DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tom Colella
v
Aroona P&T Pty Ltd T/A Aroona Alliance
(U2016/12172)

Application for relief from unfair dismissal.

[1] This decision concerns an unfair dismissal remedy application made by Mr Tom Colella (Mr Colella or the Applicant) under section 394 of the Fair Work Act 2009 (the Act). The Respondent is Aroona P&T Pty Ltd T/A Aroona Alliance (Aroona or the Respondent).

Background

[2] Mr Colella was employed by Aroona as a Senior Instrument Electrical Technician.

[3] Aroona received an anonymous complaint in the form of a letter which alleged Mr Colella had been regularly playing golf at times he was supposed to be working.

[4] Following investigations three separate allegations were put to Mr Colella.

Allegation 1 - that on a number of days Mr Colella had been playing golf during work time and had not requested annual leave.

Allegation 2 – that on certain other days Mr Colella had being playing golf when he had been absent on sick leave.

Allegation 3 – that on 21 dates Mr Colella had fraudulently claimed to have completed assigned tasks which he had not completed because on each of the relevant dates and times he was in another location which was not the relevant Aroona work site.

[5] Having considered Mr Colella’s responses Aroona concluded that Allegations 1 and 2 were not substantiated.

[6] Subsequently following further meetings and discussions with Mr Colella, Aroona concluded that Allegation 3 had been substantiated and warranted Mr Colella’s termination for serious misconduct.

Factual findings

[7] Having considered the evidence of all of the witnesses I make the following findings.

[8] Aroona is an entity related to the Water Corporation. The Water Corporation is the principal supplier of water and wastewater services across Western Australia.

[9] Mr Colella was involved in maintenance activities on water treatment assets such as plant and remote-controlled equipment in order to maintain the supply of safe drinking water to the water distribution system in the Perth metropolitan area.

[10] Mr Colella’s role involved him driving to different work sites and performing various instrumental electrical maintenance tasks. Mr Colella’s role was highly autonomous and on most occasions he worked alone.

[11] Part of his role was to conduct regular maintenance on Aroona’s ground water treatment plant at Neerabup (the Neerabup GWTP). This involved calibrating the instrumentation which is used to measure water quality to ensure compliance with the Department of Health’s water safety standards.

[12] One of the instruments used to measure water quality is a chlorine analyser which measures and alters chlorine levels in Aroona’s water treatment plants. Mr Colella was assigned to complete regular maintenance on chlorine analysers including one at the Neerabup GWTP. Mr Colella serviced the chlorine analyser at Neerabup GWTP once a month.

[13] Mr Colella was also responsible for monitoring water quality at reservoirs and remote water storage tanks including the Neerabup borefields and Two Rocks.

[14] There are documented safe working instructions Mr Colella was required to follow when undertaking this work.

[15] In August 2016, Aroona received an anonymous letter of complaint regarding Mr Colella. The letter writer said they had witnessed Mr Colella taking work time off to play golf and attached records from a golf club to support their accusations which were to the effect that he had played golf on approximately 140 working days between 1 July 2014 and 30 June 2016.

[16] Mr Peter Van der Vaart (Mr Van der Vaart), Aroona’s Groundwater Operations Manager, undertook an investigation into the matters raised in the letter and gave evidence at the hearing.

[17] I found Mr Van der Vaart to be a reasonable, objective and highly credible witness.

[18] All maintenance and operations employees at Aroona, including Mr Colella, use a personal digital assistant (PDA). The PDA is a small handheld device that provides computing and information storage. Each employee’s PDA shows all the assigned work tasks they have completed in a day. The data from the PDAs is collected in an application called Field Works.

[19] In 2014, Aroona’s systems were upgraded to improve data accuracy in terms of the GPS location function of the PDAs. This was necessary to improve the management of some assets such as pipes, which at times burst or have blockages. Having accurate GPS location data from the PDAs better allowed Aroona to have records as to the precise location of these problems.

[20] As a consequence of the 2014 upgrade the PDAs from that time on instantaneously pinpoint an employee’s location. The GPS will activate each time an employee logs onto Field Works on their PDA and remains active in the background. When an employee starts a new task they set the status on the PDA to ‘SITE’ and click on that specific task. This triggers the PDA to collect the GPS location coordinates of that location. The PDA then records the date, time and GPS location in Field Works (Works Management Data). An employee’s location is not recorded by the PDA at any other time and the GPS deactivates when the employee logs off Field Works.

[21] This upgrade to the PDAs and the GPS function was explained to all employees including Mr Colella when it was introduced in 2014 and was the subject of consultative committee meetings.

[22] I find that Mr Colella understood that when he pressed ‘SITE’ on his PDA it would then record the coordinates of his location using the GPS data.

[23] Having considered the letter of complaint Mr Van der Vaart obtained a sample of Works Management Data which was from Mr Colella’s PDA for the period between 28 January 2016 and 8 June 2016. Mr Van der Vaart chose these dates because he considered it would be unfair to potentially be asking Mr Colella to recall events that occurred up to two years prior.

[24] This sample of Works Management Data included the GPS coordinates recorded in Mr Colella’s PDA. Mr Van der Vaart believed these coordinates would allow him to determine whether Mr Colella was at the required location of his assigned tasks on dates specified in the letter of complaint.

[25] The sample of Works Management Data from Mr Colella’s PDA recorded the date, time and what task had been assigned to Mr Colella and what his location was when he set his PDA’s status to ‘SITE’ to record he had completed the assigned task.

[26] Mr Van der Vaart was then able to copy the various GPS coordinates in the sample Works Management Data into software which showed a satellite photograph of each location corresponding to the GPS coordinates.

[27] Having done this Mr Van der Vaart identified a number of anomalies. In some instances, the sample Works Management Data recorded that Mr Colella had undertaken tasks at the Neerabup GWTP on certain days and at certain times, however the satellite photographs of the location from the GPS coordinates for those dates and times was not the location of the assigned task. In particular, the satellite photograph showed a residential address rather than the location of the assigned task which, in each instance, was the Neerabup GWTP.

[28] I accept that Mr Van der Vaart further identified that there were 21 dates (the 21 dates) on which there were multiple anomalies between the satellite photograph of the location based on the GPS coordinates from Mr Colella’s PDA and the location of the assigned tasks for that day. On these days Mr Colella had been assigned multiple tasks and for each of these tasks the satellite photograph from GPS coordinates recorded by his PDA was not consistent with where he should have been if he was undertaking these tasks.

[29] Mr Van der Vaart’s evidence, which I accept, is that in subsequent meetings Mr Colella was shown a copy of the satellite photographs which were common to these identified anomalies and Mr Van der Vaart said that the satellite photographs were of his house.

[30] Having identified the anomalies explained above which showed Mr Colella was at some location other than where he needed to be to have completed the assigned tasks, Mr Van der Vaart sought to verify the validity of the analysis he had adopted and undertook the same process explained above for another employee who also regularly undertakes assigned tasks at the Neerabup GWTP. When Mr Van der Vaart did this it demonstrated that the GPS coordinates from that employee’s PDA held in the Works Management Data was the same location as the location of the allocated tasks completed by that employee. In other words, if the assigned task for that employee was to maintain some equipment at the Neerabup GWTP, the satellite photograph from the related GPS coordinates recorded in that employee’s PDA was, as would be expected, a photograph of the Neerabup GWTP. I accept this verified the analysis conducted on Works Management Data from Mr Colella’s PDA was valid.

[31] Mr Van der Vaart also investigated whether there were other objective sources of information that would indicate where Mr Colella was when he was supposed to be undertaking particular assigned tasks. To this end he considered records of Mr Colella swiping his ID card to gain entry to Aroona sites and his mobile phone records.

[32] Mr Van der Vaart was aware that employees entering the Neerabup GWTP site should swipe a company identification card to open a security gate. Mr Van der Vaart obtained information about the records of swipe card entries to the Neerabup GWTP for the same dates as the sample Works Management Data mentioned above.

[33] The information showed that on none of the 21 dates he had identified in the sample Works Management Data as anomalous had Mr Colella used his ID card to access the Neerabup GWTP, where he was supposed to have been to complete the assigned tasks.

[34] In subsequent meetings in response to the fact he had not used his ID card to enter the Neerabup GWTP on the 21 dates, Mr Colella did identify circumstances where he could have entered without swiping his ID card such as tailgating or driving on the opposite side of the road and entering the site through the out gate. However the evidence is, and I find that, Mr Colella enters the Neerabup GWTP on a very regular basis and on most days he would have swiped his card at least once to enter.

[35] The fact that Mr Colella did not use his swipe card to enter the Neerabup GWTP on any of the 21 dates is consistent with a conclusion, on the balance of probabilities, that Mr Colella did not complete the assigned tasks he recorded in his PDA because he was not present at the location he had to be to complete those tasks.

[36] With respect to mobile phone records, Mr Van der Vaart obtained a copy of these records for the Aroona supplied phone of Mr Colella, for the period covered by the sample Works Management Data. Having examined these records and viewed the Telstra website coverage maps it became apparent that the Tamala tower which was often recorded on Mr Colella’s phone records as the place of origin of calls he made, covered an area that encompassed both Mr Colella’s home and the Neerabup GWTP. Consequently where the records show the origin of a call as the Tamala phone tower, this does not clarify whether Mr Colella was at home or at the Neerabup GWTP when he placed that call. I accept this evidence and find, as Mr Van der Vaart concluded, that the records of Mr Colella’s mobile phone does not assist in clarifying whether he was present at the correct location he was required to be on the dates and at the times he says he completed an assigned task as recorded in his PDA.

[37] At the hearing of this matter records were provided by Mr Colella of his mobile phone calls 1. These records show that on occasions two phone calls made very close together in time, some as little as one minute apart, are recorded as having different origins. This demonstrates that the origin of a call recorded on Mr Colella’s mobile phone records is not at all an accurate indication of where the caller was when they made the phone call.

[38] Examples of these from Mr Colella’s mobile phone records are set out below:

Date/Time Origin

22 January 2016

12:01 PM Tamala

12:06 PM Quinns Rock

26 February 2016

4:24 PM Balcatta

4:25 PM Karrinyup

13 April 2016

7:46 PM Gnangara

7:49 PM Wanneroo

23 June 2016

11:00 AM Currambine

11:02 AM Ocean Reef

[39] Mr Van der Vaart also gathered some data regarding chlorine analyser trends for some of the 21 dates. These trends can be displayed in what is called View X. Both Mr Van der Vaart and Mr Meyers, the Scheme Operations Supervisor of Water Corporation who gave evidence, concluded that these records indicated that the analysers had not been placed on hold nor had a calibration been performed on the chlorine analyser at the Neerabup GWTP on these dates.

[40] However the evidence of Mr Colella was that when testing the chlorine analyser he did not place it on hold to do so, and if there was no need for him to recalibrate the chlorine analyser after the test then although he had properly completed his task undertaking it in this manner means the View X chlorine analyser trends records could not confirm that the task had been undertaken.

[41] I do not, on some issues, find Mr Colella’s evidence to be credible.

[42] Mr Colella gave evidence that it was rarely necessary to place the chlorine analyser on hold when doing this testing. I note, however, that this is contrary to the standard work procedures which require that the analyser be put on hold before the test is conducted. In the absence of evidence to the contrary, with some reluctance, I accept his evidence on this.

[43] Accepting Mr Colella’s evidence that he rarely placed the analyser on hold, I find that the records of the chlorine analyser trends do not conclusively indicate that Mr Colella did not complete the tasks that were assigned to him on the 21 dates with multiple anomalies. However neither do the chlorine analyser trends provide positive objective evidence to support Mr Colella’s statements that, contrary to the other evidence being the recorded GPS coordinates and the swipe card records, he did complete his tasks at the Neerabup GWTP on the 21 dates with multiple anomalies.

[44] Mr Colella gave evidence that he had provided Aroona with log sheets that were completed by him when he undertook maintenance of the chlorine analysers which he said proved he had completed the assigned tasks. However Mr Colella during the course of one of the meetings with Mr Van der Vaart had denied completing these logs. Mr Colella’s evidence was not credible at times. Considering his evidence I do not accept that the log sheets provided by Mr Colella were completed by him at the time recorded on them. The fact the log sheets have been filled in by Mr Colella means that it is not an objective source of information indicating Mr Colella completed the assigned tasks when he said he did.

[45] Mr Colella explained that he had sent emails on some of the 21 dates Aroona allege he had not completed the assigned tasks. The evidence is that Mr Colella could have used his PDA or company laptop to send the emails and so could have been at any location when the emails were sent. Aroona agree that Mr Colella did send emails on some of these days. There is no evidence as to what device was used to send these emails let alone where Mr Colella was when he sent any of the emails. Mr Colella did send emails. The fact that Mr Colella sent emails on some of the 21 dates does not demonstrate that he completed the assigned tasks on those days.

[46] Mr Colella also gave evidence that he had demonstrated to Aroona that he had attended pre-start meetings on some of the relevant 21 dates. Further evidence was provided at the hearing by Mr Colella as to his attendance at pre-start meetings which were held at the Neerabup GWTP. That evidence did not however demonstrate that Mr Colella had attended a pre-start meeting at Neerabup GWTP on all of the 21 dates in question. With respect to those days, out of the 21 dates in question where the evidence is Mr Colella did attend a pre-start meeting at Neerabup GWTP the fact that he did attend the pre-start meeting proves his location only for this short period of time first thing in the morning. It is common after pre-start meetings for Mr Colella and others to leave and Neerabup GWTP to attend to other locations and the mere fact Mr Colella attended a pre-start meeting on any given day is not evidence that he remained there for the full day.

[47] In his evidence in chief, Mr Colella said his employment history was unremarkable other than a minor misunderstanding 10 years ago about timekeeping procedures.

[48] He did concede in his evidence in chief that early in 2014 he was counselled because he received two speeding fines in the space of a month. He says he apologised and the matter went no further.

[49] His evidence was that apart from those two matters, he had an unblemished employment history.

[50] Under cross-examination, Mr Colella, with great reluctance, conceded that his employment history was in fact as follows.

[51] On 28 May 2014 he received a first written warning following a speeding traffic infringement on 15 March 2014. That written warning records he had been previously warned, in writing, for similar behaviour including speeding on 2 February 2014 and prior to that speeding on 12 March 2013 and prior to that speeding in a company vehicle on June 2011. The warning prohibited him from using his company vehicle for private use for 3 months. The warning stated his conduct would continue to be monitored and further instances may lead to disciplinary action including termination.

[52] He was also issued letters regarding his use of the company vehicle in March 2000, which concerned him using the vehicle without authorisation, and prior to that in February 1998 he received a letter regarding unauthorised modifications to a company vehicle.

[53] In addition, Mr Colella failed to include in his evidence in chief regarding his employment record, the fact that on 9 July 2002 to he received a letter from his employer 2 concerning a disciplinary enquiry which found that he had:

• Failed to conduct chlorine gas detector tests that he was required to conduct as part of his assigned duties.



• Completed timesheets so as to create an impression that the subject tests had been undertaken.



• Completed timesheets so as to create an impression that he was at a location when he was elsewhere.



• Advised supervision that he had completed the subject test and then later withdrew that advice.

[54] The letter states that he failed to carry out this assigned work and then sought to disguise that omission. The letter further states that he set out to create a false belief by falsifying timesheets and advising supervision the assigned work had been completed when it had not. The letter states the company rejected his assertion that he had forgotten whether the tasks had been completed or not.

[55] The letter concludes by saying the company hoped he appreciates the gravity of his actions and advised that he should regard the letter as a final written warning and if there was a recurrence of those actions the company will have no alternative but to terminate his contract.

[56] Under cross-examination Mr Colella acknowledged that he had seen this letter in the materials the Respondent had filed for the hearing but he did not recall receiving it in 2002. His evidence is that he could recall what occurred and it was not as recorded in the letter 3.

[57] Mr Colella’s evidence in chief about his employment record failed to include all of the warnings he has received in the past including the final written warning from 2002 which concerns matters very similar to those for which he has now been dismissed by Aroona. Whilst he can be excused for not having included the 2002 warning because he had forgotten about it, he agrees he was aware of the letter which was provided by the Respondent in its documents prior to the hearing. Notwithstanding this, under cross-examination, Mr Colella was very reluctant to acknowledge the obvious facts about this warning to the point of repeatedly denying the final written warning was disciplinary action 4.

[58] Mr Colella’s failure to include all of these warnings in his evidence in chief, his misleading attempt to portray his employment record as relatively unblemished and his refusal to accept obvious propositions put to him in cross-examination about warnings he has received, together, significantly undermined his credibility as a witness.

[59] Mr Colella has always maintained, and did so in his evidence at the hearing, that he completed each of the assigned tasks at the relevant location on the date and time recorded by his PDA. His evidence is that the GPS coordinates recorded by the PDA and/or the company’s analysis of this data is simply wrong.

[60] There is no evidence before the Commission to support a finding that the GPS coordinates recorded by Mr Colella’s PDA are incorrect nor that the satellite photos of the location corresponding to those GPS coordinates was incorrect.

[61] In summary, I accept the evidence of Mr Van der Vaart that the data from Mr Colella’s PDA for the 21 dates shows that Mr Colella was not at the location he would need to be at to complete the various assigned tasks on each of these days. This conclusion is consistent with the evidence that on none of those 21 dates did Mr Colella enter the Neerabup GWTP using his swipe ID card. On the evidence before the Commission I am satisfied on the balance of probability that on the 21 dates identified by Mr Van der Vaart during the investigation, Mr Colella submitted jobs on his PDA and purported to have completed those assigned tasks at that time and at the relevant location when in fact he had not completed this work. I am satisfied that the anomalies identified by Mr Van der Vaart amount to fraudulent claims by Mr Colella that he had completed particular work which he had not completed on those 21 dates.

[62] I do not accept Mr Colella’s evidence that he completed each of the assigned tasks on the date and time recorded by his PDA. I also reject Mr Colella’s evidence that he completed the chlorine analyser log sheets at the time he completed the assigned tasks.

[63] Aroona reduced its concerns to writing in a letter dated 5 September 2016 which was provided to Mr Colella on 6 September 2016. That letter explained the allegations in detail and explained Aroona viewed this as a breach of the Aroona Code of Conduct and his contract.

[64] Meetings were held with Mr Colella on 9 September 2016 and 16 September 2016. He was invited to provide an explanation at these meetings about the allegations and he did so.

[65] During these meetings he was advised that Aroona viewed the allegations, if correct, as serious misconduct.

[66] Minutes of the meetings were prepared and provided to Mr Colella after the meetings.

[67] Mr Colella was accompanied by a union official, Mr Giddens, at the meetings on 9 and 16 September 2016 and at the final termination of employment meeting.

[68] I am satisfied on the evidence that at the meeting on 16 September 2016 Mr Van der Vaart and Mr Colella spent more than an hour and possibly as much as two hours reviewing the sample of Work Management Data from Mr Colella’s PDA, which Mr Van der Vaart had extracted in his investigations and together they considered the 21 dates Mr Van der Vaart had identified as having multiple anomalies.

[69] On 20 September 2016, Mr Van der Vaart met with Mr Colella and his support person Mr Giddens and Ms Alexander was also in attendance. At that meeting he was advised his employment was terminated and provided with a termination letter 5.

[70] At that meeting Mr Colella raised again his view about chlorine analyser trends for one of the 21 dates. Mr Van der Vaart reviewed this and explained to him why what he had showed him was not evidence of a calibration on that date but rather was the normal operation of the analyser.

[71] Mr Colella again asked Mr Van der Vaart to check the phone records and in particular referred to three dates in April 2016. Mr Van der Vaart took a break to review the April phone records and found that on one of those dates no calls had been made and on the second date the time of the call was different from that which Mr Colella said and on the third date the call again was within the coverage of the Tamala telephone tower and so could have been made from Mr Colella’s house or the Neerabup GWTP. Mr Van der Vaart returned to the meeting and advised that the phone records were inconclusive.

[72] There were further discussions about particular dates in April and Mr Van der Vaart acknowledged that the phone records for 21 April 2016 indicated he made a phone call through the Two Rocks tower at three different times that morning whereas the GPS coordinates from his PDA indicated he was at his home address not at the Aroona Two Rocks site. Mr Van der Vaart acknowledges the inconsistency between the phone records for this one occasion and the PDA GPS data but was of the view that the phone tower information was not reliable because calls can be diverted from one tower to another and this was the only example where this brought into question the GPS coordinates recorded in Mr Colella’s PDA.

[73] Mr Van der Vaart then advised Mr Colella that the April phone records he had provided were inconclusive and did not prove that he had completed his assigned tasks on the 21 dates. He advised Mr Colella accordingly that having had taken this information into account, the decision to terminate his employment remained unchanged.

The legislation

[74] Section 387 of the Act details the matters the Commission must have regard for when considering whether Mr Colella’s dismissal was unfair.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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 the FWC considers relevant.”

Consideration

Valid reason

[75] On the balance of probability, on the 21 dates identified by Mr Van der Vaart during the investigation into Allegation 3, Mr Colella did not do the work he recorded on his PDA as having completed. Mr Colella made multiple fraudulent claims of having completed work he had not done. Mr Colella was paid by Aroona on the basis that he had done work on these days, which he had not. Mr Colella’s conduct in claiming he had completed work when he had not done so was a valid reason for dismissal.

Notification of the reason for dismissal

[76] Aroona notified Mr Colella at the dismissal meeting on 20 September 2016 why he was being dismissed and this was explained in detail in the termination letter he was provided that day.

Opportunity to respond

[77] Mr Colella was given an opportunity to respond and did so at meetings held on 9 and 16 September 2016 during which he was accompanied by his support person.

Refusal to allow a support person

[78] There was no unreasonable refusal to allow a support person and indeed Mr Colella was accompanied by Mr Giddens, a union official, at the three meetings concerning his dismissal.

Notification of unsatisfactory performance

[79] This is not a relevant matter in this instance.

Size of the employer’s enterprise and dedicated HR expertise

[80] Aroona is a large employer which does have dedicated human resource expertise and the procedures followed leading up to the dismissal were appropriate.

Other matters

[81] Mr Colella has been employed for a long period of time having commenced in 1996.

[82] Mr Colella has received a number of prior warnings detailed above. Those warnings associated with speeding and traffic infringements have little relevance to this matter given the lengthy period of Mr Colella’s employment. The final written warning he received in July 2002, however, is directly relevant to this application. At that time the warning details that the employer was satisfied that Mr Colella had submitted timesheets indicating he had worked when he had not and had fraudulently created timesheets stating he was at particular locations when he was not there. There is a striking similarity between the complaint the employer had in 2002 with Mr Colella’s conduct and what has occurred in this instance.

[83] It is readily apparent from the findings in this matter that Mr Colella was not truthful during the investigation into the allegations and actively sought to cover up his wrongdoing.

Conclusion

[84] I am satisfied that the actions of Mr Colella amounted to serious misconduct. The dismissal of Mr Colella was neither harsh, unjust nor was it unreasonable. Mr Colella has not been unfairly dismissed.

[85] An order [PR590568] dismissing this application will now be issued.

COMMISSIONER

Appearances:

S Heathcote, solicitor for the Applicant.

N Ellery, solicitor for the Respondent.

Hearing details:

2017.

Perth:

January 31.

 1   Exhibit A1.

 2   Exhibit R1, Attachment RA5.

 3   Transcript at PN99.

 4   Ibid., at PN116 to PN121.

 5   Exhibit R2, Attachment PV35.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR590549>