Lance Camilleri v  IBM Australia Limited, (U2014/5954) [2014] FWC 5894, O’Callaghan, SDP

In this matter, that seems completely contradictory to the conclusions in the previous decision, the Applicant (“Mr Camilleri”) was rewarded (sorry, awarded):

  • Reinstatement to his former or similar position
  • Payment for lost wages from termination to reinstatement (deducting was “mistakenly” misclaimed
  • A further deduction of 50% of lost wages because it was Mr Camilleri’s misconduct that ultimately resulted in the termination of his employment.

Mr Camilleri had 17 years of unblemished employment history. During the period from October 2011 to 26 September 2012 the Applicant made various expense related claims in breach of policies, practices and code of conduct.

In essence, according to the IBM investigative process, Mr Camilleri:

  • Fraudulently claimed 141 night expenses, in the form of per diem payments for nights when he was not in Melbourne on IBM business;
  • Fraudulently claimed reimbursement for air travel to the Gold Coast from Melbourne for a personal trip; and
  • Used his personal credit card to make payments associated with accommodation payments instead of his IBM provided credit card.

The IBM investigative to termination process was criticised because of the length of time from the alleged offence (which was discovered only after an internal audit) was as follows:

  1. May 2013: Internal Audit function; to
  2. 8 November 2013: Internal Audit function plus HR; to
  3. Various e-mails; to
  4. Disciplinary Action Review Committee (DARC); to
  5. 23 December 2013: Managing Director; to
  6. 21 January 2014, the Applicant provided with the audit findings; then suspended him with pay and requested him to respond by 23 January 2014; to which
  7. The Applicant advised that he had applied for annual leave for an overseas trip commencing 24 January 2014 and requested an extension of time until 21 February 2014; to which
  8. IBM agreed to the extension.
  9. 21 February 2014, the Applicant provided a detailed response to the allegation, including:
  • Referring to his employment history and record;
  • Advising that, had the IBM expense reimbursement system identified these matters at an earlier time, he would have then addressed them; and
  • Admitted that it was an error on his part, and had he’d known earlier he would have repaid the amounts in question.
  1. 7 March 2014: the Applicant was advised of the termination of his employment and was paid four weeks pay in lieu of notice.

Comment:  Why pay notice – should have been summarily dismissed. Interesting that IBM has a DARC.

In terms of the SDP’s findings:

  • This was the first and only issue of a disciplinary nature associated with Mr Camilleri’s long period of employment.
  • Mr Camilleri completed the annual code of conduct training and was well aware of the requirement that he should only claim expenses on a legitimate basis.
  • Lodged his per diem claims for the period in question in a series of bulk lodgements…on a monthly basis.
  • The evidence does not facilitate a definitive conclusion in this respect, but I have adopted the position that Mr Camilleri did not exercise care in completing his per diem claims and relied upon the IBM claim management system.
  • In terms of the Gold Coast issue I have accepted Mr Camilleri’s evidence that he gained verbal approval for this trip.
  • The substantial time between that event in July 2012 and the interview in November 2013 is significant in that I have accepted that it is quite possible that Mr Camilleri would not be able to recall with whom he had reached that particular arrangement.
  • However, it is clear that Mr Camilleri’s subsequent travel from the Gold Coast to Adelaide must have involved additional expense for IBM and I consider that his conduct in not immediately recognising this must represent misconduct (my emphasis).
  • In terms of the credit card issue I have concluded that Mr Camilleri used his personal credit card because this suited him as he accumulated loyalty points on that card [and] having been previously counseled had concluded that …Mr Camilleri was entitled to conclude… a matter that had been previously resolved.

The SDP went on to conclude that the process followed by IBM…was profoundly affected by the presumption that the multiple inappropriate per diem claims warranted termination of employment.

Quoting the SDP:

“Having considered all of the circumstances of this matter, I have concluded that the termination of Mr Camilleri’s employment was harsh given his substantial service and employment history, including the particular circumstances under which he made the inappropriate per diem claims. To the extent that IBM took into account the Gold Coast trip and credit card issue, this contributes to the harshness of the termination of his employment. I have concluded that the termination of Mr Camilleri’s employment was unjust given the long delay in the investigation process, the fact that Mr Camilleri was limited in his capacity to respond to the allegations against him and IBM’s limited consideration of his ultimate responses. Further, IBM’s decision to require Mr Camilleri to continue to work when it had made an in principle decision to dismiss him because it had no confidence in him, contributed to the injustice of the decision.”

The mind boggles.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.