[2017] FWC 2086 [Note: An appeal pursuant to s.604 (C2017/2397) was lodged against this decision - refer to Full Bench decision dated 2 June 2017 [[2017] FWCFB 2805] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Celeste Ryan-Dengate
v
Sunraysia & Murray Group Training Ltd
(U2016/14308)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 APRIL 2017

Application for unfair dismissal remedy.

[1] Ms Celeste Ryan-Dengate was employed by Sunraysia & Murray Group Training Ltd on a traineeship from 21 March 2016 until her employment was terminated on 9 November 2016. She was undertaking a Certificate 3 in Business Administration.

[2] As a trainee Ms Ryan-Dengate performed work for and at the premises of Regional Building Consultants however at all times she was an employee of SMGT.

[3] I granted permission for SMGT to be represented by Mr Andrew Jones, a paid agent. SMGT submitted that the matter involved some complexity. Given the allegations it submitted that there was significant cross examination required and allowing SMGT to be represented would enable the matter to be dealt with more efficiently. It also submitted that it would be unfair not to permit SMGT to be represented as it was not able to represent itself effectively. It was submitted that SMGT has no internal Human Resources Staff as that responsibility was contracted out to Mr Jones who had performed this function for two years. Further Mr Geoff Carson who was the CEO of SMGT was on long service leave from 7 November 2016 and was not due to return from leave until after the hearing. Whilst he would attend as witness at the hearing it was not reasonable to expect him in all the circumstances to appear as an advocate. It was further submitted that while Ms Ryan-Dengate was represented by her father that she did not have a paid agent or a lawyer to represent her did not preclude SMGT from being granted permission.

[4] I granted permission because I accepted the submission that it would be unfair not to permit SMGT to be represented because it could not represent itself effectively. I accept that its CEO was not able to prepare for the hearing given he was on long service leave. Also the CEO’s lack of experience as an advocate would make cross examination of witnesses difficult for him to undertake. I decided in my discretion to permit representation despite Ms Ryan-Dengate being represented by her father as I considered that any unfairness that may arise at the hearing from Mr Dengate’s lack of experience (if any) could be dealt with at the time.

[5] Prior to the hearing SMGT advised that Ms Lisa Wilkie from RBC who had filed an affidavit would be overseas at the time of the hearing and sought an adjournment of the matter to enable her to give evidence. A telephone mention was conducted to address this issue but Mr Dengate did not make himself available and as a consequence Ms Ryan-Dengate was not able to respond to questions about this issue. That matter was left to the hearing of the matter. After hearing from Ms Ryan-Dengate’s witnesses and SMGT’s other witnesses I asked Mr Dengate if he had any objection to Ms Wilkie’s evidence being admitted. I explained to him that if the evidence was admitted then I would accept that evidence as truth. I advised that he did not have to accept the evidence being admitted and if so the matter would be adjourned to permit Ms Wilkie to give evidence at another time. Mr Dengate did not object to Ms Wilkie’s evidence being accepted by the Commission.

Background and matters not in dispute

[6] Ms Helene Hederics was an Apprentice/Trainee Consultant and she was assigned to Ms Ryan-Dengate. Ms Ryan-Dengate was inducted on 21 March 2016 and that induction relevantly dealt with how time sheets were to be completed. 1 Ms Ryan-Dengate started performing work at RBC on the same day.

[7] There was no dispute that the time sheets are completed in triplicate with “the white copy being completed by the employee and that writing going through to the two carbon copies (a yellow copy for the Host and a Green copy to remain in the time book.)” 2 The employee fills in the time sheet setting out starting time, meal break length, finishing time and hours worked per day. If an employee takes personal leave the number of hours is recorded in a separate row as is annual leave.3 The pay slip is signed by the employee and a supervisor from RBC and the employee sends, by email or fax, the top copy to SMGT for processing.4

[8] There were numerous copies of time sheets completed by Ms Ryan- Dengate which comply with the requirements. 5 Those time sheets included times when Ms Ryan-Dengate had taken personal leave and this evidenced that she knew how to complete time sheets.

[9] On 22 September 2016, Ms Ryan-Dengate contracted Ms Hederics to arrange a meeting about work. That meeting was to take place the next day at the SMGT office. Ms Hederics was not able to attend the meeting and had a discussion with Ms Ryan-Dengate over the phone. Ms Ryan-Dengate advised her that she was having issues with some of her fellow workers and that she was not being given enough time during working hours to complete her trainee workbooks. There is a dispute about whether Ms Ryan-Dengate detailed her complaint or complained of being bullied. However that dispute does not need to be resolved for this decision.

[10] A further telephone conversation took place on 26 September 2016 and what was said in that conversation was in dispute.

[11] In September 2016, whilst she was overseas Ms Wilkie noticed that she had been charged for time when Ms Ryan-Dengate had been sick. 6

[12] Because the host pays an all up hourly rate for the trainee, if the trainee is ill or on annual leave, the host is not billed for that time.

[13] Upon her return Ms Wilkie reviewed her records and noted that there were times when RBC was charged for Ms Ryan-Dengate’s time but she had not been at work. 7

[14] On 4 October 2016, Ms Hederics received a phone call from Ms Wilkie. She was concerned about discrepancies in Ms Ryan-Dengate’s time sheets. 8 Ms Hederics and Ms Wilkie met on 6 October. Ms Wilkie brought the time sheets and her record of the days Ms Ryan-Dengate had been absent from work.

[15] Ms Wilkie said there were discrepancies in the time sheets for the fortnights ending 5 August and 2 September. 9

[16] Ms Hederics and Ms Wilkie met with Ms Ryan-Dengate on 7 October. 10 Ms Ryan-Dengate was not told in advance about the purpose of the meeting. When she arrived at the meeting Ms Ryan-Dengate was told that the meeting was to discuss the discrepancies in the time sheets.11 What was said at the meeting is in dispute but there is no dispute that Ms Ryan-Dengate left the meeting prior to any details of the allegations being put to her.

[17] Ms Ryan-Dengate did not return to work. Over the next month there was communication between the parties which I do not detail here as it is not necessary for my decision. A telephone conference was convened on 27 October 2016. 12 In attendance were Ms Ryan-Dengate, Mr Dengate, Mr Carson and Ms Hederics. What was said in that conference was in dispute. It resulted in further communications between the parties and on 28 October 2016 a letter outlining the allegations was sent to Ms Ryan-Dengate.

[18] A further meeting was held on 3 November 2016 and the day prior to that meeting Ms Ryan-Dengate was provided with a copy of the relevant time sheets.

[19] Ms Ryan-Dengate attended that meeting with her mother as her support person. At that meeting Ms Ryan-Dengate was taken through the time sheets.

[20] The carbon copy of the time sheet for the fortnight ending 5 August 2016 which was signed by Ms Ryan-Dengate and an employee of RCB showed no time worked on Monday 25 July and Monday 1 August 2016. However the white copy showed 7.6 hours recorded as being worked on both days. 13

[21] The time sheet for the fortnight ending 2 September 2016 which was signed by Ms Ryan-Dengate and an employee of RCB recorded that Ms Ryan-Dengate was at work on 22 and 23 August when RCB’s records showed that she had not been at work on those days. 14

[22] Ms Ryan-Dengate was asked to explain these discrepancies. Ms Ryan-Dengate said she had worked all the days claimed. Ms Ryan-Dengate and her mother both signed a record of the meeting confirming that it was her explanation that she was at work. 15

[23] There was a dispute between the parties about other matters which were raised at the meeting but it is not necessary for me to resolve those differences for the purpose of this decision.

[24] After the meeting Ms Hederics contacted Ms Wilkie who provided her with copies of SMS messages sent to her by Ms Ryan-Dengate for some of the days in question and also copies of her diary notes for the relevant days.

[25] On 9 November 2016 Ms Ryan-Dengate and Mr Dengate attended a meeting with Mr Carson and Ms Hederics to discuss the allegations. It was put to Ms Ryan-Dengate at this meeting that her explanation, given at the earlier meeting, that she had been at work on the relevant days was incorrect. Ms Ryan-Dengate advised that there had been an error. She was provided with an opportunity to explain her error but she did not. Ms Ryan-Dengate was then advised by Mr Carson that her employment would be terminated summarily.

[26] At the hearing Ms Ryan-Dengate did not dispute that on the relevant days she was not at work. 16

[27] At the hearing Ms Ryan-Dengate was not able to provide any explanation as to how the top copy of time sheet for the 25 July and 1 August 2016 came to be altered after the time sheets had been signed. Further she was not able to explain why the time sheets for 22 and 23 August recorded her as being at work when she was not. Her only response was that it was an honest mistake and that she had not deliberately altered the time sheet or claimed for time worked when she had not worked.

Was the termination of employment harsh, unjust or unreasonable?

[28] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[29] It was submitted that when Ms Ryan-Dengate completed the time sheets she believed she was at work 17 and on 22 and 23 August so did her supervisor who signed off on the time sheets.

[30] Ms Ryan-Dengate did not dispute that she altered the time sheets for the 25 July and 1 August after the time sheet had been signed by the RCB employee. She did not know how or why this occurred. She denied doing it dishonestly. Further, she had no explanation as to why the time sheet recorded her as being at work on 22 and 23 August 2016 other than it was an honest mistake. She relied upon the fact that the time sheets were countersigned by a RCB employee to support her submission that honest mistakes happen.

[31] It was submitted that there was no valid reason for the dismissal because Ms Ryan-Dengate had not committed fraud. Mr Dengate submitted that given it was a summary dismissal it needs to be established that Ms Ryan-Dengate committed fraud. 18 As I explained at the hearing it is not necessary for the Commission to conclude that fraud had occurred to be satisfied that there was a valid reason for the dismissal.

[32] Mr Dengate relied on Ms Ryan-Dengate’s illness to support the submission that she had made an honest mistake. There was no medical evidence before the Commission to support this submission. 19

[33] SMTG said there was a valid reason for the dismissal because there was a deliberate falsification of the time sheets.

[34] SMTG submitted that Ms Ryan-Dengate was dishonest in the investigation as she had said she was a work on all the relevant days and only when presented with her text messages did she change her position.

[35] I am satisfied that Ms Ryan-Dengate knew the procedure for recording personal leave and annual leave.

[36] I am satisfied that Ms Ryan-Dengate altered the time sheets for 25 July and 1 August after they had been signed. There was no evidence on which I could find that any employee of RBC knew that the changes to the time sheets had been made or approved the changes.

[37] In the absence of any reasonable explanation of how or why this occurred I am satisfied, on the balance of probabilities, she did not do this by mistake.

[38] Had it not been for the alteration of the time sheets on 25 July and 1 August, I may have accepted Ms Ryan-Dengate’s explanation for the incorrect information on the time sheets for the 22 and 23 August 2016 namely it was an honest mistake. However in light of my findings about the 25 July and 1 August and the evidence that Ms Ryan-Dengate knew how to record sick leave on her time sheets, I am satisfied that Ms Ryan-Dengate incorrectly completed her time sheets for 22 and 23 August. I am satisfied on the balance of probabilities that she did not do this by mistake. Ms Ryan-Dengate sent text messages to Ms Wilkie about being absent on those days. She mentioned that she would be seeing a doctor and in her second email she mentions being put back on antibiotics. 20 She completed her time sheet at the end of the fortnight. I do not accept that she simply forgot she had been absent two consecutive days. I am not persuaded that the RBC employee who signed off on this time sheet made an equivalent mistake as Ms Ryan-Dengate would be more likely to know that she had had time off than an employee of RBC.

[39] Whilst Ms Ryan-Dengate did provide incorrect information during the investigation meeting on 3 November 2016 I am not satisfied that she did this deliberately. I consider it was more likely than not that she did so in the same way she provided an explanation at the hearing. She was not saying what happened but simply putting forward a possible explanation. However, given Ms Ryan-Dengate was on notice about the discrepancies and she had been provided with copies of the relevant time sheets she should have checked her own records before asserting that she was at work on the disputed days.

[40] I am satisfied that there was a valid reason for the termination of her employment. By altering her time sheets after they were signed and by claiming hours worked when she was ill, Ms Ryan-Dengate did not comply with her obligations as an employee.

s387(b) whether Ms Ryan-Dengate was notified of that reason;

[41] Ms Ryan-Dengate was notified of the reason for the dismissal prior to the decision being taken to dismiss her.

s387(c) whether Ms Ryan-Dengate was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[42] Ms Ryan-Dengate was given an opportunity to respond prior to the decision being made.

s387(d) any unreasonable refusal by the employer to allow Ms Ryan-Dengate to have a support person present to assist at any discussions relating to dismissal;

[43] Except at the first meeting, Ms Ryan-Dengate had a support person. At the first meeting Ms Ryan-Dengate was not refused a support person. However, that she did not request a support person was not surprising as she did not know what the meeting was about. Her refusal to continue without a support person, given the allegations, was not surprising.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Ms Ryan-Dengate had been warned about that unsatisfactory performance before the dismissal;

[44] The dismissal did not relate to unsatisfactory performance.

s387(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;

[45] As I have not identified any defects in the procedures followed in effecting the dismissal this criteria is not a relevant consideration.

s387(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;

[46] As I have not identified any defects in the procedures followed in effecting the dismissal this criteria is not a relevant consideration.

s387(h) any other matters that the Fair Work Commission considers relevant.

[47] It was submitted that the dismissal was harsh. It was submitted that there was no intention to provided false information. It was also submitted that Ms Ryan-Dengate had been the victim of bullying in the workplace which had not been responded to correctly. I am not satisfied that SMTG took the action it did because Ms Ryan-Dengate made a bullying complaint. While Ms Hederics misunderstood Ms Ryan-Dengate’s advice about whether her concerns had been resolved it is clear that she did not initiate Ms Wilkie’s complaint. Ms Wilkie was not aware of Ms Ryan-Dengate’s complaint when she noticed that RBC had been charged for work not performed by Ms Ryan-Dengate. It was that that led to the investigation and it was the investigation that led to the discovery of the time sheets.

[48] It was also submitted that a consequence of the dismissal meant that the training completed by Ms Ryan-Dengate now had no value for her. There was no evidence at the hearing to support this submission.

[49] I do not accept that the punishment did not fit the crime. 21 An employer is entitled to expect employees to accurately complete time sheets. To not do so results in payments being made that are not owed. While the amount overpaid was not quantified it was not disputed that Ms Ryan-Dengate was paid for work not performed.

[50] Nor do I accept that it was the failure of SMTG to review the time sheets that enabled this to occur. 22

[51] It was submitted that the dismissal was harsh because it was a summary dismissal. I do not agree. Given I have not accepted that this was an honest mistake I do not consider that the summary nature of the dismissal means that the termination was harsh

Conclusion

[52] There was a valid reason for the dismissal and Ms Ryan-Dengate was afforded procedural fairness. I am not satisfied that the dismissal was disproportionate. SMGT were entitled to expect the time sheets to be completed accurately. The inaccurate completing of the time sheets not only meant Ms Ryan-Dengate received monies she was not entitled to but RBC was charged for her work when none was performed. Further, this was not a mere mistake. The alteration to the time sheet for the fortnight ending 5 August 2016 after it had been signed by the RBC employee was deliberate.

[53] Ms Ryan-Dengate was not a long standing employee and I am not satisfied that any of the reasons relied upon by Ms Ryan-Dengate are such as to make the dismissal harsh.

[54] Ms Ryan-Dengate’s application for an unfair dismissal remedy is therefore dismissed and an order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

M. Dengate on behalf of the Applicant.

A Jones on behalf of the Respondent.

Hearing details:

2017.

Mildura:

30 March.

 1   Exhibit R1 at 4.11 - 4.12

 2   Ibid at 4.9

 3   Ibid at 4.10

 4   Ibid at 4.9

 5   Ibid at 4.13

 6   Exhibit R3 at 3.2

 7   Ibid at 3.3

 8   Exhibit R1 at 4.1

 9   Exhibit R3 at 3.5

 10   Ibid at 4.1

 11   Ibid

 12   Exhibit R1 at 6.10-6.11

 13   Ibid at 7.3

 14   Ibid at 7.5

 15   Ibid at 7.11 and 7.12

 16   Transcript PN 516-521

 17   Ibid PN 1360

 18   Ibid PN 1419-1427

 19   Ibid PN 1362

 20   Exhibit R1 at HH 31

 21   Transcript PN 1453

 22   Ibid PN 1465

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