Saajid Goburdhun v Endeavour Group Limited T/A BWS

[2021] FWC 3224

[2021] FWC 3224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Saajid Goburdhun
v
Endeavour Group Limited T/A BWS
(U2020/14441)

COMMISSIONER WILLIAMS PERTH, 11 JUNE 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Saajid Goburdhun (The Applicant) pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 4 November 2020. The Respondent is Endeavour Group Limited T/A BWS (BWS or the Respondent).

[2] At the hearing of this matter, evidence was given by the Applicant, Mr Saajid Goburdhun. For the Respondent, evidence was given by Mr Garrett Tilley (Mr Tilley) who is the Area Manager of BWS Western Australia Area 1.

Factual findings

[3] The Applicant was first employed by the Respondent in September 2011. At the time of his dismissal, he was employed as the store manager, referred to as a “store CEO”, at the Rivervale BWS store.

[4] The Applicant was dismissed on 22 October 2020.

[5] The letter of termination refers to it having been substantiated that, on eleven days between 24 August 2020 and 4 September 2020 inclusive, CCTV recordings show the Applicant leaving the store at various times between 3:31 pm and 3:59 pm. On the Monday following each of these days he then manually altered the finish times recorded in the Respondent’s timekeeping system, “Kronos”, to incorrectly show he left the store at 5:30 pm.

[6] The Applicant was later advised that, having considered his responses at various meetings, BWS had decided to terminate his employment for serious misconduct.

[7] The Applicant’s employment was terminated effective 22 October 2020 and he was not paid in lieu of notice.

[8] The Applicant’s ordinary working hours were 8:30 am to 5:30 pm which included a one-hour lunch break.

[9] The Kronos system required salaried staff to clock in and out in a manner that facilitated automatic recording of hours worked. An employee could clock in by either using an app on their phone called “WorkJam” once they were inside the workplace or clocking in using the point-of-sale system.

[10] Clocking out worked in the reverse.

[11] Kronos also allows manual inputs to accommodate specific circumstances such as employees having forgotten to clock in or out. The manual entries would be recorded as an exception.

[12] Manual inputting could generally only be undertaken by someone with authority to access the Kronos system.

[13] The Applicant was what is known as a “Kronos Champion” and had authority, where appropriate, to manually adjust previously recorded starting and finishing times.

[14] As a Kronos Champion he was also responsible for assisting the other twenty-four store CEOs in the area with questions they might have regarding use of the Kronos system.

[15] For example, on 23 August 2019, the Applicant sent an email to multiple store CEOs regarding training and coaching for them, explaining that he had been given the privilege to assist them in learning about their responsibilities and expectations in managing team pay and contracts using Kronos.

[16] The email provided links to various documents including the Kronos training guide. The Applicant invited the CEOs to contact him if they had any questions or queries.

[17] Relevantly on 4 June 2020, another store CEO asked the Applicant if he could shed some light on what to do if a store CEO was unable to take their meal break and wanted to ensure they are clocking out correctly and all records are being kept accurately.

[18] The Applicant’s response on 5 June 2020 was as follows. 1

“My take on it is you clock out when you leave (even if it’s early), then you add a note when you do the exception (Reconcile Timecard) the next day. When/If you are questioned as to why you left earlier on that day, you can then go back and show the ‘note’ for the day is left early- no lunch taken, etc…”

[19] The Applicant was a store CEO and so had access to, and was expected to be familiar with, the Respondent’s learning library which included an instruction manual regarding time, attendance, and the importance of electronically clocking in and out. This brief document includes the following.

“Every BWS team member has a responsibility to record their time and attendance electronically at the start and finish of each shift. Recording your hours worked electronically reduces the risk of time and attendance fraud.”

[20] The evidence of Mr Tilley, which I accept, is that during 2020 an audit was undertaken in respect to salaried staff.

[21] Subsequently, all store CEOs were told to take extra care to ensure salaried staff clocked in and out correctly and on 4 June 2020, by email, Mr Tilley told the Applicant and the other store CEOs of this. The last line of the email reads as follows.

“Starting Monday I want you all to do whatever you need to, we must have all salaried team members clocking in and out.”

[22] Mr Tilley reinforced this in a teleconference with, amongst others, all the store CEOs in July 2020. He says he made it clear that the clock in results were still not what they needed to be and there would be no more exceptions when it came to clocking in and clocking out.

[23] All store CEOs attended a national Google Hangout online meeting on 13 August 2020, where the importance of accurate time keeping and attendance was again emphasised.

[24] During the week starting 7 September 2020, Mr Tilley hosted multiple sessions with all store CEOs, including the Applicant, about these issues.

[25] Mr Tilley says, as with all other store CEOs reporting to him, he met with the Applicant on 26 August 2020 and 9 September 2020 to emphasise the importance of adhering to the new rules and to deal with any concerns. The Applicant did not, during those meetings, raise any concerns or seek clarification.

[26] The proposed national roster was discussed with the Applicant in a meeting on 30 September 2020 and confirmed in an email on the same date. 2

[27] The email set out the national roster applicable to the Applicant but noted that he may be required to vary his start and finish times to meet unexpected operational requirements from time to time. The email continues as follows.

“On these occasions, your Area Coach must approve any change in writing on the day before your roster needs to change. You must also reflect the changes to your schedule in Kronos once approved by your Area Coach. Any adjustments of this nature are still required to follow our national rostering principles and incorporate appropriate breaks and time off between shifts.”

[28] Mr Tilley’s evidence is that, in late August or early September 2020, the Kronos system was changed to allow Area Managers, including Mr Tilley, to remotely access the system and consequently he acted to familiarise himself with the system and the information contained on it.

[29] Mr Tilley reviewed the Kronos records of stores with poor clock in and clock out rates. One of those stores was the Rivervale store managed by the Applicant. It was apparent from the data that a lot of the clock out entries had been manually inputted on the Kronos system for this store which was inconsistent with the Respondent’s requirements.

[30] All the manual clock out entries were entries made by the Applicant and related to his own clock out times. 3 The data showed that, even though the Applicant had clocked on in the ordinary way, he had not clocked out in the same way on every one of these days. In relation to the two-week period in question, Mr Tilley states it was evident that the Applicant was working more than his ordinary hours. Mr Tilley, however, had not authorised the Applicant to work overtime and the Applicant had never asked whether he could change his rostered start and finish times.

[31] On 26 September 2020, Mr Tilley emailed the Applicant to ask if there were any issues he needed to be aware of in relation to the “Clockin Rate” percentage. Attached to the email was a table which records the Clockin Rate and shows that for the previous eight weeks the store CEO, the Applicant, had a Clockin Rate of 49%.

[32] Mr Tilley’s email asked,

“Are there any issues I need to be aware of before I have a good look into the rest of the area next week?”

[33] The Applicant’s reply was,

“No, not at all. My clock out has been all over the place. Will make sure I get it right in the coming weeks.”

[34] Mr Tilley’s evidence was that, at the time of reading the Applicant’s response, his first impression was that he had not been open with him because Mr Tilley had seen in Kronos that the Applicant had not been clocking out at all. His clock out entries had been made manually.

[35] Consequently, he further investigated the manual clock outs during a two-week review period and viewed the relevant CCTV footage.

[36] Mr Tilley’s evidence was that from this review it was apparent that, although the Applicant was manually recording his clock out time as 5:30 pm for each of the days, he had actually been leaving work either shortly before or shortly after 4:00 pm.

[37] His evidence was that he was concerned by this because he had not authorised the Applicant’s early departure from work on any of these days. Further, the Applicant had not told Mr Tilley he was leaving work earlier than 5:30 pm, his rostered finish time.

[38] Consequently, Mr Tilley directed the Applicant to attend a meeting on 16 October 2020 where there was a discussion about Mr Tilley’s concerns.

[39] After this meeting, on the same day, Mr Tilley sent a detailed letter to the Applicant regarding the investigation findings. 4

[40] The letter provides detail regarding eleven consecutive days and says that the Respondent had substantiated, in summary, that CCTV shows that on each of those days the Applicant left the store between 3:30 pm and 4:00 pm, but had failed to clock out of his shift, and then on the following Monday he had manually recorded his finish time in Kronos for each day as 5:30 pm.

[41] The letter explained that the Respondent was considering terminating his employment and invited him to provide any written response by 19 October 2020.

[42] A meeting with the Applicant was held on 19 October 2020. Notes of this meeting, which were taken by another staff member, were provided to the Commission. The notes also include a second meeting conducted on 20 October 2020. 5

[43] These notes show that the allegations were referred to as “Time Fraud”.

[44] The Applicant’s written response sent on 19 October 2020 by email points out that the Respondent’s 16 October 2020 letter does not disclose what time he started or how long his lunch break was for. 6 It states that the Applicant believes he has done the total number of hours he should have been doing in that timeframe. He states, on average, he does more than forty hours every week, whether it is by starting earlier to get things done before trade starts, forgoing a lunch break, or taking smaller lunch breaks to assist team members.

[45] The email then refers to common practices, the Applicant asserts, of underpaying salaried team members for time worked and BWS never questioning the legitimacy of hours recorded.

[46] The email states that it was never his intention to defraud the company and he genuinely believed that the start of the new contract and national roster on 26 October 2020 was the official start date for salaried team members to be recording exact hours and not working excess hours.

[47] The email concludes with the Applicant promising to do the right thing and clock in and out at the correct rostered times and days.

[48] Consequently, on 20 October 2020, a meeting was held with the Applicant and his support person from the Shop Distributive and Allied Employees Union.

[49] Mr Tilley’s evidence was that the Applicant had, during the meetings, admitted to leaving work early and manually entering incorrect clock out times into the Kronos system.

[50] He says the Applicant acknowledged his awareness of how Kronos worked and the importance of accurate clocking in and clocking out.

[51] The Applicant confirmed there had been correspondence and meetings regarding the requirement to ensure accurate clocking in and out and he accepted that he had not complied with these requirements in respect of his own attendance.

[52] The Applicant, several times, admitted he knew the Respondent required the records of his hours of work to be "100% accurate".

[53] Mr Tilley says the Applicant agreed that as a leader, honesty and integrity were vital and what he had done was not "the right thing” or was "the wrong thing”.

[54] Regarding Mr Tilley’s email of 26 September 2020, the Applicant acknowledged that his response should have mentioned he had been coming in early and he should have explained what he had been doing.

[55] The Applicant repeatedly said the reason why he had manually entered his clock out times was to avoid "getting into trouble".

[56] Mr Tilley’s evidence was that Applicant also accepted that he had acted deliberately and that he had wanted to conceal his actual working time.

[57] At the meeting, there was debate regarding what was meant by the notion of Time Fraud and Mr Tilley says he made it clear to the Applicant that the Respondent’s primary concern was that he had knowingly falsified company records by incorrectly recording clock out times into Kronos.

[58] Mr Tilley’s evidence was that it became apparent the Applicant’s manipulation of the Kronos system had occurred for longer than the two-week period initially reviewed by him. The Applicant told them that he had been behaving in a similar fashion since about mid-August.

[59] The Applicant told Mr Tilley that the reason he had been leaving work earlier than his rostered clock out time was so he could collect his wife from work.

[60] Mr Tilley’s evidence was the Applicant acknowledged that what he had done was "serious", although he went on to say that he did not think he should be dismissed and would "do the right thing" going forward.

[61] Following their meeting, Mr Tilley sent another email listing specific questions he asked the Applicant to respond to.

[62] The Applicant’s response was received on 21 October 2020. In that response the Applicant explains the expectation that store CEOs would clock in and clock out was communicated to him in early August 2020 and that the expectation from now is that they will do so.

[63] His response explained that he entered different times not out of dishonesty but to avoid irregularities. He says it was reinforced in meetings that irregularities on time sheets are to be avoided. He says he did not realise that despite performing all required hours in a week, the Respondent no longer tolerated store CEOs utilising discretion in order to meet their contracted hours as required.

[64] He says he believed as a store CEO he was afforded this degree of autonomy and responsibility.

[65] The Applicant says, while he understands that this approach was not the right thing to do, he is confident he worked his required hours every week and, due to his spotless disciplinary record over nine years of service, he trusts the Respondent would take this into account in its final decision about his employment.

[66] The Applicant says, in responding to the September 26 2020 email, he genuinely believed he completed his total weekly hours as engaged for contractually and this would not cause any issue. He says he could not reasonably decipher that this was a major problem from Mr Tilley’s email.

[67] He says all he was honestly intending to do was exercise discretion that he thought he was empowered to exercise.

[68] Mr Tilley says, in light of the above, he formed the view that:

•  The Applicant had not provided an acceptable explanation for failing to clock out electronically on each of the eleven consecutive days in question.

•  Nor had he been able to give an explanation as to why he had manually recorded his clock out time as 5:30 pm on each of these days when he had actually left the store between one and one and a half hours earlier than this on each day.

•  The Applicant had not asked permission of Mr Tilley to alter his working hours for any of these eleven days. If he had asked without having legitimate reason Mr Tilley would not have authorised him to start and leave early because that was not necessary.

•  The Applicant knew he was required to clock in and clock out accurately. Sometimes starting early or working through his lunch break did not excuse or explain falsifying the clock out records. The Applicant was not authorised to unilaterally determine his own working hours.

•  The Applicant had admitted he knew that what he did was wrong and what he had done was serious. He had not disclosed his wrongdoing in response to Mr Tilley’s 26 September 2020 email.

[69] Mr Tilley’s conclusion was that the Applicant had been dishonest by manually entering incorrect clock out times so that the system would not register his attendance as an exception to avoid drawing attention to the fact he was leaving work much earlier than he should have been.

[70] Consequently, Mr Tilley signed the letter terminating the Applicant’s employment.

[71] In reply to the Applicant’s evidence in chief, Mr Tilley’s evidence was that the timeline the Applicant provided, 7 was not a document that was ever presented by the Applicant during the investigations or the show cause discussions. If this had of been put forward at the time by the Applicant Mr Tilley would have confirmed its accuracy by reviewing CCTV footage. Those records however are no longer available and have been wiped. Consequently, Mr Tilley has no way of confirming whether this timeline is correct or not.

[72] In any event Mr Tilley’s evidence is that there were some days, which on the Applicant’s timeline says he had worked his full contracted hours, 8 which Mr Tilley knows is not accurate from his viewing of the CCTV footage at the time of his investigation.

[73] Mr Tilley’s evidence was that the rostering system at the Rivervale store required there to always be at least two people in the store in the afternoon and evening. Because the Applicant, for the eleven days, left the store consistently before around 4:00 pm or earlier he had to roster another employee on to cover his absence through until 5:30 pm. This resulted in an additional cost borne by the Respondent.

[74] A review of Kronos for the whole month of August 2020 shows the Applicant clocked out manually, rather than electronically as is normal, for the whole month of August.  9

[75] For most of those days he manually clocked out (i.e., manually entered a record into Kronos) some days after the day that had been worked. For example, Kronos records that on 3 August 2020 his finish time was 5:30 pm. The system also records when this manual entry was made and in this instance the 3 August 2020 finish time was entered into the system by the Applicant on 7 August 2020.

[76] However, on four days, 7 August, 14 August, 21 August, and 28 August the system records that he performed the manual clock out, saying he had finished work at 5:30 pm, between two and six and a half hours before 5:30 pm on that day. 10 For example, the Applicant manually entered his finish time for 7 August as 5:30 pm but this manual entry is recorded as having been created by the Applicant the same day, 7 August, at 3:20 pm more than two hours before he said he had finished work.11

[77] Mr Tilley has also established that because the Applicant left work early other employees had to be rostered to cover his absence for a total of twenty-five and a half hours in the month of August 2020, at additional cost to the Respondent. This was occurring not just for the eleven days but for as long as five weeks. 12

[78] At the hearing, the Applicant’s evidence in chief was that the policies and procedures were that he was expected to clock in and out according to his roster, but this was never enforced in practice.

[79] He says he was told by his line manager from the beginning that clocking in and out for salaried managers was not necessary as they did not get paid for the hours worked and that recording times was just a formality.

[80] He says Mr Tilley did not care about their time records up until the three months prior to his dismissal when a big focus was put on it and new policies and procedures were being put in place.

[81] His evidence was that he managed his time according to the stores need. However, he did not always alter Kronos to reflect these changes, as it did not make any difference at the time.

[82] In his reply evidence in chief, the Applicant says that the falsification of records was only done with the purpose of fulfilling the reporting requirements of tableau reports, which established the successful clock in and out times for the salaried manager within the times of their rostered hours.

[83] His reply evidence was that during the meetings he explained multiple times that he understood that the falsifying of records was not appropriate but that he was working towards getting it right for the start of 26 October 2020 when he was going to be fully accountable for it.

[84] Under cross-examination, the Applicant confirmed that on the eleven days he did not clock out automatically but instead recorded clock out times manually for each day as 5:30 pm which were not correct. 13

[85] The Applicant agreed that during the interviews with Mr Tilley he explained the reason why he had done this was because he had been arriving at work early and leaving early and that had to do with his wife’s work commitments. 14

[86] Under cross examination he says this was only one of the reasons he gave during the meetings but the essence of him leaving early was arranging his time around the needs of the store. He had been coming in early to carry out certain tasks before opening up and because at other times he has to do overtime or work extra days and so he would leave early. He explained that having to pick up his wife during those two weeks was one of the reasons. 15

[87] Under cross-examination, the Applicant says he did not ask Mr Tilley if he could start work early for any of these days and did not feel that he had to. He says Mr Tilley may say that is a requirement, but it does not work in practice. 16

[88] Mr Tilley’s evidence was the half hour between 8:30 am and 9:00 am in the morning when the store opens is enough time to get the store ready. Mr Tilly asserts that every other store in the area that he is responsible for, other than the regional stores, are able to prepare themselves in that half an hour to open for trade. 17

[89] Mr Tilley says that during the discussions with the Applicant on 16 October and 20 October 2020 at no time did the Applicant explain that the operational circumstances of the store warranted him opening early on each of these eleven days. 18

[90] The Applicant explained that, during these two weeks, he would generally drop his wife off at her work at 7:30 am. He would then come to work and clock in at BWS. During this two-week period his wife would finish work sometimes at 4:00 pm, sometimes at 4:30 pm, and sometimes at 5:00 pm. He agrees he would leave the store, drive to his wife’s place of work and collect her. This trip, to pick her up, would take on average ten to fifteen minutes from the BWS store. On days when he left the BWS store at 3:30 pm he would collect his wife at about 3:45 pm or he would have waited for her to finish work. 19

[91] Under cross-examination, the Applicant agreed that he was not suggesting it was a BWS business requirement for him to leave the store early as he had done. 20

[92] The Applicant agreed there was nothing stopping him clocking out using the automatic system, in the same way he had clocked in, and that if he had done that the records would have recorded him leaving work between one and a half and one and three quarters of an hour before his scheduled time to stop work. 21

[93] As a Kronos Champion, he explained that he knew more than the average store CEO about the system, and he understood from the training material and guidelines that one of the key elements of the system was to ensure all salaried staff clocked in and clocked out accurately. 22

[94] The Applicant agrees that if he had clocked out automatically at the time, he actually left the store this would have given rise to an exception being recorded in Kronos and the Respondent would then have known he was leaving work early. He agrees that by changing the clock out time manually to say he left work at the ordinary end of his shift, 5:30 pm, that an exception report did not arise, and his early departure did not immediately come to management’s attention. 23

[95] The Applicant agreed he did not follow Mr Tilley’s instruction in the email of 4 June 2020, stating that all salaried team members must be clocking in and out. 24

[96] The Applicant agreed that Mr Tilley had conducted teleconferences and had face-to-face meetings with him, emphasising the importance of accurate time and attendance records and clocking in and clocking out accurately, but he did not do this. 25

[97] The Applicant agrees that, during the course of the show cause meeting, he said that he accepts that what he did was wrong and that it was premeditated. 26

[98] The Applicant agrees that, at the first meeting on 16 October 2020, he said he was not surprised to be there, and he knew what it was about. He agrees that during the process of the interview and during the show cause process he had an opportunity to say whatever he wanted to. He says, however, the first meeting was misleading. He says if he knew the start of the process could lead to his termination, he may have reframed his answers. 27

[99] He agrees he declined a support person at the first meeting. 28

[100] The Applicant had no previous disciplinary issues. 29

[101] The Applicant’s representative also tendered witness statements from Mr James Liddiard, Mr Michael Liddiard, Mr Rhys Flynn, and Ms Toni Tolley. The Respondent did not seek to cross-examine these witnesses and the Commission accepts their statements as their evidence.

[102] The evidence in these witness statements is general in nature and goes to past experiences from some years ago, some in other business units. Their evidence is not relevant to the particular circumstances involved in this application, nor does the evidence concern the particular actions of the Applicant which the Respondent relied upon for the Applicant’s dismissal.

The Applicant’s submissions

[103] The Applicant argues that the dismissal process was harsh. This is because crucial information was omitted to shape and influence the Applicant’s responses during the process.

[104] The Applicant submits that the basis for the Respondent dismissing the Applicant for serious misconduct is denied. The Applicant had not gained financially from the falsification of records. The Applicant has explained that the falsification of records was only done to meet the reporting requirements of the Respondent’s system.

[105] The Applicant understood that falsifying the records was not appropriate and he does not deny that, but he states he was working towards getting it right for the start of 26 October 2020 when he was going to be fully accountable for the clock in and out times. 30

[106] The Applicant’s submission is that the evidence of the other witnesses for the Applicant show that for salaried employees it was not necessary for them to be correctly clocking in and clocking out as they do not get paid for the hours worked and recorded times are just a formality. 31 The Applicant submits that there was a culture of ignoring time worked versus contracted hours for the Respondent’s benefit for some years.

[107] The Applicant was not given an opportunity to rectify the situation. The Applicant had submitted that the issue was never raised officially with him until 16 October 2020 and there was no clear direction given stating that the practice undertaken was inappropriate.

[108] It is submitted that the Applicant does not deny manually altering the times. It is submitted that he has not falsified any records; he has not lied, and the dismissal is harsh.

The Respondent’s submissions

[109] The Respondent submits that the evidence demonstrates that the Applicant had, over a two-week period, been leaving work early each day and manually entering incorrect clock out times into the Respondent’s electronic time keeping records.

[110] The Respondent submits there is no doubt that the Applicant deliberately set out to hide from the Respondent, by falsifying records, that he was leaving the workplace on average one and a half hours before the end of his rostered shift.

[111] The Applicant’s misconduct is more serious because he was in effect one of the guardians of the time recording system.

[112] Further, there had been explicit instructions to the Applicant on multiple occasions to ensure that all salaried staff, including himself as a store CEO, were correctly clocking in and clocking out.

[113] Serious misconduct justifying summary dismissal includes conduct that is wilful or deliberate and inconsistent with the continuation of the employment contract.

[114] The Respondent submits the Applicant has not been unfairly dismissed and the application should be dismissed.

The legislation

[115] Section 387 of the Act is set out below and prescribes the matters the Commission is to have regard for in deciding whether a person has been unfairly dismissed.

“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.”

Consideration

Valid reason

[116] I am satisfied that the Applicant deliberately entered incorrect clock out times in the Respondent’s time recording system for at least eleven days in August 2020. The Applicant made an entry for each of these days, stating he had clocked out at 5:30 pm, consistent with his rostered hours, when in fact on these days he had finished work and left the store between one and one and a half hours earlier than this time.

[117] The Applicant repeatedly falsified his clock out times.

[118] I reject the Applicant’s explanation that there were operational necessities that required him to start earlier than his rostered 8:30 am starting time on each of these days. I prefer the evidence of Mr Tilley, who has responsibility for twenty-five such stores, that this was not correct and further note that this explanation was not given by the Applicant during either of the interviews, including the final meeting in which he was supported by a union representative.

[119] The Applicant’s conduct in falsifying his clock out times on multiple occasions was a valid reason for his dismissal.

Notification of the reason

[120] The Applicant was notified of the reason for his likely dismissal in a show cause letter before the Respondent made the final decision to dismiss him.

Opportunity to respond

[121] The Applicant had an opportunity to respond to the reasons the Respondent dismissed him prior to them making that decision.

Refusal to allow a support person

[122] There was no refusal to allow him to have a support person.

[123] The Applicant declined to have a support person at the first interview and had a union representative as his support person at the second interview.

Warnings about unsatisfactory performance

[124] The reasons for dismissal were not related to the Applicant’s performance

Size of the enterprise and impact on procedures

[125] The Respondent is a large enterprise and the procedures followed were appropriate.

Absence of Human Resource management specialists or expertise and impact on procedures

[126] There was no absence of Human Resource management specialists or expertise.

Other relevant matters

[127] The Applicant had been employed for nine years at the time of his dismissal and had no prior disciplinary action against him.

Conclusion

[128] The Applicant was a store CEO responsible for ensuring staff reporting to him complied with the Respondent’s policies and procedures, including the requirements to accurately clock in and clock out. Those policies equally applied to the Applicant.

[129] Considering the evidence, as I have mentioned above, I do not accept that there were operational requirements necessitating the Applicant start work early on each of the eleven days he falsified his clock out time. He did not put forward this explanation during the disciplinary process.

[130] Separately, I accept the evidence of Mr Tilley that the Applicant did not have a right to unilaterally alter his start and finish times.

[131] Consequently, if there truly was an operational reason requiring him to start work early, he should have sought approval from Mr Tilley, but he did not do so. Equally, the Applicant should have sought approval from Mr Tilley to finish early as he did on each of these days, but he did not.

[132] I accept that for an isolated day the Applicant may not have bothered Mr Tilley about an early start for operational reasons. However, in this instance, on his own evidence, he needed to start early for eleven days in a row and then chose to finish early on all of these days. This was a very significant change to his rostered hours of work and not seeking approval from Mr Tilley in such circumstances was inexcusable.

[133] In any event, whatever the reasons for finishing early on all of these days, the Applicant should not have rostered on additional staff to cover the hours he was absent resulting in additional costs for the Respondent as he did.

[134] With respect to the Applicant’s other defence, that he was working towards correctly clocking in and clocking out by 26 October 2020, this is no explanation as to why he was not doing this as he had been directed to.

[135] This defence ignores the multiple occasions Mr Tilley directed the Applicant and other store CEOs to ensure that everyone, including salaried staff, were clocking in and clocking out accurately. Mr Tilley quite reasonably expected this to happen.

[136] The Applicant clocking in and clocking out accurately himself, was not something that needed to be worked towards.

[137] Ignoring Mr Tilley’s directions, the Applicant repeatedly and falsely recorded his clock out time as 5:30 pm when he knew this was not true.

[138] The Applicant chose to deceive his employer. He actively concealed the fact he was leaving work earlier than his rostered finish time on eleven consecutive days.

[139] The Applicant has not provided an acceptable reason for his actions.

[140] Repeatedly falsifying his clock out times as he did was serious misconduct that warranted summary dismissal.

[141] The dismissal was neither harsh, unjust, nor unreasonable. The Applicant has not been unfairly dismissed.

[142] This application will be dismissed and an Order [PR730460] to that effect will now be issued.

Appearances:

A Houghton for the Applicant.
R Wade of Ashurst for the Respondent.

Hearing details:

2021.
Perth:
March 8.

Printed by authority of the Commonwealth Government Printer

<PR730459>

 1   Respondent’s Exhibit Book at page 115.

 2   Ibid., page 116.

 3   Exhibit R1 at paragraph 20.

 4   Respondent’s Exhibit Book at pages 189 to 190.

 5   Exhibit R1 at paragraphs 24 and 29.

 6   Respondent’s Exhibit Book at page 191.

 7   Exhibit A1 at Appendix C.

 8   Transcript at PN 65.

 9   Respondent’s Exhibit Book at pages 137 to 138.

 10   Ibid., page 138.

 11   Transcript at PN 405 to 408.

 12   Page 139 to 142 of the exhibit book; Transcript at PN 446 to 449.

 13   Transcript at PN 67 to 69, and 78.

 14   Ibid., PN 95 to 96.

 15   Ibid., PN 97, and 199 to 202.

 16   Ibid., PN 214.

 17   Ibid., PN 444.

 18   Ibid., PN 445.

 19   Ibid., PN 102 to 108.

 20   Ibid., PN 111.

 21   Ibid., PN 123 to 125, and 148.

 22   Ibid., PN 138 and 359.

 23   Ibid., PN 168 to 170.

 24   Ibid., PN 226.

 25   Ibid., PN 264 to 267.

 26   Ibid., PN 279 and 280.

 27   Ibid., PN 322.

 28   Ibid., PN 3 to 4.

 29   Ibid., PN 346.

 30   Ibid., PN 562.

 31   Ibid., PN 577.