Ranjeeta (Liz) Kaur v Metro Trains Melbourne

[2016] FWC 5811

[2016] FWC 5811

FAIR WORK COMMISSION

DECISION

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

Ranjeeta (Liz) Kaur
v
Metro Trains Melbourne
(U2016/6590)

VICE PRESIDENT WATSON MELBOURNE, 18 AUGUST 2016

Application for relief from unfair dismissal - Whether termination of employment harsh, unjust or unreasonable – Whether valid reason for dismissal – Dismissal related to alleged misconduct – Fair Work Act 2009, ss. 387 and 394.

[1] This decision is an amended version of a decision given on transcript on 10 August 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Ms Ranjeeta Kaur arising from the termination of her employment with Metro Trains Melbourne.  The termination of employment was effected by a letter dated 12 April 2016, and followed an investigation into the use of the Metro ID card to touch on and off by people other than Ms Kaur and practices by Ms Kaur to touch on and off on behalf of other employees, specifically Mr Barclay who was a fellow employee at the same Metro train station.

[2] The question I need to determine is whether the dismissal was harsh, unjust or unreasonable and I am required to take into account the factors in s.387 of the Act in coming to that conclusion. That list is a non-exhaustive list and other matters that I consider relevant should also be taken into account. The matters that are mentioned are obviously matters which are required to be regarded as matters of some significance in the determination of the fairness of the termination. What I am required to do is make findings of fact in relation to those matters, as they may be relevant to the circumstances of this case, and to have regard to those matters in determining the ultimate fairness question.

[3] The first factor that has attracted most of the evidence and the submissions in this matter is whether there was a valid reason for the dismissal related to Ms Kaur's conduct being the relevant reason for the termination.  Evidence has been given by Ms Kaur and by Mr Allan about the conduct in question, and a number of documents have been put into evidence.  That evidence goes to allegations made by the employer as to misuse of the roster-on cards and the consequences of that misuse arising from the investigation that the company conducted.

[4] I have had regard to the evidence, the documentary evidence as well as the oral evidence.  I must say that I found Ms Kaur's evidence to be somewhat evasive and inconsistent, but ultimately Ms Kaur did accept that she did engage in the conduct that formed the basis of the reason for the termination.  The question is whether that conduct was  sound, defensible and well-founded for the termination, and I consider that it was.  The misuse of the roster-on cards I regard as a serious matter.

[5] Although it might be the utilisation of recently developed technology, the notion of payment being associated with clocking on or clocking off and recording of time of attendance is a longstanding workplace practice, and it is clear that whatever mechanisms are used to record attendance at work that there is an obligation to utilise those mechanisms accurately.  In the absence of doing so, there is the potential for people to claim payment for time of non-attendance and it appears that that occurred in this case, and it was also facilitated in relation to other employees by Ms Kaur's use of Mr Barclay's roster-on card in particular.  I regard the conduct, which has been admitted, and was found by the employer during the investigation to be a serious matter, as constituting a valid reason for the dismissal.

[6] There are further implications of leaving the workplace before the end of a shift and attending late when people are rostered on, and these are matters also of some significance in my view, in the light of the important public function of Metro Trains and its obligations in relation to safety of the public and the service of the public interest.

[7] The next factor I am required to give attention to is whether Ms Kaur was notified of the reason.  The evidence establishes that on 17 March of this year, a letter indicating the nature of the allegations was provided to Ms Kaur.  It may not have reached her until sometime later but it was intended to form the basis of an investigation  meeting on 31 March, and with Ms Kaur being given an opportunity to respond to the allegations.

[8] I find that in view of that letter and the termination letter of 12 April, Ms Kaur was notified of the reason. The related factor of whether Ms Kaur was given an opportunity to respond to the reason relating to her conduct is also established by that process and that correspondence. The letter regarding the interview notification specified certain allegations. There was an opportunity to view supporting material in the form of CCTV footage and there was an opportunity to explain the conduct that is alleged in that letter. I find that the criterion in s.387(c) is satisfied in this case.

[9] There is no unreasonable refusal to allow a support person as a support person was available at the meetings, and present.  The matter did not relate to unsatisfactory performance as such but rather misconduct, and the employer is a large employer so the latitude that might otherwise be given in relation to procedures affecting the dismissal should not apply in this case, where there is a large and significant employer in the State of Victoria.

[10] A number of other matters have been raised for consideration, including the proportionality of the dismissal for the conduct in question, the personal impact on Ms Kaur given the financial dependence of her family on her income from her employment, her period of service and also the treatment of others who apparently engaged in conduct of a similar nature.  It is said that there was some inconsistency in the outcome and there is some unfairness that arises from that.

[11] I have taken into account all of those factors in considering the ultimate question and taking into account all of the matters, I do not consider that the termination was harsh, unjust or unreasonable.  The reason being a valid reason is a significant factor.  The procedure adopted was not unfair, there was an opportunity to respond.

[12] The breach of conduct and breach of policies are not insignificant matters and they go to go the heart of trust in an employment relationship and proper adherence to company policies.  Although it was alleged that there was some lack of knowledge about policies, I consider that the requirements in this regard are very straight forward and very common workplace requirements. There could be no legitimate excuse for believing that the conduct in question should be tolerated or accepted in some way, or that there is no knowledge that the conduct could lead to serious disciplinary action.

[13] In all of the circumstances, I find that the termination was not harsh, unjust or unreasonable. It follows from that finding that the application should be dismissed. An order to that effect is issued with this decision.

VICE PRESIDENT

Appearances:

Ms J Mekhael with Mr J Maisano of ARTBIU on behalf of Ms Kaur.

Ms L McIndoe with Ms M Hogan on behalf of Metro.

Hearing details:

2016.

Melbourne.

10 August.

Final written submissions:

Ms Kaur on 2 August 2016.

Metro on 18 July 2016.

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