he was not provided with was material to or would have altered the responses he provided in meetings or in writing in relation to the allegations.

[207] I am not satisfied that the non-provision of this information denied the Applicant an opportunity to respond in any meaningful or practical manner.

[208] For the reasons set out above I am satisfied that the Applicant was given an opportunity to respond to the reasons for dismissal prior to that decision being taken.

(d) unreasonable refusal of access to a support person

[209] No submissions were made to the contrary and I am satisfied that the Applicant was not unreasonably refused access to a support person.

(e) performance matters

[210] The Applicant’s employment was not terminated for reasons related to his performance. It is therefore not necessary for me to consider this factor.

(f) & (g) effect of the size of the employer’s business and access to human resource expertise in effecting the dismissal

[211] No submissions were made in relation to these factors. I am therefore satisfied that the neither the size of the Respondent’s business nor its access to appropriate expertise has impacted on the procedures in relation to the dismissal.

(h) other matters

[212] The Applicant submitted that he was denied procedural fairness and that this made his dismissal unfair. The Applicant said that he was denied procedural fairness through:

•  A failure to advise him, following the conclusion of the investigation, that the matter had been referred to the Victorian Police;

•  A failure to advise him that Mr Al Lakiss was subject to investigation by the Respondent;

•  Not advising him during the investigation of his right to seek legal advice or that anything he said could be used in evidence in relation to criminal charges;

•  The failure of the Respondent to contact any witnesses who may be able to support the Applicant’s explanation of the deposit of $500;

•  Denying the Applicant access to documents relevant to the investigation and decision of the Respondent.

[213] The Applicant relied on the decision in BUPA Aged Care Australia v Tavassoli 46 which he said demonstrates the importance of not withholding crucial information from the Applicant. The Applicant also referred to a number of decisions of the Commission in relation to procedural fairness particularly as they relate to the withholding of evidence or information on which a decision to terminate employment was made.47 Whilst I have considered these decisions I do not consider they are of assistance to the Applicant in the matter before me as it is not apparent that the Applicant was denied access to information which formed the basis of the decision to terminate his employment.

[214] In relation to the decision in Emery v Cutlers, The Law Firm (Emery) 48 I would observe that in that matter, while the Deputy President was considering notions of procedural fairness, the cases cited at paragraphs [41]-[44] focus on the requirements of s.387(b) and s.387(c) of the FW Act – that is whether the person is advised of the reasons for dismissal and given an opportunity to respond. They do not, with all due respect, deal with broader notions of procedural fairness that may warrant consideration under s.387(h) of the FW Act.

[215] In this case I have concluded that the Applicant was advised of the reason for his dismissal and was given multiple opportunities to respond to those reasons prior to the decision being made to terminate his employment. That is the requirement of s.387(b) and (c). I do not consider that the decision in Emery sets some new or distinct standard and does not, in my opinion, raise any broader issues of the provision of reports or witness statements or documents.

[216] I am not convinced that a failure to advise the Applicant that the investigation may have been referred to the Victorian Police denied the Applicant procedural fairness in relation to the termination of his employment or the matter before the Commission. They may be issues that go to any criminal investigation, but I am not convinced they are relevant to the matter before me.

[217] The Applicant’s employment was terminated for reasons of misconduct specified in the letter of termination and not for any criminal conduct he may have engaged in. Further, I am satisfied that the Applicant was advised at the commencement of the meeting with Ms Sim-Sing on 15 July 2020 of the following:

•  Any information he provided during the interview would be considered as part of the Group's investigation to determine, on the balance of probabilities, whether or not he had engaged in any conduct in breach of the Bank's policies which may result in formal allegation, disciplinary action or any other proceedings;

•  He did not have to answer any questions if he did not want to, however, anything he said would be recorded and may be used in any proceedings; and

•  He was free to leave the interview at any stage although if he did so the information gathered may be used in deciding the matter. 49

[emphasis added]

[218] The Applicant chose to consider the interview with Ms Sim-Sing a friendly chat. Had he taken heed of the contents of the email of 14 July 2020 he may have appreciated the gravity of the issues confronting him.

[219] Whilst the Applicant was not told that the matter would be referred to the Police he was on notice (albeit not explicit notice) that the matter could be referred elsewhere. In any event the Applicant does not say how not being advised that the matter was referred to Police (which was decided after the investigation was complete) denied him procedural fairness.

[220] I have found above that the Applicant was not denied access to a support person. The evidence before the Commission does not support a finding that the Respondent denied or would have denied the Applicant access to a lawyer if he so chose. Further, the evidence of the Applicant supports a conclusion that he had engaged a lawyer prior to the show cause meeting such that it is difficult to comprehend what this argument amounts to.

[221] The Applicant has also taken issue with the direction given to him that he not talk to anyone about the investigation being undertaken and his inability, considering that direction, to gather any supporting information from Mr Ali as to the loan.

[222] Whilst I have some sympathy for the Applicant this has been put forward now as a convenient argument to excuse his lack of action in providing relevant information to the Respondent that may have supported his case. I would however caution the Respondent that it does need to ensure that its direction to employees under investigation that they not discuss the investigation with anyone not be seen from precluding an employee from gathering information the employee considers relevant to responding to the allegations or show cause letter.

[223] In the email to the Applicant confirming the meeting of 15 July 2020, the Respondent said

“You must keep this investigation and your participation in it strictly confidential. This includes not contacting or discussing the investigation with any Group employees, customers and/or clients of the Group or making enquiries with anyone relating to what was discussed during the phone call today.

…

Please note that if you fail to observe this direction, disciplinary action up to and including dismissal may be taken against you.”

[224] Any subtlety inherent in that direction that may provide scope for an employee to gather relevant information to enable them to respond to allegations is easily lost on an employee possibly feeling anxious in relation to an investigation in which they are embroiled. The warning that disciplinary action may arise if the direction is breached may impact an employee gathering relevant information.

[225] That observation however must be considered in light of the entreaty of Ms Sim-Sing for evidence from the Applicant substantiating that the deposit was re-payment of a debt by his brother in law. By the time the Applicant considered this critical (September 2020) the time had well passed, and his employment had been terminated.

[226] Based on the direction given the Applicant said he assumed the Respondent would contact his brother in law although why he reached this conclusion without raising the issue directly with the Respondent is unclear.

[227] In this case the only material in the possession of the Respondent that the Applicant did not have at the time of the show cause meeting and that was not otherwise provided by the Respondent in these proceedings is the audio recording of the interview conducted by the Respondent with the Applicant on 15 July 2020 and financial analysis of account transactions. However, the evidence does not support a finding that the Respondent relied on anything in the recording or financial analysis not otherwise known to the Applicant to determine that the Applicant should “show cause” or his employment be terminated. The Applicant had the Respondent’s notes from the meeting on 15 July 2020 (provided to him on 22 July 2020). To the extent it might vary, the Applicant has also had access to the investigation report of Ms Sim-Sing filed in these proceedings. The Applicant also had access to documents such as his training record which he suggested he has not had access to previously. Despite now having access to the material relied on by the Respondent the Applicant has not put any alternative conclusion that should be drawn from that material or identified why the conclusions drawn by the Respondent (and to be considered by me) were not reasonably open to it or might not reasonably be open to me. It is not enough to say that information was not provided. In order to demonstrate a denial of procedural fairness it must be shown how the information might otherwise have influenced the decision reached or how, with the benefit of that information, the outcome might differ.

[228] It is not apparent how the (non-specified) information has denied the Applicant procedural fairness either in the process undertaken by the Respondent or in the hearing before the Commission.

[229] I am satisfied that the Applicant was not denied procedural fairness in relation to the interview on 15 July 2020 or any subsequent processes which led to the termination of his employment. Further, the evidence does not support a conclusion that the Applicant was denied procedural fairness in the hearing before the Commission.

[230] The Applicant also submitted the conduct did not amount to serious misconduct making the dismissal unjustified. I note however that, in written submissions, the Applicant appears to misquote Regulation 1.07 50 (to the extent I take it is intended as a quote) of the Fair Work Regulations such that the conclusions the Applicant then seeks to draw are not supportable on a proper reading of the Regulation.

[231] Regulation 1.07 states:

“1.07 Meaning of “serious misconduct”

(1)  For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2)  For subregulation , conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

(3)  For subregulation , conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.”

[232] For conduct to be considered serious misconduct it does not need to satisfy both Reg 1.07 (2)(a) and (b) – if it was required to meet both limbs the word “and” could be expected at the end of paragraph (2)(a) – nor must it meet both Reg 1.07 (2) and (3) or some other permutation or combination of paragraphs. The suggestion by the Applicant that it must is therefore misconceived and perhaps arises from an incorrect transcription of the Regulation.

[233] It is apparent that Reg 1.07 is not the complete codification of conduct that amounts to serious misconduct. As Reg 1.07 (1) says, serious misconduct has its ordinary meaning. In addition, the opening words of each of Reg 1.07(2) and (3) state that “For subregulation (1), conduct that is serious misconduct includes…” with certain conduct then listed. The word “includes” is indicative that what follows is not a finite list of what may be serious misconduct.

[234] It was open to the Respondent to find the Applicant’s conduct was serious misconduct. For the reason given above in my finding as to a valid reason I am satisfied that the Applicant’s conduct amounts to serious misconduct. The Applicant has not provided any compelling argument as to why this is not open to me.

Was the dismissal harsh, unjust or unreasonable?

[235] Having found that there was a valid reason for dismissal and that the Applicant was not denied procedural fairness I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.

WAS THE APPLICANT UNFAIRLY DISMISSED?

[236] Having reached my conclusion that the dismissal was not harsh, unjust or unreasonable I am therefore satisfied that the Applicant was not unfairly dismissed.

[237] The application for relief from unfair dismissal is therefore dismissed.

COMMISSIONER

Appearances:

Ms J. Holdstock of Holdstock Law appearing for the Applicant
Ms R. Nocka of Dentons appearing for the Respondent

Hearing details:

2020,
November 18,
Melbourne by video

Printed by authority of the Commonwealth Government Printer

<PR725598>

 1   Exhibit A1 – Statement of Omar Katrib dated 14 October 2020.

 2   Exhibit A2 – Statement of Mahmoud Ali dated 27 October 2020.

 3   Exhibit A1 – Statement of Omar Katrib dated 14 October 2020, Annexure 9.

 4   Exhibit A1 – Statement of Omar Katrib dated 14 October 2020, Annexure 10.

 5   Exhibit R2 – Statement of Miles Sowden dated 4 November 2020.

 6   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020.

 7   Exhibit R5 – Statement of Gabrijela Susak dated 4 November 2020.

 8   Exhibit R3 – Statement of Kylie Dunphy-Brown dated 5 November 2020.

 9   Exhibit R4– Statement of Gary Mac Kenzie dated 5 November 2020.

 10   Exhibit 1 – Statement of Omar Katrib dated 14 October 2020 Annexure 3.1.

 11   Ibid.

 12   Exhibit R4 – Statement of Gary Mac Kenzie dated 5 November 2020 at paragraph 17.

 13   Exhibit R4 – Statement of Gary Mac Kenzie dated 5 November 2020 at paragraph 18 and attachment “GM-2”. Note that the cost of $476.85 includes GST while the otherwise quoted cost of $433.50 is the same amount less GST.

 14   Exhibit R4 – Statement of Gary Mac Kenzie dated 5 November 2020 attachment “GM-2”.

 15   Exhibit R2 – Statement of Miles Sowden dated 4 November 2020 at paragraph 21.

 16   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-28.

 17   Ibid.

 18   Ibid.

 19   Ibid.

 20   Ibid.

 21   Ibid.

 22   Ibid.

 23   Ibid.

 24   Ibid.

 25   Exhibit A1 – Statement of Omar Katrib dated 14 October 2020 at paragraph 9.

 26   Exhibit A1 – Statement of Omar Katrib dated 14 October 2020 Annexure 3.1.

 27   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-16A.

 28   Correspondence from Applicant to Commission 17 September 2020.

 29   Exhibit 1 – Statement of Omar Katrib dated 14 October 2020 Annexure 3.1 Annexure 10.

 30   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-12.

 31   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at paragraph 18.

 32   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-19.

 33   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-20.

 34   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-21.

 35   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-17.

 36   Exhibit R3 – Statement of Kylie Dunphy-Brown dated 5 November 2020 at paragraphs 16-18.

 37   Exhibit R2 – Statement of Miles Sowden dated 4 November 2020 at MS-6.

 38   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-19.

 39   Transcript PN449.

 40 [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].

 41   Edwards v Justice Giudice [1999] FCA 1836.

 42   King v Freshmore (Vic) Pty Ltd Print S4213, 17 March 2000.

 43   Transcript PN215.

 44   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-7.

 45   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-8.

 46   [2017] FWCFB 3941.

 47   Melouney v ACM Group[2012] FWA 9386 at [59]-[61]; Delaps v The Victorian Association for the Teaching of English[2013] FWC 4163 at [112]-[114].

 48   [2015] FWC 52.

 49   Exhibit R1 – Statement of Beatrice Sim-Sing dated 4 November 2020 at BSS-17.

 50   Applicant Outline of Submissions dated 14 October 2020 at paragraph 15.