Sean Whelan v Motor Trade Association of Western Australia Inc and Automotive Institute of Technology
[2017] FWC 6195
•29 NOVEMBER 2017
| [2017] FWC 6195 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sean Whelan
v
Motor Trade Association of Western Australia Inc and Automotive Institute of Technology
(U2017/8183)
| Deputy President Bull | PERTH, 29 NOVEMBER 2017 |
Application for an unfair dismissal remedy. Allegation of falsification of times sheets and failure to comply with directions and policies. Valid reason for dismissal established, times sheets contrary to vehicle GPS records, no unfairness demonstrated.
In this matter the applicant, Mr Sean Whelan, alleges that he was unfairly dismissed from his employment as a mechanical trainer/assessor with the Motor Trade Association of Western Australia Inc and Automotive Institute of Technology (MTAWA) (the respondent).[1] Mr Whelan had been employed with the respondent since April 2015 as a trainer/assessor.
Relevant statutory provisions
Section 394(1) of the Fair Work Act 2009 (FW Act) provides that a person who has been dismissed may apply to the Fair Work Commission for an Order under Division 4 of the FW Act granting a remedy for unfair dismissal.
Section 385 of the Act provides as follows:
“S.385. A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed;
(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.”
Section 396 of the FW Act requires that before considering the merits of an application for an unfair dismissal remedy, the Commission must decide a number of threshold issues.
“S.396 Initial matters to be considered before merits
FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
No party has raised any issue under s.396 as to why Mr Whelan’s application cannot be determined on its merits.
Mr Whelan’s role with the MTAWA was a mixture of classroom training and mobile onsite training.[2] As a trainer/assessor Mr Whelan was required to:
· Complete classroom training and assessment to pre-apprentices where scheduled
· Complete training for apprentice block courses when scheduled
· Carry out workplace visits for his assigned apprentices. Workplace visits include any remedial training required, support and mentoring for the apprentices and for the final workplace observation assessments to show competence against the blocks of training and units being assessed
· Plan and prepare these tasks.[3]
MTAWA Submissions
The MTAWA submitted that Mr Whelan’s dismissal was not unfair and that he was summarily terminated for serious misconduct. The misconduct revolved around the alleged falsification by Mr Whelan of times on his timesheets which had been identified following the introduction of GPSs[4] into employer supplied motor vehicles.[5]
Mr Moir, the Group Chief Executive Officer, gave evidence that the MTAWA is both a Registered Training Organisation (RTO) and a Group Training Organisation (GTO). It acts as the primary employer to apprentices and trainees and then places them with host employers whilst they undertake their formal training.[6]
As a Registered Training Organisation, the MTAWA is subject to the Vocational Education and Training Act 1996 (WA) which, in conjunction with the Vocational Education and Training (General) Regulations 2009, provides the audit and registration services for RTOs under the jurisdiction of the Training Accreditation Council (TAC) and the Standards for Registered Training Organisations (RTOs) 2015. Onsite training of apprentices must be conducted in 2 hour blocks. Should the MTA not comply with its legislative obligations it runs the risk of losing its RTO registration.[7]
Mr Moir’s evidence was that the MTAWA is subject to audits where a trainer’s Outlook calendar can be examined to validate and support its training accreditation.
Mr Moir stated that as a trainer/assessor Mr Whelan worked autonomously with a degree of flexibility provided the work was completed in line with the prescribed standards.[8]
In early 2017, in respect of trainers at the MTAWA a number of issues of concern were identified which included:
·Failure to submit timesheets on time
·Time spent on the job with apprentices
·Leaving work early without approval
·Actual daily working times.[9]
As a result, these issues were discussed with assessors/trainers at a toolbox meeting held on 21 April 2017, where a Training Update document was issued to all assessors/trainers including the applicant. The Training Update stated, among other things, that:
·Trainers were not to permitted to leave work prior to 4pm; where it is impractical to return to the office permission from the RTO Manager to proceed home before 4pm must be obtained
·Core working hours are 8am to 4pm Monday to Friday
·Trainers are required to keep their calendars up to date and where an appointment is cancelled or changed the time sheet should reflect the change.[10]
Mr Whelan signed the Training Update document on 24 April 2017 to signify he had read it and agreed with its contents.[11]
Mr Moir advised that on 29 June 2017, all trainer/assessors were provided with new motor vehicles that were fitted with GPS tracking. The tracking systems were primarily installed to assist with calculating fringe benefits[12], but would also be used to assist in traffic incidents and where required, to validate employee travel. All employees were told of the GPS installation into the new vehicles.
Mr Melville Greenhow, the Assistant RTO Manager, stated that on 5 July 2017, he advised Mr Moir that Mr Whelan had arrived at the office and entered through the back door at approximately 1.15pm. The timing of Mr Whelan’s arrival at the office was inconsistent with Mr Whelan’s diary entry which stated that he was at a client’s premises Medicar until 1:40pm.[13]
Mr Moir’s evidence was that employees had been told that they were to enter and leave the office through the main entrance and that arrival at MTA House via the rear door was prohibited.
As a result of Mr Greenhow alerting Mr Moir to the discrepancy in times, he states that Mr Moir requested he conduct an audit on Mr Whelan’s time sheets and diary entries, together with the information provided by the GPS vehicle tracker.
Mr Moir stated that on 6 July 2017, Mr Greenhow reported that there appeared to be inconsistencies with Mr Whelan’s recorded working times and that the GPS had identified unauthorised travel locations. Further, the GPS tracker times had identified that the apprentice training times were not consistent with the diary times recorded by Mr Whelan and reports that he had submitted.[14]
Mr Moir stated he requested that Mr Greenhow compile a document specifying the discrepancies that could be put to Mr Whelan for his consideration and response.[15]
In summary the following discrepancies were identified:
Friday 30 June: Timesheet records arrival at Carcare Joondalup at 2pm and departing at 4pm, spending 2 hours on site whereas the GPS tracker recorded Mr Whelan’s vehicle arriving at Carcare at 3.04pm and leaving at 4.03pm spending only one hour at the worksite, resulting in a one hour discrepancy.
Monday 3 July: Visit Log for Bridgestone Kingsway records a 12:30pm start and finish at 2:20pm with the reported time on the job being 1 hour and 50 minutes, whereas the GPS tracker recorded an arrival at 2.24pm and a departure at 2:50pm spending only 26 minutes on site, a discrepancy of 1 hour and 24 minutes.
On the same day Mr Whelan was recorded as having left another client premises Automark at 3:36pm arriving at his residential address at 3:41pm. Having finished early, Mr Whelan did not return to the office in accordance with policy nor did he seek permission not to do so from management.
(Tuesday 4 July: Annual leave)
Wednesday 5 July: Visit log recorded a visit to Vehicle Fleet Service arriving at 10:15am departing at 11:50am, spending 1 hour and 35 minutes on the job whereas the GPS tracker recorded the arrival at Vehicle Fleet Service as 10:43am departing at 11:06am, spending only 23 minutes on the site, resulting in a discrepancy of one hour and 12 minutes.
On the same day the Mr Whelan recorded on the Visit Log that he attended Medicar at 12pm departing at 1:40pm spending 1 hour and 40 minutes on site. Whereas the GPS tracker recorded an arrival at Medicar of 11.23am, departing at 11:42 am spending only 23 minutes on site, resulting in a discrepancy of 1 hour and 17 minutes.
Also on Wednesday 5 July, the GPS tracker recorded Mr Whelan’s vehicle arriving at City Toyota at 12.10pm and leaving at 12.18pm for which no paper work had been submitted. The vehicle then travelled to an unknown destination in Coleraine St Subiaco arriving at 12:31pm and departing at 12.53pm. Mr Whelan then returned to the office at 1:17pm and left work for the day at 3:19pm without requesting permission to leave early.
Thursday 6 July: The GPS tracker recorded Mr Whelan attending 2 work locations Wangara Holden for 44 minutes and Phoenix Holden for 1 hour and 50 minutes for which no paperwork was submitted.[16]
Mr Moir stated that after allowing Mr Whelan ample time to read the allegations of misconduct and to respond when ready, Mr Whelan failed to address directly or deny any of the allegations detailed. He could not advise why he had failed to spend the requisite time with apprentices, why his paperwork and diary were incorrect, why he left the workplace before the nominated finishing time or what he was doing at an unknown location.[17]
It was Mr Moir’s evidence that he then determined that Mr Whelan’s employment should be terminated summarily based on his lack of explanation and honesty in respect of the discrepancies. His conduct placed MTAWA at risk of being in breach of its legislative and contractual obligations. Mr Moir was aware that Mr Whelan had been spoken to in 2015, about maintaining accurate timesheets.[18]
Mr Moir concluded that Mr Whelan’s conduct was a deliberate and a wilful breach of policy and procedure.[19] Mr Moir acknowledged that Mr Whelan was not provided with any advance notice of the meeting but stated that this was necessary due to two previous experiences where Mr Whelan proceeded on sick leave when notified in advance of disciplinary meetings.
Following Mr Whelan’s dismissal, Mr Moir advised that the MTAWA had located a number of blank observation records for apprentices that had been signed by the apprentice, which Mr Moir concluded allowed Mr Whelan to complete the record without actually performing any form of assessment as required.[20]
In his oral evidence Mr Moir stated that Mr Spini was counselled over his comments to Mr Whelan regarding Mr Whelan being out of favour with management due to his workers compensation claim, asserting that this was not correct as it did not reflect management’s views.
Mr Moir was not subject to cross examination by Mr Whelan.
Mr Greenhow, the Assistant RTO Manager and Mr Whelan’s direct supervisor, also gave evidence on behalf of the MTAWA. Mr Greenhow stated that some 18 months to 2 years prior to Mr Whelan’s dismissal he had spoken to Mr Whelan about discrepancies in his paperwork. MTAWA clients had confirmed that there were differences with the length of time spent on site compared to the completed paperwork. Mr Whelan had admitted the discrepancies and undertook that they would not occur in the future. On the basis of Mr Whelan’s undertaking it was determined that a written warning would not issue, but the verbal warning would remain.[21]
Mr Greenhow’s evidence was that Mr Whelan consistently entered the work office through the back door despite being instructed to enter and leave through the front door. This was raised with him on numerous occasions but his behaviour did not change.[22]
He stated that on the 5 July, he observed Mr Whelan leaving the office at 3.19pm without having requested permission to leave early. On checking Mr Whelan’s timesheet that day he noted that there were a number of discrepancies which he brought to the attention of Mr Moir who asked him to further review Mr Whelan’s paperwork for the day. The review revealed that Mr Whelan’s paperwork did not match his vehicle’s GPS record and that his actual time spent on site was well below what was recorded in his paperwork. In addition the actual time spent onsite was not adequate to complete the assessments recorded on his paperwork.[23]
Mr Greenhow stated he was then requested by Mr Moir to undertake an additional review back to 30 June 2017, as this covered the period when the GPS trackers commenced operation. The review showed Mr Whelan consistently spending less time with clients than he was recording on his paperwork and arriving at work after 8am and leaving before 4pm. Mr Greenhow also met with the owner/manager of Medicar concerning Mr Whelan’s visit on 5 July. Both parties were concerned that Mr Whelan’s behaviour was not meeting MTAWA standards and was possibly damaging to the MTAWA’s RTO status.[24]
Mr Greenhow’s oral evidence was that having an apprentice sign a blank form was contrary to the required standards and allows forms to be falsified. Mr Greenhow stated that to his knowledge no other trainer obtains apprentice signatures on a blank form.
Mr Whelan’s submissions
Mr Whelan states that on 10 July 2017, at approximately 8:15am he was met at the front foyer of the MTAWA office by the Group Training Organisation (GTO) Manager, Stephen Spini. He was then told he was required to attend a brief meeting in the board room. Also in attendance was Mr Moir, the MTAWA Group Chief Executive Officer, and Mr Ron Ballucci, the MTAWA Industrial Relations Manager. Upon entering the board room he stated he was provided with a letter with attachments which he was asked to read. The letter and attachments referred to alleged discrepancies between times that he had recorded in his timesheet as opposed to times recorded by the GPS recently installed in his work vehicle.
It was Mr Whelan’s evidence that upon reading the letter he said he didn’t understand what his employer was getting at. He stated he was then asked questions by Mr Moir and was told that he was doing the wrong thing. Mr Whelan said that he couldn’t believe this was happening.
Mr Whelan stated in his oral evidence that he didn’t have an opportunity to provide any explanation and that the meeting only went for 15 minutes. Mr Whelan stated that Mr Moir told him that he wanted a clean break and that he needed to leave. He was given no prior notice of the meeting and at the end of the meeting he was told he was not able to come back into the building.
Mr Whelan asserted that he had taken two days personal leave in June 2017 for work related stress and provided a copy of two medical certificates where he had been certified unfit to work for two periods in June 2017.[25]
In respect of the alleged time discrepancies Mr Whelan stated that he copied and pasted times from his Outlook calendar into his timesheet, asserting the discrepancies were more of an error as he felt he was under a lot of pressure to perform.[26]
Mr Whelan also relied upon a comment that had previously been made to him by Mr Spini, where he was told that he was not in favour with management due to his workers compensation injury. Mr Whelan stated that following this, he sent an email to Mr Moir and asked why he was out of favour with management and asked for an urgent meeting. A meeting was held with Mr Moir, Mr Ballucci and himself at which he was told that management had no issue with him over his workers compensation injury and that Mr Spini had no right to make such a comment.
Mr Whelan also stated that on one occasion he raised an issue concerning other employees who hold the same qualifications as himself receiving a higher pay rate. Since this was raised, he was of the belief that he had been targeted for dismissal.[27] Mr Whelan stated he was unable to recall having been spoken to by Mr Greenhow, his immediate manager, in 2015, regarding discrepancies in his paperwork.
Mr Whelan was also of the view that out of seven training assessors he was the only one who had been targeted for dismissal.
Mr Whelan’s evidence was that he gave very good service during his employment, which commenced in April 2015. While he admitted to making some errors, he believed that the MTAWA had made up their mind to terminate his employment without providing him with a realistic opportunity to provide any explanation for the time sheet discrepancies. The MTAWA did not provide any notice of the meeting or the opportunity to obtain a support person. Further Mr Whelan stated that he would never deliberately commit fraud against his employer.
Mr Whelan stated that staff were told by Mr Moir at an earlier meeting, that following the introduction of GPSs into employer provided motor vehicles, GPS data would not be used to dismiss an employee.
Mr Whelan stated that obtaining signed observation records from apprentices which were blank was a common practice with assessors and was done because there may not have been enough room to fill out the first sheet signed by the apprentice.
During cross examination and in response to why the GPS records indicated that he had left work prior to his normal finishing time, Mr Whelan stated that on these occasions he would have sought and obtained permission from his manager Mr Greenhow.
In support of his application Mr Whelan called Mr Sheldon, a trainer/assessor with the MTAWA, who confirmed that he had heard Mr Spini state to Mr Whelan that he was not in favour with management because he had a workers compensation injury. Mr Sheldon was not cross examined on his evidence.
Determination
Section 387 of the FW Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:
“Section 387 Criteria for considering harshness
(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.”
In taking into account these factors, the following conclusions have been arrived at.
Whether there was a valid reason related to capacity or conduct for the dismissal
It is well established that a valid reason is one which is sound, defensible or well-founded but not capricious, fanciful, spiteful or prejudiced[28], and is a separate issue from the consideration of whether a dismissal was harsh, unjust or unreasonable’. In Container Terminals Australia Limited v Toby[29] the Full Bench stated at [15]:
“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable: see generally Department of Justice v Hepburn (1999) 93 FCR 508, at 512-513 and cases cited therein. The focus of the consideration is upon the employer and the basis for his decision to terminate rather than upon its consequences for the employee. "What has to be examined is the validity of the reason, and its connection with the employee's capacity or conduct or its basis in operational requirements of the employer": see Qantas Airways Ltd v Cornwall (1998) 83 IR 102, at 106. In making such an examination "it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct…": see Walton v Mermaid (1996) 142 ALR 681, at 685.”
If a valid reason for the dismissal is not found to exist it would be a significant factor in determining whether the dismissal was unfair in the sense that it was harsh, unjust or unreasonable. In Parmalat Food Products Pty Ltd v Wililo[30], the Full Bench held at [24]:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.”
Northrop J in Selvachandranv Peteron Plastics Pty Ltd[31] stated that
“in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common sense way to ensure that” the employer and employee are each treated fairly ...”[32]
The approach to the assessment, pursuant to s.387(a) of the Act, as to whether there is a valid reason for an employee’s dismissal relating to the employee’s capacity or conduct where the employee is alleged to have committed misconduct was commented on by a Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post[33]:
“[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd[34], Sherman v Peabody Coal Ltd[35] Australian Meat Holdings Pty Ltd v McLauchlan[36]).
[35] Subject to that, as indicated by Northrop J in Selvachandran[37], “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
In a serious misconduct case, the Commission is concerned with whether the alleged serious misconduct in fact occurred.[38] There is no dispute that the misconduct complained of by the MTAWA did in fact occur. It then becomes a question as to whether Mr Whelan has been able to provide an adequate explanation for the discrepancies identified by MTAWA, thus not establishing a valid reason for his dismissal.
Mr Whelan, in his evidence including his cross examination, was unable to provide a plausible explanation for the identified discrepancies. Mr Whelan stated that he wasn’t in a position to argue much about the allegations. He stated that the times he had submitted in his diary were only forecast times and not necessarily the actual times worked. The discrepancies occurred as he cut and pasted his times from his Outlook calendar. He was not sure why the time sheets submitted were not corrected to reflect the true hours. In his written submissions he states that it was ‘more of an error as I was under a lot of pressure to perform’[39]. Mr Whelan was unable to seriously dispute that the times recorded by the GPS tracker on his vehicle were not accurate.
Mr Whelan’s evidence that he would have made a phone call or spoken to Mr Greenhow to obtain permission to leave early was not given with any conviction or corroborated in any manner. Mr Greenhow stated that no such permission was ever provided.
Mr Whelan submitted that the signing of blank apprentice observation records was a common practice amongst trainers. This was disputed by MTAWA.
In respect of the travel to Coleraine Street in Subiaco, Mr Whelan stated that he drove to this destination (which was in the opposite direction to the MTAWA office) as he needed to use the toilet. This explanation was not provided by Mr Whelan when asked by Mr Moir why he had attended this address in the meeting of 10 July. In cross examination Mr Whelan was unable to demonstrate that driving to this destination was preferable to returning to the office or attending a closer public convenience on the way back to the office.
On the first day of the introduction of the GPS into Mr Whelan’s motor vehicle the GPS did not record. It was put to Mr Whelan in cross examination that he had interfered with the device; Mr Whelan denied this allegation.
In the short period since the introduction of GPS tracking into employer supplied motor vehicles it was demonstrated that Mr Whelan was not correctly recording his working times, was spending less time with clients than he recorded, was leaving work early without permission and that his time spent on site was insufficient to complete the recorded assessments.
Mr Whelan was unable to provide a satisfactory explanation when questioned on these issues and other concerns of the MTAWA on 10 July, nor was he able to do so when giving his evidence before the Commission. The falsification of timesheets, whether related to leaving work early without permission or time spent with clients, is misconduct. Based on this conduct having occurred, a valid reason for dismissal has been established.
Having found that a valid reason for the dismissal exists, the Commission is obliged to consider the other factors contained in s.387 (b)-(h) which may be described as mitigating factors that may establish the unfairness of the dismissal. In Parmalat Food Products Pty Ltd v Wililo[40] the Full Bench stated at [24]:
“[24] … . Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in this matter amount to such factors.”
As stated by Buchanan J, in Toms v Harbour City Ferries Pty Ltd[41] with whom Alsop CJ and Siopis J agreed, each case must be considered on its particular circumstances.
Was Mr Whelan notified of the reason for his dismissal?
Mr Whelan acknowledged that he was told by Mr Moir at the meeting on 10 July 2017 that his dismissal related to discrepancies in his recorded hours when compared to the GPS records.[42] The allegations were provided in writing at the commencement of the 10 July meeting in precise detail. Confirmation of his dismissal was provided in correspondence dated 10 July 2017, which referred back to the allegations already provided in writing.
Was Mr Whelan given an opportunity to respond to any reason related to his conduct?
The allegations of serious misconduct were put to Mr Whelan at the meeting of 10 July. Mr Moir stated that Mr Whelan was given ample time to read and understand the allegations.
This aspect of the dismissal process by the MTAWA is open to criticism. The allegations, although they concerned recent events, contained specific details of travel and meeting times over a period of a week, and it would have been reasonable for Mr Whelan to have been given time to consider and study the allegations against him in detail. It could not be expected that at a meeting in front of the Group Chief Executive Officer and other management Mr Whelan could have thoroughly examined his weekly timesheets, workplace visit logbook, activity reports for his motor vehicle and the GPS tracker times. However, some allegations should have been able to have been responded to without the need for further consideration. One example of this is why he attended an address in Subiaco not known to the MTAWA, to which no response was provided at the time.
As stated above, Mr Moir accepted that Mr Whelan was not provided with any advance notice of the meeting, but stated that this was necessary due to previous experience where Mr Whelan took sick leave when notified in advance of disciplinary meetings. No further detail of this justification was provided, but Mr Whelan did not dispute this in his oral submissions and as already stated, chose not to cross examine Mr Moir on his evidence.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
This factor refers to the refusal of the employer to allow a person to have a support person. Mr Whelan complains that he was not provided with an opportunity to have a support person present during the meeting of 10 July. The evidence in this matter did not establish that Mr Whelan had made any request for a support person or that the MTAWA refused any request or advised that no support person would be permitted to attend. However, due to the lack of notice provided to Mr Whelan of the meeting, it would have been difficult for Mr Whelan to secure a support person without delaying the meeting, should he have requested one.
If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal.
The evidence provided by the MTAWA was that Mr Whelan had been spoken to in 2015 about the need to maintain accurate paperwork due to discrepancies having been identified in his paperwork. In April 2017 all trainer/assessors were told at a tool box meeting what the required minimum hours spent with clients was and that they were not to leave work prior to 4pm without the relevant permission. This was reflected in a written training update handed out at the toolbox meeting.
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 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.
The MTAWA is of a sufficient size with a dedicated Industrial Relations Manager to have ensured that it undertook and followed a proper process in effecting Mr Whelan’s dismissal.
Any other matter that the Commission considers relevant.
The expression “harsh, unjust or unreasonable” was considered in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd[43]
“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.”
Mr Whelan did not have a record of long service with the MTAWA having commenced his service in April 2015. While Mr Whelan stated that he would not deliberately commit fraud, the failure to correctly record his working times and other work records without explanation was dishonest. Mr Whelan’s subsequent explanation that the discrepancies were more of an error as he was under medical stress at the time of the misconduct had limited evidence to support it.
Mr Whelan was of the view that the MTAWA were looking to terminate his employment. The difficulty with this submission is that Mr Whelan did not put anything of substance to the MTAWA to cause them to arrive at any other conclusion than his dismissal was warranted. Despite there being a significant period of time between his dismissal and his unfair dismissal hearing, Mr Whelan was still unable to raise any plausible explanation in response to the allegations concerning the paperwork and timesheet discrepancies identified by his employer.
Taking into consideration the procedural failings concerning the interview on 10 July, Mr Whelan has not demonstrated that events would have unfolded any differently had he been given more notice of the allegations of serious misconduct. There still remains no satisfactory explanation for the incorrect recoding of work times, the non-recording or inaccurate recording of sites visited and for leaving work without approval prior to the normal finishing time.
I accept that Mr Whelan was spoken to by Mr Greenhow in 2015, regarding paperwork discrepancies and that he was provided with a verbal warning. In April 2017, he signed a document acknowledging the requirement not to leave work early without permission and to correctly complete timesheets and other paperwork.
Mr Whelan was dismissed summarily on the grounds of serious misconduct. The conduct complained of was clearly incompatible with the essential obligations of an employee to their employer and is destructive of the relationship of good faith and confidence between employer and employee.
In considering all the matters the Commission is required to take into account Mr Whelan’s summary dismissal was not harsh, unjust or unreasonable.
Mr Whelan’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Sean Whelan on his own behalf
Mr Ron Ballucci of Motor Trade Association of Western Australia Inc
Hearing details:
2017.
Perth
30 October
[1] The application named Motor Trade of Western Australia as the employer. Pursuant to s.586 the name of the employer is amended to reflect the true identity of the employer
[2] Exhibit R9, Statement of Stephen Moir at [14]
[3] Exhibit R10, Statement of Melville Greenhow at [13]
[4] Global positioning system
[5] Respondent’s Outline of Argument, dated 6 October 2017
[6] Exhibit R9 at [5]-[6]
[7] Exhibit R9 at [7]-[8]
[8] Exhibit R9 at [14]
[9] Exhibit R9 at [19]
[10] Exhibit R11
[11] Exhibit R11
[12] Exhibit R9 at [25]
[13] Exhibit R10 at [17]-[21]
[14] Exhibit R9 at [28]
[15] Exhibit R9 at [31]
[16] Exhibit R4, Notice of Meeting dated 10 July 2017
[17] Exhibit R9 at [34] to [36]
[18] Exhibit R9 at [38]
[19] Exhibit R9 at [39]
[20] Exhibit R9 at [42]
[21] Exhibit R10 at [11]-[12]
[22] Exhibit R10 at [17]-[18]
[23] Exhibit R10 at [17]
[24] Exhibit R10 at [28]-[30]
[25] Exhibit A1, Medical certificates dated 8 June and 15 June 2017
[26] Applicant’s Outline of Argument at 4c
[27] See applicant’s F2
[28] Selvachandranv Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
[29] Container Terminals Australia Limited v Toby [2000] Print S8434
[30] [2011] FWAFB 1166
[31] (1995) 62 IR 371
[32] (1995) 62 IR 371 at 373
[33] [2013] FWCFB 6191
[34] (1996) 71 IR 201
[35] (1998) 88 IR 408
[36] (1998) 84 IR 1)
[37] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
[38] See for example Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1)
[39] Applicant’s Outline of Argument at 4c
[40] [2011] FWAFB 1166
[41] [2015] FCAFC 35 at [100]; 321 ALR 224
[42] Form F2 at question 3.2
[43] (1995) 185 CLR 410 at p 465-6
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