[2018] FWC 3967 [Note: An appeal pursuant to s.604 (C2018/3967) was lodged against this decision - refer to Full Bench decision dated 25 July 2018 [[2018] FWCFB 5972] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Charles Tham
v
Hertz Australia Pty Limited T/A Hertz
(U2017/10023)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 4 JULY 2018

Application for an unfair dismissal remedy.

[1] Mr Charles Tham (Applicant) commenced working for Hertz Australia Pty Limited T/A Hertz (Hertz) (Respondent) on 25 November 2016 as Vehicle Services Attendant until he was dismissed on 25 August 2017 at the initiative of the employer. The dismissal took effect immediately.

[2] On 14 September 2017, Mr Tham made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Hertz.

[3] Mr Tham was dismissed for engaging in misconduct by providing false and misleading information to Hertz during the recruitment process. Mr Tham submitted that his dismissal was unfair as he had notified the Respondent of the inaccurate information in his resume prior to the commencement of his employment and that it was disproportionate in the circumstances.

[4] Hertz denied that Mr Tham had provided notification of the inaccurate information and submitted that Mr Tham had intentionally lied on his resume so as to avoid being asked questions regarding a four year gap in his employment history.

Procedural Background

[5] This matter was conciliated on 18 October 2017 however remained unresolved. The matter was subsequently listed for arbitration before me on 3 May 2018.

[6] Mr Tham appeared and gave evidence on his own behalf.

[7] Taking into account the complexity of this matter, to assist with the matter being dealt with more efficiently I granted the Respondent permission to be represented under s.596 by Mr Andrew Pollock of counsel.

[8] The following witnesses gave evidence on behalf of Hertz:

Preliminary Matters

[9] Mr Tham filed his application twenty days after he was dismissed, within the time limit prescribed by s.394(2) of the Act.

[10] During his employment with Hertz, Mr Tham was covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 and his annual earnings were well below the high income threshold.   Mr Tham’s period of employment with Hertz was longer than the minimum employment period. Mr Tham is protected from unfair dismissal under the Act.

[11] As at 25 August 2017, Hertz had approximately 69 employees, therefore the Small Business Fair Dismissal Code does not apply.

[12] No issue of redundancy arose in the proceeding and I find that the dismissal was not a case of genuine redundancy.

[13] Therefore the issue for me to consider is whether Mr Tham’s dismissal was harsh, unjust or unreasonable.

Background and evidence

[14] Hertz submitted that Mr Tham was dismissed after they had formed the view that he had intentionally misrepresented the period of his employment with a former employer in his resume. 1 They submitted that the resume Mr Tham provided to them when applying for his role listed his employment with a previous employer as being between August 2010 and September 2015 when in reality he was employed for a much shorter period.

[15] Mr Tham submitted that his dismissal was unfair as the reason relied upon by Hertz was not valid in the circumstances as he had alerted representatives of the Respondent to the issue prior to the commencement of his employment and because it was not proportionate in all the circumstances. 2

[16] Mr Tham had applied for the position of Customer Service Representative with Hertz on 25 September 2016 after seeing the position advertised on the RMIT careers website. As part of his application he attached a copy of his resume which included in the ‘Experience’ section that he had worked at Conrock Group Pty Ltd (Conrock) as a Quality Control Assurance/Checker from August 2010 to September 2015. Mr Tham had in fact only worked for Conrock from August 2010 to June 2011. 3

[17] The resume 4 presented to Hertz by Mr Tham documented his employment history as follows;

[18] The resume also records that Mr Tham had obtained a Bachelor of Civil and Infrastructure Engineering at Royal Melbourne Institute of Technology (RMIT). The relevance of Mr Tham’s education and employment history is discussed later in this decision.

[19] On 11 November 2016, Mr Tham attended Hertz and signed an application for the role of Vehicle Services Attendant which included the following acknowledgement:

“I understand that providing false information or withholding information relevant to my application for employment with Hertz may result in the withdrawal of an offer of employment or termination of employment.” 5

[20] Hertz offered Mr Tham a role as a Vehicle Services Attendant and he commenced working on or around 1 December 2016. 6 After being offered employment with Hertz, Mr Tham signed a further acknowledgement that providing false information or withholding information relevant to his application could result in the withdrawal of an offer of employment or termination.7 Mr Tham signed a contract of employment with Hertz, initialling every page, which provided in part as follows:

“You are required to:

a) carry out to the best of your abilities and knowledge the duties associated with your position and such other duties as are assigned to you by Hertz from time to time including, as applicable, those set out in any position description given to you by Hertz from time to time;

b) perform the responsibilities and duties honestly and in a proper and efficient manner;

c) comply with all reasonable and lawful directions of Hertz;

d) use your best endeavours to promote and enhance the interests, welfare, business, profitability, growth and reputation of Hertz; and

e) not intentionally do anything that is or may be harmful to Hertz” 8

[21] Shortly after his engagement problems began to arise in Mr Tham’s employment relationship with Hertz. Ms Lucchesi, Senior Human Resource Business Partner, submitted that over a relatively short period of time, Mr Tham raised a series of issues, including a number of complaints about various matters related to his employment, some of which she says were completely frivolous and unmeritorious. 9

[22] Mr Tham claimed he sustained an injury at work on 26 February 2017 and filed an incident report. On 5 or 6 March 2017, Mr Tham lodged a Worker’s Injury Claim Form which was accepted in early April. He was provided with a return to work plan setting out his medical restrictions and suitable duties for him to complete. 10 He submitted that after his injury he did not work for some time as Hertz cancelled his shifts, advising him that business was slow.11

[23] Ms Lucchesi disputed that Hertz cancelled Mr Tham’s shifts and submitted that the reason Mr Tham did not work between 27 February 2017 and 18 April 2017 was because he produced Certificates of Capacity which stated he had no capacity for work. She submitted that Mr Tham returned on modified duties on 19 April 2017 with duties thereafter determined in consultation with his GP. 12 Ms Lucchesi submitted however that she had some concerns with the validity of the claim and the underlying injury.13

[24] She submitted that Mr Tham had reported that he had injured his shoulder by lifting a 10 litre can or barrel of water to refill the windscreen wiper water dispenser in a vehicle. She was advised he had done so instead of using the overhead water hose as the water hose was not working. Ms Lucchesi submitted that whilst they were experiencing issues with the overhead water hoses at the time, Vehicle Services Attendants were provided with one litre watering cans which they were instructed to utilise. She further submitted that Hertz does not have 10 litre water barrels or cans at any of its operations. 14

[25] Ms Lucchesi submitted that Ms Olsen, Regional Support Manager, looked for the 10 litre water can or barrel around the time that Mr Tham lodged his claim, however was unable to find it. 15 Further, Ms Lucchesi submitted that Mr Tham’s Certificate of Capacity referred to a diagnosis of bursitis, which she believed was a degenerative condition that developed over time. She submitted that she asked their workers compensation provider to investigate the claim, however they ultimately decided to accept it.16

[26] Ms Lucchesi submitted that on 25 May 2017 she attended a case conference with their workers compensation provider, Mr Tham and his GP. The conference was called as Hertz had prepared a return to work plan that Mr Tham’s doctor had refused to sign off on. During this conference, Mr Tham’s doctor advised that he had only been provided with one of the two pages of the return to work plan which is why he had refused to sign off on it. Ms Lucchesi submitted that the only reason she could think of for why Mr Tham would only have provided one page of the plan to his doctor was to avoid working. 17

[27] It is not in contention that between February 2017 and August 2017 Mr Tham made four complaints to WorkSafe about matters relating to his workers’ compensation claim, including how the injury was sustained, Hertz’s compliance with return to work obligations and the duties he was provided following his return to work. Mr Tham submitted that his complaints to WorkSafe were about instances of bullying he had experienced in June and August of 2017. Ms Lucchesi’s submission was that Hertz was not issued with a provisional improvement notice or otherwise criticised by WorkSafe in relation to its practices in respect of any of the matters raised by Mr Tham. 18

[28] It is also not in contention that Mr Tham made a complaint to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) in relation to instances of discrimination he submitted he experienced at Hertz. 19 The complaint filed in the VEOHRC alleging discrimination was not resolved and closed around 9 June 2017. Mr Tham then filed an application with the Victorian Civil and Administrative Tribunal alleging discrimination by Hertz. Ms Lucchesi submits that the matters outlined in Mr Tham’s application were either entirely untrue or entirely misconstrued and without merit.20

[29] Further it is not in contention that between June 2017 and August 2017 Mr Tham raised six disputes with the Accident Compensation Conciliation Service about matters relating to his workers’ compensation claim. One of these disputes was settled, one withdrawn as it was outside of the Service’s jurisdiction and a certificate was issued in relation to the remaining disputes noting that there was an arguable case in support of the denial of liability to make the weekly payments that Mr Tham believed were payable to him. 21

[30] Ms Lucchesi also submitted that Mr Tham made numerous complaints to the Fair Work Ombudsman regarding his return to work duties and workers’ compensation payments. After discussions with the Ombudsman, Ms Lucchesi submitted that she was informed that they did not have any concerns with the practices Hertz had adopted and would not be commencing any investigation. 22

[31] Ms Lucchesi’s evidence was that, on the basis of these applications, she formed the view that Mr Tham was ‘abusing the system’ and he had at no stage sought to address his concerns via Hertz’s internal mechanisms.  23

[32] She submitted that Mr Tham’s primary manager at Hertz was Ms Emma Olsen, however he was also under the management of the supervisor in charge on any given shift. Between May and June of 2017, Mr Lucchesi submitted that she was constantly approached by supervisors in Mr Tham’s team seeking support as to how to manage him as he was argumentative and difficult. 24

[33] Ms Lucchesi submitted that towards July of 2017, the frequency with which she was being approached along with the concerns being expressed regarding Mr Tham’s behaviour led her to decide to take over the direct management of Mr Tham for a period of time. 25

[34] On 26 May 2017 Ms Lucchesi sent correspondence to Mr Tham requesting he meet with her in regards to complaints raise by some of his managers. A number of emails were exchanged between Ms Lucchesi and Mr Tham. Mr Tham insisted that Ms Lucchesi put the complaints in writing and therefore he required that the meeting be postponed. In his correspondence to Hertz Mr Tham dictated the time, date and terms of the meeting. He sent further correspondences outlining what he considered to be his rights and Hertz’ responsibilities stating;

“Dear Alicia,

I have the right to answer in writing in 5 working days. I need time to proper answer it. If you insist in 24 hours then I absolutely disagree with that.

If you think that I breech your rule not providing you by 5 working days then you can write me by letter officially and you might terminate me for the worst scenario by not responding in writing your questions in 24 hours.

Remember if you provide me an interpreter without his license or Australian qualified translation (NAATI). I will have the right not to proceed the meeting or respond your particular questions.

As you said this meeting is private and confidential and so I am aware that you do not agree to be recorded by your side and my side. The only thing that we can do is taking notes.” 26

[35] On 16 June 2017 Mr Tham was issued with a First Written Warning in relation to the allegations of poor behaviour and conduct arising from an incident occurring on 24 May 2017. 27 The written warning stated the following:

“… any further issues relating to your conduct and/or behaviour will result in further disciplinary action up to and including the business not offering any further work opportunities to you.” 28

[36] Ms Lucchesi submitted that she had real concerns regarding Mr Tham’s character and as such commenced making enquiries regarding the information that he had provided when he applied for his role. 29 Those enquiries included contacting Mr Tham’s prior employers, trying to verify Mr Tham’s degree, and performing a search in Google to identify whether Mr Tham had brought any proceedings against his former employers. One of those searches revealed that Mr Tham had filed an unfair dismissal application against Conrock in 2011 after being dismissed by them on 1 June 2011.30

[37] Ms Lucchesi submitted that these dates were inconsistent with Mr Tham’s resume and she was immediately concerned that Mr Tham had intentionally sought to deceive Hertz as to the period of his employment with Conrock. She submitted that she thought it was highly unlikely that Mr Tham could have made a typographical error in relation to both the month and the year in which his employment with Conrock ended. Ms Lucchesi noted that Mr Tham’s resume did not list any other employment between 2011 and 2015. 31

[38] Ms Lucchesi submitted that she considered the discrepancy in the dates to be a serious issue that needed to be put to Mr Tham. She consulted with Mr Brendan Saville, HR Lead Asia Pacific, who agreed that an allegation should be put to Mr Tham that he had provided false and misleading information to Hertz on application for employment. She met with Ms Olsen to inform her of what she had found and to discuss the next steps in terms of addressing the matter with Mr Tham, including conducting a meeting to inform Mr Tham on 24 August 2017. 32

[39] It is not in contention that on 24 August 2017, Ms Lucchesi and Ms Olsen met with Mr Tham on his arrival at work and that Ms Lucchesi gave Mr Tham a copy of the allegation letter she had prepared advising Mr Tham that he would need to meet with herself and Mr Saville the next day to discuss an allegation that he had engaged in serious misconduct. 33

[40] Ms Lucchesi submitted that she read the letter out to Mr Tham word for word and when she read out the part advising that the meeting was set for the following day, Mr Tham stated that he needed more time. Ms Lucchesi oral evidence was that she told Mr Tham he had been given adequate notice of the meeting and that she would not be changing the date and time. Her evidence was that she believed 24 hours to be sufficient for Mr Tham to arrange a support person and prepare for the meeting given the allegation was fairly straight forward. Ms Lucchesi submitted that she advised Mr Tham that she could arrange for another employee to be Mr Tham’s support person if he wished. 34

[41] Ms Olsen’s gave similar evidence stating that during the meeting Ms Lucchesi handed Mr Tham a letter regarding the allegation and read it out to him. In response to being advised of the need to attend a meeting the following day, Ms Olsen submitted that Mr Tham stated he did not have enough time. She did not recall if he explained why he considered that he needed more time. Her evidence was that Ms Lucchesi advised Mr Tham that he had been given 24 hours and that this was sufficient for the purpose of responding to the allegation. 35

[42] Mr Tham submitted he was handed the letter and told that he needed to attend a meeting the following day without providing him with an opportunity to read the letter. 36 He submitted that Ms Lucchesi advised him that there were allegations against him as he had stated that he worked for Conrock from 2010 to 2015 when he had really only worked there from 2010 to 2011.37

[43] Mr Tham submitted that Ms Lucchesi showed him an email he had sent to Mr Grove indicating that he spoke fluent English and advised that he did not need an interpreter for the following day’s meeting. He submitted that Ms Lucchesi also stated that he was not permitted to have more time to find a support person. 38 Mr Tham’s evidence was that he did not think Ms Lucchesi had said that she would provide him with a support person, and that all he had heard her say was “I need you to come”.39

[44] Ms Lucchesi denied showing Mr Tham the email in which he stated that he speaks fluent English. She submitted that she had the email with her in case Mr Tham refused to attend the meeting without an interpreter, however as Mr Tham made no such request she had no need to produce it. 40

[45] Ms Olsen submitted that contrary to Mr Tham’s evidence, Ms Lucchesi did not produce a copy of the email Mr Tham had sent Mr Grove claiming that he spoke English fluently. Ms Olsen’s evidence was that Ms Lucchesi had only produced this email in relation to a conciliation conducted regarding Mr Tham’s workers compensation claim. 41

[46] Ms Olsen submitted that she had no recollection of Mr Tham raising, at any stage during the meeting on 24 August 2018, the issue of needing an interpreter or support person to attend the meeting the following day. 42

[47] Under cross-examination Ms Lucchesi was unable to confirm when Mr Tham had been advised of the specific allegation against him at this meeting. Her evidence was that Mr Tham had made reference to him knowing about the error in his resume in later correspondence, however in the meeting she had read the letter word for word and did not speak much outside of that. 43 Even after being advised of Mr Tham’s evidence that she had advised him of the specific allegation in this meeting, Ms Lucchesi maintained that she had no recollection of that and had simply read what was in the letter. She submitted that her belief was that Mr Tham may have assumed that the error in his resume might have been what the allegation was regarding.44

[48] Ms Lucchesi’s oral evidence was that she expressed to Mr Tham that if he did not appear at the meeting on 25 August 2017 then Hertz would rely on the information that they had at hand to make a decision in relation to his ongoing employment with the business. 45

[49] It is not in contention that at the end of the meeting Ms Lucchesi advised Mr Tham that he was suspended without pay and asked him to hand over his security pass, Hertz raincoat and ID card as he was suspended. Ms Lucchesi’s evidence was that she needed to ask Mr Tham to hand back the security pass several times before he compiled. 46 Ms Lucchesi explained that employees who are suspended whilst on pay are required to return property with the Hertz company logo on it for security reasons.

[50] Mr Tham’s evidence was that Ms Lucchesi demanded that he return all of the company property immediately, including his work jumper, despite the fact that it was cold outside. He submitted that Ms Olsen permitted him to wear the jumper to his car. Mr Tham also submitted that he asked Ms Lucchesi if his suspension meant that he would not be paid for the day, to which Ms Lucchesi responded “exactly”.  47

[51] Ms Olsen submitted that at the conclusion of the meeting Mr Tham was asked to hand over his Hertz ID, jacket, security buzzer and locker key. She did not recall there being any discussion regarding Mr Tham’s jumper during the meeting, and believed that Mr Tham would have been permitted to wear his jumper to his car as it would have been necessary for him to wear a high visibility item in the carpark. 48

[52] Ms Lucchesi denied speaking to Mr Tham about his pay after the conclusion of the meeting and submitted that the subsequent conversations did not occur as described by Mr Tham. She submitted that she politely requested that Mr Tham hand over his property and did not demand that he hand over his jumper prior to walking to the car. 49

[53] Mr Tham was escorted to his car by Ms Lucchesi and Ms Olsen. Mr Tham submitted that when they reached the car Ms Lucchesi questioned him regarding the status of his VCAT application. Mr Tham submitted that he did not respond and that Ms Lucchesi followed him to the driver’s side door. His evidence was that she then asked him if he would attend the meeting on 25 August 2017, and he responded that he would not be in attendance as he would need one week’s notice and a support person. 50 Mr Tham’s oral evidence was that he told Ms Lucchesi that he needed his support person, to seek legal advice and needed an interpreter.51 When cross-examined regarding these inconsistencies, Mr Tham maintained that he had told Ms Lucchesi he needed legal advice. He submitted that Ms Lucchesi should have known he needed help.52

[54] Mr Tham submitted that Ms Lucchesi then called him a “fucking Asian idiot” and slammed the car door on his injured shoulder. In his oral evidence recounting this incident Mr Tham did not mention Ms Lucchesi’s questioning regarding his VCAT application nor did he mention the alleged racial slur. 53 Under cross-examination, Mr Tham advised that he had neglected these details as he had simply been trying to explain the most important parts of the incident, and did not like to swear. He gave further evidence that he was tired, was having difficulty concentrating and had not checked what was in his witness statement.54 Mr Tham submitted that during the altercation Ms Olsen was standing some distance away and was speaking to another employee.55 Mr Tham’s oral evidence was that Ms Olsen was 7 metres away from the car.56

[55] Ms Lucchesi’s recount of the event was different to that of Mr Tham. She submitted that she escorted Mr Tham to his car without incident. When she told Mr Tham that she would see him tomorrow Mr Tham said that he needed more time and asked for the allegation to be put in writing, to which she responded that he already had the allegation in writing and confirmed that the meeting would remain set for the following day. 57 Ms Lucchesi denied mentioning Mr Tham’s VCAT application to him at this time, denied slamming the car door on Mr Tham and denied yelling and swearing at him. She submitted that Ms Olsen was present during her exchange with Mr Tham and was within earshot and eyesight of what occurred.58 Ms Lucchesi’s oral evidence was that she recalled Ms Olsen being behind her, towards the rear of the vehicle, during the exchange.59

[56] Ms Olsen’s evidence was that once they reached the vehicle, she was standing towards the driver’s side bumper less than 1 metre from the vehicle, able to hear the discussion that took place between Mr Tham and Ms Lucchesi. She submitted that Ms Lucchesi advised that they would see Mr Tham the following day, to which Mr Tham stated he needed more time. She submitted that Ms Lucchesi’s response was that he had been given 24 hours’ notice which was sufficient. 60

[57] Ms Olsen submitted that she saw Mr Tham reach to close his driver’s side door and Ms Lucchesi, whose hand was resting on the top edge of the door, guided the door closed as Mr Tham pulled it. She refuted Mr Tham’s allegation that Ms Lucchesi pushed the door forcefully. She also denied that Ms Lucchesi racially abused Mr Tham or made any mention of his VCAT application. 61

[58] Ms Olsen reaffirmed this version of events in her oral evidence and denied Mr Tham’s assertion that she had been 7 metres away from the vehicle and had been speaking to another employee at the time that it occurred. 62

[59] Mr Tham submitted after the exchange with Ms Lucchesi he immediately left the premises and attended his doctor who issued him with two certificates of incapacity providing that Mr Tham had no capacity for employment from 24 to 30 August 2018. 63 Mr Tham sent copies of these certificates to various people, including Ms Olsen, at 1.49pm on 25 August 2017.64

[60] After attending his doctor Mr Tham visited the police station to file a report against Ms Lucchesi for slamming the car door into his shoulder. He submitted that the police officer at the station did not allow him to file a complaint and advised that it was a civil matter he could pursue through WorkCover. 65

[61] Ms Lucchesi submitted that she subsequently received a call from the police who advised that Mr Tham had alleged that she assaulted him. Ms Lucchesi denied the allegation and informed the police that there was a witness present, Ms Olsen. She submitted that the police were unaware that there was a witness and advised her that they would make enquiries. The following day Ms Lucchesi received a call from the police advising that they would not be taking matters any further. 66

[62] It was put to Mr Tham in cross-examination that he had not advised the police that there was a witness to the incident, and that he had deliberately withheld this information. Mr Tham submitted that he did not recall if he had mentioned that Ms Olsen had witnessed the incident, but denied that he had tried to conceal this information from the police. Mr Tham’s evidence was that “if the police today came to me again I will say Emma was there”. 67 Mr Tham denied that he had made up the incident of assault and racial abuse.68

[63] Mr Tham did not attend the meeting scheduled for 10am on 25 August 2017. Mr Tham submitted that he was severely anxious and depressed and ‘could not think properly’. He also submitted that he was scared to meet with Ms Lucchesi without a support person and an interpreter as he could not arrange them in time. 69 Ms Lucchesi submitted she did not receive any notification from Mr Tham that he would not be attending the meeting.70

[64] After Mr Tham failed to attend the meeting Ms Lucchesi discussed the matter with Mr Saville and that they considered that the error could not have simply been a typographical error given both the month and date were incorrect. She submitted that they considered that there could be no reasonable explanation for the incorrect dates in Mr Tham’s resume and that the only explanation available was that Mr Tham had sought to blatantly lie on his resume so as to avoid having to be asked questions about whether he was working and/or what he was doing during that five year period. 71

[65] She submitted that the significant gap in Mr Tham’s resume presented a substantial issue and would have been of concern to anyone considering Mr Tham for employment. Further, she submitted that Hertz must be able to have a level of trust and confidence in its employees that they will act with honesty and integrity in their dealings with customers and Hertz. As she had lost trust in Mr Tham she considered that the appropriate outcome was the termination of Mr Tham’s employment. 72

[66] Given Mr Tham was employed on a casual basis, Ms Lucchesi submitted that Hertz was entitled to terminate his employment with one hour’s notice. Ms Lucchesi prepared a termination letter and, at 2.02pm on 25 August 2017, sent it through to Mr Tham via email. 73 Her oral evidence was that Mr Tham was made aware of the specific allegation, being the discrepancies in his resume, in this termination letter.74

[67] Ms Lucchesi also arranged for the letter to be delivered to Mr Tham’s home address by courier however was later advised that Mr Tham had refused delivery of the letter. Ms Lucchesi subsequently received an email from Mr Tham stating the following;

“Please do not send anybody to come to my place anymore. Please use Australia Post and I told you right in front of the conciliator … and in front of my work cover assist and independent interpreter that you need to send to my P.O Box …., South Melbourne 3205.

Without my permission you did whatever you like to do. Please remember the human right. Please respect other people privacy.”  75

[68] Mr Tham submitted that on 25 August 2017 he received an email from Ms Lucchesi at 2:02pm attaching a termination letter. He confirmed that Ms Lucchesi had also attempted to have the letter hand delivered by a courier however he had refused to open the door to take the document. 76

Did Mr Tham intentionally provide false information to Hertz?

[69] Mr Tham’s evidence was that on 26 September 2016 after making his application for employment to Hertz he realised that the resume he had submitted contained a “mistake” regarding the dates he had been employed at Conrock. Mr Tham kept a number of versions of his resume on his computer and submits that he had accidentally attached a version that contained the error. 77 Mr Tham’s oral evidence was that he was aware that some of the many versions of his resume contained the wrong information78 and a number of “mistakes”.79

[70] Mr Tham submitted that he called Mr Tom Grove in the late morning the day after he had made his application using the contact number that had been listed on the bottom of the job advertisement and advised him that he had made an error in his resume regarding the dates of his employment with a previous employer. He submitted that Mr Grove asked him about the nature of that work experience and subsequently advised not to worry about the error and that he would speak to the manager. 80 Mr Tham’s oral evidence as to this point was inconsistent. Initially, Mr Tham claimed that he had obtained Mr Grove’s number from his signature in their email correspondence.81 When it was brought to his attention that this was different from what he had asserted in his witness statement, Mr Tham’s evidence changed and he advised that he had found Mr Grove’s contact number on the bottom of the job advertisement.82

[71] Mr Tham was subsequently interviewed for a position with Hertz on 6 October 2016. He submitted that Ms Olsen conducted the interview and that he advised her that he had made a mistake on his resume regarding his previous employment. He submitted that Ms Olsen advised that she was aware of the mistake but not to worry. 83 Mr Tham’s evidence was that during the interview he was not asked why he had left his previous employment.84

[72] When cross-examined about how he had made the error in both the month and year that he was employed, Mr Tham submitted that he had typed the incorrect information and stated he had made a “mistake”. 85 When pressed that the errors could not be typographical errors, and that he had typed in a completely different word, Mr Tham avoided providing a response and simply replied that he had reported “to Emma and the other person that I typed wrongly here”.86 Mr Tham later submitted that he had made the mistakes “because I copy/paste from here, I copy/paste here and then I changed the content or the company”.87 He submitted that he thought another error could have been from an automatic fill.88

[73] Under cross-examination Mr Tham submitted that he had not mentioned that he had been dismissed by Conrock as he was advised by the employment assistance people at his university that he should not include past problems he has had at work. He stated that he had similarly not advised of his dismissal in the application form as “at the interview they did not demand this information”. 89

[74] Hertz submitted that subsequent to Mr Tham’s dismissal they became aware of the full extent to which Mr Tham had misrepresented his employment history and that the discrepancies in his resume are significant. They submit that Mr Tham had misrepresented his prior experience and his previous employment and those misrepresentations were not limited to his period of employment with Conrock. They also submitted that Mr Tham intentionally misrepresented his employment background therefore Mr Tham had breached any trust and confidence Hertz had in his ability to perform his role with honesty and integrity.

[75] During cross-examination it was put to Mr Tham that the details in the resume he had provided to Hertz contained other significant errors. On further review of the resume Mr Tham conceded that there were additional errors. Mr Tham identified what he referred to as other “mistakes” that he had made in relation to the dates of his employment in addition to his incorrect dates he had provided for his employment period with Conrock.

[76] Mr Tham’s evidence was that there was a “big mistake” in the dates of his employment with Balfour Beatty, he had in fact not worked for them from February 2009 to July 2010 as he did not commence working there until after he returned to Indonesia following his dismissal from Conrock. 90

[77] He also advised that there may be an error with the months that he worked for Structural Works, he submitted the months were incorrect yet the year was correct. 91

[78] Mr Tham denied that he had modified the dates in his resume to make it look better. He submitted that he “didn’t really carefully at the year, sometimes the months I didn’t so I keep on sending those (sic)”. 92 It was put to Mr Tham that he had intentionally modified his resume to disguise his history of short term employment and his habit of litigating against his previous employers. Mr Tham denied this to be the case however his evidence was that he had taken Conrock to both the Commission and the Federal Circuit Court in 2014, and commenced a further proceeding against Conrock in the Federal Circuit Court after his first claim was dismissed.93 Mr Tham had also brought proceedings in the Federal Circuit Court against Man Mo Restaurant in 2016.94

[79] Mr Tham had also instituted proceedings in the Federal Circuit Court against his former employer Ikon, submitting that he had been bullied and harassed after making a Workers’ Compensation claim. 95

[80] Mr Tham gave evidence of other such applications he has made regarding other employers. I note that any employee who feels as though their employment rights have been breached are entitled to access the remedies available to them through the courts and only considered the evidence of Mr Tham’s litigation history as far as it pertained to his employment history and its relevance to the matters I need to consider.

[81] At the hearing Hertz presented Mr Tham with a copy of an online application form he had completed when applying for a position with Ikon Services (the Ikon Application). 96

[82] Mr Tham objected to this evidence being adduced and submitted that there was a conspiracy against him and that Ikon Services should not have provided his application form to Hertz without his permission. Mr Tham also raised concerns regarding privacy legislation and his confidentiality. 97

[83] I heard the parties on Mr Tham’s objection and determined that I would allow this evidence to be admitted to the extent that it was relevant to the issues in dispute and the matters I am required to determine. The hearing was adjourned to allow Mr Tham additional time to review the document with the assistance of the interpreter. 98

[84] Mr Tham confirmed that he had filled in the Ikon Application and had declared that the information within it was true and correct to the best of his knowledge. 99 In this application, Mr Tham had outlined the following employment history:

[85] It was immediately evident that the employment history provided to Ikon was significantly different to what had been provided to Hertz. Further to this under cross- examination Mr Tham revealed that he had in fact not worked for PSC for the period outlined in the Ikon Application. He submitted that whilst he had written that he had been employed for a period of five years the reality was he had been employed for less than five years. He submitted that this was yet another “mistake” he had made in providing details about his employment history. 101 He advised that he could not recall when he specifically worked for PSC however it was sometime in 2014 and 2015.102 His evidence was that he had not included this employment on the resume he provided to Hertz as he did not feel his employment as a sales associate was relevant to the role of Vehicle Service Attendant.103

[86] Further to the “mistake” he had made in detailing his service with PSC, Mr Tham conceded that he had also not worked for Don’l for the period outlined in the Ikon Application. He submitted that his employment with this employer was almost concurrent with his employment at PSC. This, he submitted, was yet another “mistake”. 104 Mr Tham confirmed that he had also not included this employment on the resume he provided to Hertz.105

[87] In relation to his employment with Chien Wah, Mr Tham submitted that the period outlined in the Ikon Application could be correct, however he believed that he may have listed that he was employed for less time than he actually was. 106

[88] Mr Tham denied Hertz’ suggestion that he had deliberately provided incomplete or false information in the Ikon Application and submitted that he did not have the intention of misleading Ikon Services or giving them misleading information. 107

[89] Mr Tham’s oral evidence regarding the application for the role of Vehicle Services Attendant was inconsistent. He initially stated that he had read the questions in the form carefully and answered every one, right to the end until it asked him to sign. 108 He stated that he understood that he was required to document his employment history, qualifications, training and referee contact details.109 However, Mr Tham later submitted that, whilst he currently understood what Hertz had been requiring of him, he had not understood at the time as he had been in a hurry to fill in the application form.110 He also stated that he had not read the declaration and had just signed the form.111 When questioned about this inconsistency, Mr Tham stated:

“Five minutes ago you asked me to read that section, and I said yes, I understood. Because I was reading it five minutes ago. Now, you are asking about at the time I was filling in the application form, and my answer was at that time I did not read it. I just signed it.” 112

[90] Mr Tham confirmed that he had initialled every page of the contract however submitted that he had not read it. He advised that he had noted the terms of the contract that were good for him and had believed that the contract would be in his best interests. 113 Mr Tham’s evidence was that he had just ‘skimmed’ the contract rather than reading it line by line.114 Mr Tham maintained that he had not read the contract despite giving a declaration to Hertz that he had read and understood his obligations.115

Evidence of Mr Grove

[91] Mr Grove was formerly employed by Hertz as Regional Development Manager. 116 At the time that Mr Tham was employed Mr Grove was responsible for overseeing the Customer Service and Operations arm of Hertz across all Victorian sites. He submitted that whilst he was involved in the recruitment of candidates for roles within those arms of the business his role was a very limited role.117

[92] Mr Grove submitted that he did not have a direct recollection of any interactions between Mr Tham and himself during his employment and did not believe that he ever met Mr Tham. 118

[93] Mr Grove submitted that his position at Hertz was a busy one with him taking up to 100 calls in a day from internal and external suppliers, new clients, existing clients, customers, employees and internal functions. He submitted that it was rare for him to get phone calls from job applicants but that it did happen on occasion. 119

[94] On 25 September 2016 Mr Grove received an email from Mr Tham applying for a position at Hertz. On 26 September 2016, he forwarded the email to Ms Olsen. 120

[95] Mr Grove submitted that he did not recall any telephone conversation with Mr Tham and that it was unlikely to have occurred as he was usually away from his desk in the mornings and that Mr Tham would not have had his direct telephone number. He rejected Mr Tham’s assertion that his telephone contact details were included on the advertisement and submitted that his number was not publicly available. 121

[96] Mr Grove’s oral evidence was that his telephone numbers, both work and personal, were “not to be advertised by Hertz to any external party in any forum in any circumstance”. 122 He submitted that had the advertisement required a contact number, then the contact number for either head office or the HR department would have been provided.123

[97] Mr Grove submitted that even if he did have a telephone conversation with Mr Tham on 26 September 2016, Mr Tham’s account of the conversation is not correct. He submitted that whilst it was possible that he may have spoken with Mr Tham over the phone he was never contacted by any job applicants during his time at Hertz regarding errors in their resume. 124

[98] If Mr Tham had made him aware of an error in his resume, Mr Grove submitted that he would have asked Mr Tham to resubmit an updated version of the resume with the error corrected. Further, Mr Grove submitted that he would have contacted Ms Olsen to advise her not to progress Mr Tham’s application until an updated resume had been received. He submitted that this may not have been his process if the error was minor, such as a spelling error, however as errors in the dates of employment with a prior employer are significant errors they should be addressed. 125

[99] Mr Grove raised that Mr Tham’s account of the alleged conversation was also unusual in that he stated Mr Grove said ‘all you have to do is clean the cars but for the customer service, I’ll leave it to Emma’. Mr Grove submitted that Emma Olsen was the manager of the team responsible for cleaning cars whereas another employee, Kate Thornton, was the manager of the customer service team. As such, he submitted that it does not make sense that he would have referred to Ms Olsen in this context. 126

[100] Mr Grove also denied that he ever spoke to Ms Olsen about Mr Tham’s application and the error in his resume. 127

Evidence of Ms Olsen

[101] Ms Olsen’s evidence was that she first became aware of Mr Tham’s application on 26 September 2016 when she received an email from Mr Grove, whose email address was listed as the contact person on job advertisements for roles within her team. Ms Olsen submitted that during the recruitment drive Hertz received hundreds of applications for the roles. 128

[102] Ms Olsen submitted that she did not recall interviewing Mr Tham and as such she advised that it was more likely that the interview was conducted by one of the supervisors in her team. Ms Olsen did concede that it was possible that she had conducted the interview and simply did not recall doing so. 129 Ms Olsen’s oral evidence was that Mr Tham was hired as part of a large recruitment drive, and that due to the volume of interviewees the interviews were delegated to supervisors to conduct on an ad hoc basis. She submitted that she did not have any schedules or documentation regarding Mr Tham’s interview and advised that Hertz could not definitively say who had interviewed Mr Tham.130

[103] However, Ms Olsen submitted that even if she had interviewed Mr Tham, she had never had any discussion with Mr Tham in an interview or otherwise about any errors in his resume. She submitted that he did not raise the issue with her at any point in time either before his employment commenced or during his employment, and that if he had she would have asked him to either resubmit a corrected resume or amend the hard copy version and have Mr Tham initial the changes. 131

[104] Ms Olsen submitted that on 11 November 2016, Mr Tham sent her a copy of his completed application form including an acknowledgement that providing false information or withholding information relevant to his application could result in the withdrawal of an offer of employment or termination of employment. 132

Credibility of the Witnesses

[105] I did not find Mr Tham to be a very credible witness. Mr Tham feigned ignorance when it suited him, was prone to exaggeration and I found much of his evidence to be inconsistent and self-serving. Mr Tham would give evidence and, upon realising that his evidence may not assist his case, would proceed to give conflicting evidence with implausible explanations as to why his evidence was inconsistent.

[106] Mr Tham claims to have successfully completed a Bachelor of Civil and Infrastructure Engineering at RMIT and, according to his resume, he has a Certificate 3 in Civil Construction, Certificate 2 in Road Transport and a First Aid Level 3 Certificate, each of which were obtained from the Ashley Institute.

[107] Although Mr Tham speaks English and acknowledged that he was required to speak and understand English in order to complete his degree 133 Mr Tham sought the assistance of an interpreter during his appearance before the Commission. Mr Tham corresponded with my Chambers making suggestions and specific requests as to who should be engaged to assist him, and it had to be explained to Mr Tham that the Commission would not engage in a process of providing him with his preferred interpreter.

[108] At various times throughout the hearing and in my view when it suited him Mr Tham responded to questions 134, raised objections135, questioned witnesses136, and made his entire closing submission137 without utilising the interpreter. However at other times Mr Tham utilised the interpreter almost exclusively, even with regards to simple questions, and at one stage advised that he had understood “less than 50 per cent” of an exchange between Hertz and one of the witnesses.138 At other times Mr Tham would lose patience with the process and talk over the interpreter or cut the interpreter off midstream in order to provide his answer in spoken English. At times Mr Tham stated that he did not understand the questions put to him by the Respondent’s representative, however when I subsequently posed the exact same question Mr Tham responded with ease.

[109] Conversely, I found the Respondent’s witnesses to be credible. Ms Lucchesi gave open and honest evidence, even if at times her evidence was detrimental to Hertz. The Respondent’s other witnesses made appropriate concessions where they were unable to recall specific events.

[110] Accordingly, where there is a contest between the evidence of Mr Tham and Hertz’ witnesses, I have preferred the evidence of the latter.

Consideration

Harsh, Unjust Unreasonable

[111] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. In considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable, the Commission must take into account whether there was a valid reason for the dismissal related to the person’s conduct or capacity.

[112] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.139 McHugh and Gummow JJ explained as follows:

[113] The consideration prescribed by s.387(a) is whether there was a valid reason, and the Commission must satisfy itself of the validity of the reason and its factual underpinning. A valid reason is one that is ‘sound, defensible and well-founded.’ 141

[114] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 142 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).143

[115] The Act requires me to consider whether there was a valid reason for the dismissal of Mr Tham. Further, it is well established that a valid reason need not necessarily be the one relied upon by the employer at the time of the dismissal. In the current matter Hertz rely on the reason that Mr Tham had provided false and misleading information to Hertz by intentionally falsifying his employment details on his resume.

[116] I will now consider each of the matters set out in s.387 of the Act.

Was there a Valid Reason for the dismissal- s.387(a)

[117] Mr Tham submitted that Hertz did not have a valid reason for his dismissal as they had not taken into account his actions in correcting the inaccuracy in his resume prior to his employment. 144

[118] During the hearing it became evident that Mr Tham’s resume contained a number of factual errors and exaggerations pertaining to the periods of employment with his previous employers. Mr Tham claims to have contacted Hertz to inform them that he had made “a mistake” in his resume prior to commencing his employment with Hertz, the “mistake” being the same error that had been brought to his attention by Hertz just prior to his dismissal.

[119] Mr Tham’s proposition fell short of being plausible during the hearing when it became evident that there were numerous errors in his resume. If Mr Tham had in fact contacted Hertz to disclose that there was an error in his resume, the question is why he had only chosen to disclose the very error Hertz had relied on to dismiss him and not the other half a dozen or so errors Mr Tham acknowledged during the hearing. I do not accept that Mr Tham sought to disclose the false information contained within his resume prior to his engagement with Hertz. I prefer the evidence of Mr Grove and Ms Olsen and I am not at all persuaded by the evidence that Mr Tham had contacted Mr Grove or informed Ms Olsen of the error contained within his resume at any stage prior to Hertz’ discovery of the error through their own inquiries.

[120] Mr Tham also submitted that whilst falsifying a resume may be a valid reason for terminating the employment of an employee the cases considering this issue focus on assessing whether this matter goes to the capacity of the employee to perform their duties or their conduct in misleading the employer. 145 At the time of making his submissions Mr Tham argued that his shorter prior work history did not impact on his capacity to fulfil the inherent requirements of his role.146

[121] I reject Mr Tham’s assertion that the errors in his resume were unintentional “mistakes” and that his shorter prior work history did not impact on his capacity to fulfil the inherent requirements of his role. Mr Tham had not made inadvertent errors in his resume, Mr Tham had altered the months and years he claimed to have worked to accommodate his narrative. He had also left out employment history due to either being terminated by his previous employer or to divert attention away from the fact that he taken action against numerous previous employers, regardless of whether that action had a legitimate basis or not.

[122] Mr Tham had intentionally misled his employer into believing he had a history of stable and long term employment. As a Vehicle Service Attendant, being the point of contact for a returned vehicle, Hertz were reliant on the honesty and integrity of its employees, especially should there have been valuables left behind in the vehicles by its customers. The gravity of the deceit put into question the ability for Hertz to trust Mr Tham to perform that role with honesty and integrity.

[123] I am satisfied on the evidence before me that the errors in Mr Tham’s resume were not only intentional they were also misleading and they were significant enough to justify Hertz’ loss of trust and confidence in Mr Tham’s ability to perform his role with honesty and integrity. The misleading information contained within Mr Tham’s resume was enough to justify a valid reason for his dismissal. Consequently I am satisfied that Hertz had a valid reason to dismiss Mr Tham.

Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)

[124] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 147, and in explicit148 and plain and clear terms.149 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[125] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 150

[126] Mr Tham submitted that Hertz failed to effectively notify him of the reason for the dismissal prior to the dismissal taking effect. He submitted that whilst Ms Lucchesi referred to the error in his resume during their discussion on 24 August 2017, the suspension letter referred to broad allegations such as fraudulent activity and acts of dishonesty. 151

[127] Mr Tham also submitted that he had not been given a genuine opportunity to respond as providing him with 24 hours to respond to allegations broadly expressed in a suspension letter is insufficient. 152

[128] He submitted that the way in which the allegations and meeting on 25 August 2017 were approached were inconsistent with his previous dealings with Hertz and, given that the allegations were deemed serious enough to result in summary dismissal, the opportunity to respond should have required similar procedures to his previous experience. 153

[129] Further, Mr Tham submitted that Hertz should not have proceeded with the meeting as he had provided them with Certificates of Capacity that provided that he had no capacity for work. 154 Mr Tham submitted that, as the certificates would have been received by the Respondent prior to his receipt of the termination letter, Hertz should have delayed terminating his employment.155

[130] Hertz submitted that Mr Tham was notified during the meeting of 24 August 2017 that the nature of the allegation was that he had provided false and misleading information to them upon his application for employment. They submitted that he was also advised that a meeting was scheduled the following day to allow Mr Tham to respond to the allegation, however Mr Tham did not attend the meeting nor did he advise them that he would not be in attendance. 156

[131] I am satisfied on the evidence before me that Mr Tham had been notified of the reason for the dismissal in the letter sent to Mr Tham informing him that he had been dismissed. Mr Tham’s evidence was that he had also been provided with the allegation against him at a meeting prior to his dismissal.

[132] I do not accept Mr Tham’s argument that he was given insufficient time to prepare for and attend the disciplinary meeting with Hertz. I am satisfied that the 24 hours notification was sufficient given the nature of the allegations.

[133] In relation to the Certificates of Capacity Mr Tham provided to Hertz, I note that Mr Tham did not provide any evidence that the Certificates were sent to Ms Lucchesi or Mr Saville. Instead, the evidence before me is that Ms Olsen was sent these certificates at 1:49pm on 25 August 2017, well after his scheduled meeting at 10am. Mr Tham’s termination letter was emailed to him at 2:02pm. Given the timing of the email correspondence, I accept that it is likely that Ms Lucchesi would not have received these certificates prior to sending Mr Tham his termination letter.

[134] However, notwithstanding this I am not satisfied that Hertz gave Mr Tham a sufficient opportunity to respond to the allegations. Ms Lucchesi acted hastily upon Mr Tham’s failure to attend the scheduled meeting and, had reasonable enquiries been made, Ms Lucchesi would likely have become aware of Mr Tham’s Certificates of Capacity and the reasons for his lack of attendance. However, procedural deficiencies must also be assessed and balanced against the other factors which, when considered in totality, provide the basis upon which any finding is made as to whether the dismissal was unfair.

Unreasonable Refusal of a Support Person – s.387(d)

[135] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.157 With respect to this consideration, the Explanatory Memorandum states:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.158

[136] Mr Tham submitted that Hertz unreasonably refused his request for a support person. He submitted that upon being notified of the meeting scheduled to take place on 25 August 2018 he immediately requested an interpreter, a support person and a postponement of said meeting. 159

[137] He submitted that he had made a clear and unambiguous request for the presence of a support person and an interpreter and that similar requests made by him in the past had been granted by Hertz. He submitted that he was unable to effectively represent himself in a disciplinary meeting and reasonably requested postponement of the meeting that would not have caused a heavy burden to Hertz. 160

[138] Hertz submitted that during the meeting on 24 August 2018 they advised Mr Tham that he could bring a support person to the meeting or utilise another employee as a support person. 161

[139] Mr Tham did not provide any evidence that he had attempted to or could not arrange a support person within the 24 hours he was afforded. I am satisfied that given Mr Tham was provided with 24 hours’ notice he had sufficient time to organise a support person.

Warnings regarding Unsatisfactory Performance – s.387(e)

[140] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.162 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.163 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.164

[141] Mr Tham was dismissed for reason of his conduct and not dismissed for unsatisfactory performance.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)

[142] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.165 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.166

[143] Mr Tham submitted that Hertz is a large employer with a dedicated human resource department and that as such there was no reason for the lack of procedural fairness shown to him. 167

[144] Hertz submitted that it is a large enterprise and has dedicated human resource management specialists and expertise. 168 Accordingly I make no allowance for the procedural deficiencies in the process.

Other Relevant Matters – s.387(h)

[145] Mr Tham submitted that the Commission should give consideration to his WorkCover injury. He submitted that Hertz’s knowledge of his deteriorating mental health and workplace injury are contributing factors in determining the harshness of their conduct in dismissing him. 169

[146] He further submitted that his shoulder injury has left him with modified duties and, as many of his previous roles have required manual labour, the workplace injury has restricted his ability to find further employment. He also noted that his termination due to misconduct has resulted in the loss of his WorkCover payment.  170

[147] Hertz submitted that it is entirely unclear as to how Mr Tham’s injury is relevant to the Commission’s assessment of section 387 of the Act. They submitted that Mr Tham was not dismissed because of his shoulder injury and that Mr Tham’s argument appeared to be merely an assertion that dismissing an employee who happens to have a workplace injury is necessarily harsh. 171

[148] Mr Tham submitted that his financial hardship should also be taken into consideration, as Hertz was aware that the immediate termination of his employment was likely to have serious financial consequences for him and his dependants. 172

[149] Hertz submitted that a measure of financial hardship is often an inevitable consequence of any dismissal and that Mr Tham’s hardship needs to be weighed against the reason for the dismissal. They submitted that the severity of Mr Tham’s misconduct outweighs any harshness that arises from the financial hardship. 173

[150] Finally, Mr Tham submitted that consideration should be given to the conduct of the Respondent in the dismissal, submitting that Ms Lucchesi acted in an aggressive and inappropriate manner towards him. 174

[151] Hertz submitted that the evidence of Ms Lucchesi and Ms Olsen did not support Mr Tham’s version of events and that, depending on the Commission’s findings regarding the credibility of the witnesses, this falls over as a relevant factor. 175

[152] I have had regard to the submissions and evidence put to me. However I am not persuaded that the mitigating circumstances outweigh the seriousness of Mr Tham’s conduct. I do not consider that his dismissal was harsh in those circumstances.

Conclusion

[153] Hertz dismissed Mr Tham for a valid reason relating to his conduct. The notification of the dismissal and the later aspects of the procedure adopted by Hertz in proceeding with the dismissal included some deficiencies. Whilst Hertz failed to provide Mr Tham with a sufficient opportunity to respond to their allegations I am not satisfied that the explanation offered by Mr Tham in his submissions or at the hearing would have resulted in a different outcome. Those procedural deficiencies have been considered and balanced against the conduct of Mr Tham which provided a valid reason for the dismissal.

[154] The gravity of the intentional dishonesty upon which the dismissal of Mr Tham was based, when considered in its totality, represents matters which were fundamentally inconsistent with the continuation of the employment relationship. I am therefore satisfied that the dismissal was not harsh, unjust or unreasonable. Mr Tham’s application for unfair dismissal remedy is therefore dismissed and an order 176 to that effect will be issued accordingly.

COMMISSIONER

Appearances:

C. Tham on his own behalf;

A. Pollock on behalf of the Respondent.

Hearing details:

2018

Melbourne

3 May

Printed by authority of the Commonwealth Government Printer

<PR608725>

 1   Exhibit R5, 3

 2   Exhibit A1, 2

 3   Exhibit A2, 3-5

 4   Exhibit A2 annexure CT-2

 5   Exhibit A2 annexure CT-5

 6   Exhibit A2, 27-28

 7   Exhibit R5, 10

 8   Exhibit A2, annexure CT-6

 9   Exhibit R4, 17

 10   Exhibit A2, 37-38

 11   Exhibit A2, 30-35

 12   Exhibit R4, 31

 13   Exhibit R4, 19

 14   Exhibit R4, 25-28

 15   Exhibit R4, 28

 16   Exhibit R4, 29-30

 17   Exhibit R4, 32-33

 18   Exhibit R4, 20

 19   Exhibit A2, 79-80

 20   Exhibit R4, 22-23

 21   Exhibit R4, 21

 22   Exhibit R4, 24

 23   Exhibit R4, 34-35

 24   Exhibit R4, 16

 25   Exhibit R4, 16

 26   Exhibit A1, CT-18

 27   Exhibit A2, 78

 28   Exhibit A2, CT-21

 29   Exhibit R4, 34-35

 30   Exhibit R4, 35-36

 31   Exhibit R4, 37-38

 32   Exhibit R4, 40

 33   Exhibit R4, 41

 34   Exhibit R4, 42-44

 35   Exhibit R3, 19-20

 36   Exhibit A2, 40-42

 37   Exhibit A2, 43

 38   Exhibit A2, 44-45

 39   PN550

 40   Exhibit R4, 47

 41   Exhibit R3, 22

 42   Exhibit R3, 23

 43   PN842

 44   PN943

 45   PN822-824

 46   Exhibit R4, 45

 47   Exhibit A2, 47-49

 48   Exhibit R3, 24-26

 49   Exhibit R4, 49-50

 50   Exhibit A2, 52

 51   PN561

 52   PN574

 53   PN561

 54   PN563

 55   Exhibit A2, 50-51

 56   PN561

 57   Exhibit R4, 51-52

 58   Exhibit R4, 54-58

 59   PN896

 60   Exhibit R3, 28-29

 61   Exhibit R3, 30-34

 62   PN774-779

 63   Exhibit A2, 52-55, Annexure CT-11

 64   Exhibit A2, 60-61

 65   Exhibit A2, 56-57

 66   Exhibit R4, 59-60

 67   PN601-604

 68   PN612

 69   Exhibit A2, 62

 70   Exhibit R4, 61

 71   Exhibit R4, 62

 72   Exhibit R4, 63-65

 73   Exhibit R4, 66

 74   PN843-846

 75   Exhibit R4, 67 – 68, AC13

 76   Exhibit A2, 63-64

 77   Exhibit A2, 6

 78   PN637-638

 79   PN632-635

 80   Exhibit A2, 7-11

 81   PN224-227

 82   PN228-230

 83   Exhibit A2, 18-21

 84   PN626

 85   PN198-200

 86   PN200

 87   PN644

 88   PN645

 89   PN202-203

 90   PN668-673

 91   PN666-667

 92   PN642

 93   PN73-96

 94   PN97-99

 95   PN103-106

 96   Exhibit R2

 97   PN254-257

 98   PN259-274

 99   PN425-427

 100   Exhibit R2

 101   PN435-436

 102   PN439

 103   PN438

 104   PN444-445

 105   PN446

 106   PN452-456

 107   PN449-451

 108   PN149-150

 109   PN162

 110   PN170-171

 111   PN176; PN179

 112   PN180

 113   PN472-476

 114   PN477

 115   PN518

 116   Exhibit R1, 1-2

 117   Exhibit R1, 5

 118   Exhibit R1, 10

 119   Exhibit R1, 11

 120   Exhibit R1, 13-14

 121   Exhibit R1, 15

 122   Transcript PN337

 123   Transcript PN346

 124   Exhibit R1, 16

 125   Exhibit R1, 17

 126   Exhibit R1, 19

 127   Exhibit R1, 20

 128   Exhibit R3, 10-12

 129   Exhibit R3, 13

 130   PN754-758

 131   Exhibit R3, 13

 132   Exhibit R3, 16

 133   PN21-26

 134   Such as PN471-477

 135   Such as PN256 and PN271

 136   Such as PN324-336

 137   PN1006-1039; PN1150-1244

 138   PN309

139 (1995) 185 CLR 410.

140 Ibid at 465.

 141   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 142   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

 143   Ibid.

 144   Exhibit A1, 16

 145   Exhibit A1, 17

 146   Exhibit A1, 18

 147   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 148   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 149   Previsic v Australian Quarantine Inspection Services Print Q3730

 150   RMIT v Asher (2010) 194 IR 1 at 14-15

 151   Exhibit A1, 30 - 31

 152   Exhibit A1, 33

 153   Exhibit A1, 34 - 35

 154   Exhibit A1, 37

 155   Transcript PN1024-1025

 156   Exhibit R5, 33 - 35

157 Fair Work Act 2009 (Cth) s.387(d).

158 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].

 159   Exhibit A1, 40

 160   Exhibit A1, 44

 161   Exhibit R5, 36

162 Fair Work Act (Cth) s.387(e).

163 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

164 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie [2012] FWA 2 [58].

165 Fair Work Act (Cth) s.387(f).

166 Fair Work Act (Cth) s.387(g).

 167   Exhibit A1, 45

 168   Exhibit R5, 39

 169   Exhibit A1, 48

 170   Exhibit A1, 48

 171   Transcript PN1138 - 1139

 172   Exhibit A1, 48

 173   Transcript PN1140

 174   Exhibit A1, 48

 175   Transcript PN1141

 176   PR608726