DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Robinson
v
Prosegur Australia Pty Ltd T/A Prosegur
(U2019/2291)

Application for an unfair dismissal remedy – Applicant clocked on another employee for work and did not record a meal break – Applicant alleged mistake in clocking on other employee and entitled to take a toilet and rehydration break – Applicant dismissed for conduct – reasons for dismissal valid – dismissal not unfair – application dismissed.

[1] On 2 March 2019 Mr Peter Robinson made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Prosegur Australia Pty Ltd (Prosegur) was harsh, unjust or unreasonable.

[2] Mr Robinson commenced employment with a security company Brambles on 1 April 1999. He was subsequently employed by Chubb Security Services in 2002 and later employed by Prosegur as an Armoured Vehicle Operator on a casual basis during 2012. Prosegur agrees that Mr Robinson’s service counts from 1 April 1999 due to relevant transfer of business arrangements.

[3] Mr Robinson was dismissed on 11 February 2019 for serious misconduct regarding his conduct on 22 January 2019.

[4] There are no jurisdictional issues for me to determine. I am satisfied that Mr Robinson is a person protected from unfair dismissal pursuant to s.382 of the Act. Mr Robinson’s application was made within the 21-day statutory time limit. The only matter that I must determine is whether Mr Robinsons’ dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.

[5] The parties participated in a conciliation conference before a Fair Work Commission (the Commission) staff conciliator on 2 April 2019. The matter was unable to be resolved and was subsequently allocated to me for determination. This matter was listed for hearing before me in Brisbane on 19 and 20 June 2019.

[6] Mr Robinson appeared and gave evidence on his own behalf. Mr Robinson’s wife and daughter attended as support persons for Mr Robinson during the proceedings. Mr Gavin Lynch, Workplace Relations Manager of Prosegur, and Ms Karen Carnie, General Manager of Queensland, Western Australia, South Australia and Northern Territory of Prosegur appeared for Prosegur. No other persons apart from Mr Robinson appeared as witnesses for Mr Robinson. The following persons appeared and gave evidence for Prosegur:

•  Ms Karen Carnie;

•  Ms Jennifer Clement, Regional Manager QLD and Northern NSW of Prosegur;

•  Mr Trent Dessmann, Branch Manager, Gold Coast of Prosegur;

•  Mr Martin Argyle, Regional Manager, Risk, Compliance, Training, QLD/NT of Prosegur.

[7] In the course of this matter Prosegur produced CCTV footage taken of Mr Robinson’s workplace and the armoured vehicle he was in on 22 January 2019. All parties and myself viewed that CCTV footage prior to the hearing and the CCTV footage contained relevant information of events occurring on 22 January 2019 which formed the basis of the reasons for Mr Robinson’s dismissal. Part of the CCTV footage was shown during the hearing.

Evidence of Mr Robinson

[8] Mr Robinson provided a witness statement in these proceedings along with several supporting documents setting out his evidence and submissions. 1 Mr Robinson gave evidence and was cross-examined at the hearing of this matter.

[9] At the time of his dismissal Mr Robinson was employed as an Armoured Vehicle Operator (AVO) on a casual basis. Mr Robinson worked out of Prosegur’s depot at Nerang, QLD. The predominant purpose of Mr Robinson’s role was to operate an armoured vehicle to deliver and pick up cash from various businesses. Prosegur’s AVOs ordinarily work in pairs, with one person acting as driver and the other acting as guard. Mr Robinson’s AVO partner on 22 January 2019 was Mr Joseph Bendeich.

[10] Mr Robinson stated that he arrived at the Nerang depot at approximately 6:10am on 22 January 2019, 2 although he was not scheduled to start until 6:30am. Mr Robinson ‘clocked on’ using a time card assigned to him in the ‘bundy clock’ system before 6:30am. Mr Robinson originally stated that he had first clocked on at 6:23am, but conceded upon being taken through the CCTV footage during the hearing that he had first clocked on at 6:27am. It is Mr Robinson’s evidence that the delay in clocking on was not unusual as he would usually arrive to work up to half an hour before his shift started and clock on closer to his shift start time.

[11] Upon his arrival, Mr Robinson learned that there had been changes to his usual ‘run’ and the addresses he needed to visit that day. Mr Robinson stated that he became stressed and anxious about the changes to his usual run as he was unfamiliar with several of the locations within the altered run. Upon being asked by Mr Lynch, Mr Robinson stated that he was not provided with a ‘Customer Service Information sheet’ (CSI) for those locations; a document which describes information about safely conducting cash transfer operations at a particular location. 3

[12] Mr Robinson stated that after checking the run sheet for his allocated run he checked his time card and noticed that he had clocked on too early for his shift. At approximately 6:29am Mr Robinson returned to the bundy clock and clocked in again, intending to rectify his start time. However, on the second occasion that Mr Robinson clocked in he did not use his own time card but instead used Mr Bendeich’s time card.

[13] Mr Robinson stated that he continued to prepare for his run. A short time later and after 6:30am, Mr Bendeich arrived at the Nerang depot and assisted Mr Robinson to prepare for the run.

[14] On 24 January 2019 he attended a union meeting in the Nerang depot ‘yard’. Following the meeting he was approached by Mr Dessmann who told him he was being stood down from his employment in relation to an issue with time cards, and was told he would need to provide a statement regarding the matter. Later on 24 January 2019, Mr Robinson was emailed a letter from Mr Dessmann standing him down from his employment with pay, “following an incident/issue that occurred on 22/01/19…” Mr Dessman’s letter provided that Mr Robinson would be informed when to return to work for a meeting regarding the issue, at which he could bring a support person.

[15] Following Mr Dessmann’s letter and also on 24 January 2019, Mr Robinson responded to Mr Dessmann’s letter and stated:

“On 22/1/19 I arrived at work at approximately 0600. After checking the run I cocked on and then realised that I had clocked on early.

At 0629 I returned to the clock to clock on at the correct time but must have inadvertently grabbed the wrong timecard instead of my own. I don’t recall having my glasses on. It is not unusual for time cards to be put back out of sequence. I then started checking off and loading the coin. A short time later Joe arrived at work to help me load.”

[16] A further letter was sent to Mr Robinson on 25 January 2019 detailing Prosegur’s allegations against Mr Robinson and inviting him to tender a response to the allegations. The following extract from the letter details the allegations made against Mr Robinson:

“On Tuesday 22 January 2019 you attended Prosegur’s Nerang depot for commencement of your shift.

Upon review of the CCTV footage for the morning of the 22^nd January 2019 you were observed at approximately 0627 hrs inserting a timecard into the time clock. You are again seen at approximately 0630 hrs inserting a second timecard in the time clock, which allegedly belonged to Joseph Bendeich.

The Company views this as a serious breach of your contract of employment and, as such, is treating this behaviour with the seriousness it deserves.”

[17] The letter also directed Mr Robinson to attend at the Nerang depot in relation to the allegations and required Mr Robinson to provide to Mr Dessmann a written response to the allegations before the meeting. Mr Dessmann invited Mr Robinson to have a support person with him at that meeting.

[18] On 25 January 2019 Mr Robinson provided a second response to the allegations against him, repeating his first written response and adding:

“FURTHER TO THE ABOVE STATEMENT

On the 22/1/19 I was rostered as the escort of Run 57 with Joe Bendietch the crew leader. I have worked this shift consistently for the last seven years. As is my normal routine I arrived at work at about 0600, a half hour earlier than my scheduled start time. I commenced to check and organise the run but soon realised that this 57 run, was completely different to any 57 run I had worked in the previous seven years. I was going to a completely different geographical location on the gold coast and servicing customers normally serviced by a different run. I had concerns about the location of some of the jobs. I also started checking the coin sheets against the coin and had difficultly balancing the coin against the coin sheets as some coin had been crossed out and rewritten by hand. Sometime later I clocked on, and I realised that I clocked on earlier that my designated start time. There had been a message from management recently regarding clocking off and verbal discussions regarding clocking on early. At approximately 0629 I returned to the time clock and I grabbed what I thought was my time card and clocked on at the right time. I was so preoccupied with the new run I did not pay that much attention. I was then issued with my gun and I brought the coin and run cage out to my truck in the loading area and commenced to load the coin. A short time later Joe arrived and helped me load the rest of the run onto the truck.

I am not aware of any company procedure or policy in relation to the correct use of time cards.”

[19] On 31 January 2019 Mr Robinson attended the Nerang depot and met with Mr Dessmann and Ms Carnie regarding the allegations against him. A support person from the Transport Workers’ Union (TWU) attended the meeting with Mr Robinson. Mr Robinson stated that he was asked questions about the allegations against him and he referred Mr Dessmann and Ms Carnie back to his statement as it contained his entire response.

[20] Mr Robinson stated that Mr Dessmann and Ms Carnie asked Mr Robinson questions in relation to the CCTV footage and his time card for 22 January 2019. Mr Robinson asked to view the CCTV footage and his time card during the meeting but was not allowed to view either the CCTV footage or his time card. Mr Robinson recalled that he stated to Mr Dessmann and Ms Carnie that the time displayed by the bundy clock was wrong, which Mr Dessmann and Ms Carnie accepted.

[21] Mr Robinson recalled that Mr Dessmann and Ms Carnie asked him about times that Mr Robinson had written on his time card for 22 January 2019. Mr Robinson stated that he had written down the hours he should be paid for that day as he had not taken a lunch break.

[22] On 4 February 2019 Mr Robinson received by email a letter from Mr Dessmann following the meeting of 31 January 2019, which stated:

“Dear Peter,

I refer to my letter to you of 25^th January 2019 and your responses received on 25^th January 2019and [sic] 29^th January 2019 and during our meeting on Thursday 31^st January 2019.

Prosegur has now had the opportunity to fully consider the responses you have provided both verbally and in writing, and to discuss the investigation process surrounding your current suspension from employment.

It is the view of Prosegur that you have knowingly used Joseph Bendeich’s time card to clock him on before he arrived at the depot to commence his shift on Tuesday 22^nd January 2019. It is the company’s assessment, after viewing the CCTV footage, that you arrived for your shift at approximately 6.09 am on Tuesday 22^nd January 2019 when rostered for a 6.30 am start. At approximately 6.27 you removed your time card from the middle of the rack, placed it into the bundy clock and replaced it into the middle of the rack. (6.26 am appears on the time card). After receiving and loading your weapon, at approximately 6.29 am you approach the bundy clock and place your right hand on it. At this point another AVO is standing to your rear and you engage in conversation. The second AVO does not use the bundy clock and when he leaves the area you turn your back to the bundy clock. You remove a time card from the top of the rack place it in the bundy clock and return it to the top of the rack. At the end of your shift, after unloading the truck and handing back your firearm, you removed your time card from the middle of the rack and write a on the card [sic]. You then place the card onto the bundy clock, write on it again and then place it in a slot on the inside of the issuing window. One of the handwritten notations on your time card is to indicate you did not take a meal break during your run on that day.

Further, it has come to the attention of Prosegur during the course of this investigation, that you did take a meal break on Tuesday 22^nd January 2019 despite recording, in your own handwriting on your time card, that you did not. CCTV footage from the truck you were crewing on that day shows you arriving at Pacific Fair Broadbeach at approximately 9.20 am on 22^nd January 2019 and exiting the vehicle. Neither you nor your crew member opened the vehicle bin and no cargo was removed from the vehicle or carried into the shopping centre. At approximately 9.47 am on the same day you returned to the vehicle. Neither you nor your crew member was carrying any cargo. It is noted that you appeared to be carrying drink bottles. There is no record of any jobs performed by you or your crew member during this time period.

Notwithstanding your responses as received in your statement of 25^th and 31^st January 2019, and our subsequent meeting on 31^st January 2019, Prosegur is of the opinion that your actions demonstrate two serious breaches of policy and procedure. At this stage of our investigation it appears your actions may amount to serious and wilful misconduct, in breach of standard operating procedures and the Prosegur Code of Ethics and Conduct (“the Code”)…”

[23] Mr Dessmann’s letter went on to direct Mr Robinson to attend another meeting at the Nerang depot to address the second allegation presented by Prosegur, and foreshadowed that “…failing you raising any matters which Prosegur considers would explain your actions, one of the options available to Prosegur may be to summarily terminate your employment for serious and wilful misconduct.”

[24] On 5 February 2019 Mr Robinson emailed Mr Dessmann requesting a copy of Prosegur’s standard operating procedures and the Prosegur Code of Ethics and Conduct (the Code). Mr Robinson stated that he received a copy of the Code from Mr Dessmann but not a copy of the standard operating procedures.

[25] On 7 February Mr Robinson attended the Nerang depot and met again with Mr Dessmann and Ms Carnie. 4 A support person from the TWU again attended with Mr Robinson. During that meeting, Mr Robinson produced his last response to the allegations against him, which stated:

“RESPONSE TO YOUR FINDINGS RE: STAND DOWN CHARGE OF INCORRECT USE OF TIME CARDS

You are relying on conclusions drawn from CCTV footage that I have knowingly clocked Joe Bendeich on. Footage which you have refused to show me and which I consider unfair.

What your investigation and your CCTV footage has not proven is intent. Surely your CCTV footage would show some form of contact between Joe Bendeich and myself prior to 0630 or how else would I have been aware he was running late.

The absence of such evidence creates reasonable doubt and supports the fact that I may have unintentionally clocked him on. Because of the reasons in my previous statement.

Regarding the meal break at pacific fair, Tuesday 22 Jan was a hot and humid day. Prior to this incident Joe Bendeich and I had loaded and delivered a considerable bulk coin order to the Star Casino. CCTV footage will confirm this and show us wearing our Personal Body Armour (PBA).

Regarding the CCTV footage from the truck where you allege we took a meal break. I was not aware that a toilet break and re-hydrating in accordance with Prosegur’s policies and procedures regarding PBA [is a meal break not paid; handwritten]

According to the current Nerang Depot EBA. Lunch is to be taken between 3.5 and 5.5 hours after the fixed start time. This what outside those times.

As you would be aware in 2018, Amaki Nakazato, was investigated in relation to numerous breaches of The Weapons Act. All of which were considered serious misconduct. His employment was not terminated even though these offences were proven.

I respectfully submit that this created a precedence and I would ask that Joe and I would be treated with the same procedural fairness. [sic] [original emphasis]”

[26] Mr Robinson stated that he submitted to Mr Dessmann and Ms Carnie during the meeting that Prosegur should consider as part of its decision that Mr Robinson had nearly 20 years’ service, had never been previously counselled regarding any similar allegations, other employees of Prosegur had previously been disciplined for serious misconduct but had not been dismissed and the person that Mr Robinson had ‘confrontational history’ with the person that had raised the time card issue, whom Mr Robinson did not identify.

[27] On 11 February 2019, Mr Robinson received a letter of termination from Mr Dessmann which stated:

“Dear Peter,

I write in reference to my correspondence of 25^th January and 4^th February 2019 and your statements of 24^th of January, 29^th January and 7^th February 2019, and our meeting on 31^st January and 7^th February 2019.

After careful consideration and taking into account the issues you raised in your responses, both written and verbal, it has been decided to terminate your employment with Prosegur Australia Pty Ltd (the Company) as a result of serious misconduct relating to serious breaches of procedure, effective immediately.

Please return any Company property in your possession at your earliest convenience. Once this has occurred any payable accrued entitlements owed to you will be paid to you in the next payroll run.

Yours sincerely,

Trent Dessmann

Nerang Branch Manager, Qld”

Cross-examination

[28] Much of Mr Robinson’s evidence regarding the events of 22 January 2019 was given under cross-examination by Mr Lynch.

[29] Mr Lynch asked Mr Robinson how long he had worked with Mr Bendeich and whether they enjoyed a friendly relationship? Mr Robinson replied that he had worked with Mr Bendeich for two years. He denied that they were friends but said that they got on well as work colleagues.

[30] Mr Robinson agreed that his first clock-on on 22 January 2019 had been at 6:27am, but he stated that he thought he had clocked-on much earlier than that. 5 Mr Robinson agreed that he had gone back to the bundy clock and attempted to clock-on again at approximately 6:30am.

[31] Mr Lynch asked Mr Robinson how he would ordinarily have gone about adjusting his clock-on time if he made a mistake when clocking on. Mr Robinson stated that on previous occasions his clock-on time had been adjusted by Prosegur’s office staff to the correct time. However, Mr Robinson stated further that shortly before 22 January 2019 he had become aware that the correct way to adjust a clock-on error was to insert a time card into the bundy clock again at the correct time. Mr Robinson stated that he had been made aware of the correct clock-on procedure through discussions with Mr Amaki Nakazato, Manager of Prosegur in the days leading up to 22 January 2019, although he could not give a precise date. 6

[32] I asked Mr Robinson how the bundy clock would differentiate in that case between clocking-on and clocking-off. Mr Robinson stated that the bundy clock would simply record three separate times on the time card and would not distinguish any of those time as clock-on or clock-off times. 7
[33] In cross-examination Mr Robinson stated that he understood it to be acceptable to clock-in up to seven and a half minutes early before the start of shift. Mr Robinson stated that he did not often clock-on for work earlier than that seven and a half minute period, and that if he did, it was usually adjusted to the correct clock-on time by Prosegur’s office staff.

[34] Mr Lynch handed up copies of Mr Robinson’s time cards for the eight weeks preceding 22 January 2019 and put to Mr Robinson that he had almost always clocked-on early for each of his shifts during that eight-week period and including on the days immediately before 22 January 2019. Mr Lynch put to Mr Robinson that although he had consistently clocked-on early during that eight-week period the only time that he had attempted to ‘re-clock’ himself and had not left his clock-on time to be corrected by Prosegur’s office staff was on 22 January 2019.

[35] Mr Lynch noted Mr Robinson’s assertion that he had been made aware by Mr Nakazato of the need to watch his clock-on times ‘in the days leading up to’ 22 January 2019 and asked Mr Robinson why he had chosen to ‘re-clock’ himself in on 22 January 2019 but not on any other day which may have followed his discussion with Mr Nakazato. Mr Robinson stated that he had been stressed about the alteration to his usual run and that stress had caused him to make a ‘stupid mistake’, thinking that he had clocked-on considerably earlier than 6:27am and which caused him to attempt to clock-on a second time. 8

[36] In answering a question from me, Mr Robinson agreed that he had not earlier attempted to punch his card in on a second occasion, and did it for the first time on 22 January 2019. 9

[37] Mr Lynch asked Mr Robinson which particular job or addresses he had been concerned about due to the alterations to his particular run? Mr Robinson stated that he had been concerned about two ATM sites as he was unsure of the locations of those ATMs. 10

[38] Mr Robinson was shown the CCTV footage of the Nerang depot of the morning of 22 January 2019. Mr Robinson agreed that at 6:27am he pulled his time card from the time card rack and clocked-on for the first time. Mr Robinson agreed that he removed and replaced his time card from approximately the middle of the rack. Mr Robinson agreed that the time cards were usually sorted in alphabetical order by last name and the distribution of names of Prosegur employees meant that Mr Robinson’s card sat near the middle of the rack.

[39] Mr Robinson was shown footage of himself approaching the bundy clock a second time at approximately 6:29:50am at which he approached the bundy clock and then walked away without doing anything at the clock. Mr Robinson denied when asked by Mr Lynch that he had been thinking about clocking someone else in at that time.

[40] Mr Robinson was shown footage of himself at the bundy clock a third time at approximately 6:30:30am at which Mr Robinson appeared to reach for the middle of the time card rack and then moved his hand to the top of the rack and took out a time card from the top of the rack, which Mr Robinson accepted was Mr Bendeich’s card. Mr Robinson explained when asked by Mr Lynch that it was a ‘stupid’ and ‘subconscious’ act to take a time card from the top of the rack when attempting to ‘re-clock’ himself.

[41] Mr Lynch put to Mr Robinson and Mr Robinson conceded that when he first clocked-on at 6:27am he had stood directly in front of the bundy clock, but when he ‘re-clocked’ himself at 6:30am he had stood between the bundy clock and the closest security camera. Mr Robinson could not explain why he had positioned himself differently on each of those occasions, but denied that he had attempted to block the camera’s view of the bundy clock.

[42] Mr Lynch put to Mr Robinson that a reasonable person would not accept that the following circumstances which arose on 22 January 2019 were merely coincidental:

•  That Mr Robinson had attempted to adjust his clock-on time for the first time on 22 January 2019;

•  That Mr Robinson had used Mr Bendeich’s time card when attempting to ‘re-clock’ himself on;

•  That Mr Bendeich was running late on 22 January 2019;

•  That Mr Bendeich did not clock himself on when he arrived at the Nerang depot.

[43] Mr Lynch put to Mr Robinson that he had knowingly used Mr Bendeich’s card to clock Mr Bendeich on at 6:30am because he knew that Mr Bendeich was running late. Mr Robinson denied that he had knowingly used Mr Bendeich’s time card at 6:30am, denied that he had known Mr Bendeich was running late at all and stated that a reasonable person would accept the above circumstances as coincidental. 11

[44] Mr Robinson said the following about his actions:

(a) “I’m embarrassed by my actions.”  12

(b) “I think the CCTV footage is quite damning and, as I said, if you’d have shown that to me and the time card at my initial interview, I doubt if I’d be here.” 13

(c) “…I’ve then have had time to reflect during the three weeks that I was waiting for the investigation to conclude and I realised that I’d made a stupid mistake.” 14

[45] Mr Robinson maintained that it was unreasonable of Prosegur to conclude that he had been dishonest in his responses regarding his use of Mr Bendeich’s time card.

[46] Mr Robinson agreed that his run sheet for 22 January 2019 had stipulated that Mr Robinson and Mr Bendeich were to leave the Nerang depot at 6:55am and attend a customer at 7:15am. Mr Robinson agreed when asked by Mr Lynch that he and Mr Bendeich had stopped for 10 minutes on the way to the customer to get a coffee, which Mr Robinson did not record as a break on his time card.

[47] Mr Robinson stated that the customer required 30 minutes’ notice of their arrival, which was usually given by a Prosegur office worker at around the same time or shortly after a truck left the depot. Mr Robinson stated that because the trip from the Nerang depot to the customer took less than 30 minutes, it was his and Mr Bendeich’s ordinary practice to stop and get a coffee on the way to the customer. Mr Robinson stated that he and Mr Bendeich had waited for their coffee for 10 minutes and had continued to the customer as soon as their coffee was ready. Mr Robinson distinguished this from a coffee break and submitted that had he and Mr Bendeich taken a break they would have stayed and drank their coffee before continuing to the customer, which is why he had not recorded this stoppage on his time card. 15

[48] Mr Lynch referred Mr Robinson to the allegation that he and Mr Bendeich had taken an unrecorded meal break at the Pacific Fair shopping centre at approximately 9:20am on 22 January 2019. Mr Robinson confirmed that he and Mr Bendeich had parked at an undercover loading dock for the purpose of going to the toilet and getting a drink. Mr Robinson agreed that it took approximately 26 minutes for them to return to the armoured vehicle. 16

[49] In responding to Mr Lynch, Mr Robinson confirmed that they had been scheduled to complete a cash delivery and pick up at a store at the Pacific Fair shopping centre at 9:15am that day. Mr Robinson stated that the access point for that store was at a different loading dock at the shopping centre, which they drove to after going to the toilet and getting a drink and completed their job at the store. 17

[50] Mr Robinson stated that he and Mr Bendeich had chosen to stop at a different loading dock than the access dock for the particular store because the first dock was near to a supermarket and had ‘the nicest toilets in the shopping centre’ and the supermarket stocked the sports drinks that they wanted to buy ‘at a reasonable price’. 18 When asked by me, Mr Robinson confirmed that there were other toilets nearer to the store to which a delivery/collection was required.

[51] Mr Robinson confirmed that he did not consider his stop at the Pacific Fair shopping centre to use the toilet and get a drink to be a lunch break. Mr Robinson confirmed that he added an additional 30 minutes to his time card for 22 January 2019 on the basis that he had not taken a lunch break that day, which was Prosegur’s common practice and in accordance with the terms and conditions of Mr Robinson’s employment. 19

[52] Mr Lynch put to Mr Robinson that Prosegur had supplied him with a five litre container on the expectation that he would use the container as a water bottle throughout any given day. Mr Robinson stated that he had been given such a container when he was working out of Townsville, but did not have such a container on 22 January 2019. Mr Robinson maintained that he was entitled to get a drink if he was thirsty, regardless of whether he used the five litre container or purchased his own drink. 20

[53] Mr Lynch asked Mr Robinson why the stoppage had taken approximately 26 minutes. Mr Robinson stated that there had been a short wait for the toilets and there had been a line at the supermarket and that was simply how long it took. Mr Robinson stated that he took a drink and toilet break on most days and did not consider 26 minutes to be outside of the ordinary time it took for him to take such a break. Mr Robinson maintained that he was entitled to go to the toilet or to get a drink during his shift outside of a defined meal break, and he presumed that there was no strict time limit on a toilet or rehydration break. 21

[54] Mr Lynch confirmed with Mr Robinson that he was familiar with the use of ‘PDA’ devices and ‘track and trace’ data which Prosegur used to track the location of armoured vehicles and AVOs, and which AVOs are required to scan upon arrival at each site. Mr Robinson accepted that the ‘track and trace’ data showed that he and Mr Bendeich commenced their job at the Pacific Fair store at 9:20am, which was in fact the time that Mr Robinson and Mr Bendeich arrived at the Pacific Fair shopping centre and took their toilet and drink break. Mr Robinson stated that it had been Mr Bendeich’s role to enter the PDA and ‘track and trace’ data for each job.

[55] Mr Lynch put to Mr Robinson that the ‘track and trace’ data showed he and Mr Bendeich performing their job at the store from 9:20am until 10:08am on 22 January 2019. Mr Lynch put to Mr Robinson that either he or Mr Bendeich should have entered the time they spent on their toilet and drink break as a ‘break’ within the PDA device, and not as completing their job at the store. Mr Robinson agreed that perhaps ‘break’ should have been entered but maintained that it was Mr Bendeich who was responsible for using the PDA device that day.

Mr Robinson recalled regarding evidence of Mr Dessmann

[56] Mr Robinson was recalled to give evidence regarding Mr Dessmann’s evidence of his discussions with Mr Robinson on 12 February 2019 (see below at [105] – [106]). Mr Robinson agreed with Mr Dessmann’s account of their conversation on 12 February 2019 except for one matter; he denied that he said to Mr Dessmann words to the effect of “oh well, we got caught, but it’s not over yet.”

[57] I asked Mr Robinson what he had meant by the words, “I thought about telling the truth but you know me”. Mr Robinson stated that all he had meant by those words was that he had told the truth during the investigation. 22

Evidence as to mitigation of loss

[58] Following the dismissal, Mr Robinson holidayed in Alaska for three weeks. The holiday had been booked approximately 12 months in advance.

[59] Since his dismissal he has commenced casual work of approximately 15 hours per week and has applied for five jobs. The five jobs that Mr Robinson applied for were the positions that Mr Robinson considered suitable for him. Mr Robinson stated that his wife and daughter searched online for vacant jobs for him, as Mr Robinson is not very computer literate. Mr Robinson searched for job vacancies within newspapers, but did not do this very often. 23

Evidence of Ms Karen Carnie

[60] Ms Karen Carnie gave a witness statement in respect of this matter and appeared and gave evidence at the hearing of this matter. 24

[61] Ms Carnie stated that on 23 January 2019 she was advised of a suspected falsification of time card records on 22 January 2019. Ms Carnie directed for the CCTV footage to be retrieved and viewed to investigate that suspicion further. Later on 23 January 2019, and following review of the CCTV footage, Ms Carnie was informed that the CCTV footage showed Mr Robinson clocking Mr Bendeich on to work prior to his arrival on 22 January 2019. Ms Carnie stated that she instructed Mr Dessmann to stand down from their employment both Mr Robinson and Mr Bendeich the next day, as they had already left work by the relevant time on 23 January 2019.

[62] Ms Carnie understood that documents passed between Prosegur and Mr Robinson as set out above in Mr Robinson’s evidence at [14] – [18].

[63] Ms Carnie stated that on 31 January 2019 she met with Mr Robinson and his support person and provided him with an opportunity to respond to Mr Dessmann’s letter of allegations of 25 January 2019. During that meeting Mr Robinson asked to see the CCTV footage but Ms Carnie denied Mr Robinson’s request due to security concerns.

[64] Ms Carnie stated that during the meeting on 31 January 2019 Mr Robinson stated that he may have taken the wrong time card from the time card rack when clocking on. Ms Carnie recalled that Mr Robinson said the time cards were ‘all over the shop’. Ms Carnie recalled that Mr Robinson also responded that the bundy clock’s time was out by a couple of minutes. Ms Carnie recalled that Mr Robinson stated he did not take a meal break on 22 January 2019. Ms Carnie stated that Mr Robinson did not mention anything about a toilet and drink break during that meeting. 25

[65] Ms Carnie stated that as part of the continued investigation of the allegations she viewed the CCTV footage of Mr Robinson and Mr Bendeich while they were at the Pacific Fair shopping centre from approximately 9:20am on 22 January 2019. Ms Carnie formed the view that Mr Robinson and Mr Bendeich had left their armoured vehicle at approximately 9:20am and had returned at approximately 9:47am carrying water bottles but no cargo, whilst Prosegur’s ‘track and trace’ data from Mr Bendeich’s PDA device showed them as having been at the relevant store from 9:20am to 10:04am.

[66] Ms Carnie stated that on 7 February 2019 she met again with Mr Robinson and his support person and gave him an opportunity to respond to Mr Dessmann’s show cause letter of 4 February 2019. Ms Carnie recalled that Mr Robinson stated that he did not have anything to add to his statement of 7 February 2019, other than to suggest that he shared a mutual dislike with an [unnamed] employee whom had made the complaint about the time cards.

[67] Ms Carnie stated that she considered the CCTV footage and all other information relating to the investigation and after consulting with Mr Lynch, determined that Mr Robinson’s employment should be terminated. Ms Carnie was unable to arrange a mutually convenient time to meet with Mr Robinson to inform him of his dismissal in person and so decided to inform him by phone, which she did on 11 February 2019.

[68] Ms Carnie gave limited further evidence-in-chief at the hearing of this matter. She stated that in the last eight weeks of Mr Robinson’s employment he consistently arrived for work and clocked on early, but never adjusted his start time. Ms Carnie stated that only ‘very, very occasionally’ did an employee forget to clock on at the start of their shift. Ms Carnie stated that she was not aware of anyone else attempting to ‘re-clock’ their time card to correct a start time error. 26

[69] Ms Carnie stated the decision was made to terminate Mr Robinson’s employment because his actions were fraudulent and dishonest, and given the industry Prosegur is in, it could not afford to have employees acting dishonestly. Ms Carnie stated that Mr Robinson’s length of service was taken into account when considering the appropriate disciplinary response to the allegations against him. 27

[70] Ms Carnie stated that she was aware of Mr Robinson’s submission that Prosegur had treated him unfavourably on a previous occasion regarding his return to work from surgery. Ms Carnie acknowledged that Mr Robinson had submitted to Prosegur a clearance to return to full duties dated 14 November 2013, however Prosegur did not receive that document until 20 January 2014. Upon receipt of that document, Prosegur determined that further medical evidence was required and provided Mr Robinson with an authority for release of medical information for him to sign and return.

[71] Ms Carnie stated that Mr Robinson provided Prosegur with the signed authority document on 7 May 2014, following which Prosegur immediately referred Mr Robinson for an independent medical assessment and on 6 June 2014 following that assessment Mr Robinson was cleared to return to work. Ms Carnie stated that that Mr Robinson’s return to work was not delayed by Prosegur.

[72] Ms Carnie stated that Prosegur’s current policy documents including its Code of Ethics and Conduct were displayed on notice boards.

[73] Ms Carnie stated that there had been a previous incident where seven employees had been dismissed from Prosegur for falsifying time cards. Ms Carnie stated that to her knowledge some of those persons disputed their dismissal.

[74] I noted to the parties that Ms Carnie’s evidence regarding previous dismissals in similar circumstances should have been included in her evidence filed and served before the hearing. I instructed Prosegur to review whether any of those previous dismissals had been dispute before the Commission and to inform me of any such matters. Prosegur later confirmed that only one of those previously dismissed employees had lodged an application to the Commission regarding their dismissal and their application was later withdrawn.

Cross-examination

[75] Mr Robinson put to Ms Carnie that he had been entitled to take a toilet and drink break whilst at Pacific Fair. Ms Carnie agreed that Mr Robinson was entitled to go to the toilet. Ms Carnie stated that the five litre container provided to Prosegur employees should have provided enough water to get Mr Robinson through the day. Ms Carnie stated that Mr Robinson would be free to buy whatever he liked during an unpaid meal break. 28

[76] Ms Carnie answered when asked by Mr Robinson that she had not questioned Mr Robinson about the PDA and ‘track and trace’ data during the investigation of the allegations against him; Mr Robinson had merely been informed of what the PDA and ‘track and trace’ data showed. 29

[77] Mr Robinson put to Ms Carnie that during the meeting of 7 February 2019 he had asked that his length of service and his punctuality in attending work each day should be taken into account by Prosegur in considering any disciplinary action to be taken. Ms Carnie could not recall Mr Robinson having raised those matters on 7 February 2019 and her contemporaneous notes did not include those matters. Ms Carnie stated that Mr Robinson’s length of service and punctuality would have been considered in any event. 30

[78] Mr Robinson put to Ms Carnie that Prosegur had a history of treating him less favourably than other employees in similar circumstances. Mr Robinson put to Ms Carnie that he had previously taken time off of work due to necessary surgery in or about 2013 and been cleared to return to work by his surgeon on 18 November 2013. Mr Robinson put that he had on 19 November 2013 emailed and hand delivered that clearance to Mr Dessmann. Mr Robinson put that Mr Dessmann had not acted on that clearance until 23 January 2014. Mr Robinson noted that on 7 May 2014 he discussed the matter with Prosegur and was provided with an authority document for his signature, which Mr Robinson signed and returned on the same day. Ms Carnie replied that whilst she was not in the role at the time, she understood that the relevant Prosegur employee had been waiting for Mr Robinson’s material, and when it had been received, an appointment was made the next day.

[79] Ms Carnie stated that she did not believe that Mr Dessmann had ‘hung on’ to Mr Robinson’s medical certificate without acting on it until 23 January 2014. Ms Carnie agreed that it was not normal for a clearance to return to work to take seven months to confirm, assuming that all necessary paperwork was completed in a reasonable timeframe. 31

[80] Ms Carnie confirmed in responding to Mr Robinson that Mr Robinson had completed annual AVO refresher training in the course of his employment and that training included instruction on Prosegur’s standard operating procedures. 32

[81] Ms Carnie denied when put by Mr Robinson that it would have been better for him to be given a first and final warning in response to the allegations against him rather than being dismissed, as he had not received a first and final warning before. 33

Re-examination

[82] Ms Carnie stated in re-examination that she understood Mr Robinson had received a written warning dated 10 August 2017 as a result of breaching Prosegur’s firearms procedures. 34

Mr Dessmann’s note of 12 February 2019

[83] During closing submissions on the second day of hearing and in relation to Mr Dessmann’s note of discussions between him and Mr Robinson on 12 February 2019 (see below at [105]), Ms Carnie stated that she had received a phone call from Mr Dessmann on 12 February 2019 during which Mr Dessmann had described his discussion with Mr Robinson. Ms Carnie stated that she had instructed Mr Dessmann to write a statement regarding the discussion immediately.

Evidence of Ms Jennifer Clement

[84] Ms Jennifer Clement made a witness statement regarding this matter and appeared and gave evidence at the hearing of this matter. 35

[85] Ms Clement stated that there had been a previous issue regarding whether Mr Robinson was a full-time or part-time employee following a transfer from Prosegur’s Nerang depot to Prosegur’s Townsville depot. Ms Clement stated that there had been a typographical error on a new contract provided to Mr Robinson such that although he was employed as a permanent part-time employee he was to work an average of 40 hours per week.

[86] The dispute was ultimately resolved by Prosegur agreeing that Mr Robinson was a permanent full-time employee. Ms Clement stated that she bore no continuing animosity towards Mr Robinson as a result of that dispute, and to the best of her knowledge no other Prosegur manger bore any continuing animosity towards Mr Robinson. 36 Ms Clement stated that she had never said to Mr Robinson that he would never be employed on a permanent part-time basis again, and considered it ‘extremely unlikely’ that any other Prosegur employee would have said that to Mr Robinson.

[87] Ms Clement stated that Prosegur’s policy documents are displayed on all notice boards within Prosegur’s branches.

[88] Ms Clement stated that taking ‘crib breaks’ and ‘rehydration breaks’ were not general practices within the Nerang depot. Ms Clement stated that it was each employee’s responsibility to ensure that they arrived for work ‘fully hydrated’ and employees were issued with a five litre container and additional drink bottles to use to remain hydrated throughout a shift.

[89] Ms Clement gave evidence about the incident involving Mr Nakazato referred to by Mr Robinson in his response of 7 February 2019 (extracted above at [25]). Ms Clement stated that Mr Nakazato had reported to Ms Clement that an employee had not followed correct procedure when returning a firearm that they had used in their employment. An investigation followed and several employees including Mr Nakazato and Mr Robinson were warned about not following correct firearms procedure as Mr Nakazato had allowed some laxity in the recorded time that a firearm was signed back in. Ms Clement stated that Mr Nakazato had not sought personal gain by breaching the firearm procedures. 37

Cross-examination

[90] When asked by Mr Robinson, Ms Clement conceded that she was not personally aware of whether copies of Prosegur’s code of conduct and standard operating procedures were displayed publically in Prosegur’s Townsville depot.

[91] Ms Clement agreed with Mr Robinson that he was entitled to take a toilet break if required; he was entitled to get a drink, and he was entitled to a 10-minute ‘smoko’ break each shift.

[92] Ms Clement confirmed that Mr Nakazato had received a ‘first and final’ warning as a result of his breaches of Prosegur’s firearms policies, which had also breached the Weapons Act 1990 (Qld).

[93] Mr Robinson asked Ms Clement whether it was normal for a person to wait seven months for a return to work management plan to be approved, as it had for Mr Robinson. Ms Clement stated that ‘it could be normal’ for approval to take that long under Prosegur’s current procedures and policies. Ms Clement could not say when asked by Mr Robinson why a fellow employee, Mr Andrew Rayner had not been required to complete an independent medical examination before returning to work.

Evidence of Mr Trent Dessmann

[94] Mr Trent Dessmann gave a witness statement regarding this matter and appeared and gave evidence at the hearing. 38

[95] Mr Dessmann stated that on 12 January 2019 an SMS was sent to Prosegur’s employees informing them that they should not clock on early unless authorised by a manager or supervisor. The text message was, in fact, sent on 12 January 2018.

[96] Mr Dessmann stated that during the afternoon of 22 January 2019 he was made aware of a suspicion that an employee may have falsified their time card data. He advised Mr Martin Argyle of that suspicion later that day. He informed Ms Carnie of that suspicion on 23 January 2019.

[97] During the morning of 24 January 2019, Mr Dessmann informed Mr Robinson and Mr Bendeich that they had been stood down pending further investigation of the time card issue. Mr Dessmann stated that he informed Mr Robinson and Mr Bendeich that they would be paid for their rostered hours while stood down and until the end of the current roster period.

[98] Mr Dessmann’s evidence regarding the progress of Mr Robinson’s investigation does not differ materially from Mr Robinson’s evidence, as set out above at [14] – [21].

[99] Mr Dessmann stated that following the meeting of 31 January 2019, Prosegur discovered that data from the relevant armoured vehicle’s CCTV camera and GPS did not match the PDA and ‘track and trace’ data for Mr Robinson’s and Mr Bendeich’s movements at around 9:20am on 22 January 2019. Mr Dessmann’s evidence regarding that data did not differ from Ms Carnie’s evidence, as set out above at [65]. Mr Dessmann stated that the PDA and ‘track and trace’ data must be entered manually. Mr Dessmann could think of no reason to deliberately enter incorrect data into a PDA device other than to hide an employee doing something other than their job. 39

[100] On 4 February 2019 Mr Robinson was issued with a letter requiring him to show cause in respect of the allegations against him. On 7 February 2019 he attended a meeting with Mr Robinson and his support person where Mr Robinson was given an opportunity to show cause. Mr Robinson provided the response extracted above at [25]. Mr Dessmann recalled that Mr Robinson said he had nothing to add to that response.

[101] Mr Dessmann stated that he and Ms Carnie had reviewed Mr Robinson’s time card records for the eight weeks prior to his dismissal and confirmed that he had clocked on early for all of his shifts but had never clocked on twice, except for the attempt on 22 January 2019. Mr Dessmann stated that the ordinary process for correcting an error in clock on time was to put a line through or white out the incorrect time appearing on the time card and then re-clock on and have the amended time stamp initialled by a supervisor. 40

[102] Mr Dessmann stated that he had never told Mr Robinson that he would never again be employed on a permanent part-time basis. Mr Dessmann confirmed that he had interviewed Mr Robinson for a permanent part-time position at the Nerang depot but Mr Robinson was not successful in that process.

[103] Mr Dessmann stated that ‘crib breaks’ were not taken as a matter of practice at the Nerang depot, and denied that Mr Robinson was entitled to take a ‘crib break’. Mr Dessmann could not recall any employee having ever asked to take a ‘crib break’. Mr Dessmann noted that the Prosegur Australia Pty Limited, Queensland, Nerang, Armoured Vehicle Operators’ Enterprise Agreement 2015 – 2018 (the Agreement) refers to an entitlement to ‘crib breaks’ but only in respect of 24-hour work patterns.
[104] Mr Dessmann stated that he was not aware of any entitlement to a ‘rehydration break’. He stated that it was each employee’s responsibility to ensure that they arrived for work ‘fully hydrated’, and employees were issued with a five litre container and additional drink bottles to use to remain hydrated throughout a shift. Mr Dessmann stated that he would characterise the 26-minute break taken by Mr Robinson and Mr Bendeich on 22 January 2019 as a meal break or lunch break. 41

[105] In his written statement given prior to the hearing, Mr Dessmann stated “On the 12^th February I had a discussion with the applicant regarding his termination. I will also be giving evidence about this conversation.” Prosegur produced a Microsoft Word document recording a discussion between Mr Dessmann and Mr Robinson, which is extracted here:

“Tuesday, 12th February 2019

Statement: Meeting with Peter Robinson

At approximately 0845 I received a text message from Peter Robinson informing me that he would be returning his uniforms and clearing out his locker. Approximately an hour later Peter arrived with his work uniforms.

When Peter arrived, I greeted him and asked how he was doing and stated that I hope there were no hard feelings. Peter’s response was “you had to do what you had to do”. Peter then proceeded to clean out his locker, as he did I brought up the topic of his termination and stated that my personal opinion was the only way that he could of potentially kept his job would have been to tell the truth about what happened in regards to incidents that took place on the 22nd of January 2019 which resulted in Peters termination. Peter’s response was “I thought about, but you know me”. We both laughed as Peter and I have often butted heads on issues both jovially and not so, as he can be quite stubborn, as can I. Peter then proceeded to say “oh well, we got caught, but it’s not over yet”. My interpretation of this statement was he was aware what he did was a breach of company policies and procedures, however he intended to take further action in regards to his dismissal.

After Peter cleared his locker, we said our goodbyes and he left the depot, I have had no other contact with Peter other than a text message seeking an update on his LSL payout.

Trent Dessmann

Gold Coast Manager – QLD”

[106] Mr Dessmann stated that he had understood Mr Robinson’s statement to be an acknowledgement of his wrongdoing and that he had been caught doing the wrong thing.

Cross-examination

[107] Mr Robinson asked Mr Dessmann whether it was normal practice within the Nerang depot to put on their time cards that they had not taken lunch. Mr Dessmann agreed that that was a regular practice in the Nerang depot.

[108] Mr Robinson put to Mr Dessmann that the use of the PDA device was the sole responsibility of the crew leader on a given day. Mr Dessmann stated that responsibility for using the PDA device was shared throughout a day. Mr Robinson put to Mr Dessmann that the ‘guard’ employee, which Mr Robinson had been on 22 January 2019, would only be responsible for using the PDA device to scan outgoing items to be given to customers. Mr Dessmann stated that that would depend on the particular employees using the PDA on a given day. 42

[109] Mr Dessmann stated that he was not aware of any Prosegur policy document regarding the use of time cards.

[110] Mr Dessmann agreed with Mr Robinson that he had always attended work early for his shifts and was proactive in organising his runs in the morning. Mr Dessmann stated that Mr Robinson had been an exceptional employee. 43

[111] Mr Robinson noted that Mr Dessmann’s record of their discussions on 12 February 2019 referred to them having previously ‘butted heads’, and asked Mr Dessmann what they had butted heads about. Mr Dessmann stated that he had been referring to ‘butting heads’ very broadly, and had intended to indicate that he and Mr Robinson had disagreed on certain things. Mr Robinson denied when put to him by Mr Robinson that they had ‘butted heads’ about safety issues for proposed work practices in relation to ‘one man crewing work’.

[112] When asked by Mr Robinson, Mr Dessmann stated that he had been involved in organising a return to work plan for Mr Andrew Rayner. Mr Dessmann could not recall whether Mr Rayner had been required to undergo an independent medical examination before returning to work. Mr Dessmann recalled that Mr Rayner had been required to produce a doctor’s certificate. 44

[113] Mr Robinson put to Mr Dessmann that his record of their conversation on 12 February 2019 was not a complete record of their conversation. Mr Robinson put to Mr Dessmann that he had not said, “Oh well, we got caught, but it’s not over yet”. Mr Dessmann maintained that Mr Robinson had made that statement.

[114] Mr Dessmann agreed with Mr Robinson that he and Mr Bendeich had often completed the particular run on any given Tuesday for several years. Mr Dessmann agreed with Mr Robinson that the jobs described in the particular run which Mr Robinson and Mr Bendeich completed on 22 January 2019 were different from the jobs that the particular run ordinarily entailed.

[115] Mr Robinson put to Mr Dessmann that the ‘despatch log’ which had been circulated on 21 January 2019 for the runs to be completed on 22 January 2019 showed completely different suburbs and geographical areas than the actual run sheet from 22 January 2019, and that such a difference was unusual. Mr Dessmann stated normal practice for ‘despatch logs’ was to give a guideline of the areas that a truck may or may not be required to go to the next day, whereas the run sheet itself described where the truck would go. 45

Re-examination

[116] During re-examination I asked Mr Dessmann whether his record of conversation had been made contemporaneously. Mr Dessmann stated that he had made the record on 12 February 2019 and had emailed it to his supervisors. I directed Prosegur to provide a copy of Mr Dessmann’s email providing the note of 12 February 2019.

[117] I asked Mr Dessmann what had caused Prosegur to investigate Mr Robinson’s and Mr Bendeich’s activity for 22 January 2019. Mr Dessmann stated that in addition to the known time card issue, there had been a two-hour discrepancy between the time that Mr Robinson and Mr Bendeich had returned to the Nerang depot and their anticipated return time. Mr Dessmann stated that the usual practice was for crews to write explanations for any lengthy delays on the back of their run sheets, and Prosegur usually allowed for up to a 30-minute discrepancy between anticipated and actual return time. Mr Robinson and Mr Bendeich had given no explanation for their two-hour delay and Prosegur had investigated further on that basis. 46

[118] When asked by me, Mr Dessmann confirmed that he had been involved in Mr Bendeich’s dismissal from Prosegur which followed from the events of 22 January 2019. Mr Dessmann stated that Prosegur had concluded that there had been some arrangement or communication between Mr Robinson and Mr Bendeich regarding clocking on for 22 January 2019. 47

[119] Mr Dessmann confirmed that Ms Carnie made the decision to terminate Mr Robinson’s employment. 48

Failure to produce email providing note of 12 February 2019

[120] Between the first and second days of the hearing of this matter, Mr Lynch emailed my chambers and noted that Prosegur had been unable to find Mr Dessmann’s email providing his note of 12 February 2019. During the second day of hearing I inspected the properties of the Microsoft Word document containing Mr Dessmann’s statement of 12 February 2019, which showed that that document or copy thereof had been created and last modified by Mr Dessmann on 1 April 2019.

[121] Following the hearing, Mr Lynch emailed my chambers and confirmed that Prosegur had been unable to produce any contemporaneous email from Mr Dessmann providing his statement regarding the events of 12 February 2019.

Evidence of Mr Martin Argyle

[122] Mr Martin Argyle gave a witness statement regarding this matter and appeared and gave evidence at the hearing.

[123] Mr Argyle stated that on 22 January 2019 he received an email from Mr Dessmann requesting view CCTV footage from the Nerang depot, together with the armoured vehicle driven by Mr Bendeich that day. Mr Argyle viewed the CCTV footage and on 28 January 2019 prepared a report regarding the CCTV footage.

[124] Mr Argyle gave evidence about the use of CSIs within Prosegur’s business. Mr Argyle stated that every site serviced by Prosegur has an accompanying CSI which gives instructions on how services at that site should be performed. All AVOs are required to be familiar with the CSIs for the sites that they will access on a given day. If an AVO is not familiar with the CSI for a particular site, they are required to seek access to the CSI from their supervisor.

[125] Mr Argyle stated that the use of CSIs was governed by Prosegur’s ‘Armoured Vehicle Operators Handbook’ (the Handbook) which Mr Robinson had confirmed receipt of on 20 December 2007. Mr Argyle stated that Prosegur’s policies regarding the use of CSIs had not changed since 2007.

[126] Mr Argyle stated that copies of Prosegur’s policy documents are displayed on notice boards in all of its branches.

[127] Mr Argyle stated that on reviewing the CCTV footage of the Nerang depot, it appeared to him that Mr Robinson had examined the run sheet for 22 January 2019, but had not attempted to access any CSIs. The footage showed Mr Robinson had approached the bundy clock three times on the morning of 22 January 2019.

[128] Mr Argyle stated that on reviewing the CCTV footage of the armoured vehicle, it appeared to him that the vehicle was stationary at the Pacific Fair shopping centre for approximately 26 minutes from 9:20am. Mr Argyle noted that the PDA and ‘track and trace’ data recorded Mr Robinson and Mr Bendeich having started their relevant store job at 9:20am.

[129] Mr Argyle stated that a ‘rehydration break’ was not an entitlement available to Mr Robinson. Mr Argyle stated that Prosegur’s ‘National PBA Policy’ (which refers to personal body armour) requires AVOs to arrive for work fully hydrated and to maintain their hydration levels throughout the day. To that end, AVOs are provided with a five litre container and two drink bottles for use throughout the day. The containers and bottles were replaced by Prosegur in the same manner as replacing any other uniform item.

[130] Mr Argyle stated that Mr Robinson and Mr Bendeich ‘missed’ job 21 which is a meal break. At the hearing, Mr Argyle clarified that if Mr Robinson and Mr Bendeich wanted to take a meal break at any time during their shift they should have entered the code for a meal break into the PDA device, which would then record a 30-minute meal break. 49

[131] Mr Argyle noted that clause 6.3 of the Handbook states in part:

“6.3 Serious or wilful misconduct

Serious or wilful misconduct that may result in termination of employment includes, but is not limited to:

•  Dishonesty

•  The theft, attempted theft or unauthorised removal of CCT property or other employee's property

•  Harassment or discrimination

•  Fighting

•  Clocking on/off for another employee

•  Gross subordination

•  Sleeping on duty

…”

[132] Further, Mr Argyle noted that clause 23.4 of the Agreement set out examples of what ‘serious misconduct’ may include, as follows:

“•  Dishonesty or theft

•  Falsification of Worksheets

•  Misuse or Abuse of Equipment

•  Intoxication

•  Illicit Drug Use

•  Fighting

•  Physical or Verbal Abuse

•  Sexual Harassment

•  Actions Endangering Health or Safety

•  Refusal to wear personal protective equipment (PPE)

•  Commission of a Crime”

[133] Mr Argyle stated that he had become aware in the course of his employment with Prosegur of an incident within Prosegur’s Sydney enterprises where several Prosegur employees had been terminated for clocking on other employees.

[134] Mr Argyle stated that to his knowledge, Mr Robison would have been entitled to a take a break to rehydrate and use a toilet. However, Mr Argyle considered that the entitlement to take such a break would not extend to 26 minutes. 50 Mr Argyle stated that it would have been more appropriate for Mr Robinson and Mr Bendeich to have used toilets closer to the Pacific Fair store while completing their other tasks, rather than park at a different location to access better toilets.51 Mr Argyle stated that there should have been no reason for Mr Robinson and Mr Bendeich to purchase drinks as Prosegur supplied drink containers and electrolyte packets.

[135] I noted to Mr Argyle that Mr Robinson’s evidence was that he did not have any water or drink containers with him on 22 January 2019. When asked by Mr Lynch, Mr Argyle stated that Mr Robinson may have been able to obtain another drink container provided that the Nerang depot held spare containers. 52

Cross-examination

[136] Mr Argyle confirmed when asked by Mr Robinson that the version of the Handbook provided to Mr Robinson had been issued in or about 2006. Mr Argyle stated the five litre containers and bottles were first issued to employees at the same time as the Handbook. Mr Argyle stated that a more recent version of the Handbook was available on Prosegur’s intranet system and was posted on Prosegur’s noticeboards and was provided to new employees. 53

[137] Mr Argyle confirmed that he had not seen Mr Robinson or Mr Bendeich loading a five litre container into their armoured vehicle on 22 January 2019. Mr Argyle stated in response to Mr Robinson’s questioning that if a five litre container or drink bottle was broken or lost, an employee could request a replacement by submitting a reclamation form, which was the same process for any other item such as uniforms or body armour. Mr Argyle stated that he knew some employees preferred to buy their own drinks during runs. 54

[138] Mr Robinson put to Mr Argyle, and he agreed, that the training records for Mr Robinson produced by Prosegur did not show Mr Robinson having completed training regarding the use of PDA devices. 55

[139] Mr Argyle confirmed that he had previously conducted one investigation of an AVO employee at the Nerang depot regarding adding on 30 minutes to their work hours for untaken meal breaks. Mr Argyle stated that in that previous instance, an AVO had been found to have claimed on several occasions an additional 30 minutes for untaken meal breaks where that employee had in fact taken a meal break, in addition to other allegations of misconduct. 56

[140] Mr Argyle agreed with Mr Robinson that it was predominantly the responsibility of the ‘crew leader’ to input data into the PDA device, which had been Mr Bendeich on 22 January 2019.

[141] Mr Robinson put to Mr Argyle that copies of the standard operating procedures and the Code were not, on 22 January 2019, and never had been displayed on the noticeboard in the Nerang depot. Mr Argyle stated that it was his responsibility to conduct annual inspections of Prosegur’s depot and he had never found any depot failing to display those documents on the relevant noticeboard, including the Nerang depot. Mr Argyle confirmed that the Nerang depot’s noticeboard could not been seen on the CCTV footage. 57

[142] Mr Argyle agreed that he had been a part of the investigation of Mr Nakazato and other employees, including Mr Robinson during 2017. Mr Argyle agreed that Mr Nakazato’s breaches of the Weapons Act 1990 (Qld) could have resulted in loss of Prosegur’s weapons licence. Mr Argyle agreed that Mr Nakazato and other involved employees received first and final warnings for their conduct, save for Mr Robinson who received a written warning on the basis that his offence has not been as serious as other employees. 58

Legislation

[143] Section 385 of the Act defines the meaning of “unfair dismissal” and states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[144] Section 387 of the Act sets out the criteria that must be taken into account when considering whether a dismissal was harsh, unjust or unreasonable, and states:

“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.”

[145] The type of conduct that may fall within the words ‘harsh, unjust or unreasonable’ was outlined by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 59 as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[146] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 60

Submissions of Mr Robinson

[147] Mr Robinson filed an outline of submissions prior to the hearing of this matter and closing submissions which he spoke to on the second day of hearing. Mr Robinson’s submissions did not individually address each of the criteria set out in s.387 of the Act. I have taken into account that Mr Robinson was self-represented in considering his submissions.

[148] The termination letter of 11 February 2019 stated that Mr Robinson was dismissed “…as a result of serious misconduct relating to serious breaches of procedure…” The ‘breaches of procedure’ that Prosegur relied upon as the reasons for the dismissal were:

•  Mr Robinson’s clocking on of Mr Bendeich prior to his arrival at the Nerang depot; and

•  The ‘rehydration and toilet’ break taken by Mr Robinson and his failure to record that break as a meal break.

s.387(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)

Clocking on Mr Bendeich

[149] Mr Robinson submitted that clocking on Mr Bendeich had been an out of character mistake brought about by stress and anxiety due to the changes to his run on 22 January 2019, and the SMS of 12 January 2018, and some other recent communication reminding employees not to clock on early without authorisation.

[150] Mr Robinson submitted that he understood that his actions regarding clocking on Mr Bendeich, particularly in light of the CCTV footage, were grounds for disciplinary action and he understood Prosegur’s stance that he had been dishonest and fraudulent during the investigation. 61

[151] Mr Robinson submitted that the previous instances where employees had been dismissed for clocking on other employees involved more serious circumstances than in this matter; namely several employees that had clocked each other on and off even when not at work at all.

[152] Mr Robinson submitted that his dismissal was disproportionate to the severity of his misconduct. He submitted that it would have been appropriate for him to receive a first and final warning regarding the clocking on incident, and he should have been placed on a performance development plan and received educational support.

Rehydration and toilet break

[153] Mr Robinson submitted that he was entitled to take a 10-minute smoko break during his shift. Mr Robinson submitted that the break he and Mr Bendeich took on 22 January 2019 was akin to a smoko break, despite the fact that their break lasted 26 minutes. Mr Robinson submitted that it is a basic human right recognised within first-world countries to be able to visit a bathroom when required, and he and Mr Bendeich had decided to visit the toilet while taking that break.

[154] Mr Robinson submitted that despite the length of the break, he did not consider the break to have been a ‘meal break’ and submitted that it was unfair of Prosegur to have determined that the break was a meal break.

[155] Mr Robinson submitted that it had been Mr Bendeich’s responsibility to use the PDA device on 22 January 2019, and he had had no idea that Mr Bendeich had recorded them as having commenced the Pacific Fair job at approximately 9:20am.

[156] While Mr Robinson stated that he understood Prosegur’s view that he had been fraudulent and dishonest during the investigation, he denied that he had been fraudulent and dishonest throughout the investigation. He submitted that if CCTV footage had been shown as part of the initial investigation, he considers that the outcome would have been different, as he acknowledges that it shows him clocking a different card on. He submitted that there was no personal gain.

s.387(b) - Whether the person was notified of that reason

[157] Mr Robinson did not contest that he had been notified that the reasons for his dismissal were Mr Robinson’s clocking on of Mr Bendeich, and his failure to record his 26-minute break as a meal break, and the use of the PDA device to hide that that break was taken.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[158] Mr Robinson agreed that he had been given an opportunity to respond to each of the reasons for his dismissal. However, Mr Robinson submitted that that the investigation of his conduct had been procedurally unfair.

[159] Mr Robinson submitted that the allegations of misconduct were put to him piecemeal as the investigation continued, which Mr Robinson submitted was unfair. He submitted that Prosegur had not allowed him to see the CCTV footage, nor his time card for 22 January 2019 during the investigation. Mr Robinson submitted that Prosegur had not informed him of the PDA and track and trace data it held which it used to determine that he should be dismissed.

[160] Mr Robinson submitted that had Prosegur allowed him to view the CCTV footage during the investigation, which he acknowledged was ‘quite damning’, then the outcome of the investigative process may have been very different. While Mr Robinson maintained that his conduct on 22 January 2019 was not deliberate and he had not intentionally been fraudulent or dishonest during the investigation, he may not have undertaken the ‘long and stressful journey’ of making the present application.

s.387(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

[161] Mr Robinson conceded that he was given an opportunity to have support people with him at meetings in relation to the allegations against him and his dismissal.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[162] Mr Robinson did not specifically address this criterion in his submissions.

s.387(f) - Whether Prosegur’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[163] Mr Robinson submitted that Prosegur is an extremely large multi-national company and had the benefit of dedicated human resource specialists, of which Mr Lynch was one. Mr Robinson submitted further that during the meeting of 31 January 2019 he was asked to leave for a time while Ms Carnie and Mr Robinson’s support persons from the Transport Workers’ Union spoke privately. Mr Robinson submitted that that private discussion was unusual and procedurally unfair.

s.387(h) - Other matters

[164] Mr Robinson submitted that his discussion with Mr Dessmann on 12 February 2019 occurred while Mr Robinson was reflecting on the end of his approximately 20 years’ service with Prosegur and while cleaning out his locker which contained several personal items. Mr Robinson submitted that Mr Dessmann’s evidence of that discussion was unfair and unethical.

[165] Mr Robinson submitted that he had been unfairly targeted because he had been stood down following a union yard meeting where he had raised a number of issues regarding enterprise bargaining and safety.

[166] Mr Robinson noted that Prosegur had been unable to produce the email that Mr Dessmann had sent to his supervisors providing his statement of 12 February 2019, and noted that the Word document’s properties showed that the document had been created on 1 April 2019. Mr Robinson submitted that I should give Mr Dessmann’s statement of 12 February 2019 the appropriate weight given that it could not be confirmed that his statement was made contemporaneously.

Remedy

[167] Mr Robinson does not seek reinstatement to his former position of employment and submits that reinstatement would be inappropriate in light of his treatment throughout the course of this matter.

[168] Mr Robinson seeks an order for compensation in an amount equivalent to 26 weeks’ pay, which Mr Robinson submits is approximately $26,000. Mr Robinson submits such an order would be appropriate to make in light of his age, length of service with Prosegur, his issues with deafness and his plans to work past the retirement age of 67.

[169] Mr Robinson submitted that he has applied for seven jobs since his dismissal. He subscribes to the Seek online employment notice board for weekly alerts of available positions suited to his expertise. He has undertaken training to maintain his security licences. He has also undertaken a training course to drive buses. He has applied for a certificate to work with children, obtained police checks and updated his immunisations to expand his job opportunities.

[170] Mr Robinson has secured further casual employment, where he is earning far less than he earned with Prosegur.

Submissions of Prosegur

[171] Prosegur filed an outline of its submissions prior to the hearing of this matter, and filed further closing submissions which Mr Lynch spoke to on the second day of the hearing. Prosegur submitted that there was very little doubt that Mr Robinson had clocked on Mr Bendeich on 22 January 2019, and had stopped work for 26 minutes to go to the toilet and buy a drink. Prosegur submitted that this matter turns on whether Mr Robinson’s actions were or were not intentional and done innocently.

s.387(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)

Clocking on Mr Bendeich

[172] Prosegur submitted Mr Robinson had deliberately clocked on Mr Bendeich on 22 January 2019. Prosegur submitted that in order to accept that Mr Robinson had not deliberately clocked on Mr Bendeich, it would need to be accepted that each of the following circumstances occurred by coincidence:

•  Mr Robinson was compelled to adjust his time card because he had clocked on for work 3 minutes early on 22 January 2019, although Mr Robinson had consistently clocked on for work more than 3 minutes early throughout his employment and had not on any other occasion attempted to adjust his clock on time by ‘re-clocking’ himself on;

•  Mr Robinson had, on the first occasion he had attempted to ‘re-clock’ himself on, had mistakenly ‘re-clocked’ himself using another person’s time card despite Mr Robinson having used his own time card to clock on without any trouble just three minutes earlier;

•  The time card that Mr Robinson mistakenly used belonged to his work mate and crew partner for 22 January 2019, Mr Bendeich;

•  Mr Bendeich happened to be running late on 22 January 2019;

•  Mr Bendeich himself forgot to clock on when he did arrive to the Nerang depot on 22 January 2019 at approximately 6:43am.

[173] Prosegur submitted that no reasonable person would accept that all of the circumstances above happened by sheer coincidence at 22 January 2019, which Prosegur rightly rejected following its investigation into the events of 22 January 2019.

[174] Prosegur submitted that Mr Robinson’s evidence regarding this issue throughout this matter had been evasive and inconsistent, as follows:

•  Mr Robinson originally stated that he had clocked on for a second time because he thought that he had clocked on too early the first time, but later stated that he had not known the time when he clocked on the second time;

•  Mr Robinson originally stated that the correct way to adjust a clock on time was either to advise his supervisor and have his time card adjusted later by office staff or to re-insert the time card into the bundy clock and indicate the correct time stamp on the card. Mr Robinson later insisted that the only correct procedure was to re-insert the time card;

•  Mr Robinson stated that the changes to the particular run had caused him to become stressed and anxious and identified two ATM sites that had concerned him because he did not know the addresses for those sites. Prosegur noted that Mr Robinson conceded that he had been trained on how to access a CSI which would have informed of the location of those ATMs and further, Mr Robinson had not been driving the armoured vehicle on 22 January 2019 and therefore should not have been overly stressed about the addresses of the ATM sites.

Rehydration and toilet break

[175] Prosegur submitted that Mr Robinson had intentionally not recorded his 26-minute ‘toilet and rehydration’ break on his time card for 22 January 2019 and had added 30 minutes to his shift length for that day on the basis that he did not take a meal break. Prosegur submitted that Mr Robinson had only disclosed his ‘toilet and rehydration’ break when specifically asked whether he had taken a meal break on 22 January 2019.

[176] Prosegur did not dispute that its employees could go to the toilet or buy a drink during a shift. However, Prosegur submitted that the appropriate time to go to the toilet or buy a drink was in conjunction with a stoppage in the ordinary course of duties or during a designated meal break. Prosegur submitted that there is no entitlement to a ‘toilet and rehydration’ break or any similar break within the Agreement or any of Prosegur’s policies.

[177] Prosegur submitted that it was inappropriate for Mr Robinson and Mr Bendeich to park at a separate location away from their next job at the relevant Pacific Fair store solely to purchase drinks for a lower price and because the toilets were better. Prosegur submitted that instead of parking at an entirely different loading dock, Mr Robinson could have used the toilet and purchased a drink at a suitable previous job or subsequent job or could have made use of the five litre container, drink bottles and electrolyte powder supplied by Prosegur. Prosegur submitted that Mr Robinson could have requested replacement containers and drink bottles at any time during his employment.

[178] Prosegur referred to Mr Robinson’s characterisations of various types of breaks and what may constitute a meal break. Prosegur submitted that Mr Robinson’s suggestion was that a break only occurs during an uninterrupted stoppage of work, and submitted that the Commission should not accept that characterisation.

[179] Prosegur accepted that it may have been Mr Bendeich that used the PDA device to record that he and Mr Robinson had commenced the Pacific Fair job at approximately 9:20am on 22 January 2019, when they had in fact parked at a separate loading dock for their ‘toilet and rehydration’ break. However, Prosegur submitted that Mr Robinson must have been seated next to Mr Bendeich while the PDA data was entered and he must have been aware that Mr Bendeich had recorded them commencing the Pacific Fair job. Prosegur submitted that regardless of the PDA device and ‘track and trace’ data, Mr Robinson was aware from the day’s run sheet that he and Mr Bendeich were not where they were supposed to be and were doing what they were supposed to be doing at 9:20am that morning.

[180] Prosegur noted that both the Handbook and the Agreement provided several examples of what may be ‘serious misconduct’ including clocking on/off for another employee, dishonesty or theft, falsification of worksheets and forging or deliberately falsifying any CCT record, 62 and submitted that Mr Robinson’s clocking on of Mr Bendeich and his failure to record his 26-minute ‘toilet and rehydration’ break as a meal break were valid reasons for his dismissal, both severally and jointly.

[181] Prosegur submitted that Mr Robinson’s discussion with Mr Dessmann on 12 February 2019 confirmed that Mr Robinson’s conduct on 22 January 2019 had not been innocent, but rather that Mr Robinson had attempted to knowingly mislead Prosegur. Prosegur submitted that Mr Robinson’s comment to Mr Dessmann of, “I thought about [telling the truth] but you know me” had not been explained by Mr Robinson during the hearing and should be taken to mean that Mr Robinson had thought about telling the truth during Prosegur’s investigation but had decided against it. Prosegur submitted that I should accept Mr Dessmann’s evidence that Mr Robinson had said, “Oh well, we got caught, but it’s not over yet”, and accept that that statement revealed that Mr Robinson had intentionally clocked on Mr Bendeich and knowingly failed to disclose his 26-minute ‘toilet and rehydration’ break.

[182] Prosegur submitted that the underlying reason for Mr Robinson’s dismissal in respect of both allegations against him was that he had been dishonest and had tried to deceive Prosegur. Prosegur submitted that it is required to hold its employees to a very high standard of integrity due to the nature of Prosegur’s business. Prosegur submitted that further to his conduct on 22 January 2019, Mr Robinson had been untruthful and evasive during Prosegur’s investigation of the allegations against and during the hearing of this matter. Prosegur submitted that Mr Robinson’s conduct on 22 January 2019 and throughout the investigation resulted in a ‘lack of trustworthiness’ towards Mr Robinson on Prosegur’s part, which was incompatible with Mr Robinson’s continued employment.

s.387(b) - Whether the person was notified of that reason

[183] Prosegur submitted that the allegations against Mr Robinson which became the reasons for his dismissal were put to him both in writing and in person during the course of the investigation.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[184] Prosegur submitted that Mr Robinson was given opportunities to respond to all of the allegations against him both in writing and in person. Prosegur submitted that Mr Robinson was given a final opportunity to submit to Prosegur as to why he should not be dismissed from his employment.

s.387(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

[185] Prosegur submitted that Mr Robinson was allowed to have and did have support persons at discussions throughout the investigation and relating to his dismissal.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[186] Prosegur did not specifically address this criterion in its submissions.

s.387(f) - Whether Prosegur’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed

[187] Prosegur did not specifically address this criterion in its submissions.

s.387(h) - Other matters

[188] Prosegur submitted that although it could not be confirmed that Mr Dessmann’s statement regarding his discussion with Mr Robinson on 12 February 2019 had been made contemporaneously, Prosegur submitted that the Commission should accept Ms Carnie’s evidence that she had instructed Mr Dessmann on 12 February 2019 to make a file note of his discussions with Mr Robinson, and the Commission should find that Mr Dessmann had followed Ms Carnie’s instructions and had produced his statement on 12 February 2019.

[189] Prosegur noted that the properties of the Microsoft Word document showed that the document had been created and last modified on 1 April 2019 and submitted that those properties demonstrated that Mr Dessmann had recorded his statement in writing on or earlier than 12 February 2019. Prosegur conceded that it could not prove beyond doubt that Mr Dessmann’s statement has been produced prior to 1 April 2019.

[190] Prosegur noted that Mr Robinson accepted the accuracy of Mr Dessmann’s statement except for the words, “oh well, we got caught, but it’s not over yet”.

Remedy

[191] Prosegur submitted that reinstatement is not an appropriate remedy in this matter due to Prosegur’s complete loss of trust in Mr Robinson.

[192] Prosegur submitted that if the Commission determined that Mr Robinson had been unfairly dismissed, any amount of compensation that may be ordered be paid to Mr Robinson pursuant to the criteria set out in s.392(2) of the Act should be reduced to zero due to Mr Robinson’s misconduct leading to his dismissal and pursuant to s.392(3) of the Act.

[193] Prosegur noted Mr Robinson’s evidence during the hearing regarding his job applications and single job interview since his dismissal. Prosegur submitted that Mr Robinson’s efforts to find new employment were limited to searching Google once per week, and it was mostly his wife and daughter that searched for further employment for Mr Robinson. Prosegur submitted that Mr Robinson had made very little effort to mitigate his loss and find new employment following his dismissal. Prosegur noted that Mr Robinson had commenced alternative casual employment.

Consideration

s.387(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)

Clocking on Mr Bendeich

[194] Mr Robinson’s evidence relevant to the CCTV footage was curious; he advised during the hearing on a number of occasions that if he had been shown the footage during the investigation, and noting how “damning” it appears to be, he would not have commenced and proceeded with an unfair dismissal application.

[195] The footage speaks for itself. Mr Robinson first clocked on using his own time card at 6:27am. He did so in a physically open manner, with space between his body and the bundy clock. It then took less than one minute for Mr Robinson to sign for and receive his gun.

[196] Around three minutes later Mr Robinson again stood near the bundy clock, this time speaking with a person. When that person left, Mr Robinson took a different position relative to the security cameras, and made a swift move with his hand to make it look like he was removing his card from the centre of the cards; but he then reached to one of the top cards and pulled Mr Bendeich’s card from it and clocked it in. I observed that he then used two hands to return Mr Bendeich’s card, all the while using his body to guard the clock from the security camera. It is a stark difference in his positioning to when he signed himself in less than four minutes earlier.

[197] I have no hesitation whatsoever in concluding that on the occasion Mr Robinson used Mr Bendeich’s card on 22 January 2019, it was a deliberate act. I do not accept it was an error on Mr Robinson’s behalf or that somehow he mistakenly clocked in Mr Bendeich’s card when he meant to re-clock in his own card. The footage is demonstrative of Mr Robinson attempting a sleight-of-hand to swiftly move up the catalogue of cards, however he does have to reach up to Mr Bendeich’s card, and there is not any possibility that it was accidental or inadvertent.

[198] Mr Robinson’s explanation of being concerned that he had clocked in too early at around 6:27am is not plausible. Within minutes of clocking in the first time, Mr Robinson received his gun, walked in to what appears to be a locker room, and then returned to the bundy clock again. There was not a significant period of time elapsing between clocking himself in and the second occasion; I conclude that Mr Robinson deliberately clocked Mr Bendeich in at around 6:31am.

[199] Mr Bendeich did not clock himself in when he attended for work near the bundy clock at around 6:43am. I consider it reasonable for Prosegur to conclude that Mr Robinson and Mr Bendeich had likely made an arrangement that morning for Mr Robinson to clock Mr Bendeich in. Mr Bendeich’s fate was termination of his employment.

[200] I inquired during the hearing if Prosegur had reviewed footage of other days to see if Mr Robinson’s conduct of 22 January 2019 had occurred earlier. Prosegur advised that it had not undertaken that investigation. I do not consider it necessary to determine if this was the first time Mr Robinson had engaged in this conduct, or if it was a course of conduct, and I make no inference on this issue.

[201] Prosegur’s Handbook nominates clocking in/off other employees as a matter of serious misconduct. In a security-sensitive role, one does not need to be informed by way of a company handbook that such conduct would likely to be considered to be deceitful. I am satisfied that Mr Robinson had been informed that such conduct would be considered serious misconduct, and if I am wrong about that, or if he had never seen the Handbook before, he ought to know given his age and experience in the industry. I find that given his contrasting body positioning around the bundy clock on the morning in question, he did know that it would be considered misconduct.

[202] Further, Mr Robinson has been employed for a reasonable period of time, and the Agreement that covers him is clear that dishonesty or theft, or falsification of worksheets could constitute serious misconduct.

[203] I find that there was a valid reason for the dismissal.

Rehydration and toilet break

[204] I am satisfied that Mr Robinson and Mr Bendeich acted inappropriately by parking the vehicle at an alternative location at the Pacific Fair shopping centre, when it would have been appropriate to park closer to the customer store the delivery or collection was to take place.

[205] It appears to me that Mr Robinson had systematically been claiming that he had not had a 30 minute unpaid meal break on many days that he worked. He manually altered his time card on a large number of occasions.

[206] He was not, however, alone in this practice, and it appears to me that Prosegur turned somewhat of a blind eye to the examination of its employees on this issue.

[207] Mr Robinson’s evidence was that Mr Bendeich held the PDA and inserted the relevant codes for the jobs. I accept Mr Robinson’s evidence that he would not have known which code Mr Bendeich entered once they arrived at Pacific Fair. He would not have contemporaneously known that Mr Bendeich entered the commencement of the job upon their arrival, instead of a break.

[208] However, Mr Robinson is steadfast in his entitlement to have a toilet and hydration break for as long as he considers it to be necessary, which in this case involved him purchasing a drink from a supermarket during paid time.

[209] Having earlier had a coffee break which would likely constitute his 10 minute ‘smoko’, I do consider that the 26 minute toilet and hydration break at Pacific Fair to be excessive, in light of there being no evidence from Mr Robinson that he was delayed in the bathroom due to a medical or gastroenteritis episode. Prosegur properly submitted that employees are entitled to a toilet break, including on paid time. Its concern was that the two employees had decided to park an inordinate distance from where the job was located, and it considered the 26 minute period to be excessive.

[210] I do not accept that Mr Robinson’s conduct on this issue was appropriate, given the reasonableness of an expectation that employees will park close to the job and use facilities available to them before or after having completed that job. One would expect that the bathroom facilities at the Pacific Fair shopping centre would be of a satisfactory standard for use by Mr Robinson, and it was unreasonable for him to prefer a different set of bathroom facilities and its location to his preferred supermarket.

[211] That being said, I do not consider that this conduct alone would constitute a valid reason for dismissal. It would certainly warrant a discussion with Mr Robinson and perhaps a warning relevant to reasonable expectations of bathroom breaks whilst in paid time, and if Mr Robinson insisted upon purchasing a drink from an outlet, then if it took more than a short period of time, he could have been directed to do so only in unpaid breaks.

[212] I do not consider that Mr Robinson’s conduct in claiming not to have had a 30 minute break and therefore claiming additional payments would constitute a valid reason for dismissal. On the evidence before the Commission, Prosegur acknowledged that many employees claim such an allowance, and it appears that no audit has been undertaken on the practices of employees in a similar experience, especially when employees are ‘on the road’ and it requires finding appropriate facilities to have a bathroom break. Without an examination of whether there is an understanding among employees that a break of less than 30 minutes does not count as a break at all, it would be unfair to dismiss Mr Robinson on this issue alone.

s.387(b) - Whether the person was notified of that reason

[213] I find that Mr Robinson was notified of the reasons for the dismissal.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[214] Mr Robinson was afforded a number of opportunities to explain the two matters put to him. He denied deliberately acting to clock Mr Bendeich in, and asserted that it would be necessary for Prosegur to demonstrate intent to do so. I accept that Mr Robinson should have been shown the CCTV footage during the investigation, and there is no satisfactory reason not to have shown it to him. It would not have been necessary to provide to him a copy of the footage; just simply to have shown him.

[215] Further, on the issue of the track and trace data not being shown to Mr Robinson during the investigation, I note that above I have found that there was not a valid reason for the dismissal relevant to the rehydration and toilet break. Any denial of procedural fairness on this second issue is therefore not of significant importance.

s.387(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

[216] This was not contested and I find that there was not an unreasonable refusal by Prosegur to allow Mr Robinson to have a support person present during any discussion relating to dismissal.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[217] Mr Robinson was dismissed due to serious misconduct, and accordingly this consideration is not required.

s.387(f) - Whether Prosegur’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[218] Prosegur is a large employer with dedicated human resources personnel. This consideration is not required in the examination of the procedures followed by Prosegur.

s.387(h) - Other matters

[219] I do not accept Mr Robinson’s submission that he considered that he was being picked on due to having taken a position against Prosegur during a union yard meeting. Such lawful activity does not appear to have been raised with him. Nobody forced Mr Robinson to engage in conduct of inappropriately clocking Mr Bendeich in. He is responsible for his fate, and attempting to find another reason for the dismissal or blaming other parties is transparent.

[220] Relevant to the conversation between Mr Robinson and Mr Dessmann on 12 February 2019, it is most unhelpful that Mr Dessmann gave evidence that he made a contemporaneous note of the conversation, but no email can be produced by Prosegur confirming such. The best the Commission has in the way of evidence is a word document with properties demonstrating that it was last modified on 1 April 2019.

[221] In an age of email discovery at one’s fingertips, I am not prepared to accept the contested evidence that Mr Robinson said to Mr Dessmann, “oh well, we got caught, but it’s not over yet.” If Prosegur is not able to produce from Mr Dessmann’s sent email box to another person’s inbox, or to any person’s deleted emails the original email, I am not prepared to accept that the note of 12 February 2019 was created shortly thereafter.

[222] I accept, however, and it is not contested, that Mr Robinson said to Mr Dessmann, “I thought about [it], but you know me”, when Mr Dessmann said to him that he would have kept his job if he’d told the truth during the investigation. Mr Robinson attempted to explain during the hearing and in answering questions from me that he said that because he had told the truth during the investigation. Mr Robinson’s explanation does not make any sense. Having agreed that he did make that statement to Mr Dessmann, it appears to me, by the use of the words, “but you know me” to be an admission that he was not able to tell the truth during the investigation.

[223] Relevant to Mr Robinson’s submission that he did not derive a personal gain from any misconduct relevant to clocking Mr Bendeich in, I do not accept such a submission. Prosegur is entitled to have full trust and confidence in its employees, particularly those handling cash. It matters not that the perceived benefit of clocking Mr Bendeich in at around 6:30am, instead of Mr Bendeich clocking himself in at around 6:43am did not directly benefit Mr Robinson.

[224] In considering whether the dismissal was harsh, unjust or unreasonable, I have had particular regard to Mr Robinson’s lengthy service of 20 years and his age.

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

Conclusion

[226] Having considered each of the matters set out in s.387 of the Act I am satisfied that Prosegur’s dismissal of Mr Robinson was not harsh, unjust or unreasonable and Mr Robinson was not unfairly dismissed.

[227] Mr Robinson’s application for an unfair dismissal remedy is dismissed. I Order accordingly.

COMMISSIONER

Appearances:

P Robinson and M Robinson and R Robinson for the applicant.

G Lynch from the respondent.

Hearing details:

2019.

Brisbane:

June 19, 20.

Final written submissions:

Applicant, 20 June 2019.

Respondent, 19 June 2019.

Printed by authority of the Commonwealth Government Printer

<PR709976>

 1   Statement of Mr Peter Robinson with Attachments, 7 May 2019, Exhibit 1.

 2   PN244.

 3   PN84 – PN85; PN588 – PN 623.

 4   PN1184 – PN1185; Although Mr Robinson originally stated this meeting occurred on 6 February 2019, he conceded during the hearing that the meeting occurred on 7 February 2019.

 5   PN266.

 6   PN389 – PN395.

 7   PN187 – PN240.

 8   PN321 – PN425.

 9   PN404.

 10   PN593 – PN603.

 11   PN427 – PN453; PN569 – PN579.

 12   PN558.

 13   PN579.

 14   PN580.

 15   PN639 – PN669.

 16   PN694.

 17   PN703 – PN710.

 18   PN776 – PN794.

 19   PN714 – PN761; Prosegur Australia Pty Limited, Queensland, Nerang, Armoured Vehicle Operators’ Enterprise Agreement 2015 – 2018, cl. 37.1.3.

 20   PN795 – PN798; PN844 – PN848.

 21   PN819 – PN823; PN841 – PN863; PN895 – PN911.

 22   PN1376 – PN1399.

 23   PN1049 – PN1083.

 24   Statement of Ms Karen Carnie, 27 May 2019, Exhibit R1.

 25   PN1134.

 26   PN1135 – PN1140.

 27   PN1141 – PN1146.

 28   PN1169 – PN1170.

 29   PN1173 – PN1182.

 30   PN1185 – PN1188.

 31   PN1189 – PN1202.

 32   PN1206 – PN1224.

 33   PN1166; PN1229.

 34   PN1233.

 35   Statement of Ms Jennifer Clement, 27 May 2019, Exhibit R2.

 36   PN1244 – PN1250.

 37   PN1253 – PN1261.

 38   Statement of Mr Trent Dessmann, 27 May 2019, Exhibit R5.

 39   PN1352 – PN1353.

 40   PN1334.

 41   PN1347.

 42   PN1421 – PN1424.

 43   PN1427 – PN1432.

 44   PN1440 – PN1447.

 45   PN1467 – PN1480.

 46   PN1510 – PN1527.

 47   PN1530 – PN1538.

 48   PN1542.

 49   PN1563 – PN1564.

 50   PN1600 – PN1604.

 51   PN1608.

 52   PN1624 – PN1626.

 53   PN1636 – PN1640.

 54   PN1642 – PN1647.

 55   PN1650 – PN1659.

 56   PN1677 – PN1682.

 57   PN1687 – PN1700.

 58   PN1701 – PN1707.

 59   (1995) 185 CLR 410, [465].

 60   Sayer v Melsteel [2011] FWAFB 7498 at [20].

 61   Paragraph 1, written closing submissions of the applicant.

 62   PN1583.