DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glen Coombs
v
Sydney Water Corporation T/A Sydney Water
(U2019/5014)

Application for an unfair dismissal remedy – allegations of serious misconduct – dismissal for fraudulently obtaining financial advantage in the form of payment for hours not worked – allegations proven – harsh, unjust or unreasonable – application dismissed – remedy of reinstatement would not have been contemplated.

BACKGROUND

[1] An application was filed on 18 April 2019 (the “Application”), by the Australian Municipal, Administrative, Clerical and Services Union (NSW and ACT Services Branch) (the “ASU”) on behalf of their member Mr Glen Coombs (the “Applicant”), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant seeks an unfair dismissal remedy, primarily reinstatement, following his dismissal on 12 April 2019 by Sydney Water Corporation t/a Sydney Water (the “Respondent”).

[2] The Applicant commenced employment with the Respondent on 29 January 1992. The Applicant was terminated for serious misconduct on 12 April 2019. The relevant misconduct was “tailgating”, that is, closely following a person through security access in a manner that avoided the need for the Applicant to swipe his security access card, and so not accurately recording time and attendance.

[3] The Applicant’s conduct was described by the Respondent in the termination letter of 12 April 2019, as obtaining a “financial advantage that is being payment for hours not worked and accruing and taking Rostered Days Off not entitled (Fraud).” That letter stated the Applicant had failed to comply with the Respondent’s “Absence and Attendance Policy and Living our Values-Principles for Ethical Decision-Making, Signature Behaviours and the Sydney Water Enterprise Agreement 2017,” and described his conduct as corrupt conduct. Notwithstanding that the Applicant’s conduct was found to constitute serious misconduct, he received five weeks pay in lieu of notice.

[4] The Application was listed for conciliation but did not settle at that conciliation, and the matter was then allocated to me for hearing and determination. On 19 June 2019, I issued Directions prescribing a timetable for the filing of Outline of Submissions and Witness Statements. Those Directions were varied to allow an additional time for the parties to file their materials.

[5] In accordance with my Directions, the following materials were filed:

(a) The Applicant filed:

(i) An Outline of Submissions;

(ii) Statement of Glen Coombs dated 17 July 2019, with annexures;

(iii) Statement of Romel Khaziran dated 16 July 2019;

(iv) Statement of Mal Tulloch dated 16 July 2019, with annexures; and

(v) Statement of Cheryl Harris dated 18 July 2019, with annexures.

(b) The Respondent filed:

(i) An Outline of Submission;

(ii) Statement of Tammy Falconer dated 20 August 2019, with annexures;

(iii) Statement of Liam Connolly dated 20 August 2019, with annexures;

(iv) Statement of Gordon Yee dated 19 August 2019, with annexures; and

(v) Statement of Craig Davis dated 20 August 2019, with annexures.

(c) In reply, the Applicant filed a Statement of Glen Coombs, dated 27 August 2019.

[6] Each of the deponents of filed statements provided written and oral evidence in the proceedings, but for Ms Khaziran, whose Statement was read but who was not required for cross-examination.

THE RELEVANT FACTS

[7] The Applicant commenced employment with the Respondent in 1992 as a Level 1 Sewer Maintenance employee. He worked in that area until September 2003, advancing to the position of Level 4 First Call Officer.

[8] In September 2003, the Applicant applied for and secured a position on the Water Restrictions Team. He worked in a specialised team to educate and enforce water restrictions during the drought at that time in Sydney. He served in this role until March 2008.

[9] In April 2008, the Applicant commenced working as a Plans Management Officer. In August 2012, the Applicant moved to the position of Senior Asset Information Officer to specifically look after all work related to the Plans Management Area. He continued in that role until his dismissal in April 2019. The Applicant’s final grading under the Sydney Water Enterprise Agreement 2017 (the “Agreement”) was Level 13 (with the maximum being Level 17).

[10] The Applicant’s ordinary hours of work were 35 hours a week. His usual hours were from 7.00am to 3.25pm, with a half hour lunch break, over a nine day fortnight. He had to work 7 hours 55 minutes each day (and be at work for 8 hours 25 minutes, including the 30 minute unpaid meal/lunch break). The Applicant, and other employees completed an Attendance Signature Book (the “Blue Book”), which recorded their actual commencing and finishing times. Each employee’s manager would initial the times inserted by the employees.

[11] The Plans Management area, also known as the Asset Knowledge Team, was restructured between July and October 2016. The Applicant was given a new Manager, Ms Guruge.

[12] On 27 September 2016, the Respondent rolled out their Living Our Values policy to the Asset Knowledge team in a meeting. The Applicant attended that meeting. The meeting included training in relation to the incoming Living Our Values policy. That policy focused on ethical decision making and addressing unethical behaviours.

[13] In February 2017, the Applicant was put on a performance improvement plan (the “PIP”) by Ms Guruge. Issues raised in that PIP were the Applicant’s behaviours allegedly “not aligning with Sydney Water behaviours as a senior member of the DCS team” due partly to a negative attitude, being disrespectful and undermining his manager, and not recording utilisation of time during core hours. After approximately three months, the Applicant’s performance was deemed satisfactory.

[14] On 26 September 2017, the Applicant received a letter from Ms Guruge alleging that on 27 July 2017, he left work at 1.05pm without authority prior to his recognised finishing time of 3.25pm. Ms Guruge also stated that she wanted to discuss the Applicant’s general attendance and trends relating to start and finish times. The investigation performed a “general review” of the Applicant’s attendance at work.

[15] On 13 November 2017, the Respondent sent the Applicant a letter informing him that the allegation that he left work early without authority was found to be inconclusive, however, he was issued with a formal warning due to regular poor attendance. That letter (the “Warning Letter”) advised:

“Subsequent to your response to the allegation, your attendance and adherence to your recorded start and finish times was discussed. In that conversation, you acknowledged the evidence of your attendance times and you confirmed that you needed to improve. Accurate recording of your time and attendance are important matters and your failure to do this constitutes unacceptable behaviour.”

[16] The Warning Letter listed the following outcomes:

•  “This letter serves as a written warning regarding your regular poor attendance that you acknowledged at the meeting, and will be placed on your Confidential Service File;

•  You are reminded that you are required to indicate in the attendance book, any attendance outside the times of your Flexible Work Arrangement. This, along with clear notification to your supervisor and your actual attendance, is the standard you will be held to in the future; and

•  A review will be undertaken independent of myself in approximately three months of your attendance. I will review your attendance performance with you in our one on one discussions.”

[17] On 18 January 2018, the Applicant met with Mr Connolly to discuss the review of his attendance. At that meeting, Mr Connolly drew the Applicant’s attention to a spreadsheet of his swipe card entries from 4 October 2017, to 4 January 2018, regarding the commencement and conclusion of the day, and during the work day. 57 discrepancies were highlighted, and Mr Connolly said to the Applicant:

“You should be here for 8 hours and 25 minutes including a half hour lunchbreak. There are gaps in the data that I have reviewed, which appear to indicate tailgating. Be careful what you’re doing here, because it looks like you’re tailgating.” (the “Verbal Warning”)

[18] On 21 June 2018, the Applicant received a letter from Mr Liam Connolly, Employee Relations Specialist of the Respondent (the “Connolly Warning”). That letter was in the following terms:

“Dear Glen,

Three-month Review of Attendance

In accordance with the outcomes letter given to you on 13 November 2017, a review of your attendance was undertaken.

The review according to the letter was to be undertaken independent of your line manager, Sreema Guruge, as such it was carried out by myself based upon information supplied by Internet Audit.

I supplied you with a hard copy of this data on 18 January 2017.

My review was that your attendance during the period 4 October 2017 to 4 January 2018 was compliant with your required attendance.

I did make comment that there were holes in the data indicative of you passing through the gates without you using your pass tag. I have spoken to security who do not approve of tailgating through security gates, please be mindful of this.

If you have any questions regarding the data, please feel free to contact me.”

[19] In about mid-August 2018, Ms Tammy Falconer, the Head of Asset Management, who was the Applicant’s Manager once removed, from mid 2018, held meetings with each of the sub-teams within the Asset Knowledge team. This was confirmed in the evidence of the Applicant’s co-worker, Ms Harris, though she put the date around one month earlier. Ms Falconer advised staff, including the Applicant, that employees could not just sign in the Blue Book at the start of the day and sign out at the end of the day for the required hours but then take lengthy breaks during the day for coffee, errands, or exercise. She said words to the effect of: “The expectation is that you work the hours you are required to work. You have 30 minutes unpaid lunch break. If you take a break for coffee, errands, or exercise, these are unpaid breaks and do not contribute to your hours at work”. Ms Falconer gave that instruction because it was her observation that it may have been common for some staff to take coffee breaks (for a lengthy duration) and not make up the time (and as a result work less than their required hours). She made a distinction between a coffee break on the floor where the employee works and a break to go off-site for coffee because, in her experience, a break to grab a coffee on the employee’s floor (in the kitchen/tea room) would usually take five minutes, while a trip for coffee off the premises, on the other hand, would usually takes 15 to 20 minutes due to the distance to be travelled, plus waiting in line, waiting for the coffee to be made and to return to the work floor.

[20] On or about 22 August 2018, Ms Falconer received an anonymous complaint about the Applicant’s attendance at work. The complainant said words to the effect, “I have seen Glen on multiple occasions taking long coffee breaks outside and I don’t think he is making up that time.”

[21] After receiving the complaint, Ms Falconer reviewed the Blue Book to see whether the Applicant was working any hours on top of his required ordinary hours of work. Ms Falconer’s review of the Applicant’s hours in the Blue Book indicated that the Applicant always seemed to work very close to his required ordinary hours of 8 hours 25 minutes, and no more. That indicated that he had not been making up time for any coffee breaks that he may have taken. Ms Falconer decided to refer the complaint to Internal Audit for assessment and investigation.

[22] The investigation of the Applicant was conducted by Mr Gordon Yee, an Internal Audit Specialist – Investigations of the Respondent. He recalls receiving the referral from Ms Falconer in about October 2018. His investigation involved reviewing swipe card records for the Applicant from 1 June 2018, to 16 January 2019, and obtaining and reviewing CCTV footage of the foyer at Respondent’s premises for a selected representative period of November and December 2018 (the “CCTV Footage”). Mr Yee deposed that the Respondent could not review all CCTV footage, as it would have been a huge task, so select dates were reviewed from where there were discrepancies in the Applicant’s access swipe card data, to see if he was tailgating.

[23] On 5 December 2018, the Applicant received an email from Ms Falconer, introducing the Accessing Sydney Water Properties - Security Policy. That policy provided, among other things, that “Tailgating, avoiding access controls etc. is not permissible.”

[24] On 4 February 2019, the Applicant was issued with a letter of allegations by the Respondent. That letter was signed by Mr Simon Granville and was expressed (in part) as follows:

“Dear Glen,

Formal Investigation – Letter of Allegations

Internal Audit have been investigating your time and attendance after receiving a complaint regarding your work hours. The complaint relates to you leaving the office and staying out for extended periods of time. It is alleged that you are not completing your work hours as per the Sydney Water Enterprise Agreement 2017, that is, you are being paid for hours you have not worked. As you are an employee covered by the Enterprise Agreement, working a nine Day fortnight, you are required to work seven hours and 55 minutes per day (excluding a lunch break).

Our analysis is indicating you are not working the required hours for your role. We have also noticed gaps in the data that suggest a pattern of tail-gating at the Level 1 entry gates. Considering your previous warning regarding attendance, a caution against tail-gating provided by Employee Relations and recent information provided by security regarding tail-gating behaviour, we have concerns that you may be absenting yourself from the workplace for repeated periods and making deliberate and systematic attempts to conceal your actions which, if substantiated, could constitute corrupt conduct on your part.

Under Sydney Water’s Disciplinary Policy, we are conducting a formal investigation. To assist us in our investigation, you are required to respond to the following allegations:

1. For the period of review, 1 June 2018 to 16 January 2019 (approximately eight months), your average time in attendance in the secure area of the Parramatta office is 456 minutes per day, this is short of the required 475 minutes by 19 minutes per day. If based on a five-day working week, this is the equivalent of approximately 95 mins (1.5 hours) of leave each week that is not recorded. Over a year this is approximately 71 hours (two weeks) that you are paid for hours not worked. In addition you may not be entitled to some Rostered Days Off (RDO). At the interview you will be provided with an opportunity to explain this.

The following table shows your average daily times inside ‘IN’ and outside ‘OUT’ of the secure area of the Parramatta office based on data from your first swipe entry and last swipe exit at the Parramatta level 1 access gates Refer Table 1 on page 2.

2. You have been tailgating through Level one security gates thereby disguising your absence and attendance within the secure zone of the Sydney Water building. At the interview you will be provided the opportunity to explain the below days that you appear to be tailgating, after you entered the office usually around 7:00 am. Refer Table 2 on page 2.

“Tailgating” is not permitted as per the Accessing Sydney Water Properties – Security Policy. You were informed that tailgating is not permitted in June 2018 by Employee Relations and by Tammy Falconer on 5^th December 2018 when you were provided with the Accessing Sydney Water Properties – Security Policy.

The alleged behaviour appears to be in breach of the following Policies, Procedures, Signature Behaviours, and/or terms and conditions of employment with the Corporation:

(1) Living our Values: Principles for ethical decision making, Sydney Water’s Signature behaviour: “Do what you say” which includes honesty, integrity and trust

(2) Accessing Sydney Water Properties – Security Policy – section 1.1 and 2.2

You are required to provide your response in a meeting with myself, and Gordon Yee, Internal Audit Specialist – Investigations at 10:30 am 8 February 2019 in the Harris Park Room on Level 15 Room Number 15-01 of Sydney Water’s Parramatta office, at 1 Smith Street Parramatta, NSW.

The purpose of this meeting is to provide you with an opportunity to respond to these allegations. This will assist us to assess whether the allegations are substantiated and determine whether disciplinary action will be taken.”

[25] On 5 February 2019, the Applicant requested detailed time and attendance data to review in relation to the allegations, and also requested that the scheduled meeting be delayed to allow him to organise Union representation. The Respondent complied with both requests.

[26] Due to illnesses suffered by the Applicant, the Applicant could not be interviewed until 14 March 2019. At 9.30am on that date, Mr Granville and Mr McClure from Internal Audit held an interview with the Applicant and Ms Charlotte Clark of the ASU, on level 14 at the Respondent’s premises at Parramatta. A record of interview (the “Record of Interview”) was taken at that meeting instead of a transcript of interview, because the Applicant indicated his preference that the interview not be recorded. On 20 March 2019, the Record of Interview was sent to the Applicant, who proposed one amendment.

[27] In the Record of Interview, the Applicant’s explanations for tailgating were recorded as being he was “lazy and simply follows a person through because it is easy to do”, “hadn’t read the policy” and “regularly walked through the security gates behind others”. Those responses were not accepted by Internal Audit as adequate.

[28] On 4 April 2019, the Respondent provided the Applicant with a show cause letter, seeking that the Applicant provide reasons as to why his contract of employment should not be terminated. That letter was as follows:

“Dear Glen,

Proposed Outcome of Internet Audit Investigation – Disciplinary Process

The investigation is now complete, and findings have been made in relation to the allegations.

Allegation One:

For the period of review, 1 June 2018 to 16 January 2019 (approximately eight months), your average time in attendance in the secure area of the Parramatta office is 465 minutes per day, that is short of the required 475 minutes by 19 minutes per day. If based on a 5 day working week, this is the equivalent of 95 minutes (1.5 hours) of leave each week that is not recorded. Over a year this is approximately 71 hours (two weeks). In addition, you may not be entitled to some Rostered Days Off (RDO).

Further analysis of the data after meeting with Mr Coombs on 14 March 2019 it was determined that Mr Coomb’s average time inside the secure area was 468 minutes which is short by 7 minutes per day.

Based on the analysis conducted, the allegation that Mr Coombs is not working the required time is substantiated.

On the balance of probabilities this allegation is substantiated.

Evidence to support the finding:

An analysis was conducted by Internal Audit of Mr Coomb’s daily working hours via the security gate on the ground floor see Appendix A.

A review of CCTV footage available for days where there were anomalies in the security gate wipe records see Appendix B which shows the records relating to CCTV footage where Mr Coombs has tailgated through the security gates.

Allegation Two:

You have been tailgating through Level one security gates thereby disguising your absence and attendance within the secure zone of the Sydney Water building. Eleven dates and instances were identified from 12 November to 20 December 2018.

On the balance of probabilities this allegation is substantiated.

Evidence to support the finding:

CCTV footage for 5 occasions where you tailgated through the security gates on the ground floor. You confirmed your identity on the CCTV footage and said that you followed people through because you were lazy.

Warning letter of 13 November 2017 issued by Ms Sreema Guruge in which you were warned that accurate recording of time and attendance were important matters.

Letter of 21 June 2018 issued by Mr Liam Connolly in which you were advised to be mindful of tailgating as it is not approved.

Proposed Outcome

The substantiated allegations constitute corrupt conduct and as such as propose to terminate your contract of employment for breach of:

Sydney Water Enterprise Agreement 2017 – clause 11.2.1(a), 11.3.2

Living Our Values: Principles for Ethical Decision Making

Absence and Attendance Reporting Policy

We now provide you with an opportunity to provide us with any reasons as to why your contract of employment should not be terminated.

Please provide your response in person 1pm – 2pm Monday 8 April 2019 at Head Office Parramatta, Rom 14-01 or in writing to me by close of business Monday 8 April 2019.

You might find it helpful to access the confidentiality counselling service that Sydney Water offers employees through our Wellbeing provider on 1300 ARE UOK.

If you have any questions please do not hesitate to contact me.”

[29] On 9 April 2019, the Applicant responded to the show cause letter. That response was as follows:

•  “I have worked for Sydney Water for 27 years in various departments, which includes my current role in Asset Knowledge for the past 7 years.

•  My work has always been exemplary with no complaints. Despite the significant workload I have always met deadlines to the best of my ability. I am the only one in Sydney Water that does my job and I am accountable to myself and my manager. Until recently I had no back up, the buck stopped with me and I give 100% everyday.

•  We have an attendance book for which I always enter my correct arrival and leave times in every day.

•  I was unaware that tailgating was such a serious offence that could result in termination of employment. In previous warnings of tailgating, I was never told that it was a sackable offence. Security have never pulled me up. The only statement Sydney Water made to me about tailgating was that security did not approve.

•  Since tailgating has been raised through this audit investigation it is now very clear to me how serious Sydney Water consider it. I realise that I have been doing the wrong thing and will never do it again. I would never risk my job and my family’s livelihood by doing something so serious and I regret now that I took the warning so lightly.

•  I am also aware of other colleagues being audited for their time and attendance, but not tailgating, which I know they do and have seen them do. Because of this I feel Sydney Water are making an example of me for tailgating. This is not the fair way to go about it. Is tailgating a valid reason to sack anyone? If it is then why was this not communicated to staff clearly and why do security permit tailgating.

•  I sometimes tailgated because my work environment was extremely stressful with unrealistic time restraints placed on me by my manager at the time and constant pressure from previous disciplinary actions that drew out over long periods:

◦  By August 2016 my new manager Sreema Guruge started. By February 2017 I was served with a PIP with Sreema attacking my attitude and setting unrealistic performance expectations. I normally do 10-20 jobs/day, Sreema expected 25 jobs/day. A job can take anywhere between 5 minutes and 5 hours. This PIP was incredibly stressful involving Sreema and HR. In the end I satisfied expectations and the PIP was signed off on 19^th June 2017.

◦  On 26^th September 2017 I was asked to respond to a complaint made to Audit that I left work 2.5 hours early on 27^th July 2017. On that day I asked Sreema’s permission to leave early but she had forgot. The date was my wife’s first obstetrician appointment, so I could have asked for carers leave which was eventually used in response to the allegation, but I still stand by my reason to Sreema that I had the time in lieu. The allegation of leaving early without permission was found to be inconclusive but I still received a warning which was unfair. I was never asked by Sreema why I left early before the matter was escalated to Audit. Audit also audited my general attendance and it was identified that I was not completing my hours. I rectified my time and attendance, but this issue wasn’t closed off by HR until 21^st June 2018. Having this disciplinary process hanging over my head was very stressful because I thought the process had finished.

◦  Other incidents that contributed to the stress were:

•  Sreema let the whole team except for me do Saturday overtime even though there was a huge backlog of jobs for me to complete.

•  I had to advocate very strongly and wait a long time to receive any assistance with my work in terms of extra resources

•  My own personal issues at the time and now is that I had a brand new baby causing stress at home with sleep deprivation, and new demanding home duties, and also a separate child custody dispute involving my 10 year old daughter with an ex-partner, which is still current to this day

•  I acknowledge and regret that work stress and my personal issues impaired my judgment with regards to tailgating. I wasn’t thinking clearly with everything else going on and didn’t want to risk another audit process for getting a coffee. As you would be aware court disputes and the birth of a child are incredibly stressful and I wasn’t coping.

•  I had time and attendance issues raised last year, which were rectified during an audit a few months later.

•  There were occasions where the gate was already open and there were also times when I asked Security to open the gate for me as my hands were full and I was unable to access my card in order to swipe it.

•  My knowledge of the gates are for the safety of staff to ensure no non-Sydney Water employees are in the building - tailgating did not infringe this. I do admit that tailgating would have impacted Sydney Water’s capacity to know if I was in the building or not if there was an evacuation and therefore impacted my safety. By tailgating I did not consciously impact the safety of any other Sydney Water staff member.

•  I have forensically gone over times produced to me by the audit team and dramatically reduced them. Over an 8 month period I was given an average of 19 minutes that I was alleged to be outside of the secure area of the building, I challenged this with the audit team and it was reaudited and was reduced to 11 minutes. I was still unsatisfied with the audited times and requested they review these times again during a particular month and the times were reduced again to an average of 7 minutes a day. I still believe that this could be reviewed again and reduced even further. The problem with the auditing process does not take into account the nature of my work. These reductions show how inherently fallible this audit process is.

•  During my time as an employee of Sydney Water over the past 27 years, I have never had a customer complaint and never had a problem with work performance. I have a great rapport with my customers including both internal and external colleagues.

•  • Disciplinary issues have only ever been brought up over the past 2 years which coincided with a change of management and new unrealistic deadlines which demonstrated a lack of understanding of my role.

•  I have been married for 2 ½ years to my wife Marissa with whom I have a son Joshua aged 14 months. I also have a daughter Charlotte aged 10 years with an ex-partner.

•  The impact of termination would have significant financial consequences for me and my young family. I have used Sydney Water to grow my career from a maintenance employee to my position as a Senior Asset Information Officer, which required me to go back to school to earn the right credentials for my current role for which I am proud of and enjoy doing every day.

•  My father, Ronald Coombs, worked for Sydney Water for 36 years and I feel proud to be following in his footsteps in order to provide for my family the way he did for me and my sister.”

[30] On 12 April 2019, the Respondent sent the Applicant a letter terminating his employment. That letter was as follows:

“Dear Glen,

Outcome of Internal Audit Investigation

I refer to the letter of 4 April 2019 advising of Sydney Water’s proposed disciplinary outcome and opportunity for you to provide any reasons as to why your contract of employment should not be terminated. I confirm that you and your support person met with Mr Craig Davis on 9 April 2019 and were provided with an extension to complete your response until 10 April 2019. I confirm receipt of your response on 9 April 2019 to Mr Craig Davis.

Mr Davis has provided me with your response.

In determining the appropriate outcome, I have taken into consideration the following matters:

•  The serious impact that a dismissal will have on you and your personal circumstances;

•  The formal warning letter of 13 November 2017 issued by Ms Sreema Guruge (your supervisor at the time) in which you were warned that accurate recording of time and attendance were important matters;

•  The letter of 21 June 2018 issued by Mr Liam Connolly, Employee Relations Specialist, in which you were advised to be mindful of tailgating (following a person through the security access gates) through the security access gates as it is not permitted;

•  The fact that you are aware of how to correctly use your Sydney Water ID Card through the security access gates as seen on the CCTV footage;

•  Your use of deception (tailgating) to obtain a financial advantage that is being payment for hours not worked and accruing and taking Rostered Days Off not entitled (Fraud);

•  The fact that Sydney Water is a State Owned Corporation and has legislative responsibilities for preventing and responding to corrupt conduct; and the wilful and deliberate nature of your conduct that caused a serious and imminent risk to the reputation of Sydney Water.

Outcome

Sydney Water has an expectation that its employees, especially senior employees will not engage in corrupt conduct.

Sydney Water also expects that its employees will comply with its Absence and Attendance Policy and living our Values-Principles for Ethical Decision-Making . Signature Behaviours and the Sydney Water Enterprise Agreement 2017. As such, I have determined that summary dismissal without notice is the appropriate outcome for your serious misconduct and your contract of employment shall be terminated effective today.

Given your length of service, I am prepared to pay a notice period of 5 weeks in addition to any accrued entitlements that are owed to you.

As a former employee you and your family are entitled to continue to use our Employee Assistance Program by telephoning …”

[31] The Respondent considered that the Applicant’s tailgating was deceptive to conceal the amount of time he spent out of the office and not working. As a result, on 2 May 2019, Sydney Water’s Managing Director, Mr Kevin Young, reported the matter to the Independent Commission Against Corruption on the basis that it was felt the conduct of the Applicant amounted to corrupt conduct under the Independent Commission Against Corruption Act 1988 (NSW).

ASU Involvement Regarding Time and Attendance in Asset Knowledge

[32] As noted above, on 13 November 2017, the Respondent sent the Applicant the Warning Letter. Around that time the ASU became directly involved with concerns of their members within Asset Knowledge, and Mr Mal Tulloch, Industrial Organiser of the ASU, gave evidence of that involvement. Ms Harris also deposed to the time and attendance audit occurring.

[33] On 6 November 2017, Mr Tulloch was contacted by email by ASU Vice President based at Parramatta, Mr Paul Muller, with concerns regarding his members in Asset Knowledge. That email was as follows:

“Mal

Just had a meeting with Robert Rodgers from Gen [sic] Coombs area it’s about their swipe cards. Corinne Cheeseman has called all the staff into a meeting about there [sic] are abnormalities about the data they have collected from there [sic] swipe cards. She said she will try give them a 5 day amenesty [sic] if the [sic] come forward and confess up. This is a witch hunt and I suspect they are trying to get Glen. I have never seen this done in all my time in Sydney Water. Could you contact Robert Rodgers on … I’ll be off tomorrow back on Wed.”

[34] It was accepted in the proceedings that the reference to “Gen Coombs” was in fact a reference to the Applicant. It was clear that the Applicant was a key participant in the ASU’s agitation on this issue.

[35] On 22 November 2017, Ms Guruge emailed employees, including the Applicant, stating, in part, “At a team brief held on 6 November at 11.00am, I requested everyone to record the time you arrive and the time you leave when you sign in the attendance book to enable me to manage the flexibility you would like to have in the team. In addition, for any deviations greater than 30 minutes from the agreed times of arrival/leaving work, you were asked to send me an email to inform me, in addition to writing the time in the attendance resister.” The reference to the attendance book was to the Blue Book.

[36] On 6 December 2017, in a team meeting with Asset Knowledge employees the issues “data mining” and “hours worked and swipe card times” were raised. Those issues remained the topic of various discussions for a number of months. The Applicant confirmed in cross-examination that “data mining” referred to the Respondent reviewing entry and exit data from the security gates 1.

[37] On 6 March 2018, Mr Tulloch wrote to various managers of the Respondent, including Ms Corinne Cheeseman, regarding a number of concerns expressed at a union meeting. Under the heading “Surveillance of Employees,” Mr Tulloch wrote:

“The Union understands Asset Knowledge management has informed our members at team briefs that the turnstile access and egress records will be monitored regarding attendance during working hours. This has been expressed as a data mining exercise that will identify anomalies with attendance . Asset Knowledge management has also expressed an amnesty from employees who choose to self-identify non-compliance with attendance since October 2017. This action was recorded in the team brief meeting in 6 December item 3 attached.

The Union understands that employees are required to sign in an attendance book each day to record their attendance. This has been the custom and practice within the workplace for a considerable time. But Asset knowledge management has taken an unilateral step to use access data in addition to signing of the attendance book. The Union is not disputing the need for employees to record their attendance but question the use of turnstile records.

The turnstiles main purpose has been to protect the safety, evacuation and security of SW employees and was never intended to be a bundy block. The Union would raise concerns regarding the collection and storage of personal data, who has access to this data and would question if SW complies with the workplace surveillance and privacy laws.

The Union understands that this data may be required for a “proper purpose” or law enforcement issues. But the ASU would dispute that a “proper purpose” is allowing local management to use this data to track the movements of its employees. Further that using the entry turnstile asses and egress records for the purpose of surveillance of employees attendance is not an accurate record of movements. The threat from management to use this data has created a considerable anxiety amongst our members appears to entrench a micro-management culture and has contributed to a deterioration of their heath & wellbeing.”

[38] On 12 March 2018, Ms Cheeseman responded to Mr Tulloch, which correspondence on the issue of surveillance stated:

“There is no plan to implement any on-going monitoring of the movements of staff via swipe-card access. This review of swipe-card records for a defined period was in response to a concern expressed by internal audit regarding the attendance patterns of some employees. Actual attendance patterns are difficult to confidently verify using any single method. Sydney Water always uses its business records as a source of information where they may help verify/clarify situations. We consider this to be a ‘proper purpose’.

We were entirely open with staff during this process, including providing an amnesty for staff who provide an early disclosure of potential breaches.”

[39] Mr Tulloch escalated the issue to the General Manager LCS within the Respondent, Mr Paul Plowman, and they met on 6 June 2018. Mr Plowman advised Mr Tulloch in an email of 6 June 2018 of the following regarding time and attendance:

“Time and Attendance

The issue dates back to September 2017 and originated from seeking to understand an underlying issues [sic] surrounding sufficient resources to undertake work. Through that process it appeared that there were inconsistencies in time and attendance across the team.

It was decided that the best course of action was to re-set expectations (as opposed to entering a detailed investigation and disciplinary process) with the knowledge that time and attendance would be measured over time. This was known in the team as the “amnesty” I believe.

My understanding is that there has been a marked improvement across the team and only a few still have unaccounted for hours. My understanding is that the analysis has taken a conservative approach i.e. where data is unclear, analysis erred towards the employee.

By way of background it is important to note that this has been referred to the ICAC in line with S11 of the ICAC Act as the matter may constitute corrupt conduct on the part of the affected persons that we plan to interview. The ICAC have confirmed that they are happy to have Sydney Water conducting the investigation and reporting the outcomes to them.

The investigation is being conducted by Audit and Assurance (AK management are not involved). Audit have summarised the following for me:

The next steps are that the affected persons will be provided with a letter of allegation. This will detail the allegations at a high level with sufficient information for the person to be able to prepare themselves for an interview with the investigators. The letter will give them at least 48 hours notice of the date, time and location of the interviews. The investigators will be from Deloitte, engaged by the independent Head of Audit and Assurance who reports directly into the Audit & Risk Committee and not into the Executive.

The affected persons will be offered the opportunity to bring a support person to the interview. The role of that person is to provide support to the affected person and to provide a safeguard against unfair practices.

At the interview the person will be provided an opportunity to respond to the allegations that are being put to them. They will be provided with choice of having the interview recorded electronically and subsequently being given a copy of that record that will summarise the discussions during the interview.

The affected persons will be offered the opportunity to provide supporting evidence to the responses they provided during the interview or other evidence that they believe should be considered as part of the investigation process. They will have five working days to provide that information.

After that period a report will be drafted by the investigators concluding on whether corrupt conduct has been substantiated in line with the evidentiary requirements relating to such matters.

That conclusion and the basis of the conclusion will be provided to management (GM LCS) to determine whether any disciplinary outcome is required. In addition the report will be provided to the Disclosures Panel (Managing Director, Industrial Relations, Head of Audit and General Counsel) for their review.

I understand that the letters are ready to be distributed and that the investigators are lined up for late next week.

The options are for letters (6 individuals – I don’t know who they are) to be distributed tomorrow (or Friday) – giving those affected a longer preparation period; or distribute on Tuesday and have the 48 hours in accordance with the policy.

My preference is the former. Note that this is independent, so I can influence but not determine.”

[40] There was no link established in the proceedings regarding whether the Applicant was one of the six individual letter recipients, and I make no assumption that any link existed, but I note the Applicant received the letter that was the Connolly Warning on 21 June 2018.

CCTV Footage

[41] Part of the case put to the Applicant during the investigation process in February to April 2019, was the CCTV footage collected by Internal Audit of the Respondent. That footage was also an Exhibit to the Statement of Mr Yee in the proceedings and admitted into evidence. The CCTV footage is compelling in what it shows. If it were possible to have annexed that footage to this Decision I would have done so, in order the assist any persons reading this Decision to fully understand the conduct.

[42] There are four security gates at the entry to the Respondent’s Parramatta premises. Gates 1, 2 and 3 are thin, and close quite quickly. Gates 4 is a wider gate, presumably for disabled access, which takes longer to close. All gates are opened by an employee passing their swipe card over a sensor. Upon so swiping, the red light on the gate turns green, the gate opens, and the gate closes when the employee is sensed passing through the gate.

[43] All the CCTV footage showed the Applicant tailgating only through the wider/slower gate (Gate 4). In some of the CCTV footage, it appeared the Applicant had made an effort to conceal that he was not going to scan his access swipe card. He did so by moving his hand in such a way as to grab his access card to use, pretend to go to swipe, but to then tailgate and not use his access swipe card. His conduct can be described as a feint to conceal the absence of a swipe.

[44] On other occasions, such as on 13 December 2018, the Applicant waited for another person to arrive before he followed them through the wide gate. On each occasion of tailgating it was clear that the Applicant was maintaining an uncomfortably close proximity to the person ahead of him in order to avoid being caught by closing security gates.

[45] Mr Tulloch also exhibited video footage he took on 9 November 2017, of two employees tailgating another employee through the slow fourth gate at the Respondent’s premises. That footage, having been taken over a year before the introduction of the Accessing Sydney Water Properties - Security Policy, was of limited relevance.

The Credit of the Applicant

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

[47] When first asked for his reasons for tailgating in the Record of Interview, when advised, “Please be honest and truthful,” he stated he was “lazy and simply follows a person through because it is easy to do”, “hadn’t read the policy”, and “regularly walked through the security gates behind others.”

[48] In the Applicant’s Application, the Applicant provided a different explanation. This was drawn to his representatives’ attention in proceedings 2 and not disavowed. That explanation was:

“[13] The Respondent’s methods of accounting for workplace time and attendance mean that any staff member who has a coffee break using facilities within the secure area have their break counted as time worked. As the applicant chose to leave the secure area and visit a coffee shop this time constitutes an absence from work.

[14] This resulted in a situation where the applicant occasionally tailgated to ensure that his times were compliant and ultimately to ensure that he did not have to endure another disciplinary investigation into his time and attendance. …”

[49] In his first Statement in the proceedings, the Applicant reverted to the “opportunistic” and “lazy” explanations, coupled with an alleged lack of knowledge or appreciation of the seriousness of his conduct. Those explanations did not withstand scrutiny.

SUBMISSIONS

(a) The Applicant

[50] The Applicant submitted that the Respondent did not have a valid reason for the dismissal, and that under any circumstance such a termination would be harsh, unjust and unreasonable. The Applicant noted the contrast between the exhortations of various members of the Respondent that the behaviour of the Applicant was fraudulent, dishonest and corrupt, and the reality that the Respondent’s case, at the end of the day, amounted to the fact that the Applicant was having seven minutes of breaks per day, which were reasonable, and not tapping his access card every time he entered the building.

[51] It was put that the Respondent, for all its protestations, was aware of the tailgating for over a year but took no action. No written warning, no allegations, no suspension, not even a discussion with the Applicant, on an informal basis.

[52] The Applicant submitted that in determining the existence of a valid reason there are two pertinent questions. Firstly, whether or not the Commission is satisfied that the conduct alleged actually occurred on an objective basis; and secondly, whether such conduct justified termination.

[53] To answer the first of those questions, it was obviously relevant to consider that actual allegation substantiated by the Respondent. In the outcome of investigation letter two matters were listed as being substantiated. First, the Applicant was short by seven minutes per day, and second, that he had tailgated through the security gates to disguise that absence. The Applicant submitted that I should not accept either of those findings.

[54] In relation to the seven minute breaks, the Applicant conceded that he took breaks throughout his employment. In his 27 years of employment with the Respondent he never denied this. But those seven minutes a day were reasonable breaks.

[55] The second allegation was the tailgating through the gate in order to allegedly defraud the Respondent. The Respondent variously described the conduct as fraudulent, dishonest, or even corrupt. But the evidence showed that the Respondent never took the conduct so seriously. Mr Connolly’s evidence was that he was aware of 57 incidents of tailgating by the Applicant, or potential incidents of tailgating by the Applicant, as early as January 2018, over a year before he was terminated, and over a year before he was even given an allegation of tailgating, yet he did nothing to follow that up.

[56] The Applicant noted that the Applicant was not even suspended for his conduct, and submitted that was because the Respondent did not consider it “high risk.” That characterisation was inconsistent with the characterisation of the conduct as corruption and fraud because those things are, necessarily, by definition, going to be high risk behaviours.

[57] The Applicant noted that while the Respondent received a complaint in August 2018, that complaint was not raised with the Applicant until February 2019, not even informally. The Applicant had no notice of the fact that there was any investigation, let alone any problem with his behaviour, until February 2019, at which point his employment was eventually terminated. The Applicant’s Manager, Mr Davis, and Ms Falconer and Mr Yee, all knew of the alleged conduct of the Applicant from around August to October 2018, but no one raised that conduct with the Applicant.

[58] The truth of the matter was that the Applicant just did not think that the proscription against tailgating was an overly serious matter, and given the lack of urgency with how the Respondent’s witnesses have treated it, that was a reasonable assumption. The Applicant’s oral submission on this point was as follows 3:

“They’ve been aware of the tailgating since the end of 2017 yet didn’t raise it with him until February 2019. Not a single allegation or warning. No performance management as to tailgating. It was simply not the behaviour of an organisation that considered this behaviour to be particularly concerning.

So as a result, the applicant continued what we concede is a sub-par practice. Something that he’s conceded on several occasions and regrets. He continued to tailgate in the middle of the day.

Since management had raised concerns about his start and finish times, back in 2017, he did make, you know, a concerted effort to ensure that those times were correct, and that swipings did occur at those times, but in the middle of the day he just didn’t pay attention to it. He didn’t think it was a big deal. Why would he have thought that?”

And 4:

“If Sydney Water had commenced some sort of investigation or allegations in regard to this tailgating and these long breaks, then it would be reasonable to presume that perhaps there is a reason for the applicant to engage in some sort of deceit. But in circumstances where he’s not been put on notice of it and, in fact, when he has been talked about tailgating it seemed to be not a big issue, it is quite a leap for the respondent to substantiate, on the balance of probabilities, that the reason he did it was to conceal his behaviour.”

[59] The Applicant submitted that there was not dishonest behaviour, and further submitted that even if I were to make a finding of dishonesty in the sense that the conduct was designed to try to circumvent Sydney Water’s surveillance of his time and attendance, such conduct would not warrant dismissal. The Applicant referred to the observations of the majority of a Full Bench of Fair Work Australia in APS Group (Placements) Pty Ltd v Stephen O’Loughlin 5, that were as follows:

“However, we note that such dishonesty will not automatically render a dismissal based upon it a dismissal that is not harsh, unjust or unreasonable. An illustration is provided by the decision of Buchanan J in McDonald v Parnell Laboratories. In that case the Court was required to consider whether an employee who had been dismissed for dishonesty in a response she gave to a manager in answer to an instruction to state her times of attendance over the previous three weeks had engaged in wilful, serious or persistent misconduct, within the meaning of a term of her contract of employment, such as to justify dismissal without notice in accordance with that term. Buchanan J reviewed the law relating to summary dismissal for serious misconduct at common law. It is clear from his Honour’s reasons that what he described as the as, “a single foolish dishonest act”, did not, in the circumstances, amount serious misconduct justifying summary dismissal at common law.” (Emphasis added).

[60] The Applicant submitted that if a finding of dishonesty were made, then it was the result of a single, foolish act. That act was a decision to tailgate and if it were found to be in order to deceive the Respondent, in those circumstances it would be a decision to tailgate to avoid the drama of arguing about seven minute breaks.

[61] The dismissal was a result of a hasty policy, implemented on 5 December 2018, in the middle of the investigation, that should not be allowed to be relied upon to validate termination. There was no consultation with the ASU or the Applicant on the policy.

[62] The Applicant referred to the decision of a Full Bench of the Commission in B, C and D v Australian Postal Corporation 6, at paragraph [48], where they observed:

“[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies, in the particular circumstances of an individual case, can be harsh, unjust and unreasonable.”

[63] On the issue of warnings, the Applicant submitted that he received none in relation to tailgating. This lack of warning goes towards the lack of a valid reason for termination and makes this termination harsh, unjust and unreasonable. But more than that, the Applicant submitted, there was simply no notice, in any of the documents, that the Applicant’s employment was at risk if tailgating were to continue.

[64] In those circumstances, it must be conceded by the Respondent that they have not given the Applicant a warning and there is not a warning capable of intimating to him that if his behaviour were to continue that disciplinary action, including the termination of his employment, could result.

[65] As to remedy, the Applicant submitted that reinstatement was the appropriate remedy. It is the primary remedy and should be considered prior to any other remedy, pursuant to s.390 of the Act. There had not, in this case, been a loss of trust and confidence that would make the employment relationship untenable. Until the February 2019 allegations in this matter and the termination of employment, this tailgating issue had hardly been ventilated.

[66] It was simply unsustainable for the Respondent to, on the one hand, state that trust and confidence has been lost, as at February 2019, when the behaviour that has apparently caused that loss in trust and confidence has been apparent to them for a period of at least six months prior. Mr Connolly was aware of the conduct for a year and a half prior. The Respondent cannot turn around now and take that behaviour that they so accepted and so allowed and say that that has caused a loss of trust and confidence.

[67] It was reasonable for the Applicant to misapprehend that his behaviour was not considered to be serious. The fact was that management, instead of trying to correct his behaviour, simply allowed him to dig a hole for himself, for a further six months, before they had enough data, in their opinion, to terminate him and bring his lifelong career to a close.

[68] The Applicant is 47 years old, and has worked for the Respondent since he was 20. It was a lifelong career, but more than that, it was and it is his identity. The impact of this termination on him and his family was profound and cannot be understated.

(b) The Respondent

[69] The Respondent commenced by noting that the Applicant was a senior employee. He was at level 13, out of 17, under the Enterprise Agreement and is not someone who is new to the workforce and might be oblivious to his obligations as an employee. Indeed, he recognised that he has an obligation as an employee to comply with his employers lawful and reasonable directions.

[70] Further, it was not in dispute that the Applicant tailgated. It was also not in dispute that he received directions, instructions and warnings not to tailgate. On each of the occasions the Applicant was told not to tailgate the message was clear. What is in dispute is the gravity of the conduct, and whether or not the explanations given by the Applicant were satisfactory.

[71] The Respondent submitted that the Applicant was not an impressive witness, due to his attempts to downplay what had occurred, including on a number of occasions by not answering the questions asked of him. The Applicant had failed to be open and honest or candid, both with the employer and this Commission.

[72] In response to the Applicant’s evidence that he had an unblemished record, the Respondent drew the Commission’s attention to:

(a) A Disciplinary Caution, dated 15 January 1998, partially relating to absences without a medical certificate, late or incomplete running sheets, and the conclusion that those incidents demonstrated an irresponsible attitude to duty;

(b) A letter of 24 November 1999, regarding failing to secure and maintain, in a safe manner, a Sydney Water vehicle;

(c) An email from Andrew Ford to John Gillett, in 2002, which outlined a number of occasions, while acting as team manager, the Applicant had to be spoken to;

(d) A memorandum of 21 October 2002, that, having outlined some of the Applicant’s employment history, noted “his manager of the time reported that Glen displayed a couldn’t care less attitude to the issues raised”; and

(e) The Applicant’s concessions, in cross-examination, that his 2012 and 2013 performance reviews rated him as “needing attention”.

[73] Then, more pertinently for the disposition of the Application, the Respondent addressed the more recent disciplinary measures. First, there was the PIP in February 2017. The Respondent noted it was trying to get visibility on the work performed by the Applicant, and he was not complying with an instruction to document that. On page 1, in the second row of that PIP, on page 1 of the PIP, in the “Current Issues” column, the issue is:

“Recording of utilisation of time during core working hours. After many requests recording of time has not commenced. Glen has informed me that he will commence recording times as of 1 February 2017.”

[74] Next, in July 2017, where there was an issue raised about the Applicant leaving work early. While the Applicant gave evidence, initially, in cross-examination, that he didn’t understand this issue was disciplinary, he subsequently acknowledged that he knew, at the time, that it was a disciplinary process because it included the following:

“The allegations are serious and if proven may result in disciplinary action.”

[75] The Respondent noted that letter also squarely addressed the issue of the Applicant’s attendance, and consequently resulted in the Warning Letter regarding regular poor attendance of 13 November 2017.

[76] Thereafter, Mr Connolly then conducted his review of the Applicant’s attendance. Mr Connolly looked at the Applicant’s attendance times from the swipe card entries at the security gates and saw the 57 instances where there was not an accompanying exit or entry swipe. He issued the Verbal Warning that:

“You should be here for 8 hours and 25 minutes including a half hour lunchbreak. There are gaps in the data that I have reviewed, which appear to indicate tailgating. Be careful what you’re doing here, because it looks like you’re tailgating.”

[77] The Respondent submitted that the above statement was a clear direction, instruction and warning not to tailgate, and noted that the following day, the Applicant wrote a memorandum in response to the disciplinary process, wherein he stated:

“An internal audit was also done of the gate times of entry in and out of Parramatta head office.

This was an added issue on top of the original application.

My times were seen as an issue and I was put on a three month probationary period to correct this issue.

Personally, these allegations against me have caused much anxiety and distress and I know that if the allegations [had] been brought to my attention by my immediate manager when it happened it would not have happened at all.”

[78] The Respondent submitted that, arising from the above statement, the Respondent should have been able to have confidence that, it having been raised with the Applicant that tailgating was not appropriate, it would not happen. However, what did occur was that the Applicant just kept on tailgating.

[79] The Connolly Warning reinforced the position on tailgating. While it was given some five months after the Verbal Warning, such delay explained at least partly by the Applicant’s absence on paternity leave, it stated:

“I did make comment that there were holes in the data indicative of you passing through the gates without using your pass tag. I have spoken to security who do not approve of tailgating through security gates, please be mindful of this.”

[80] The Respondent submitted it was impossible that any reasonable person would have interpreted that tailgating was other than prohibited. In response to the Applicant’s arguments regarding being given appropriate notice of tailgating being unacceptable, the Respondent submitted 7:

“If the argument is, “Well, you should have just told me, I would have stopped”, it ignores the fact that in January [2018] and June [2018] those instructions and directions were given. In effect, “You can never catch me, because you’ve always got to tell me and then I’ll stop”. An employer can’t play that chasing game. This is an employee, at level 13, an adult employee, whom in respect of which we need to place some trust and confidence.”

[81] The Respondent went on to note the further instruction given by Ms Falconer regarding timekeeping in August 2018, and the Policy emailed to staff including the Applicant on 5 December 2018.

[82] In addressing valid reason, the Respondent noted the termination letter issued to the Applicant referred to corrupt conduct. Conceding that the Commission may say, in its view, that the conduct was not corrupt conduct, the Respondent submitted there was still a valid reason for terminating employment on the same facts that make the allegation of corrupt conduct, being significant disobedience and dishonesty.

[83] As to the explanations given by the Applicant for the tailgating (being that his actions were lazy, opportunistic or a mistake) the Respondent submitted that while the Applicant used those excuses in a mitigation sense, their use was misplaced and designed to mask his true intent. The Applicant’s tailgating was deliberate and intentional. He intended to tailgate, despite the clear instructions to him to the contrary. It was not opportunistic in the sense used by him to tailgate because he always intended to tailgate. There could be no mistake because the Applicant was aware of, in his words, “data mining.”

[84] The Respondent highlighted paragraph 14 of the original Application of the Applicant where, far from claiming a mistake, the Applicant put:

“This resulted in a situation where the applicant occasionally tailgated to ensure that his times were compliant and ultimately to ensure that he did have to endure another disciplinary investigation into his time and attendance.”

[85] By that statement, the Respondent submitted that the Applicant was revealing that he was tailgating to ensure his times were compliant. That would only be done to ensure that there was no record, or to ensure the records weren’t clear, to record when he was in and out. Further, he was doing so to avoid a disciplinary process because, in other words, he knew tailgating could lead to such a disciplinary process.

[86] As to the gravity of the Applicant’s conduct, the Respondent noted it has evidence that the Applicant had not worked the hours required, and that, by not swiping in and out, it masks the exact amount of time the Applicant’s time recording was out. That conduct, when considered with the unacceptable responses given by the Applicant for the conduct, meant the Applicant was an employee in respect of whom the Respondent could have little or any trust and confidence he would do the right thing.

[87] Regarding remedy, the Respondent submitted the Applicant had exhibited a “couldn’t care less attitude.” He did not follow instruction on three occasions. He gave explanations which were totally inappropriate. He was an employee that, even with reflection, had no insight into his obligations as an employee to obey directions, and Ms Falconer’s evidence about trust and confidence being destroyed wasn’t challenged.

[88] The Respondent submitted it would be impractical to reinstate the Applicant. That then directed the Commission’s attention to look at the remedy of compensation and, in that regard, the Applicant was the maker of his own misfortune. Further, there had been no attempts, whatsoever, at mitigation.

(c) The Applicant in Reply

[89] The Applicant addressed the issue of how widespread tailgating was at the Respondent, resting finally upon the following submission 8:

“So whilst we concede that your Honour is likely not in a position today to be able to say, ‘Yes, this is something that a majority or even a vast number of Sydney Water employees do’, we do say that it is something that can reasonably be considered to be more than just the applicant.”

[90] The Applicant took issue with the letter of 26 September 2017, in that it both raised an allegation, in the form of this discussion, and then provided disciplinary action in relation to it. The Applicant noted that at the bottom of that letter there was a warning “The allegations contained in this letter are serious and, if proven, may result in disciplinary action”, however there was no warning in that letter that disciplinary action could result. It was said to be merely an invitation to an informal chat about another matter, being leaving early on a particular date. The essential complaint, as I understood it, was that there were no allegations put before the warning of 13 November 2017, and there was no warning in the letter of 26 September 2017, that disciplinary action could follow from that discussion.

[91] The Applicant submitted that once the Respondent determined that matters were potentially issues that could result in a warning, they then did not put them as allegations. There was no point when the issues were presented in a way that the Applicant could not respond, potentially bring up mitigating factors or consult with support persons in the Union as to his response.

[92] Regarding the Connolly Warning, the Applicant noted that he had been given directions before, some by Mr Connolly, in the vague, soft language of, “I have spoken to security who do not approve of tailgating through security gates, please be mindful of this.” The Applicant disputed that this was a direction.

[93] Finally, addressing paragraph 14 of the Application, the Applicant submitted:

“The applicant does concede that there have been occasions that he did turn his mind to the fact that there has been suggestions that disciplinary action can follow from this but, again, what he focused on was the fact that breaks were one of the things that he was entitled to and one of the things that he was taking. It was really, I guess, an attempt, at that point in time, to not consider that.”

CONSIDERATION

Preliminary findings

[94] There are no jurisdictional objections to the Applicant’s application being determined by the Commission. Specifically, I am satisfied that:

(a) the Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));

(b) the Application was lodged within the 21 day statutory time limitation found at s.394(2) of the Act;

(c) the Applicant is a person protected from unfair dismissal in that:

(i) he had completed the minimum employment period set out in ss 382 and 383 of the Act; and

(ii) the Applicant’s income was above the high income threshold, but also an enterprise agreement applied to his employment;

(d) the dismissal was not a case of genuine redundancy (s.385(d)); and

(e) the dismissal was not a case involving the Small Business Fair Dismissal Code (s.385(c)).

[95] Section 385 of the Act defines an unfair dismissal based on four criteria there set out, each of which must be satisfied if the person seeking a remedy from unfair dismissal is to succeed. The section reads:

“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.”

[96] As I have just concluded that three of the above criteria have been satisfied ((a), (c) and (d)), this leaves only the question of whether the Applicant’s dismissal was “harsh, unjust or unreasonable” and therefore an unfair dismissal. To this end, one must direct attention to s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair. It is trite to observe that each of the matters must be considered and a finding made on each of them, including whether they are relevant or not; for example whether a person was refused an opportunity to have a support person present may be irrelevant, if the request was not made, or the employee declined to take up the offer.

[97] Section 387 of the Act sets out each of the matters the Commission is required to take into account when determining whether the dismissal was unfair. Section 387 provides:

“Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[98] I address each of the above considerations below.

(a) Valid Reason

[99] As noted above, the Applicant’s misconduct was described by the Respondent in the termination letter of 12 April 2019, as serious misconduct, involving:

(a) “the use of deception (Tailgating) to obtain financial advantage that is being payment for hours not worked and accruing and taking Rostered Days Off not entitled (Fraud)”;

(b) Corrupt conduct; and

(c) Failing to comply with the Respondent’s “Absence and Attendance Policy and Living our Values-Principles for Ethical Decision-Making, Signature Behaviours and the Sydney Water Enterprise Agreement 2017.”

[100] “Serious misconduct” is defined in the Regulations to the Act. Regulation 1.07 sets out the definition as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.’

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”

[101] The Respondent appears to rely on ss (2)(a), 2(b)(ii), 3(a)(ii) and 3(c) of the above Regulation. However, that in itself is not necessarily determinative. In Sharp v BCS Infrastructure Support Pty Limited, 9 a Full Bench of the Commission said at paragraphs [33] to [34]:

“[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd  Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).” (Footnotes omitted).

[102] The onus of proof in relation to misconduct rests with the Respondent, and the Respondent accepted that it bore that onus. 10 The standard of proof is the balance of probabilities, with the more serious the allegation requiring the higher burden on the Respondent to prove the allegation (Briginshaw v Briginshaw11; s.140 Evidence Act 1995).

[103] The Commission itself must be satisfied that the misconduct occurred. In King v Freshmore 12, a Full Bench of the Australian Industrial Relations Commission said at paras [24], [26], [28] and [29]:

“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

...

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King’s employment.” (Emphasis added).

[104] As the matter involves the serious allegation of fraud, with potentially far reaching and catastrophic effect on the employee’s future employment prospects, that allegation should not be levelled, or be found to exist, without clear and cogent proof. 13

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

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

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

(a) obtains property belonging to another, or

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

is guilty of the offence of fraud.

Maximum penalty: Imprisonment for 10 years.”

[107] In Adamopoulos v Thompson Healthcare Pty Ltd 14, Deputy President Sams found (in a part of that Decision not disturbed on appeal) that:

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

[108] This Commission and its predecessors have consistently considered falsifying time records to procure payment for work not done as fraud. Those matters have ordinarily involved the use, or more correctly misuse, of “bundy card” systems. In 1991, Justice Munro observed in one such a matter 15:

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

[109] More recently, Commissioner Cambridge observed in Johnston and Lewis v Total Care Group 16:

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

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

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

[112] The tailgating was a quite deliberate attempt to falsify the timekeeping records that the Applicant knew that the Respondent sought to rely upon. Probably the most compelling demonstration of the intentional nature of the conduct was the disparity in the incidence of errors in card swipes between the start and finish of the day on the one hand, and absences from the Respondent’s premises during working hours on the other hand. As noted at paragraph [58] above, the Applicant submitted that he made “a concerted effort to ensure that those times [start and finish] were correct”, but “but in the middle of the day he just didn’t pay attention to it. He didn’t think it was a big deal. Why would he have thought that?” I reject that submission.

[113] The reason why the Applicant should, and I find did, see swiping his card for time recording during working hours as a “big deal” was that, contrary to the Applicant’s submissions regarding absence of discussions and warnings (see [51] above), proper time recording through swipe card records was the subject of significant agitation and numerous warnings. Unfortunately, the Applicant pursued a course of conduct designed to frustrate such time recording.

[114] I accept there was a certain timidity about the warnings given by the Respondent to the Applicant, but reject the submission that the Applicant was unaware of either the conduct required of him, or the consequences of his actions. Indeed, one week before the Warning Letter of 13 November 2017 ([15] and [16] above), the ASU had noted the Applicant’s concerns regarding data collected from swipe cards. Mr Tulloch described it as a witch hunt to “get” the Applicant (see [33] above).

[115] On 18 January 2018, the Applicant received the Verbal Warning, being:

“You should be here for 8 hours and 25 minutes including a half hour lunchbreak. There are gaps in the data that I have reviewed, which appear to indicate tailgating. Be careful what you’re doing here, because it looks like you’re tailgating.”

[116] On 21 June 2018, the Applicant received the Connolly Warning, that included:

“I did make comment that there were holes in the data indicative of you passing through the gates without you using your pass tag. I have spoken to security who do not approve of tailgating through security gates, please be mindful of this.”

[117] Ms Falconer gave the additional instruction in mid August that:

“The expectation is that you work the hours you are required to work. You have 30 minutes unpaid lunch break. If you take a break for coffee, errands, or exercise, these are unpaid breaks and do not contribute to your hours at work.”

[118] Were the above not sufficient instruction to the Applicant, on 5 December 2018, the Applicant received an email from Ms Falconer, introducing the Accessing Sydney Water Properties - Security Policy, that provided that “Tailgating, avoiding access controls etc. is not permissible.” Ms Falconer’s five line email, addressed individually to each employee including the Applicant, provided (in part):

“Please ensure that you read the policy and if you have any questions let me know.”

[119] Notwithstanding the above, the Applicant claimed to have not read the policy. Were the evidence to have been left at that assertion, consistently with my conclusion as to the Applicant’s credit, I would have rejected that assertion. However, the following evidence was given by the Applicant in cross-examination that rendered such a conclusion otiose 17:

“So you didn’t need to read the policy [Accessing Sydney Water Properties - Security Policy] to know you shouldn’t tailgate. That’s correct?  -That’s what I - yes.

And it’s consistent with common sense, isn’t it?  -To read the document?

No, sorry, to not tailgate. It’s consistent with common sense not to tailgate?  -Yes.

Now, sir, despite the instructions not to tailgate you did keep on tailgating from June 2018, didn’t you?  -Yes.”

[120] One further matter of significance was the timing of the distribution of the Accessing Sydney Water Properties - Security Policy. It occurred in the middle of the period of the CCTV footage. Notwithstanding the introduction of that policy, there was no change to the Applicant’s tailgating.

[121] I reject the Applicant’s submission ([59] above) that the Applicant’s conduct was a single foolish dishonest act. It was a calculated course of conduct consisting of multiple acts of dishonesty destructive of the mutual trust between the employer and employee. Such conduct falls within the class of conduct which, without more, authorises summary dismissal. 18

[122] The Applicant relied upon a calculation of seven minutes of unaccounted absences per day (see [50], [53], [54] and [60] above). I reject that calculation as in any way being an accurate calculation of the absences. The calculation of absences was thwarted, in my view intentionally by the Applicant, by his during the day either not swiping out but swiping in, or visa versa, thereby disguising the length of absence.

[123] One period in which there was a greater ability to calculate absences was the period in which the CCTV was available. The Respondent did a calculation for the weeks commencing 12, 19 and 26 November 2018 19, using both swipe card records and CCTV. The week commencing 19 November 2018, was not of particular use as the Applicant was sick two days and was on a RDO one day. However, in the weeks commencing 12 and 26 November 2018 it was apparent the Applicant appeared to have discrepancies of two hours 46 minutes, and two hours 37 minutes respectively from his required hours of work. The Applicant was questioned about the week commencing 12 November 2018 as follows20:

“You have given evidence in your statement that when you go down and get the coffees it can take 15 to 20 minutes?  -In the morning ones especially, yes. At 2 o’clock, it depends what - at 1.59, you know, we’ll get straight out because no one has gone there. If we get there later, that’s going to probably take a little bit longer sometimes.

But, sir, when you go through this analysis the weekly difference [week commencing 12 November, 2018] on you performing your hours is two hours, 46, under. If you take out the periods that may overlap with lunch, it’s two hours, 15, less than you’re required to do . You see that?  -Yes, but that’s not taking any breaks Like, we’re allowed to go and get coffee . I also had eight - like, I arrived eight minutes early most days because that’s what time the train came in, so that was - you know, you could take that off, as well.

But, sir, I haven’t taken that off so that’s to your advantage?  -Okay.

We have already covered the fact that you are aware of the expectation and direction from your manager once removed that if you go downstairs and get a coffee you need to make up the time. You’re aware of that?  -Yes.

So if one is to follow the directions and instructions given to you by your manager once removed, you have not worked the hours required in the week under the enterprise agreement. Do you agree with me on that?  -Well, that’s what the figures say, but in reality we’re allowed to have breaks.

So absent that issue, sir, if that issue is not resolved in your favour, then do you agree that you have not worked the hours required of you?  -Well, internal audit said that I haven’t done seven minutes, so I must have been over - - -

You understand internal audit figures were an average?  -Mm-hm.

And you understand I have just taken you through what has actually happened the week of 12 November?  -Yes.”

[124] The Applicant submitted that the Respondent somehow condoned the Applicant’s conduct, and was “aware of the tailgating since the end of 2017 yet didn’t raise it with him until February 2019. Not a single allegation or warning. No performance management as to tailgating.” As noted above, there were a number of warnings, albeit timid, about tailgating.

[125] That timidity, and the words used in the various warnings are understandable because until Internal Audit procured and viewed the CCTV footage, tailgating could only be inferred from the swipe card data, as opposed to clearly being exhibited by the CCTV footage.

[126] There was a valid reason for the dismissal. I find that the serious misconduct alleged actually occurred, and that it justified the dismissal.

(b) Notification of Reason

[127] The Applicant received a detailed letter of allegation. He was subsequently, at his request, furnished with further detailed time and attendance data to review in relation to the allegations. I am satisfied that the allegations were set out with sufficient specificity.

(c) Opportunity to Respond

[128] A meeting to discuss the allegations was scheduled by the Respondent. At the Applicant’s request that scheduled investigation meeting was delayed to allow him to organise Union representation, and then further delayed due to his illness.

[129] When that meeting eventually occurred, there was a detailed exploration of the allegations and the Applicant’s responses, as detailed in the Record of Interview. I am satisfied that the Applicant had an opportunity to respond to the allegations regarding his conduct.

(d) Any Unreasonable Refusal to Allow a Support Person

[130] The Applicant attended the investigation meeting with a representative of the ASU. The Applicant was therefore not denied an opportunity to have a support person present. This is a neutral factor in this matter.

(e) Whether the Person had been Warned About Unsatisfactory Performance

[131] This factor was a live issue in the proceedings because the Applicant claimed that he was unaware that tailgating could result in his termination. In his first statement in the proceedings, the Applicant asserted 21:

“At the time [21 June 2018] I did not appreciate that Mr Connelly’s request that I be mindful of security’s disapproval of tailgating was a direction that I not engage in tailgating at all and that I could be disciplined for tailgating. I was never made aware that Sydney Water considered tailgating to be serious misconduct for which I could be terminated. I feel very foolish that I didn’t have this appreciation at the time and that I continued to tailgate culminating in my dismissal.”

[132] As noted above, the final submission of the Applicant was that he “did not think the proscription against tailgating was an overly serious matter and, given the lack of urgency with how the Respondent’s witnesses treated it, that it was a reasonable position.

[133] The cross-examination of the Applicant was relevant to this issue. In particular, the following exchange 22:

“The reality is you knew your time and attendance was being look at, at that time?  -Yes.

The reality is, sir, that you had been given a direction to not tailgate?  -I had been warned in that sense.

And you decided not to take that warning, as you described it, seriously?  -Well, that warning was very - it was “mindful”, it was “careful”. It wasn’t blatant, “You will be dismissed if you continue to do tailgating”, which was - that’s how I took it.

But you gave evidence before that you understand disobeying your employer’s instructions is a serious matter?  -Absolutely.

You’re aware disobedience can lead to dismissal?  -Yes.

You know that as an employee?  -Absolutely.

It’s an ordinary part of the employment relationship?  -Absolutely.

You also knew that the manager once removed had said if you go outside to get a coffee you need to make up your time?  -Yes.

In all that circumstance, sir, you grabbed your access card, feigned to swipe, so that way you were disguising to anyone around that you had tailgated. That’s correct?  -No, not at all. I just had it in my hand ready to swipe if I needed to. There was no feigning. There was no one to prove it to down there.

Sir, do you agree, looking at those clips now, that your actions were dishonest?  -Yes. Tailgating - I shouldn’t have been doing it. That’s my - - -”

[134] I have found that the conduct of the Applicant was serious misconduct and a valid reason for dismissal. As such it is questionable as to whether paragraph (e) of s.387 has any application as the statutory consideration is to “unsatisfactory performance.” In Annetta v Ansett Australia 23(“Annetta”), a Full Bench of the Australian Industrial Relations Commission observed:

“It is clear that s 170CG(3)(d) will not always be relevant but that in cases where it is it must be treated as a matter of significance in the decision-making process. Is s 170CG(3)(d) relevant in this case? We think not. In approaching the construction of the term “unsatisfactory performance” it may be significant that in describing a valid reason s 170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s 170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by par (d) itself is whether the appellant’s employment was terminated for unsatisfactory performance. While in a limited sense it was, because the misconduct was constituted by a refusal to perform work, we do not think that the conduct is unsatisfactory performance within the meaning of the paragraph. The paragraph is intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on. While there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping, misconduct of the kind which occurred in this case is in a different category. On one reading of the relevant paragraph the Senior Deputy President may have implied that conduct can never be categorised as unsatisfactory performance. Whether she did so is immaterial in this case. We are satisfied that the appellant’s employment was not terminated for unsatisfactory performance within the meaning of that term in s 170CG(3)(d). We reject the third ground of appeal also.” (Emphasis added)

[135] The conduct at issue in Annetta was three refusals of duty, allegedly brandishing a knife, and unacceptable previous behaviour in the form of a fight. Similarly, I do not consider the conduct of the Applicant would have required a warning of unsatisfactory performance prior to dismissal. It cannot be seriously suggested that an employee must be warned that fraudulently and deceptively manipulating the recording of their work time will, or even may, result in their dismissal.

[136] If I am wrong in the above conclusion, and a warning was required, I note that the Applicant received the Warning Letter, the Verbal Warning, the Connolly Warning, the instruction from Ms Falconer in mid August 2018, and finally the Accessing Sydney Water Properties - Security Policy.

[137] The nature of the warning required in the context of s.387(e) of the Act was conveniently outlined by a Senior Deputy President Richards, in Diamond v SSUT Pty Ltd t/a Bourbong Street Cellars 24, (relying on the decision of the Full Bench in Goodwin v Fastidia Pty Ltd25), as follows:

“Section 387(e) of the Act requires the relevant employee to have been “warned about [their] unsatisfactory performance”. I do not read the plain words of s.387(e) of the Act (nor in the context of the Explanatory Memorandum to the Workplace Relations and Other Legislation Amendment Bill 1996, which introduced this provision) to mean that an employer is obliged in some manner also to indicate expressly by a distinguishable step that dismissal is a potential consequence of the unsatisfactory performance. The section has no additional words that create such an obligation. Section 387(e) of the Act, on its plain words, instead, requires only that an employer must warn the employee or person of the issue of unsatisfactory performance (with the gravity of the “warning” being the vehicle for conveying the nature of the risk to which the person’s employment is exposed). Passing comments, indirect or generalised remarks and disinterested observations (for example) would not constitute a warning of the kind contemplated by the section.” (Emphasis added)

[138] I have previously remarked as to the timidity of some of the warnings given to the Applicant, though their cumulative effect clearly put the Applicant on notice of the unacceptability of tailgating. The evidence of the Applicant was clear that he knew the consequences of his actions. As noted above, for example, the Applicant was absolutely aware that disobedience of the direction not to tailgate could lead to his dismissal. Were there any doubt, the Accessing Sydney Water Properties - Security Policy provided, among other things, that “Tailgating, avoiding access controls etc. is not permissible.”

[139] I find that, if warning(s) were necessary in the circumstances, that the Applicant was appropriately warned about his unsatisfactory performance prior to the dismissal.

(f) and (g) Size of the Employers Enterprise/Absence of Human Resource Management

[140] The Respondent is a large and well resourced employer. Its size and human resource capability is reflected in the detailed processes undertaken in investigating and interviewing the Applicant. There was no negative impact on the procedures followed in effecting the dismissal.

(h) Any Other Matters Relevant

[141] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). The misconduct of the Applicant, in the face of repeated urging and warning, was particularly brazen. He simply refused to comply with the direction that he actually work all of the 35 hours a week he was required to work. This weighs against the Applicant.

[142] The only other matter I take into account under s.387(h) is the Applicant’s 27 year period of service with the Respondent. It is certainly a serious consequence for the Applicant to lose such a longstanding career, though that career was not as blemish free as the Applicant asserted. Nonetheless, the Applicant’s loss was of his own making.

[143] I find that the two factors I have taken into account under s.387(h) counterbalance each other.

CONCLUSION

[144] Having considered each of the matters specified in s. 387, I find that the Applicant’s dismissal was not harsh, unjust or unreasonable. The Application should be dismissed.

REMEDY

[145] Having concluded that the Applicant’s dismissal was not harsh, unjust or unreasonable, there is no jurisdictional basis upon which to consider remedy.

[146] Nonetheless, in the circumstance where the Applicant effectively pursued only the remedy of reinstatement, I consider it complete to indicate that, were I to have found some harshness, unjustness and/or unfairness, having observed the Applicant and considered all the evidence, under no circumstance would I have contemplated awarding the remedy of reinstatement.

[147] I have made my findings as to the credibility of the Applicant, but further find that the Respondent could have no confidence in the Applicant ever complying with any lawful and reasonable direction that it gave where the Applicant did not himself want to comply with that direction.

[148] The Application is dismissed, and I so order.

DEPUTY PRESIDENT

Appearances:

Mr R Coluccio, for the Applicant.

Mr J Mattson, for the Respondent.

Hearing details:

2019

Sydney

4 and 5 September

Final written submissions:

For the Applicant: 28 August 2019

For the Respondent: 20 August 2019

Printed by authority of the Commonwealth Government Printer

<PR714484>

 1   PN287-PN289

 2   PN2658 to PN2661

 3   PN2237 to PN2239.

 4   PN2268.

 5   [2011] FWAFB 5230, at [56].

 6   [2013] FWCFB 6191.

 7   PN2524

 8   PN2619

 9   [2015] FWCFB 1033.

 10   PN2555.

 11   (1938) 60 CLR 336.

 12   Print S4213.

 13   Mourilayan v James Hardie Australia Pty Ltd [2010] FWA 9672, at para [88].

 14   [2017] FWC 3505, at [216]

 15   Federated Miscellaneous Workers Union of Australia v Wattyl Limited. 1 March 1991. S Print J6922

 16   [2010] FWA 6487, at [32].

 17   PN 411 to PN 414

 18   Concut v Worrell (2000) 176 ALR 693; 103 IR 160.

 19   Exhibit R1.

 20   PN 750 to PN 757.

 21   At paragraph [54].

 22   PN 558 to PN 567.

 23   (2000) 98 IR 233 at 237.

 24   [2015] FWC 816, at [75].

 25   Print S 9280.