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The full decision can be found here.

The Fair Work Commission determines that claiming hours that were not worked as fraudulently obtaining financial advantage.

Introduction

This matter was brought to arbitration by the applicant’s union. The applicant was seeking reinstatement following his dismissal in April 2019, following some 28 years of employment with the respondent.

The Applicant was terminated for serious misconduct for “tailgating”, that is, closely following a person through security access in a manner that avoided the need for the Applicant to swipe his security access card, and so not accurately recording time and attendance.

Background

The Applicant’s conduct was described by the Respondent in the termination letter of 12 April 2019, as obtaining a “financial advantage that is being payment for hours not worked and accruing and taking Rostered Days Off not entitled (Fraud).” That letter stated the Applicant had failed to comply with the Respondent’s “Absence and Attendance Policy and Living our Values-Principles for Ethical Decision-Making, Signature Behaviours and the [Respondent’s] Enterprise Agreement…,” and described his conduct as corrupt conduct. Notwithstanding that the Applicant’s conduct was found to constitute serious misconduct, he received five weeks pay in lieu of notice.

The Applicant’s ordinary hours of work were 35 hours a week. His usual hours were from 7.00 am to 3.25 pm, with a half hour lunch break, over a nine-day fortnight. He had to be at work for 8 hours 25 minutes, including the 30-minute unpaid meal/lunch break). The Applicant, and other employees completed an Attendance Signature Book, which recorded their actual commencing and finishing times. Each employee’s manager would initial the times inserted by the employees.

In 2017, the Applicant was put on a performance improvement plan due partly to a negative attitude, being disrespectful and undermining his manager, and not recording utilisation of time during core hours. After approximately three months, the Applicant’s performance was deemed satisfactory.

In September 2017, the Applicant’s manager met with the Applicant to discuss his leaving work early (1.05 pm) without authority the Applicant’s general attendance and trends relating to start and finish times. Following an ensuing investigation, the Respondent was issued with a warning relating to his timekeeping.

Union Involvement

Following the warning given to the Applicant, the union’s organiser emailed the Applicant’s manager:

[Name]

Just had a meeting with [name] from [work] area it’s about their swipe cards. [The manager] has called all the staff into a meeting about there [sic] are abnormalities about the data they have collected from there [sic] swipe cards. She said she will try give them a 5 day amenesty [sic] if the [sic] come forward and confess up. This is a witch hunt and I suspect they are trying to get [the Respondent]. I have never seen this done in all my time in [the Respondent]…”

On 6 March 2018, the union organiser wrote to various managers of the Respondent, regarding a number of concerns expressed at a union meeting. Under the heading “Surveillance of Employees.” In essence this correspondence expressed the union’s concern that technology that was supposedly in place for safety and security was being used as a tool to enforce timekeeping requirements.

His Honour was not impressed with the Applicant’s evidence, commenting:

“The Applicant was an unreliable witness. He has shown throughout, from the investigation process prior to his dismissal, up until the conclusion of his evidence before this Commission, to be evasive and contradictory in his evidence regarding tailgating. He has continually sought to downplay the gravity of his conduct”.

Onus of proof falls on the respondent

As the Applicant was dismissed for serious misconduct, the onus of proof in rests with the Respondent, with the standard of proof is the balance of probabilities, with the more serious the allegation requiring the higher burden on the Respondent to prove the allegation.

His Honour considering:

“As the matter involves the serious allegation of fraud, with potentially far reaching and catastrophic effect on the employee’s future employment prospects, that allegation should not be levelled, or be found to exist, without clear and cogent proof.

“The Concise Macquarie Dictionary defines ‘fraud’ as ‘deceit, trickery, sharp practice or breach of confidence by which it is sought to gain some unfair or dishonest advantage.’

“In the statutory context, particularly relating to crimes, s.192E(1) of the Crimes Act (NSW) defines “fraud” as:

(1) A person who, by any deception, dishonestly:

(a) obtains property belonging to another, or

(b) obtains any financial advantage or causes any financial disadvantage,

is guilty of the offence of fraud.

Maximum penalty: Imprisonment for 10 years.’

His Honour cited an earlier decision Adamopoulos v Thompson Healthcare Pty Ltd, Deputy President Sams found (in a part of that Decision not disturbed on appeal) that:

“In my opinion, the objective bystander would consider ‘fraud’ as being wrongful or criminal deception intended to result in financial or personal gain. …”

Commission make it clear that falsifying time records is fraud

“This Commission and its predecessors have consistently considered falsifying time records to procure payment for work not done as fraud. Those matters have ordinarily involved the use, or more correctly misuse, of “bundy card” systems. In 1991, Justice Munro observed in one such a matter:

None of the complaints made against A.S. impugns the way in which he performed his work, or his diligence in matters other than time-keeping practices. I am unable to conclude that either breach of duty in relation to time-keeping strictly applied could be interpreted as a means of seeking to defraud the Company by falsifying records to get payment for work not done. Neglect to log on, and late arrival at work are less heinous forms of breach than deliberate cheating by procuring false bundy entries.” (Emphasis added).

“More recently, Commissioner Cambridge observed in Johnston and Lewis v Total Care Group:

Johnston’s circumstances were different to the position of Lewis. Johnston made deliberately false entries for the departure times of Lewis. Unless there were mitigating circumstances or some acceptable explanation, the deliberate falsification of timekeeping records usually provides justifiable basis for dismissal, including summary dismissal.”

Conclusion

His Honour concluding:

“I find that the alleged misconduct, being tailgating to obtain financial advantage of payment for hours not worked and accruing and taking Rostered Days Off to which the Applicant was not entitled, took place. The CCTV footage shows beyond any doubt that tailgating occurred, and the Applicant concedes that it did occur. I also find the extent of that conduct far exceeded that shown on the CCTV footage.

“As to the intention to defraud, I find that the Applicant tailgated during business hours to disguise his absences from the Respondent’s premises so as not to have to “make up” the time absent from work. It was at the very least wrongful deception resulting in financial and/or personal gain, and so fraudulent conduct”.

Having also determined that the Applicant was warned about such behaviour, the application was dismissed.

Commentary

28 years of employment up in smoke. I don’t blame the union for bringing the unfair dismissal: it is their job to assist their members.

The respondent in this matter, left the Applicant with little or no defence. Warning were given, policies were in place. It even provided an “amnesty” for employees to come ward without fear of retribution. Despite all this the Applicant was determined to sabotage his 28 years of employment with ignoring the inevitable – either comply or be subject to dismissal. He took the latter option (pun intended).