Sam Balkan v securecorp pty ltd T/A securecorp
[2017] FWC 5009
•26 SEPTEMBER 2017
| [2017] FWC 5009 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sam Balkan
v
securecorp pty ltd T/A securecorp
(U2017/4252)
| Deputy President Clancy | MELBOURNE, 26 SEPTEMBER 2017 |
Application for an unfair dismissal remedy – valid reason – dismissal not unfair – application dismissed.
Mr Sam Balkan has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy having been dismissed from his employment with SECUREcorp Pty Ltd (Securecorp).
From 23 January 2014 until his dismissal on 7 April 2017, Mr Balkan was employed as a part-time Security Officer working at Century City Walk (CCW) Shopping Centre in Glen Waverley. Mr Balkan’s employment was terminated for serious misconduct said by Securecorp to be:
· falsification of a timesheet;
· falsification of the timesheet of a sub-contractor;
· fraudulent completion of time and attendance records on behalf of himself and another person to gain a financial advantage; and
· acting dishonestly in dealings with the sub-contractor.[1]
Securecorp also relies on post-termination findings that it says amount to serious misconduct, being Mr Balkan’s contravention of its direction that he not discuss or disclose the subject of the investigation into the abovementioned matters with other employees or any other person outside of the organisation and that he not interfere directly or indirectly with it in any way.
Section 396 – Initial matters to be considered
Section 396 of the Act requires me to decide four matters before considering the merits of Mr Balkan’s application. There is no dispute between the parties, and I am satisfied, of the four matters referred to in ss.396(a)-(d) of the Act, as follows.
First, Mr Balkan’s application was made within the 21 day period required by s.394(2) of the Act (s.396(a)).
Secondly, it is not contested and I am satisfied the sum of Mr Balkan’s annual rate of earnings is less than the high income threshold and an enterprise agreement applied to his employment. Consequently, I am satisfied that Mr Balkan was protected from unfair dismissal pursuant to s.382 of the Act (s.396(b)).
Thirdly, Securecorp is not a small business and therefore the Small Business Fair Dismissal Code does not apply (s.396(c)).
Fourthly, Mr Balkan’s dismissal was not a case of genuine redundancy (s.396(d)).
I must now consider if the dismissal of Mr Balkan by Securecorp was unfair within the meaning of the Act.
Section 385 – was Mr Balkan’s dismissal unfair?
A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“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.”
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 3
Section 385(a) – was Mr Balkan dismissed?
A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3–2 of the Act. Section 386 of the Act provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
It is not disputed and I am satisfied on the evidence that Mr Balkan was dismissed within the meaning of s.386(1) of the Act.
Section 385(c) – Small Business Fair Dismissal Code
As outlined in paragraph [7] above, s.385(c) does not apply.
Section 385(d) – Genuine redundancy
As outlined in paragraph [8] above, s.385(d) does not apply.
Section 385(b) – Harsh, unjust or unreasonable
The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable, within the meaning of s.385(b) of the Act, are set out in s.387 of the 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.”
I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.[2]
Commission proceedings
At the hearing, Mr Balkan gave evidence in support of his application. For Securecorp, evidence was given by:
· Ms Kate Barrett, People and Culture Development Manager;
· Mr Steve Russell, Business Manager for Victoria and Mr Balkan’s supervisor at the relevant times; and
· Mr Hasan Khan, a Security Officer engaged by Securecorp through a labour hire company called Global Manpower Solutions (GMS).
Background
The falsification of the timesheet matters were said to have arisen from an unauthorised shift swap on 25 February 2017 between Mr Balkan and a subcontractor, Mr Hasan Khan.
The shift swap and issues related to the timesheets came to Securecorp’s attention on Monday 27 February 2017, following the receipt of a complaint from a CCW tenant regarding one of Securecorp’s security guards working on Saturday 25 February 2017. It was initially thought that Mr Khan was on duty at that time but following a review of some CCTV footage, it became apparent that Mr Balkan was working at the time.
Securecorp then discovered there was no record of Mr Khan or Mr Balkan having swapped their shifts or notifying it of this apparent roster change. As this appeared to be a breach of company policy, Mr Russell arranged for a meeting to discuss the unapproved roster change. It involved himself, Mr Khan and Mr Mehmet Demirok, Mr Khan’s manager from GMS and took place on Wednesday 1 March 2017.
Mr Russell said that during this meeting, Mr Khan said that Mr Balkan had asked him for the shift swap and had filled in the timesheet incorrectly.
In a letter to Mr Balkan dated 2 March 2017,[3] Securecorp set out three areas of concern in relation to his conduct and required a written response by Friday 3 March 2017.
The first two allegations in this letter concerned Mr Balkan’s conduct in swapping his shift without providing a form or notifying Securecorp, preparing timesheets with falsified signatures and shift times, and arriving late onsite without notification. A further allegation concerned complaints made to Securecorp about an altercation between Mr Balkan and a tenant of CCW on 25 February 2017.
Mr Balkan provided an initial written response to these allegations via an email to Securecorp at 7:06pm on 2 March 2017.[4] On 7 March 2017, Mr Balkan was suspended from work pending further investigation. He was advised at this time that Securecorp had information before it that it considered might be serious misconduct and the outcome of the investigation it was conducting was still being determined.[5]
In a further letter dated 17 March 2017,[6] Securecorp set out the allegations regarding Mr Balkan’s conduct:
That he had arranged an unapproved shift swap with Mr Khan without notifying the National Operations and Coordination Centre (NOCC) by telephone or the required form, in breach of Securecorp’s policy on shift swaps, which had reduced the hours he was to work from 7 to 6.5 and the rates he was eligible to be paid;
That he had falsified the timesheet for 25 February 2017, completing incorrect times for himself and Mr Khan which, if gone undetected, would have given him financial advantage through an overpayment;
That he pre-prepared and falsified Mr Khan’s signature and signed it off prior to Mr Khan’s commencement at work in a way that advantaged himself and disadvantaged Mr Khan and when challenged by Mr Khan regarding the anomaly, claimed he would work it out with the site supervisor;
That he deliberately failed to notify anyone about the timesheet being incorrect and left it to be lodged as the true record of his hours worked and those of Mr Khan;
That he had lied in the investigation by claiming Mr Khan had not challenged him about the timesheet;
That he commenced his swapped shift 30 minutes late; and
That he had an altercation with a CCW tenant.
This letter required Mr Balkan to consider the allegations and show cause as to why his employment should not be terminated due to his conduct and lack of honesty during the investigation and required a written response, addressing the reasons for his conduct and any mitigating conduct, by 22 March 2017. Mr Balkan was also advised that failing a response, his employment may be terminated based on the seriousness of the issues that had been outlined.
Mr Balkan responded by letter dated 21 March 2017.[7] He referred Securecorp to his previous response letter dated 2 March 2017 and made some additional comments. Some of the comments related to the alleged altercation with the tenant but it was confirmed by Securecorp at the hearing that this allegation was not a reason it relied on for the termination of Mr Balkan’s employment.[8]
As outlined in paragraph [2] above, Mr Balkan’s employment was terminated by letter dated 7 April 2017 on grounds of serious misconduct said to be:
· falsification of a timesheet;
· falsification of the timesheet of a sub-contractor;
· fraudulent completion of time and attendance records on behalf of himself and another person to gain a financial advantage; and
· acting dishonestly in dealings with the sub-contractor.[9]
The shift swap
With regards to the circumstances of the shift swap, it is not disputed that Mr Balkan and Mr Khan agreed on Friday 24 February 2017 to swap their rostered shifts at CCW for the following day, although each says it was the other who had suggested and sought it. The consequence of the shift swap was that Mr Balkan was to commence at 11:00am instead of his rostered 7:00pm start time, and Mr Khan commenced work from 5:30pm instead of his rostered start time of 11:00am. During his first response to the investigation of the allegations, Mr Balkan stated the following:
“Yes I had a shift swap with Hasan. Yes I did not providing [sic] a shift swap form. Yes this is not the first time I have swapped shifts. Yes I have never before provided a shift swap form.”[10]
Mr Balkan further sought to explain the shift swap by stating that he thought that a shift swap could be advised by noting the changes on a timesheet unless the swap was between a Securecorp employee and a subcontractor who didn’t normally work at the CCW site.[11] Mr Balkan also gave evidence that he had previously swapped a shift with Mr Khan in the week or two prior to 25 February 2017, and as far as he was aware, neither of them had filled out a shift swap form.[12] Mr Balkan contended he had no knowledge of a shift swap form existing and on 25 February 2017 he “didn’t request the shift swap because Mr Hasan [Khan] was requesting [it]”.[13]
Mr Balkan further stated that both he and Mr Khan had “swapped shifts amongst the permanent guards working at Century City Walk many times without a shift swap form and usually the person who deals with the shift swaps is the site manager… [who] moved on from the site, not long before this incident”.[14] Mr Balkan asserted he was told by the previous site manager that as long as the Security Officers ensured they were covering each other’s shifts it was “all good”.[15]
Mr Russell asserted for Securecorp that it “has a policy that all employees are required to comply with when changing rosters… an email was sent to site to reiterate this to all employees at CCW including Mr Khan and Mr Balkan on 26 September 2016”.[16] Securecorp submitted Mr Balkan failed to notify or seek permission for the shift swap and relied upon the email sent by Mr Russell on 26 September 2016. This email referred to the incidence of shifts having been covered from site without consultation with the NOCC and stated “All coverage MUST be coordinated through the NOCC so compliance and financial viability can be assessed and alternatives arranged where necessary”.[17] In relation to its operations at CCW, it was further submitted by Securecorp that an employee “is only permitted to substitute shifts with another employee having sought and been provided with approval from the respective manager or the National Operations and Coordination Centre”.[18]
Mr Balkan said the content of the 26 September 2016 email was new information to him and despite it having been sent to the general email address at CCW that applied to and was accessed by the security guards who worked there, he could not recall it.[19]
Mr Russell conceded that there was no follow up to the 26 September 2016 email after it was sent.[20]
The timesheets
Notwithstanding this shift swap arrangement, the daily timesheet for 25 February 2017 recorded that Mr Khan worked from 11:00am to 7:00pm, with Mr Balkan working from 7:00pm to 2:00am. This timesheet was apparently submitted by Mr Zahid Khan, another Security Officer whose shift was recorded as being from 9:00pm the previous night, to 4:00am in the morning on Saturday 25 February 2017.[21]
Securecorp alleged Mr Balkan failed in his requirement to “sign, complete and submit an accurate timesheet reflecting his actual hours worked”.[22] Securecorp contended that in doing so, Mr Balkan obtained “payment for an additional 1 hour that was not worked, and payment at a more generous hourly rate than he was entitled to, given the penalty loadings applicable to the original pre-swap rostered”.[23]
There was no dispute that Mr Balkan had filled in the entries on this timesheet for hours worked for both himself and Mr Khan.[24]
In his written response on 2 March 2017, Mr Balkan admitted that he “may of prepared the timesheet in advanced [sic] on the Wednesday with the anticipation to work my regular rostered shift for the Saturday”.[25] In his written response dated 21 March 2017, Mr Balkan stated he was only made aware of the mishap when he received the letter from Securecorp dated 2 March 2017 advising him that it was investigating his conduct.[26] When I asked him why he did not change the timesheet or record the correct hours of work, Mr Balkan’s response was that he completely forgot about it.[27]
Securecorp also alleged that Mr Balkan falsified Mr Khan’s signature on the timesheet he pre-prepared and did this before Mr Khan arrived onsite on 25 February 2017.
Mr Balkan rejected the allegation that he signed for Mr Khan, asserting he only filled in his own details and contended that “Hasan or any other person has not raised any concerns about signatures with me”.[28]
Mr Khan was adamant that he did not sign the timesheet.[29] He said the signature was not his and that his practice in completing timesheets was to put his initials beside where the hours are recorded, as opposed to his signature.[30]
Mr Khan said that upon arrival at work at approximately 5:30pm on 25 February 2017, Mr Balkan had told him there was an incident with a CCW tenant regarding a car parked in the loading dock.[31] Later during his shift, he found the incident involving the tenant noted in the logbook and an already completed timesheet.[32] It contained a record of him commencing work at 11:00am and finishing at 7:00pm that day, and Mr Balkan commencing work at 7:00pm and finishing at 2:00am the following Sunday. Mr Khan said he then telephoned Mr Balkan that same evening to ask about the errors and suggested to Mr Balkan that he had “put in the times and the details of the incidents that occurred during the day time [sic] when I wasn't there, stating that - in the logs, in the timesheets that I was actually there, when I wasn't”.[33] Mr Khan said Mr Balkan told him that it was “all good” and he would speak to the supervisor to “get it fixed”.[34]
Mr Balkan denied the conversation with Mr Khan had occurred but then said he could not recall if Mr Khan had called him that night.[35]
Ms Barrett said that in his response to allegations of falsifying timesheets, Mr Balkan had “also tried to dismiss the error as he believed the resulting overpayment was not a significant sum”.[36] In one of his responses to the allegations during the investigation, Mr Balkan said that “unforeseen circumstances” had resulted in him being overpaid $20.46 and he demonstrated this by detailing what he would have been paid for his normal hours of work on a Saturday, which accorded with what he had recorded on the timesheet, compared with the hours he said he worked that day.[37]
At the hearing I sought to clarify this submission and the following was stated:
“THE DEPUTY PRESIDENT: But in your case, Mr Balkan, you've indicated that it was $20 that you would have received in addition to what you should have been paid, based on the hours that you actually worked. Is there any other comments you'd like to make about that?
MR BALKAN: If I was trying to fraudulently do something, it actually would have been better that I worked the Saturday because the Saturday shift is eight hours compared to - like, sorry, the more - the day from 11 till 7 pm is an eight hour shift, the dayshift.
THE DEPUTY PRESIDENT: Yes
MR BALKAN: And my shift starts at seven, finishes at two. It's a seven hour shift. It actually would have been better - like when I say better, financially get paid more for me to actually do that eight hours. This raised the question why Hasan started at the time he did start. Also, there's a $10 difference between a Saturday rate and Sunday rate if I'm correct, it's $30 roughly, approximately, thereabouts, and it's about $40 on a Sunday rate. The difference is when I'm working seven hours on an evening shift two of those hours is calculated at a $40 an hour rate. But if I was to do eight hours at a Saturday rate on $30 an hour I get paid more.”[38]
With respect to this, Ms Barrett further submitted she considered it “likely that Mr Balkan expected Securecorp not to notice the error on the timesheet and therefore deliberately filed the incorrect timesheet to gain a financial advantage”.[39] While stating that it “may have been possible to overlook a genuine and accidental error”, Ms Barrett did not accept Mr Balkan was being truthful in his responses that he did not complete Mr Khan’s signature and that the matter of the erroneous timesheet was not raised with him by Mr Khan on 25 February 2017.[40]
Allegation of late arrival
Securecorp further alleged that Mr Balkan arrived approximately half an hour late for his swapped shift on Saturday 25 February 2017 and yet still recorded his start time as 11:00am. Mr Russell gave evidence that he had viewed CCTV footage that showed Mr Balkan arriving onsite in casual clothing at 11:23am and not commencing his shift until ten minutes later at 11:33am.[41] Mr Russell also said that he checked the sign in records from 25 February 2017 and the records indicate that someone signed in via the telephone welfare monitoring/welfare check system at CCW at 11:33am.[42]
As to this, in his letter dated 21 March 2017, Mr Balkan said this allegation was false and requested evidence in support of it. At the hearing, Mr Balkan said he had telephoned the required number to sign-on and entered the required code but claimed he would have done this only 10-15 minutes after his starting time.[43]
Mr Balkan questioned the accuracy of both the telephone welfare monitoring system and CCTV camera system at hearing, alleging that these systems have had issues in the past. He did not, however, experience difficulties with the telephone welfare monitoring system on 25 February 2017[44] and nor was anything raised with Mr Russell suggesting there was an error on that day.[45]
As to the CCTV camera system, Mr Balkan alleged there had been issues with the accuracy of the time readings on the footage that caused it to be “either half an hour off or an hour off” and had never been fixed.[46] Mr Russell said that he had not received any reports of the times of the camera system at CCW being incorrect and specifically, no notification of issues on 25 February 2017.[47]
Reliance on conduct discovered post-termination
In further submissions filed on 1 August 2017,[48] Securecorp detailed that Mr Balkan sent an email on 27 July 2017 to its representatives, HR Legal, attaching an audio file which contained a recording of a telephone conversation between himself and Mr Khan. It was submitted by Securecorp that this conversation was recorded without the knowledge of Mr Khan.
In the email addressed to HR Legal on 27 July 2017, Mr Balkan stated that he was “writing to update you on addition information [sic] I may use in supporting my claim... Should you need any further information or if you have any problems opening the file, please let me know”.[49]
This audio file[50] was played at hearing and a transcript of the conversation is as follows:
“Mr Khan: [Answers] “Yes bruz?”
Mr Balkan: “Hasan, bro, I forgot to ask you bro. You said you sent the letter to these guys. You were going to send me a copy bro. Can you send me a copy this afternoon please?”
Mr Khan: “Okay, when I will get home I will send you”
Mr Balkan: “So I can… I know how to talk, do you know what I’m trying to say bro? Because if you’re saying one thing, I’m saying one thing… And because they asked Zahid as well, do you know what I’m saying?”
Mr Khan: “They didn’t ask Zahid anything”
Mr Balkan: “Nah, at the beginning they did, but I don’t think Zahid is giving anything. So they’re not, they’re not…”
Mr Khan: “(indistinct) Zahid has got nothing to do with this”
Mr Balkan: “Oh beautiful, beautiful, even better, so… It’s what you’re saying and what I’m saying, it’s got to fucking match up”
Mr Khan: “Yeah, but don’t, don’t say to them that I… sent the copy”
Mr Balkan: “Are you fucking serious bro? You sound like…”
Mr Khan: “Nah nah I’m just kidding”
Mr Balkan: “Are you serious bro? Don’t say to, like are you serious?”
Mr Khan: “I’m not serious, I’m (indistinct)… I’m being conscious”
Mr Balkan: “Conscious?”
Mr Balkan: (laughter)
Mr Khan: (laughter)
Mr Balkan: “You’re learning bro, you’re learning”
Mr Khan: “Yeah, yeah, yeah”
Mr Balkan: “Well, when can you send me that bro? I’m trying to get my response ready this afternoon, because I’ve got to respond”
Mr Khan: “When I go back home, then… I’ll send it to you”
Mr Balkan: “(indistinct) bro”
Mr Balkan: “Hey”
Mr Khan: “Hmm”
Mr Balkan: “Don’t, don’t stress bro, I’m gonna…” [end]
Following the audio playback, Mr Balkan and Mr Khan both confirmed it was their voices that appeared in the audio file. Mr Balkan gave evidence that the conversation may have occurred on or about 18 March 2017,[51] and said the following in response to my question as to why he provided the recording:
“THE DEPUTY PRESIDENT: Mr Balkan, what was your purpose in sending that to the solicitors for the respondent?
MR BALKAN: To try to make sense out of the conversation I've written something I'm trying to read. My unconventional method of talking with Hasan is in fact my pursuit to find out the truth and to see where I stand as friends. Because this was after 17 March, after I received the show cause letter from Kate Barrett, and I needed to know if Mr Steve Russell was - because he initiated this investigation, if he was instigating it or if Hasan was making up stuff. If I can add, this was sufficient enough for me to know that he was being untruthful with me.”[52]
Securecorp contended that by making this telephone call, Mr Balkan had “failed to and/or refused to abide by the lawful and reasonable directions of the Respondent”.[53] Securecorp relied on its advice to Mr Balkan that his conduct was being investigated and the several directions it had given to him. These included the following:
· In a letter dated 2 March 2017, in the following terms:
“During this investigation it is important that you adhere to the following directions:
1. The above issues must remain confidential and must not be discussed with other employees (other than your support person), until this matter is resolved;
2. You must not interfere, directly or indirectly, with this investigation in any way; and
3. You must respond honestly in this investigation.”[54]
· In a letter dated 3 March 2017, in the identical terms:
“During this investigation it is important that you adhere to the following directions:
1. The above issues must remain confidential and must not be discussed with other employees (other than your support person), until this matter is resolved;
2. You must not interfere, directly or indirectly, with this investigation in any way; and
3. You must respond honestly in this investigation.”[55]
· In a letter dated 7 March 2017 advising Mr Balkan of his suspension, in the following terms:
“Whilst suspended it is important that you adhere to the following directions:
1. This matter must remain confidential and must not be discussed or disclosed with other employees or any person outside of the organisation (other than a support person, or an appropriate person to seek advice re your rights in relation to this matter), until this matter is resolved; and
2. You must not interfere, directly or indirectly, with this investigation in any way; and
Failure to adhere to these directions or other interference with the investigation may result in disciplinary action, and in serious cases, termination of employment.”[56]
Mr Balkan confirmed he had received these three letters. In light of this advice being restated in the letter dated 7 March 2017, Ms Barrett asked Mr Balkan as to why he had approached Mr Khan for information in regards to his statements while he was suspended. In response to this, Mr Balkan said the following:
“MR BALKAN: Maybe he was my support person.
THE DEPUTY PRESIDENT: Was he your support person?
MR BALKAN: Not after our conversation.
THE DEPUTY PRESIDENT: But was he at any stage your support person?
MR BALKAN: No.
THE DEPUTY PRESIDENT: Did you ever notify your employer that he was your support person?
MR BALKAN: No.”[57]
In his written statement dated 7 March 2017,[58] Mr Khan said that on 3 March 2017 Mr Balkan asked him for an incident update as to the shift swap and queried whether he had given any official statement to Securecorp. Mr Khan said he responded by saying he had not provided a statement and nor did he give Mr Balkan “any information about the communication that happened between me and Securecorp’s manager”.[59]
At the hearing, Mr Khan said “Mr Balkan kept asking me… that he wanted me to send the statement to him, which I gave to (indistinct) Securecorp, to which I tried to take him off the topic, because I didn't want to get into myself into [sic] any trouble by sending like confidential stuff or my statements (indistinct) instead of the company”.[60]
When asked whether he tried to get Mr Khan’s statement, Mr Balkan gave the following evidence:
“MS BARRETT: Yes, I think you've just answered it, thank you. Was Mr Khan - no, that's all right. Why were you trying to get his statement?
MR BALKAN: I think I've already gone through this. I can read it again.
MS BARRETT: Yes.
MR BALKAN: My unconventional method of talking with Hasan is in fact my pursuit to find out the truth and to see where I stand as friends.
MS BARRETT: So did you receive a statement from Mr Khan, did he provide it?
MR BALKAN: No.
MS BARRETT: Did you approach him at any other time to obtain a statement?
MR BALKAN: No.”[61]
Mr Khan was then asked by Ms Barrett whether Mr Balkan had approached him at other times to obtain a statement. Mr Khan gave evidence that Mr Balkan had called him “a few times after the incident” and also asked him once or twice while they were on patrols together before reiterating that he did not give Mr Balkan anything.[62]
Was the dismissal harsh, unjust or unreasonable?
The ambit of the conduct which may fall within the phrase “harsh, unjust or unreasonable” was explained in Byrne v Australian Airlines Ltd[63] by McHugh and Gummow JJ as follows:
“.... 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.”[64]
As outlined above, the criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act. I am under a duty to consider each of these criteria in reaching my conclusion.[65]
I will now consider each of the criteria at s.387 of the Act.
As to ss.387(b)-(d) of the Act, it was agreed by the parties at hearing and I am satisfied on the evidence that Mr Balkan was notified of the reasons relied upon by Securecorp for his termination and given a number of opportunities to respond to the allegations during the course of the investigation conducted by Securecorp and further, he was not unreasonably refused a support person in the discussions relating to the dismissal.
As to s.387(e) of the Act, as Mr Balkan’s termination involved misconduct and not unsatisfactory performance, it is not in dispute in this case.
In relation to s.387(f) of the Act, Securecorp gave evidence that it is a national organisation with approximately 3200 employees, including personnel with dedicated human resource expertise. I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Balkan’s dismissal.
As to s.387(g) of the Act, Securecorp employed a human resources manager at the time of Mr Balkan’s dismissal, so this consideration is not relevant.
Therefore, in the circumstances of this case, I next need to give consideration to s.387(a) of the Act and whether there was a valid reason for the dismissal related to Mr Balkan’s capacity or conduct.
Section 387(a) – Valid reason
Securecorp must have a valid reason for the dismissal of Mr Balkan, although it need not be the reason given to him at the time of the dismissal.[66] The reasons should be “sound, defensible and well founded”[67] and should not be “capricious, fanciful, spiteful or prejudiced”.[68]
Even if there is dispute as to who instigated it, there is no dispute that Mr Balkan and Mr Khan swapped their 25 February 2017 shifts. Ultimately, it does not appear to me that the failure to seek Securecorp’s approval for it was relied upon by Securecorp as a valid reason for the termination. While there may have been a policy and procedure for the swapping of shifts, I do not consider the failure by Mr Balkan or Mr Khan to notify the NOCC of their change in advance, either through the completion of a form or making of a telephone call, gives rise to a valid reason for the termination of Mr Balkan’s employment because I am not satisfied it was rigorously implemented at the CCW site. The security guards engaged there appear to have made arrangements amongst themselves without necessarily advising the NOCC and obtaining approval.
With the swap having occurred, a series of events that culminated in the termination of Mr Balkan’s employment unfolded.
Mr Balkan denies signing for Mr Khan on the 25 February 2017 timesheet. Mr Khan’s evidence was that the signature on the timesheet was not his and in any event, his practice was to initial the entry next to the record of hours worked rather than sign (as appears to have occurred on the 25 February 2017 timesheet). While I accept Mr Khan’s evidence that it was not his signature, I am unable to conclude, based on the form of the signature, that Mr Balkan signed for Mr Khan.
However, it is not disputed that Mr Balkan made the entries of the hours said to have been worked by both himself and Mr Khan on Saturday 25 February 2017. Mr Balkan’s explanation for doing so was that he may have completed the timesheet on the previous Wednesday in anticipation of working his rostered Saturday hours (i.e. before he and Mr Khan agreed to swap their shifts) and then completely forgot about it until advised by Securecorp in its letter to him dated 2 March 2017. This is his answer to the allegations that he falsified the entry for the hours worked for both himself and Mr Khan.
Mr Balkan advised Mr Khan of the altercation with the CCW tenant when Mr Khan arrived at site at approximately 5:30pm. It is therefore unsurprising that Mr Khan was concerned when he saw that the entry already completed showed him working when that incident had occurred and, following his discovery, wanted to ensure the timesheet was an accurate record of the hours worked.
Mr Balkan either denies or does not recall whether Mr Khan called him that night. On this point, I find Mr Khan’s evidence that he made a telephone call to Mr Balkan after he discovered the timesheet entry more persuasive. I am satisfied Mr Khan raised his concern about the timesheet with Mr Balkan and I prefer the evidence he gave that Mr Balkan told him that he would fix the timesheet to Mr Balkan’s denial of the telephone call taking place.
I therefore find Mr Balkan had the opportunity to fix the timesheet but failed to do so. The failure to do so was brought into focus following receipt of the CCW tenant’s complaint a few days later and the commencement by Securecorp of its investigation.
Through not having amended the timesheet, it was initially thought by Securecorp that Mr Khan had the altercation with the CCW tenant. Additionally, Mr Balkan stood to be paid for more hours than he actually worked and receive more pay than he was actually due. The difference in pay was approximately $20. Mr Balkan appeared to attempt to justify his actions by stating that had he worked the 8 hours from 11:00am – 7:00pm, he would have been entitled to more pay than that which the record on the timesheet entitled him to. It may well be the case that the 8-hour shift from 11:00am – 7:00pm results in a higher payment than the 7-hour shift from 7:00pm – 2:00am (Sunday), but the issue is that the timesheet completed by Mr Balkan resulted in him being paid a sum in excess of what he was due for the hours he actually ended up working on Saturday 25 February 2017.
To this point, I am also satisfied that Mr Balkan was approximately 30 minutes late in commencing work for his “swapped shift” on 25 February 2017. I am not persuaded that the records from the CCTV footage and the telephone welfare monitoring system should be impugned, as Mr Balkan submits. His allegations as to their inaccuracy were vague and generalised and I prefer the evidence of Mr Russell on this issue.
The net result of these circumstances is that Mr Balkan, despite the discrepancy in the timesheet entry he had made being brought to his attention by Mr Khan, nonetheless let a record stand that:
· left Mr Khan exposed as having worked the shift during which there was the altercation with the CCW tenant, when he had not;
· purported to make Mr Balkan eligible for 7 hours of pay from 7:00pm Saturday to 2:00am Sunday when he actually worked 6.5 hours from 11:30am – 6:00pm Saturday; and
· resulted in Mr Balkan being paid an amount in excess of the sum due to him totalling at least $20.
As it was, nearly five days passed without Mr Balkan addressing the discrepancy in the 25 February 2017 timesheet. I consider his failure to do so was dishonest and exhibited a reckless indifference to the interests of Mr Khan. He only addressed the issues once he had received the letter from Securecorp on 2 March 2017, which suggests he otherwise had no intention of doing so. I am satisfied Mr Balkan’s failure to address the discrepancy in the 25 February 2017 timesheet constitutes a valid reason for the termination of his employment.
Then, rather than address these matters directly once the investigation commenced, Mr Balkan instead sought to interfere with the investigation process. When the issues were first brought to his attention on 2 March 2017, he was instructed not to discuss them with other employees or interfere, directly or indirectly, with the investigation in any way and respond honestly. These instructions were conveyed a second time on 3 March 2017. I am satisfied that notwithstanding these instructions and Mr Balkan’s denial, he approached Mr Khan for information about what Mr Khan had done in response to the investigation and requested a copy of his statement.
The instructions Mr Balkan received when notified of his suspension on 7 March 2017 were even more explicit. The letter to him dated 7 March 2017 stated:
· the investigation was not to be discussed with other employees or any person outside of the organisation until it was resolved;
· he was not to interfere, directly or indirectly, with this investigation in any way; and
· a failure to adhere to those directions or any other interfering with the investigation might result in disciplinary action and in serious cases termination of employment.
Mr Balkan was on notice from 7 March 2017 regarding the expected conduct associated with his suspension and yet, having received the “show cause letter” dated 17 March 2017 which placed him on notice that his employment might be terminated, he then called Mr Khan seeking his statement ahead of completing his response to Securecorp so that he could ensure their statements would match. It is clear from the recording of this conversation that he had no intention of disclosing to Securecorp that he had spoken to Mr Khan. It is also clear that he did not disclose to Mr Khan that he was recording their conversation.
Having listened to this recording, I do not find Mr Balkan’s explanation of his reasoning for making the telephone call convincing. I consider his purpose was clear; rather than simply give an honest account of what had occurred, he wanted to ensure the versions he and Mr Khan each gave to the investigation lined up. This was an attempt to disturb the integrity of the investigation.
Mr Balkan’s action in doing so was in clear violation of the instructions he had received from Securecorp. He had been cautioned against doing this. His behaviour constituted a serious breach of a lawful and reasonable instruction by Securecorp that he not interfere, directly or indirectly, with the investigation in any way. It was a fundamental breach of trust and I consider this behaviour, of itself, gives rise to a valid reason for the termination of his employment.
In so finding, I have had regard to the proposition that the reason for the termination need not be that which was given by the employer. It can be any reason underpinned by the evidence provided to the Commission.[69] Indeed, facts which existed at the time of the dismissal, but came to light after the dismissal may justify the dismissal when it would otherwise be harsh, unjust or unreasonable.[70]
In Shepherd v Felt & Textiles of Australia Ltd,[71] the High Court of Australia held an employee’s dismissal may be justified upon grounds on which the employer did not act and of which the employer was unaware when the dismissal occurred[72] and the fact an employee’s misconduct was unknown to her/his employer at the time of the termination is immaterial, with facts in existence at the time of the termination capable of justifying it once proven.[73]
A clear statement of the law was given by the Federal Court in Lane v Arrowcrest Group Pty Ltd[74] (Lane v Arrowcrest):
“… it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances.”[75]
The approach in Lane v Arrowcrest was confirmed by the High Court in Byrne v Australian Airlines Limited[76] and adopted by the Full Bench of the Australian Industrial Relations Commission in Metricon Homes v Bradley.[77]
In summary, I am satisfied Mr Balkan’s failure to address the discrepancy in the 25 February 2017 timesheet constitutes a valid reason for the termination of his employment. Further, or in the alternative, I am satisfied Mr Balkan’s breach of the lawful and reasonable instruction by Securecorp that he not interfere, directly or indirectly, with the investigation in any way, despite having been cautioned not to do so on three occasions, constitutes a valid reason for the termination of his employment for serious misconduct.
Accordingly, in all the circumstances, I am satisfied there was a valid reason for the termination of Mr Balkan’s employment.
Section 387(h) – Other relevant matters
The final consideration under s.387 of the Act to which I must have regard is s.387(h), which provides the Commission with a broad scope to consider any other matters it considers relevant.
Mr Balkan submitted his dismissal was harsh, unjust and unreasonable because of the economic and personal consequences for him and that it was disproportionate to the gravity of the alleged offences.
Mr Balkan also submitted that in the 3 years of his employment with Securecorp, there had been no other shift-swapping and late arrival issues raised with him, although Ms Barrett said there had been a performance issue in 2014 which involved Mr Balkan leaving site.
Mr Balkan raised some other events which had transpired between himself and Securecorp earlier in his period of employment. These were disputed by Securecorp and Ms Barrett stated that any previous cases had no relevance to the decision made by Securecorp to terminate Mr Balkan. I have not had regard to those matters but I have had regard to Mr Balkan’s other submissions in [93] and [94] above.
In terms of financial hardship, I have noted his evidence that he did not immediately qualify for the Newstart allowance on the basis of joint savings held with his wife and that he was applying to undertake various courses of study in addition to his attempts to find other work. I have also noted he made many and varied job applications but, on the material, did not appear to be pursuing jobs in the security industry. I note Mr Balkan’s period of employment with Securecorp was not substantial and I am not persuaded, based on his post-employment activity, that the financial impact of his termination swings the balance in his favour.
I am also not persuaded by Mr Balkan’s submission that the termination of his employment was a disproportionate response to his conduct. In particular, I consider his actions in seeking to interfere with an investigation a very serious breach of a lawful and reasonable instruction and a fundamental breach of trust, particularly in light of the fact that he been instructed not to do so on three occasions.
Conclusion
Having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Mr Balkan was not harsh, unjust or unreasonable. Accordingly, I find that Mr Balkan’s dismissal was not unfair. Mr Balkan’s application for unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr S Balkan on his own behalf.
Ms K Barrett for SECUREcorp Pty Ltd.
Hearing details:
2017.
Melbourne:
August 4.
[1] Exhibit A18.
[2] Sayer v Melsteel[2011] FWAFB 7498.
[3] Exhibit A4.
[4] Exhibit A5.
[5] Exhibit A9.
[6] Exhibit A10.
[7] Exhibit A11.
[8] Transcript PN 796.
[9] Exhibit A18.
[10] Exhibit A5.
[11] Exhibit A11.
[12] Transcript PN 565, PN 567.
[13] Exhibit A1 at [5](b).
[14] Transcript PN 567.
[15] Transcript PN 573.
[16] Exhibit R5 at [16].
[17] Exhibit R5, Attachment SR2.
[18] Exhibit R1 at [11].
[19] Transcript PN 581, PN 585.
[20] Transcript PN 601.
[21] Attachment to Exhibit R1.
[22] Exhibit R1 at [18].
[23] Exhibit R1 at [20].
[24] Transcript PN 119.
[25] Exhibit A5.
[26] Exhibit A11.
[27] Transcript PN 712.
[28] Exhibit A5.
[29] Transcript PN 677-687.
[30] Transcript PN 683.
[31] Exhibit R6 at [10] and Transcript PN 647-653.
[32] Attachment to Exhibit R1.
[33] Transcript PN 657.
[34] Transcript PN 659.
[35] Transcript PN 668-671.
[36] Exhibit R7 at [20].
[37] Exhibit A11.
[38] Transcript PN 806-809.
[39] Exhibit R7 at [28].
[40] Exhibit R7 at [29]-[30].
[41] Transcript PN 715-718.
[42] Transcript PN 741-742.
[43] Transcript PN 735-740.
[44] Transcript PN 745-746.
[45] Transcript PN 748-750.
[46] Transcript PN 759-761.
[47] Transcript PN 769-771.
[48] Exhibit R2.
[49] Exhibit R3.
[50] Exhibit R4.
[51] Transcript PN 880-882.
[52] Transcript PN 896-897.
[53] Exhibit R2 at [5]c.
[54] Exhibit R5, Attachment SR3.
[55] Exhibit R5, Attachment SR4.
[56] Exhibit R5, Attachment SR5.
[57] Transcript PN 938-944.
[58] Exhibit R6, Attachment HK2.
[59] Exhibit R6, Attachment HK2 and Transcript PN 930.
[60] Transcript PN 901.
[61] Transcript PN 947-954.
[62] Transcript PN 956.
[63] [1995] HCA 24; (1995) 185 CLR 410.
[64] Ibid at 465.
[65] Sayer v Melsteel[2011] FWAFB 7498.
[66] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
[67] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
[68] Ibid.
[69] MM Cables (A Division of Metal Manufacturers Limited) v Zammit (AIRCFB, Ross VP, Drake SDP, Lawson C, 17 July 2000, Print S8106) at [42].
[70] Australia Meat Holdings v McLauchlan (1998) 84 IR 1 at 14.
[71] (1931) 45 CLR 359 at 373, 377-78.
[72] Ibid at 377 per Dixon J.
[73] Ibid at 373 per Starke J.
[74] (1990) 27 FCR 427.
[75] Ibid at 456.
[76] (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ and 467 per McHugh and Gummow JJ.
[77] 181 IR 115 at [11].
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