Tu Noanoa v Linfox Pty Ltd

[2011] FWA 306

Note: An appeal pursuant to s.604 (C2012/2676) was lodged against this decision - refer to Full Bench decision dated 12 March 2012 [[2012] FWAFB 2008] for result of appeal.

[2011] FWA 306

FAIR WORK AUSTRALIA

DECISION

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

Mr Tu Noanoa
v
Linfox Pty Ltd
(U2010/10878)

COMMISSIONER CAMBRIDGE SYDNEY, 18 JANUARY 2011

Unfair dismissal - misconduct - falsification of daily worksheet - deliberate attempt to conceal breach of driver fatigue management regulation - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 22 July 2010. The application was made on behalf of Tu Movere Noanoa (the applicant), and the respondent employer was identified to be Linfox Pty Ltd (the employer).

[2] The application stated that the date of the applicant’s dismissal was 18 July 2010. Consequently the application appeared to have been made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] However, the application included a letter of dismissal dated 7 July 2010 and the evidence has verified that the dismissal of the applicant took effect from 7 July 2010. The applicant received the letter of dismissal by post on or around 18 July 2010, but he was unambiguously informed of the dismissal at the time that it took effect, 7 July 2010.

[4] The application was made by the Transport Workers Union of Australia (the TWU), acting as the representative of the applicant. Therefore it was curious that the application document stated a date for the dismissal which was plainly wrong but which conveniently put the lodgement of the claim within the legislative time limit. No issue was taken with the erroneous date of dismissal stated in the application and the matter has progressed as if it had been lodged within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[5] Conciliation of the claim was unsuccessful and the matter proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 4 November 2010. The evidence was finalised during the Hearing and at the request of the Parties, a timetable for the provision of final submissions was established which included that the applicant’s final material be submitted by 13 December 2010.

[6] At the Hearing the applicant was represented by Mr N McIntosh, a legal officer from the TWU. The applicant was the only witness called in support of the claim. The employer was represented by Mr L D’Apice, who was assisted by Ms G Neill. The employer adduced evidence from two witnesses, Mr Andrew Michael Lawrence and Ms Nina Michelle Russell, both of whom were managers of the employer.

Factual Background

[7] The applicant had worked for the employer for about 10 years in total. The applicant was initially employed as a casual Truck Driver and he became “permanent” in that position in about 2002.

[8] The applicant, as with all of the employer’s Truck Drivers, was required to complete a daily worksheet which recorded the various activities undertaken during the course of work each day. The daily worksheet is a commonly used employment record used for a variety of purposes including payroll calculations, specific job costing and accounting, and importantly in this instance, heavy vehicle driver fatigue management.

[9] The applicant was aware of the importance of the daily worksheet particularly in respect to the integrity of the information it contained relevant to driver fatigue management which has been referred to in this case by the acronym (TFMS). The applicant’s knowledge and application of the TFMS was demonstrated by an event in November 2009 when he realised that he would be unable to continue driving as he had exhausted the number of active hours permitted after which a rest break became mandatory. On this occasion in November 2009, the applicant stopped driving and a replacement driver had to travel to the applicant’s truck and complete the journey while the applicant was conveyed back to the employer’s depot in another vehicle driven by another driver.

[10] Therefore it was surprising that on 1 July 2010, the applicant continued to drive after he had reached the maximum number of active hours permitted under the TFMS. The applicant arrived at a destination in Epping having exceeded his permitted active time limit by 5 minutes. The applicant then took an opportunity to immediately unload his vehicle, thereby exacerbating the excessive active time breach.

[11] The applicant attempted to conceal the breach of the TFMS by making false time entries on his daily worksheet. The false entries are self evident from an observation of the document in that times shown for an “RTA” break (14:45 to 15:15) clash with the times shown for unloading at location 768 (14:40 to 15:50). The applicant could not have been taking his “RTA” break and at the same time unloading his vehicle. In any event, the TFMS requirements meant that the applicant was required to take a break from active work by no later than 14:30.

[12] The discrepancies with the applicant’s worksheet for 1 July were noticed by the employer and on 2 July the applicant was required to attend a meeting which involved the employer seeking to clarify the discrepancies. The employer arranged to have two TWU delegates present at the meeting. Although the applicant’s evidence changed as to whether he or the employer identified the discrepancy regarding the breach of the TFMS during the meeting, the applicant confirmed that he had deliberately made false entries on the worksheet.

[13] The applicant was suspended from duty during the meeting of 2 July and informed that the employer would further consider the matter in view of the admissions that had been made about the falsification of the worksheet. The applicant attended a further meeting on 7 July 2010 which also included the two TWU delegates. At this meeting the applicant was advised that his employment was terminated with immediate effect for serious misconduct.

[14] There was a further meeting held on 14 July apparently at the request of the TWU. An official from the TWU attended at this further meeting which confirmed the dismissal of the applicant on and from 7 July 2010.

The Applicant’s Case

[15] The TWU made submissions on behalf of the applicant in support of his claim. The TWU submitted that at all times the applicant had admitted that he had falsified his timesheet but had done so to assist the employer.

[16] The TWU submitted that the applicant's employment had been terminated based on allegations that on three separate occasions the applicant had falsified timesheets. The TWU mentioned earlier events of September and November 2009 involving the applicant being questioned by the employer about discrepancies identified from his daily worksheets. These earlier events were mentioned in the letter of dismissal. However, according to the submissions of the TWU, the employer could not rely upon the earlier events as providing basis for support of the dismissal because the applicant had not been given actual warning in respect of those events.

[17] In respect to the falsification of the worksheet for 1 July, the TWU submitted that the applicant's conduct should be characterised as a mistake caused by a momentary lapse of judgement. Therefore according to the submissions of the TWU, the admitted falsification of the worksheet did not represent serious misconduct and did not provide a valid reason for the dismissal of the applicant.

[18] The TWU further submitted that the falsification of the worksheet needed to be considered having regard for the fact that it provided no financial benefit to the applicant. The applicant took an opportunity to have his vehicle unloaded and this was of practical benefit to the employer as opposed to the applicant obtaining any advantage.

[19] The TWU also submitted that the ultimate sanction of dismissal was too harsh a penalty in this case. The TWU stressed that the employer had a number of options that it could have adopted and which would have provided for warning or alternative disciplinary action rather than dismissal.

[20] The TWU made further submissions which criticised aspects of the employer's procedure that led to the applicant's dismissal. The TWU mentioned that the applicant had not been advised of the importance of the meeting of 2 July prior to its commencement. The TWU also criticised the absence of any official from the TWU at the meetings of both 2 and 7 July. The TWU submitted that the employer had not given the applicant a fair go all round and that the termination process was fundamentally flawed.

[21] The TWU submitted that it was also relevant to consider the employment history of the applicant involving 10 years of service without any warning from the employer. The TWU also mentioned various personal circumstances of the applicant which it submitted contributed to a finding that the dismissal was harsh.

[22] In summary the TWU submitted that the dismissal of the applicant was unfair and that the primary remedy of reinstatement should be provided. In the alternative, the TWU sought monetary compensation for the applicant.

The Respondent’s Case

[23] The submissions made on behalf of the employer opposing the claim were constructed by reference to the various provisions contained within section 382 of the Act.

[24] The employer's submissions stated that there was no significant factual dispute regarding the conduct that established the basis for the applicant's dismissal. The employer acknowledged that the applicant had openly confessed to falsifying or tampering with his timesheet. The employer submitted that this conduct was in breach of the obvious duties of good faith and fidelity that an employee owed to an employer. According to the submissions of the employer, the misconduct was wilful and therefore summary dismissal was required.

[25] The employer submitted that one matter of factual conflict represented a relevant consideration. The employer submitted that the applicant did not initially disclose the discrepancies with his worksheet during the early part of the meeting held on 2 July. The employer submitted that the applicant was not truthful when he initially answered questions about the veracity and accuracy of his worksheet. The employer pointed to the change in the applicant's evidence as basis to reject the more recent suggestion that the applicant voluntarily offered the employer information confirming the falsification of the worksheet.

[26] According to the submissions made on behalf of the employer, the applicant's conduct had irreparably destroyed the relationship of trust and confidence between him and his employer. The employer said that the falsification of the worksheet of 1 July was of itself, misconduct that justified summary dismissal. In addition the employer was entitled to also rely upon the earlier events of September and November 2009 as providing support for the decision to dismiss the applicant.

[27] The employer made further submissions about the legislative and regulatory requirements imposed on the transport industry to ensure the safety of the general public. According to the employer, the applicant was a professional driver and a deliberate breach of the fatigue management legislation represented proper basis for dismissal.

[28] The employer further submitted that the criticisms made by the TWU of the process that had been adopted and which led to the dismissal of the applicant should be firmly rejected. The employer mentioned that the applicant had been suspended from duty between 2 and 7 July and there could be no valid suggestion that the applicant was not aware of the seriousness with which the employer was treating the matter. Further, the employer submitted that the applicant had been given an opportunity to respond in respect to the issue of the falsification of his worksheet and that this opportunity extended to 3 separate meetings held on 2, 7 and 14 July.

[29] In summary, the employer submitted that the dismissal of the applicant was not harsh, unjust or unreasonable. The employer submitted that the applicant’s conduct whereby he deliberately falsified an important employment related document, represented serious misconduct that destroyed the necessary relationship of trust and confidence between him and his employer. The falsification of the worksheet by the applicant also revealed that the applicant deliberately breached the driving fatigue legislation and then sought to conceal his action. In these circumstances the employer urged FWA to dismiss the claim.

Consideration

[30] The consideration of this matter has not involved the issue of the exercise of the discretion provided by subsection 394 (3) of the Act to permit the application to proceed notwithstanding that it had been made beyond the 14 day time limit established by subsection 394 (2) of the Act.

[31] Section 385 of the Act stipulates that FWA must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[32] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically, whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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 FWA considers relevant.

S. 387 (a) - Valid reason for the dismissal related to capacity or conduct

[33] There was no dispute that the applicant was dismissed primarily because of his falsification of his worksheet for 1 July 2010. The termination letter also mentioned earlier events of September and November 2009 as relevant to the decision to dismiss. The earlier events were not the subject of formal warning and for the purposes of this consideration I have not treated the earlier events as acts of misconduct that in aggregation with the falsification of the worksheet of 1 July represented the reason for dismissal. The earlier events, particularly the event of November 2009, are more relevant as providing evidence of the applicant's knowledge of the importance attached to the integrity of information recorded in the daily worksheets particularly in respect to driver fatigue management.

[34] The evidence provided in this matter has confirmed that the applicant deliberately falsified his daily worksheet for 1 July 2010 in an attempt to conceal his breach of the driver fatigue management regime. This was an act of misconduct that was admitted by the applicant on 2 July 2010, and not subsequently the subject of any factual contest. It was therefore somewhat unusual that a matter without any significant factual conflict involving a deliberate breach of heavy vehicle driver fatigue management regulations would be supported by the TWU, an organisation which has, over many years, strongly advocated for the imposition and enforcement of stringent driver fatigue management regulation.

[35] The deliberate falsification of an important employment related document such as a daily timesheet is, in the absence of any justification, gross and wilful misconduct that justifies summary dismissal. In this instance the TWU on behalf of the applicant, sought to provide justification for the deliberate falsification by reference to two factors. Firstly, justification was proffered because the applicant did not obtain any particular financial benefit from the falsification. Secondly, the TWU submitted that the falsification could be justified as it represented a “...momentary lapse of judgement”.

[36] A deliberate falsification from which the perpetrator obtains no tangible benefit can, in some circumstances, militate against establishing that the falsification represented gross and wilful misconduct sufficient to justify summary dismissal. It is more difficult to contemplate that a deliberate falsification might be justified because it occurred quickly or was not repeated. What is fundamental to any assessment of a deliberate falsification in an employment context, is whether the perpetrator deliberately sought to mislead the employer such that the employer could reasonably have lost faith and trust in the employee to act truthfully in any ongoing employment relationship.

[37] In this instance particularly having regard for the nature of the falsification, I have been convinced that the employer genuinely lost faith and trust in the applicant to act truthfully. Therefore the employer was entitled to treat the applicant's deliberate falsification of the worksheet as gross misconduct providing proper basis for summary dismissal.

[38] Consequently there was a valid reason for the dismissal of the applicant.

S. 387 (b) - Notification of reason for dismissal

[39] The applicant was given unambiguous verbal notification of the reason for his dismissal on 7 July 2010. The delay with the posting of the termination letter appeared to be connected with representations made by the TWU and which gave rise to a further meeting held on 14 July. Consequently this factor does not provide any basis for criticism of the dismissal of the applicant.

S. 387 (c) - Opportunity to respond to any reason related to capacity or conduct

[40] The employer suspended the applicant from duty on 2 July as a direct response to the applicant’s confirmation that he had deliberately falsified his worksheet. The immediate suspension of the applicant was an appropriate reaction which immediately treated the misconduct of the applicant with an appropriate level of seriousness relative to misconduct that could justify summary dismissal. In these circumstances the applicant would have had no misapprehension as to the seriousness of the matter and he gave evidence that he made contact with a TWU official, Mr Ken Hurst, shortly after the meeting of 2 July.

[41] This situation provided the applicant with ample opportunity to respond to the issue that had caused his suspension from duty. Whilst absent from work on suspension the applicant had an enhanced capacity to communicate with the TWU about the formulation and communication of any response related to the issue of the falsification of his worksheet.

[42] The procedure adopted by the employer on 7 July whereby the decision to dismiss the applicant had been made before providing the applicant with an opportunity to be heard in respect to the events of the preceding Thursday and Friday, denied the applicant natural justice. Although the applicant had admitted to misconduct involving the deliberate falsification of his worksheet, the preparation of the termination letter prior to the meeting of 7 July pre-determined the outcome and extinguished any prospect for impartial consideration if the applicant was to provide for some basis for justification of his misconduct.

[43] This particular aspect of the employer's procedure must attract strong criticism. However, upon providing the applicant a proper hearing in respect to all aspects of his misconduct, the applicant and those acting on his behalf, have not been able to establish any justification for the misconduct. Consequently although the decision made by the employer involved a significant procedural error, that error, in this instance, does not disturb the underlying substantive basis for dismissal.

S. 387 (d) - Unreasonable refusal to allow a support person to assist

[44] There was no evidence that the applicant was denied an opportunity to have a support person of his choosing to assist. There was some criticism made of the attendance of TWU delegates rather than an official from the union at meetings held on 2 and 7 July. However the applicant had made contact with Mr Hurst from the TWU shortly after his suspension from duty on 2 July. There was no evidence to suggest that the applicant requested that an official of the TWU be present at the meeting of 7 July and that the employer refused such a request.

S. 387 (e) - Warning about unsatisfactory performance

[45] In this case the dismissal did not relate to unsatisfactory performance.

S. 387 (f) - Size of enterprise likely to impact on procedures

[46] This issue is not relevant in this instance.

S. 387 (g) - Absence of management specialists or expertise likely to impact on procedures

[47] This issue is not relevant in this instance.

S. 387 (h) - Other relevant matters

[48] The applicant’s reasonably lengthy period of employment, almost 10 years, during which there were no recorded performance or conduct complaints, must assist him in any consideration of a claim for unfair dismissal. However, in circumstances of a summary dismissal founded upon serious and wilful misconduct involving established dishonesty, an employer is entitled to conclude that even exemplary past employment of long standing cannot re-establish the trust and confidence that is a fundamental component of any employment relationship.

[49] Similarly other personal factors that were advanced as providing a basis for a finding of harshness generate sympathy from FWA but do not operate to alter the employer’s genuinely held view that the applicant’s misconduct had irreparably destroyed a fundamental tenet of the employment relationship. It is also relevant to note the absence of evidence that these matters of a personal nature were conveyed to the employer by the applicant or those acting for him, at or around the time of the dismissal.

Conclusion

[50] The applicant was dismissed because he deliberately falsified important employment related documents. Although the applicant did not obtain any personal financial gain from the falsification, the deliberate attempt to conceal a breach of driver fatigue requirements created potential for significant repercussions for the employer. Importantly the deliberate falsification once properly confirmed and considered by the employer, caused genuine and reasonable loss of trust and confidence such that continued employment was untenable. Consequently a proper basis was established to justify summary dismissal.

[51] Although the employer initially implemented an appropriate process for dealing with the discovery and confirmation of the misconduct of the applicant, it regrettably failed to give him a proper hearing before deciding to dismiss. The employer should have used the meeting of 7 July to hear from the applicant as to any factors which could possibly provide for justification of the falsification of the worksheet. This procedural error has, in the fullness of time, proven not to have caused any injustice to the applicant as no justification or mitigation for the falsification has been established.

[52] Other factors which were advanced as providing either justification or mitigation of the misconduct once analysed, have not provided any basis for disturbing the employer’s decision to dismiss.

[53] Consequently the dismissal of the applicant was not harsh, unjust or unreasonable and the application seeking remedy for unfair dismissal must fail. Accordingly the application is dismissed.

COMMISSIONER

Appearances:

Mr N McIntosh from the Transport Workers Union of Australia, for the applicant.

Mr L D’Apice and Ms G Neill, for Linfox Pty Ltd.

Hearing details:

Sydney, 4 November 2010

Printed by authority of the Commonwealth Government Printer

<Price code C, PR505970>