Peter Leimonitis v Qube Logistics (Vic) Pty Ltd

[2013] FWC 3

[2013] FWC 3

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Leimonitis
v
Qube Logistics (Vic) Pty Ltd
(U2012/10527)

Shannon Hourigan
v
Qube Logistics (Vic) Pty Ltd
(U2012/10531)

COMMISSIONER BISSETT MELBOURNE, 4 JANUARY 2013

Application for unfair dismissal remedy.

[1] This decision relates to two applications for unfair dismissal. The facts and circumstances that led up to each of the dismissals are the same. It is appropriate to deal with the facts and evidence of each dismissal in the one decision.

[2] Mr Peter Leimonitis and Mr Shannon Hourigan (collectively the Applicants) were each employed by Qube Logistics (Vic) Pty Ltd (the Respondent). Mr Leimonitis commenced direct employment with the Respondent on 2 May 2011 and Mr Hourigan on 3 March 2011.

[3] On 31 May 2012 Mr Leimonitis and Mr Hourigan were each dismissed.

[4] Mr Leimonitis was summarily dismissed for alleged irregularities in timekeeping.

[5] Mr Hourigan was summarily dismissed for clocking on another employee (Mr Leimonitis) who was not at work.

[6] Each separately made an application for relief from unfair dismissal on 14 June 2012.

Legislation

[7] The Fair Work Act 2009 states:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[8] In this case it is not disputed that both Mr Leimonitis and Mr Hourigan have been dismissed. It is not argued that the Small Business Fair Dismissal Code is relevant or that the dismissals were cases of redundancy.

[9] There is no dispute that the applications were made within the requisite time or that the Applicants are each protected from unfair dismissal.

[10] The matter to be determined is if the dismissal of either of the Applicants was harsh, unjust or unreasonable. In determining if the dismissals were harsh, unjust or unreasonable s.387 of the Act states:

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.

Background

[11] Mr Leimonitis and Mr Hourigan both worked night shift with the Respondent. It seems that employees on this shift commence work sometime between about 4.00pm and 6.00pm. At the commencement of their shift employees are required to clock on using a time clock. At the end of their shift employees are required to clock off.

[12] Having clocked on, employees go about their work - either at the depot or delivering containers.

[13] Prior to 29 May 2012 management of the Respondent had received some reports that Mr Hourigan might have been clocking on Mr Leimonitis before he arrived at work. Mr Baring, the Operations Manager, and Mr Thompson, the Transport Manager, reviewed the clock cards of Mr Leimonitis and Mr Hourigan and discovered a number of dates on which they had clocked on at the same time. The managers then reviewed video footage which showed that on a number of occasions when the clock cards showed the same clock on time Mr Leimonitis could not be seen on site even though he was already clocked on.

[14] On 29 May 2012 Mr Hourigan was observed clocking on. Mr Thompson checked the clock cards and found that both Mr Hourigan and Mr Leimonitis had been clocked on at the same time. Mr Hourigan was called in by Mr Baring, told what had been observed, asked for an explanation and then stood down whilst an investigation took place.

[15] Mr Baring then rang Mr Leimonitis, who was on his way to work. Mr Leimonitis was told what had been observed, asked why Mr Hourigan might be clocking him on and then told not to report to work and that he was stood down whilst an investigation took place.

[16] On 30 May 2012 Mr Leimonitis had a discussion with Mr Baring.

[17] On 31 May 2012 both Mr Leimonitis and Mr Hourigan attended a meeting with management representatives with respect to the matter. At the conclusion of each meeting the respective employee’s employment was terminated.

Evidence

[18] Mr Leimonitis gave evidence that he believed his starting time was 5.00pm and that this was the time he was paid from, even if he clocked on earlier. He says this information was given by Mr Thompson at toolbox meetings. He agrees that in the meeting on 31 May 2012 he offered to pay back any money earned before his actual start time if he was being paid from his clock on time.

[19] Mr Leimonitis gave evidence that he had received a lift to work from Mr Hourigan most days for about the last five or six months. Sometimes Mr Hourigan would drop him where his truck was (on the street or down the back of the depot) and on these occasions Mr Hourigan would clock him on. He did not consider that he was doing anything wrong. He says that he and his wife have only one car and she used it to go to work during the day and she would not arrive at home by the time he needed to leave for work.

[20] Mr Leimonitis says that Mr Baring rang him on 29 May 2012 and asked him where he was as his clock card showed him clocked on. Mr Leimonitis replied that he was two minutes away. He denies he ever said he was 25 minutes away because he only lives 10 minutes from work. Mr Leimonitis says he asked Mr Baring during the conversation if he could come in and look at the video footage and they could have a chat about it but Mr Baring told him he did not need to show the video footage to him and he was suspended. Mr Leimonitis rang Mr Baring the next day to ask if he could come in and have a chat about the issue but again Mr Baring said no.

[21] Mr Leimonitis disputes the accuracy of the minutes of the meeting he attended with management on 31 May 2012. 1 He does agree however that he knew Mr Hourigan was clocking on for him.

[22] Mr Leimonitis disputes that he ever said to Mr Baring that Mr Hourigan was clocking him on to pay back money he had lent Mr Hourigan.

[23] Mr Leimonitis agrees that the video footage on a number of days shows him driving his car into the car park. This occurred at times after he was clocked on. Mr Leimonitis’ evidence is that his wife often dropped the car off on her way home from work and that she would leave it on the street. He would, at a convenient time, move the car into the car park.

[24] Mr Hourigan gave evidence that the night shift commenced at 5.00pm which was a set starting time and even though he may have clocked on prior to 5.00pm this was in fact the start time. Mr Hourigan agreed that he had two clock on cards and he used one to check against his pay slips to ensure he was paid the correct overtime for the time he worked at the end of his shift.

[25] Mr Hourigan agreed that it would be wrong to clock on someone who was not at work.

[26] Mr Hourigan viewed video footage from various dates along with clock records which showed that on a number of days Mr Hourigan and Mr Leimonitis were clocked on at the same time but Mr Leimonitis was seen entering the car park in his car at a later time. Mr Hourigan agrees with what was seen on video and on the clock records. Mr Hourigan says that at times Mr Leimonitis picked up the car from his wife, who dropped it off at work, and drove it into the car park.

[27] Mr Hourigan says that the footage of Mr Leimonitis driving his car into the car park is not proof that this was the time he started work.

[28] Mr Hourigan says he had no arrangement with Mr Leimonitis that if he arrived before Mr Leimonitis he would clock him on.

[29] Mr Hourigan says he has very little memory of the meeting he attended with representatives of the Respondent on 31 May 2012. In his evidence he stated that he suffers from depression and can hardly remember what he did a week ago. 2 He says he remembers walking into the meeting room and he was there for two, maybe three minutes. He does not see how all of the questions3 could have been asked in such a short period. Mr Hourigan gave evidence that OH&S issues were raised at the meeting although they are not minuted. He believes he was sacked because he raised OH&S and pay issues in the past. He also denies saying that clocking on Mr Leimonitis when he was not at work was stupid.

[30] Mr Hourigan could not remember if a copy of the relevant policies had been included in the starter pack he received at the time he commenced permanent employment with the Respondent.

[31] With respect to various dates subject to some scrutiny during the hearing, Mr Leimonitis’ and Mr Hourigan’s evidence can be summarised as follows:

Date	Clock on time	Mr Leimonitis’ evidence	Mr Hourigan’s evidence
19 March	1631	Was not wearing his reflective vest at 1930 but could have been working on the forklift where not required to wear that gear. If he was clocked on he was at work.	Mr Leimonitis was at work when he clocked him on. He did not clock Mr Leimonitis on three hours before he arrived.
26 April	1649	Mr Hourigan clocked both on but Mr Leimonitis had been dropped off either out the front or down the back of the depot. When he drove his car in at 1808 it didn’t mean he was not already at work.	Mr Leimonitis was at work when clocked on by Mr Hourigan.
27 April	1646	Video shows him parking his car at 1717. Had picked up his car from the street. Got his work bag out of the boot as he had left his work boots at his parents’ and asked his wife to leave the boots in the car.	Whilst Mr Leimonitis is seen arriving in his car 30 minutes or so after he was clocked on there were times when his wife left the car outside and he brought it into the car park. Just because Mr Leimonitis was driving the car in did not mean this was when he arrived at work.
22 May	1656	Video shows him parking his car while Mr Hourigan is walking through the car park. Is not sure if he arrived separately to Mr Hourigan or if he picked his car up from the street.	Arrived separately but did clock on Mr Leimonitis. It does not mean there were many occasions when this occurred.
24 May	1635/6	He would have been up the front or down the back sorting out his truck at the time Mr Hourigan clocked him on. Driving his car in at 1647 may be after wife dropped it off.	Mr Leimonitis was at work when he clocked him on. Whilst Mr Leimonitis walked through the car park some 15 minutes after he was clocked on he could have been at the truck or waiting for his wife to drop off his car.
25 May	1628	Video shows him getting out of his car at 1656. Removed bag from boot - could have been lunch wife left for him. Not true that he started work 30 minutes after he was clocked on.	Mr Leimonitis was at work when he clocked him on. He probably dropped Mr Leimonitis out the front at his truck.
28 May	1651	Video shows car driven into car park at1653. Did not start work 15 minutes after he was clocked on, he started when he was clocked on.	He obviously dropped Mr Leimonitis off out the front or his wife has dropped the car off.
29 May	1631	He was at work at the time he was clocked on.	Mr Leimonitis was at work when he clocked him on

[32] Mr Shane Baring for the Respondent gave evidence as to the discovery of the irregularities in the time cards of Mr Leimonitis and the actions of Mr Hourigan in clocking on Mr Leimonitis when he arrived at work.

[33] Mr Baring says that the hours of work recorded on the clock cards of employees - both the clock on and clock off time - determines the pay received by employees. His evidence is that employees have a half hour leeway on their start times. He is not aware of a toolbox meeting where the drivers were given specific start times regardless of what time they arrived at work. He says that Mr Hourigan was due to commence work between 4.00-4.30pm (the half hour leeway) and that Mr Leimonitis was due to start work between 5.00-5.30pm.

[34] In reviewing the video footage and time cards Mr Baring says that he first determined dates when Mr Leimonitis and Mr Hourigan had the same start times on their clock cards and viewed the video footage for those days.

[35] Mr Baring agrees that he had not examined Mr Leimonitis’ driver run sheets to determine what time was recorded on those. Further, he says there were no cameras that had a view of the road, so he would not see if Mr Leimonitis’ wife dropped the car off in the street.

[36] Mr Baring’s evidence is that when he rang Mr Leimonitis on 29 May 2012, Mr Leimonitis said he was 25 minutes away. He denies that Mr Leimonitis said he was at the roundabout and would be there in two minutes. Mr Baring says he never told Mr Leimonitis at this stage that he was arriving at work up to three hours after being clocked on as he had not yet viewed the video footage. He also denies that Mr Leimonitis ever asked to view the video footage. 4

[37] Mr Baring says that at the meeting on 31 May 2012 he organised for Mr Adam Nacarratta to act as a witness for Mr Leimonitis (and presumably for Mr Hourigan). He did not ask Mr Leimonitis if he had his own witness although Mr Leimonitis could have objected to Adam if he did not want him there.

[38] Mr Baring’s evidence is that he knew Mr Leimonitis was not on site on the various days because he had footage of Mr Leimonitis arriving on site in his car after his clock on time, that there are about 20 cameras on site, most of which point to the car park, and that he has looked at the footage from them and Mr Leimonitis was not there. He agreed that it is possible that when Mr Leimonitis was driving into the car park he was shifting his car although he says Mr Leimonitis never put this forward as an explanation.

[39] Ms Emily Link is the National Human Resources and Branding Manager for the Respondent.

[40] Ms Link gave evidence as to the conduct of the meetings with each of the Applicants. She agreed that the termination letters for both Mr Leimonitis and Mr Hourigan were prepared prior to the meetings but says that no decision had been taken prior to the meetings to dismiss either of them.

[41] Ms Link’s evidence is that on 29 May 2012 she received an email from Mr Thompson stating that Mr Leimonitis and Mr Hourigan had been suspended following an investigation which revealed that Mr Hourigan was clocking on for Mr Leimonitis. Mr Thompson said in the email that video footage showed Mr Leimonitis arriving between 30 minutes and three hours after he had been clocked on. 5

[42] Ms Link says that at the commencement of each of the meetings she asked the respective Applicant if he had brought someone to attend the meeting with him and, on receiving a negative response, advised that Mr Nacarratta was available to sit in as a witness. No objection was received from either Applicant to Mr Nacarratta’s attendance. 6

[43] Ms Link says that Mr Hourigan did not deny that he had been clocking Mr Leimonitis on. When asked why, he said that it was ‘stupid’ and when asked what he thought the appropriate punishment should be he said ‘probably sack me’. 7

[44] Ms Link says that in the meeting Mr Leimonitis said he knew Mr Hourigan had been clocking him on and that this had been happening for a while. When asked why, he said Mr Hourigan was clocking him on to help him out and that he had asked Mr Hourigan many times not to. Mr Leimonitis offered to pay back any money he may have gained from being clocked on by Mr Hourigan, and felt that he had been punished enough by being stood down for three days. 8

[45] Ms Link’s evidence is that at the conclusion of each of the meetings Mr Baring advised the Applicants that there was no good explanation for their conduct and that there was no alternative but to terminate the employment of each person. 9

Submissions

[46] Mr Jacobs for the Respondent submits that the explanations given by Mr Leimonitis as to why he might have been driving his car into the car park after he was clocked on were implausible, absurd, chopped and changed and were not consistent with the video footage.

[47] Mr Jacobs says that Ms Link’s evidence as to the accuracy of the notes of the meetings held with each of the Applicants is unchallenged and that Mr Leimonitis’ assertion that the notes of the meeting were fabricated is without substance.

[48] Mr Jacobs submits that, given the ‘concerted and persistent course of conduct’ of each of the Applicants, the only action possible was to terminate their employment.

[49] Mr Jacobs submits that in the meeting of 31 May 2012 Mr Leimonitis was given an adequate opportunity to explain what had occurred and he admitted there had been wrongdoing. Further, he says that had either of the Applicants denied what was put to them they may have been shown the video footage.

[50] Mr Hourigan’s statement that ‘what you see is what you see’, 10 made whilst he was viewing the video footage, supports the submission of the Respondent that Mr Hourigan clocked Mr Leimonitis on when he was, in fact, not at work.

[51] Mr Jacobs referred me to a number of decisions that dealt with: falsifying time records (Catalano v City of Armadale, 11 Electricity Commission of NSW t/a Pacific Power v RR Nieass & Ors12(Electricity Commission of NSW)); the weight to be accorded to any procedural deficiencies if it is found that the misconduct occurred (Electricity Commission of NSW, Farquharson v Qantas Airways Ltd13); conduct incompatible with the fulfilment of the employee’s duties being a ground for dismissal (Blyth Chemicals Ltd v Bushnell,14 Beltz v Tip Top Bakeries15); and the nature of the conduct supporting summary dismissal (Potter v WorkCover Corporation16).

[52] Mr Leimonitis and Mr Hourigan rely on their written submissions. 17

[53] In addition Mr Leimonitis submits that the Respondent’s case is based on a lot of assumptions with no evidence from the video footage to support them. Mr Leimonitis submits that he was denied access to the video footage when he asked Mr Baring if he could see it.

[54] Mr Leimonitis submits that he asked to discuss the issue with Mr Baring but Mr Baring refused.

Consideration

[55] In reaching my decision I have had regard to all of the evidence provided and submissions made by the parties.

[56] I find that Mr Hourigan gave Mr Leimonitis a lift to work on many occasions.

[57] I also find that the clock on cards for Mr Leimonitis and Mr Hourigan, for those dates that have been produced, 18 show that the Applicants did clock on at the same time.

[58] I am satisfied that on 25 May and 29 May 2012 Mr Hourigan did clock on Mr Leimonitis when Mr Leimonitis was not at work. I am also satisfied that Mr Hourigan clocked on Mr Leimonitis on 22 May 2012. On that day Mr Leimonitis was filmed driving into the car park and getting out of his car with runners and not his work boots on. His explanation that he had left his boots at his parents’ house and had asked his wife to leave them in the boot of the car is not plausible.

[59] I therefore find that on 22 May, 25 May and 29 May 2012 Mr Hourigan clocked on Mr Leimonitis when he was not at work and when Mr Hourigan knew he was not at work.

[60] Whilst it is possible that Mr Hourigan clocked on Mr Leimonitis on other occasions, the evidence on the video footage from other dates put forward by the Respondent does not allow me to reach such a conclusion.

[61] The evidence of the clock cards suggests that Mr Leimonitis and Mr Hourigan clocked on at the same time on 22 occasions between 27 February and 29 May 2012. The video evidence at best indicates incorrect clocking on of Mr Leimonitis by Mr Hourigan on eight occasions, although I have found that it occurred three times. This does not suggest systemic clocking on of Mr Leimonitis by Mr Hourigan.

[62] The video evidence shows that on a number of occasions Mr Leimonitis drove his car into the car park some time after he was clocked on. The assertion of the Respondent is that he was actually arriving at work at this time. Mr Leimonitis says that on occasions his wife would leave the car out on the street on her way home from work and she would continue home with a work colleague and that he was just shifting the car from the street into the car park. Mr Baring agreed that this was possible. Mr Leimonitis says that his job sheets would show that he was at work prior to the times he was seen driving the car into the car park.

[63] I accept the evidence of Mr Leimonitis that on a number of the occasions when he was seen driving into the car park he was shifting the car from where his wife had left it on the street. Whilst Mr Baring says that Mr Leimonitis never put this forward as an explanation, the notes of the meeting conducted with Mr Leimonitis 19 show that this specific issue of him being seen arriving at work by car after he was clocked on was never actually put to him such that he was given an opportunity to put such an explanation forward.

[64] I do not accept that Mr Hourigan borrowed money from Mr Leimonitis and that clocking Mr Leimonitis on when in fact he was not at work was a mechanism by which Mr Hourigan ‘paid back’ the money owed. In evidence Mr Leimonitis seemed genuinely shocked by such a proposition and said that he would not lend money to Mr Hourigan as he was not family or a close friend. In any event there was no evidence to support the money lending theory advanced by the Respondent.

[65] Mr Leimonitis and Mr Hourigan both said that they were due to start work at 5.00pm and that, regardless of an earlier clock on time, this was the time they were paid from. To this extent each said they did not believe they were doing anything wrong.

[66] No party produced any evidence to support the assertions made about clock on times and time paid. It carries some weight however that both of the Applicants were of the same understanding. Mr Leimonitis gave his evidence first when Mr Hourigan was not present in the court room. There was no suggestion of collusion in their evidence. The Respondent called no evidence to rebut the evidence of the Applicants on this particular issue.

[67] I find that each of the Applicants reasonably believed that his start time was 5.00pm and that, regardless of an earlier clock on time, this was the time he was paid from.

[68] It is Mr Baring’s evidence that Mr Hourigan was meant to start work between 4.00pm and 4.30pm. On the time cards in evidence Mr Hourigan only once (on 25 May) arrived at work prior to 4.30pm. This raises issues firstly as to the reliability of the evidence of Mr Baring with respect to the required start time of employees and secondly as to the attention given by managers of the Respondent to the start time of employees on the night shift.

[69] Generally I find the evidence of the Applicants to be acceptable. Save for the three dates mentioned when Mr Leimonitis’ evidence was vague at best, there is nothing to contradict their version of events. In addition, neither of the Applicants had seen the totality of the video footage prior to these proceedings. Mr Hourigan was not in court when Mr Leimonitis gave his evidence. In these circumstances the similarity of their evidence suggests truthfulness in what they said.

[70] There are inconsistencies that arise from the evidence of Mr Thompson. He says that during the discussion on 29 May 2012 with Mr Leimonitis he never put to him that he was seen arriving at work after he had clocked on because, he says, he had not seen the video footage at that stage. But the evidence of Ms Link with respect to the email she received from Mr Thompson on 29 May 2012 20 and Mr Baring’s written evidence of what he and Mr Thompson did21 clearly suggest that he had seen the video evidence before 29 May 2012. This inconsistency is not explained. Mr Leimonitis says he told Mr Baring he was two minutes from work on 29 May 2012. He explained why Mr Baring could not be correct in his evidence. For these reasons I prefer the evidence of Mr Leimonitis as to the content of the discussion on 29 May 2012.

[71] As to what occurred in the meetings of 31 May 2012 however I prefer the evidence of Ms Link to that of the Applicants. I accept that the typed notes of the meetings were transcribed from her handwritten notes soon after the meeting and prefer this as a record of the meeting to the claims of Mr Leimonitis or Mr Hourigan. Having said this there are inconsistencies between the written record of the meeting and Ms Link’s evidence. Ms Link’s evidence is that Mr Baring advised each Applicant that his employment was terminated. The minutes of the meeting however indicate that she told each Applicant that his employment was finished and not Mr Baring as she suggested in her oral evidence.

[72] I do accept the evidence of Ms Link and Mr Baring that the OH&S and pay issues previously raised by the Applicants played no part in the decision to terminate the employment of each Applicant.

[73] I find that, during the meeting on 31 May 2012, Mr Hourigan agreed that he had clocked on Mr Leimonitis when he was not at work. However, there is no evidence of the extent to which Mr Hourigan agreed he had been clocking on Mr Leimonitis.

[74] With respect to Mr Leimonitis the minutes of the meeting show that whilst he agreed that Mr Hourigan had been clocking him on for some time nothing was put to him that suggested that on some, most or all of the occasions when Mr Hourigan clocked him on he was not at work.

Was the dismissal harsh, unjust or unreasonable?

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct

[75] Cheating on time cards is, if proven, a valid reason for dismissal of an employee. It is dishonest and it is theft (in the form of accepting money for work not performed).

[76] The question to determine is if Mr Leimonitis and Mr Hourigan, by each of their actions, did cheat on the time cards. I have found above that on three occasions Mr Hourigan did clock on Mr Leimonitis when he was not yet at work. Mr Leimonitis arrived some time later.

[77] Mr Leimonitis therefore received money for time worked when he in fact had not worked that time. Even if I accept that Mr Leimonitis had a reasonable belief that he was paid from 5.00pm even if he clocked on earlier, in two cases where I found he was not at work when clocked on he did not arrive at work before 5.00pm. He therefore was paid (on his understanding) from 5.00pm when he arrived at work later than 5.00pm and later than the clock on time.

[78] Mr Hourigan aided Mr Leimonitis in this deception by clocking him on when he knew he was not at work. In this respect he deceived the Respondent as to Mr Leimonitis’ attendance at work. In doing so Mr Hourigan allowed the cheating to occur.

[79] With respect to Mr Leimonitis there is a valid reason for his dismissal in that he cheated on his clock on times by accepting Mr Hourigan clocking on for him when he was not at work and he took no action to correct this.

[80] With respect to Mr Hourigan there is a valid reason for his dismissal in that he acted dishonestly by clocking on Mr Leimonitis when he knew he was not at work.

Whether the person was notified of that reason

[81] The letter of termination given to Mr Leimonitis states in part:

The Company conducted an investigation into the above anomaly [of 29 May 2012] which revealed that another employee had been using your clock card to clock you on. This has occurred on a regular and systematic basis for an extended period of time. In some examples, the Company discovered that you arrived to your usual place of work for duties up to 3 hours after your clock card indicated that you had commenced duties. 22

[82] The letter of termination given to Mr Hourigan states in part:

The Company has conducted an investigation into the above [29 May 2012] incident and has ascertained that this is not an isolated case. Security footage and an internal review of clock cards have confirmed that the falsification of official documentation (clock cards) has taken place. 23

[83] In this respect each of the Applicants was notified of the reason for dismissal in the letter of dismissal. There is no evidence that either was notified of the totality of the reason prior to being dismissed.

Whether the person was given an opportunity to respond

[84] Whilst both Mr Leimonitis and Mr Hourigan were notified of the reason for the dismissal in the dismissal letter the information provided to each of them prior to their dismissal was scant, did not go to the totality of the reason and therefore adversely affected their opportunity to respond to the reason.

[85] In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport 24 the Full Bench held that:

As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. 25

[86] Both Mr Leimonitis and Mr Hourigan were told that they were suspended from work whilst management investigated whether Mr Hourigan was clocking on Mr Leimonitis when Mr Leimonitis was not at work.

[87] In this case I find that neither Mr Leimonitis nor Mr Hourigan was notified, prior to receiving the letter of termination of employment, of the reason for termination. Neither was shown the video footage presented in evidence before me, given time to consider the footage or to gather any information that they might use to defend themselves against the breadth of the allegations arising from the footage. This was information available to the Respondent at the time the decision to dismiss each of the Applicants was made. Further, the minutes of each of the meetings indicate that neither was told the extent of the Respondent’s belief with respect to the conduct of each of them. Neither was therefore given an opportunity to respond.

[88] Whilst Mr Leimonitis and Mr Hourigan were aware that their conduct on 29 May 2012 was being investigated I am not convinced they were aware of the extent of the evidence against them as was provided during the hearing of these applications. At no stage was the extent of the complaints - the dates and times - provided to them such that they could present some defence.

[89] Mr Leimonitis in particular says he asked to see the video footage but this was denied to him by Mr Baring. The evidence of Mr Baring is that if either of the Applicants had denied the allegations they would have been shown the footage. This is not, in my opinion, enough. The obligation is on the Respondent to provide an employee with an opportunity to respond to the reason for their dismissal. Apart from the incident on 29 May 2012 that led to the stand down of each Applicant no other reason for the dismissal was put to either of them beyond generalised questions about the misuse of clock cards.

[90] In addition both Mr Leimonitis and Mr Hourigan say that they believed that they were paid from 5.00pm, not the time they actually clocked on, so Mr Hourigan clocking on a bit early for Mr Leimonitis did not alter the time from which he was paid.

[91] Had Mr Leimonitis in particular been shown the video evidence it may well be that the Respondent could have, and would have, looked at the job sheets of Mr Leimonitis to determine if he was in fact at work when he said he was.

[92] The failure to show each of the Applicants the video footage and/or set out in full the reason for the dismissal that ultimately took place denied each of them an adequate opportunity to respond and limited the investigation of the Respondent. The reasons ultimately given in the dismissal letter were not put to either Applicant.

[93] I find that the Applicants were not given an adequate opportunity to respond.

Any unreasonable refusal by the employer to allow the person to have a support person present

[94] The Respondent says that both Mr Leimonitis and Mr Hourigan were asked if they had brought someone with them to the meeting. When they said no they were advised that Mr Nacarratta could be a witness. Neither Applicant objected. I do accept that neither may have been aware of the purpose of the meeting such that they may not have been aware of a need to have a support person present.

[95] Without knowledge of the purpose of the meeting it seems to me difficult for any employee to properly assess if they need a support person. However, had one been requested I am not convinced it would have been unreasonably refused.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[96] This is not a relevant consideration in this matter.

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

[97] No submissions were made on this matter. I accept that the employer is a large business which has HR staff who assisted with this matter.

[98] It should be noted that the business does have apparently extensive policies and procedures. It appears to be part of the P&O group of companies. 26

[99] Given the size of the business I consider that it should have been capable of handling the issues in a professional manner.

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

[100] No submission was made that there was an absence of dedicated human resource or specialised staff. I do not consider this a relevant matter.

Any other matters that the FWC considers relevant

[101] I have taken into account that the Respondent did not seek information with respect to Mr Leimonitis’ job sheets which may have shed some light on his start times when the Respondent claims he was not at work. This lack of effort on the part of the Respondent to check other sources of information combined with the lack of information given to both Mr Leimonitis and Mr Hourigan is a matter of concern, particularly when the result for the Applicants has been the loss of their jobs. Mr Leimonitis made a number of statements whilst under oath as to the additional assistance he provided to the Respondent. This was not contested. Whilst the video footage provides some indication of the Applicants’ behaviour the lack of supporting material where this was apparently readily available to the Respondent cannot be ignored.

[102] I have taken into account that there appears to be little strict regulation on start and finish times of the night shift drivers. Whilst some attempt was made to regulate the start time of the drivers this was not enforced as can be seen from the time Mr Hourigan was apparently meant to start work and the time he did start work. The half hour leeway given on start times appeared to mean little to anyone.

[103] I have also taken into account that this was a summary dismissal.

[104] Whilst I have found above that the Applicants were not given an opportunity to respond to the totality of the reason for the dismissal as set out in the letter of termination I have taken into account my findings as to the conduct of each Applicant based on the evidence presented in these proceedings.

Was the dismissal harsh, unjust or unreasonable?

[105] The meaning of harsh, unjust or unreasonable was considered in Byrne and another v Australian Airlines Ltd 27whereit was found that:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 28

[106] There is a fine balance in this matter. The employer has a right to expect that employees will be honest in their timekeeping, that they will not claim time when they are not at work and that they will not assist another employee in doing this by clocking them on when they know they are not at work. Natural justice dictates that an employee have an opportunity to properly respond to allegations against them.

The dismissal of Mr Leimonitis

[107] In this case I find that the dismissal of Mr Leimonitis was unreasonable and harsh.

[108] In circumstances where at most three occasions could be found when Mr Leimonitis had cheated by being clocked on when not at work the decision to summarily dismiss would appear to be a harsh response to that conduct. The decision to dismiss Mr Leimonitis was based on cheating on a regular and systematic basis with no evidence to support such a decision.

[109] The video footage in evidence in these proceedings was readily available to the Respondent at the time it undertook the investigations and was seen by the Respondent prior to the decision to dismiss Mr Leimonitis. It could have been put to Mr Leimonitis but it was not. Mr Leimonitis’ only opportunity to respond to that evidence was in these proceedings.

[110] The opportunity to respond must be a real opportunity and should present all of the evidence to the person whose employment is in the balance. This was not a case where disclosure of the evidence could create any other adverse outcomes for witnesses, for example, as there were none. In this instance the opportunity to respond was denied to Mr Leimonitis such that he was denied procedural fairness.

[111] It was put to me that, if I found the misconduct occurred, procedural difficulties should not be accorded such weight as to overcome the fact that the conduct occurred. Whilst this may hold in many cases it cannot be that, just because the conduct occurred, an employee should be denied the right to provide some defence prior to a decision being taken as to penalty.

[112] In Farquharson the Full Bench held that:

The fact of unfairness in the employer’s decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect. 29

[113] I have carefully considered if the defects in the process of the Respondent should outweigh the valid reason for dismissal. In circumstances where a properly conducted process may have altered the outcome of the disciplinary process the procedural defects must outweigh the valid reason. To do otherwise would render the need for an employee to be given an opportunity to respond to any reason of little value.

[114] I am not convinced that the outcome of the disciplinary process would have been the same in this case had Mr Leimonitis been given an opportunity to gather and present his case, particularly on those days he says he brought the car in from the street.

[115] In these circumstances I find that the decision to terminate his employment was unreasonable. He was, therefore, unfairly dismissed.

[116] This should not be taken to indicate that cheating with respect to times of starting and/ or finishing work should not be viewed with the utmost seriousness. Dismissal in many cases will be justified.

The dismissal of Mr Hourigan

[117] There is a finer balance with respect to the decision to dismiss Mr Hourigan. He, on three occasions, did clock on Mr Leimonitis when he knew Mr Leimonitis was not at work. He had no reason to do so. He had no justification to do so.

[118] There is no additional evidence that Mr Hourigan could have brought to his meeting on 31 May 2012 that I can see would alter the outcome. The procedural deficiencies in his meeting can, in his case, be given little weight.

[119] I therefore find that the dismissal of Mr Hourigan was not harsh, unjust or unreasonable. His application is dismissed.

Conclusion as to unfair dismissal

[120] I therefore find that Mr Leimonitis was unfairly dismissed.

[121] I find that Mr Hourigan was not unfairly dismissed. An order to this effect will be issued with this decision.

Remedy

[122] Mr Leimonitis does not seek reinstatement and now has alternative work. In any event I do not consider reinstatement appropriate for him.

[123] I am satisfied that had the Respondent undertaken a thorough investigation, properly put its claims against Mr Leimonitis to him and given him an adequate opportunity to respond he would, in all likelihood, still have had his employment terminated. As I said above, cheating on timekeeping is a very serious matter that should not be treated lightly.

[124] I therefore consider that Mr Leimonitis would have been employed for, at most, another two weeks.

[125] I have taken into account all of those matters in s.392(2) of the Act. In particular I have considered the efforts of Mr Leimonitis to mitigate his loss. I have also, in accordance with s.392(3) taken into account his misconduct.

[126] In these circumstances I consider Mr Leimonitis should receive one week’s ordinary pay in compensation, plus superannuation.

[127] An order to this effect shall be issued in conjunction with this decision.

COMMISSIONER

Appearances:

P Leimonitis on his own behalf.

S Hourigan on his own behalf.

T Jacobs of Counsel for the Respondent.

Hearing details:

2012.

Melbourne:

November 28, 29.

 1  

Exhibit Q7, attachment EL-7.

 2   PN1126.

 3   See exhibit Q7, attachment EL-6.

 4   Exhibit Q5, paragraph 30.

 5   Exhibit Q7, paragraph 16.

 6   Exhibit Q7, paragraphs 25 and 31.

 7   Exhibit Q7, paragraphs 26-7, attachment EL-6.

 8   Exhibit Q7, paragraphs 32-35, attachment EL-7.

 9   Exhibit Q7, paragraph 36.

 10   Transcript PN679.

 11   (1989) 69 WAIG 2782.

 12 (1995) 81 IR 46.

 13   AIRC, PR971685 (10 August 2006).

 14 (1933) 49 CLR 66.

 15   AIRC, Print S2252 (31 December 1999).

 16 (2004) 133 IR 458.

 17   Exhibit H2 and exhibit L5.

 18   Exhibit Q5, attachments SB-1 and SB-2.

 19   Exhibit Q7, attachment EL-7.

 20   Exhibit Q7, paragraph 16.

 21   Exhibit Q5, paragraphs 16-21.

 22   Exhibit Q7, attachment EL-9.

 23   Exhibit Q7, attachment EL-8.

 24   AIRC, print S5897 (11 May 2000).

 25 AIRC, print S5897 (11 May 20000), at [73].

 26   Exhibit Q7, attachment EL-1.

 27 (1995) 185 CLR 410.

 28 (1995) 185 CLR 410 at 465 (pre McHugh and Gummow JJ).

 29   AIRC, PR971685 (10 August 2006), at [41].

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