https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4629.htm

As the title suggests, the dismissal of an employee who was caught clocking on for another employee, was found to be fair and reasonable by the Fair Work Commission. It does however raise the issue of whether you have a timekeeping policy in place, and it is suitably implemented

Prior to his dismissal, the applicant had been employed for some 20 years by the respondent. Following an investigation into the matter that occurred on 22 January 2019, the applicant was dismissed on 11 February 2019 for serious misconduct regarding his conduct.

The respondent was able to provide:

  • CCTV footage of the incident.
  • Policy documents were displayed on all noticeboards.
  • The respondent’s employee handbook and enterprise agreement stated that “Clocking on/off for another employee” was an example of “serious misconduct”.
  • The applicant claimed it was a one-off mistake and sought the maximum award of 26 weeks ($26,000) payment. The applicant stated that such an award an order would be appropriate to make in light of his age, length of service with the respondent, his issues with deafness and his plans to work past the retirement age of 67. He did not seek reinstatement.
  • Whilst the applicant argued that he has tried to gain employment since the dismissal, it was noted that his efforts to find new employment were limited to searching Google once per week, and it was mostly his wife and daughter that undertook such searches.

The Commissioner finding:

“I have no hesitation whatsoever in concluding that on the occasion [that the applicant clocked on for another employee], it was a deliberate act. I do not accept it was an error on [the applicant’s] behalf or that somehow he mistakenly clocked in [the other employee’s] card when he meant to re-clock in his own card. The footage is demonstrative of [the applicant] attempting a sleight-of-hand to swiftly move up the catalogue of cards, however he does have to reach up to [the other employee’s] card, and there is not any possibility that it was accidental or inadvertent.

“Relevant to [the applicant’s] submission that he did not derive a personal gain from any misconduct relevant to clocking [the other employee] in, I do not accept such a submission. [The respondent] is entitled to have full trust and confidence in its employees, particularly those handling cash. It matters not that the perceived benefit of clocking [the other employee]…did not directly benefit Mr Robinson”. [My emphasis].

The Commissioner also took into account the applicant’s age and length of service (20 years), finding:

“Relevant to [the applicant’s] submission that he should have been issued a final warning instead of being dismissed, I am satisfied that the respondent] was entitled to conclude that [the applicant’s] conduct relevant to the time clock issue matched its reasonable definition of serious misconduct, and given the industry in which it operates [security], [the applicant’s] dismissal cannot fairly be characterised as a disproportionate response to his conduct. The detrimental consequences which have resulted from the dismissal must be considered to be the inevitable result of the fact that [the applicant’s] conduct rendered the continuation of his employment untenable”.