| [2020] FWC 4738 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Helen Bryant
v
Southern Midlands Council T/A Southern Midlands Council
(U2020/943)
COMMISSIONER LEE |
MELBOURNE, 5 OCTOBER 2020 |
Application for an unfair dismissal remedy.
[1] On 29 January 2020, Ms Helen Bryant (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Southern Midlands Council (the Respondent).
[2] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
[6] A threshold issue to determine is whether the Applicant has been dismissed from their employment.
[7] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[8] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[9] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.386(1) of the FW Act.
[10] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[11] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
[12] It is not in dispute and I find that the Applicant was dismissed from her employment on 8 January 2020 and made the application on 29 January 2020. I am therefore satisfied that the application was made within the period required in subsection 394(2). The matter was first allocated to me on 29 May 2020.
Was the Applicant protected from unfair dismissal at the time of dismissal?
[13] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[14] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
[15] It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 1 December 2016 and was dismissed on 8 January 2020, a period in excess of 12 months.
[16] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Application of an enterprise agreement
[17] It was not in dispute and I find that, at the time of dismissal, the Southern Midlands Council Enterprise Agreement Number 10 of 2017 [2017] FWCA 199 (the Enterprise Agreement) applied to the Applicant’s employment.
[18] As the Applicant has completed the minimum employment period and an enterprise agreement applied to the Applicant in relation to the employment at the time of dismissal, I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[19] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[20] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).
[21] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
[22] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[23] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
[24] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[25] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
The conference
[26] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
[27] After taking into account the views of the Applicant and the Respondent, I determined that it was appropriate to hold a determinative conference for the matter (s.399 of the FW Act). 1 The determinative conference was conducted via Microsoft Teams on 17 and 18 August 2020.
Witnesses
[28] The Applicant gave evidence on her own behalf and the following witnesses also gave evidence on her behalf:
• Mr Alexander Bryant, the Applicant’s son.
[29] The following witnesses gave evidence on behalf of the Respondent:
• Mr David Cundall, Development and Environmental Services Manager;
• Mr Andrew Benson, Deputy General Manager;
• Mr Nicholas Wilson, Senior Information Technology Officer; and
• Mr Timothy Kirkwood, General Manager.
Background
[30] The Applicant was employed for approximately 3 years as an Animal Management / Compliance Officer for the Respondent. The Applicant commenced employment in December 2016. Her duties are set out in her ‘Position Description’. 2 However, there is a dispute as to what the actual duties of the Applicant entailed, particularly the amount of “patrolling” she was required to do which is dealt with later in this decision.
[31] On around August 2019, a neighbour of the Applicant made a complaint that a Southern Midlands Council car in the possession of the Applicant had been ‘hooning” (i.e. doing burn-outs) in the shared driveway between the Applicant and her residential neighbour in the early hours of the morning. 3 As a result of the complaint, the Respondent investigated the GPS record in the Applicant’s car. Ultimately, no finding was made that the Applicant was ‘hooning’ in the vehicle at that time. However, the Respondent became aware after accessing and interpreting the GPS data log from the Applicant’s vehicle, that the Applicant appeared to have been using the vehicle extensively for private usage in contravention of the Respondent’s Motor Vehicle Policy. The Respondent claimed it was also apparent from viewing the GPS data that the Applicant would frequently not leave her home until significantly (often 2 hours) later than her contracted start time at 8:30 am. As a result of this discovery, the Respondent investigated the matter further. This investigation led to a number of allegations being put to the Applicant that she had engaged in ‘time fraud’ and used the Respondent’s vehicle for private use, in contravention of the Respondent’s Motor Vehicle Policy. Ultimately the Respondent found the allegations to be substantiated and the Applicant was terminated as a result of the claimed misconduct.
[32] While the Respondent determined that the misconduct was serious misconduct and summary dismissal was warranted, the Respondent provided the Applicant with three (3) weeks’ pay in lieu of the notice. This is the notice to which she would have been entitled to under the terms of the Enterprise Agreement. 4 The Applicant maintains that she was unfairly dismissed.
The details of the alleged misconduct
[33] On commencement, The Applicant was provided with a letter of engagement. The letter of engagement includes the following:
"Your office location and normal place of work will be at the Kempton office, with your hours of work being 8.30am to 5.20pm inclusive of a lunch break, and this entitles you to a (9) day fortnight
…
You are advised that there is a vehicle available with this position for work duties and commuter use, in accordance with Council's Motor Vehicle Policy.” 5
[34] Having regard to these clear terms of engagement, the allegation was that the Applicant had been engaged in conducting her own private activities for significant amounts of time and using the Respondent’s vehicle for private use extensively during periods when she should have been working.
[35] As mentioned, the findings of the investigation, undertaken by the Applicant’s direct manager, Mr Cundall, largely relied on the data derived from the GPS device fitted to the Applicant’s vehicle. The device was fitted to the vehicle consistent with the Respondent’s Remote and Isolated Worker Policy. The GPS was fitted in June 2015, and the Applicant knew it was fitted to the vehicle
[36] On 19 August 2019, Mr Cundall obtained the GPS data. As already mentioned it was the first time he had viewed the data. What he saw gave rise to a concern the Applicant had been involved in misconduct. He raised that concern with the General Manager, who tasked Mr Cundall with investigating the matter further. The General Manager said:
“Until the investigation was undertaken, I did not have any reason to believe that there were issues with the Applicant's performance. While this can be attributed to the fact that the officer works in a different office location, to a large extent, I was unaware of the applicant's movements and duties on any given day.” 6
[37] When asked about the above statement, the Applicant said that it was ‘reasonable’. 7
[38] To investigate the matter further, Mr Cundall decided to focus on the time period of the year prior to him becoming aware of the potential misuse of the vehicle. That is the period from September 2018 to September 2019.
[39] The preliminary findings of Mr Cundall were as follows:
“3.9 … My review of the GPS data demonstrated that the Applicant had been dishonest with me on a number of occasions about her whereabouts during work hours and the tasks she was purporting to do as a part of her employment during those hours.
3.10 As part of the preliminary assessment as to whether a workplace investigation was warranted, I commenced an analysis of the GPS data and compared it with five (5) fortnightly timesheets prepared and signed by the Applicant over a 12-month period (that is 1 September 2018 to 31 September 2019). I randomly selected the pay periods. The completed timesheets are used as the basis for employee fortnightly pay. The comparison clearly demonstrated that the Applicant had claimed a full-time equivalent work load despite the vehicle being located at her private residence, travelling to and from her private residence, travelling to and from her partner’s residence or travelling to and from areas outside the Southern Midlands Council municipality. Any of these occasions would ordinarily warrant approval by me as the Applicant’s direct Manager through a request from an employee (i.e. the Applicant). This did not occur.
3.11 The analysis of the GPS data also showed the vehicle had been used on numerous and regular occasions outside of the Applicant’s work hours. Many of these trips were to Sorell which is not a town located in the Southern Midlands Council municipality or located en-route between the Applicant’s residence and the Council Offices at Oatlands and Kempton. Again the frequent usage of the vehicle for private purposes and extensive travel would ordinarily warrant my approval. There were no such approvals given.” 8
[40] Ultimately, the investigation revealed in respect of the ‘time fraud’ allegations the following:
“4.7 The result of my assessment demonstrates that the Applicant spent up to thirty-four (34) hours each fortnight absent from work duties and attending to matters unrelated to her employment.
4.8 For example, between the period between 12 November 2018 and 25 November 2018, it is estimated that the Applicant was absent from her work duties for 34 hours in what should be a standard 75 hour working fortnight.
4.9 I came to this conclusion largely because the GPS data taken from the software shows an accumulation of hours where the Council vehicle is either located at the Applicant’s home during work hours or travelling to and from home during work hours or travelling to and from her partner’s place or travelling outside the municipality without any known reason.
4.10 By way of a further example, 21 November 2018, the GPS records reveal that the Council vehicle did not leave the Applicant’s home until 10.22am (ordinary start time is 8.30am at the Kempton Office), then travelled to York Plains for work arriving at 12.02pm, then travelled to the Applicant’s Partner’s residence at Muddy Plains arriving at 1.54pm, then left Muddy Plains at 2.44pm, then arrive at the Kempton Office for a short period, to then leave and arrive at Rosny (in Clarence municipality) and then return to Muddy Plains. I would estimate on this particular day that the Applicant was absent for around 5 hours and 30 minutes. This is a generous estimate.” 9
[41] The evidence showed that the Applicant’s attendance during work hours to her partner’s home was frequent. Mr Cundall’s evidence was:
(i) Over the 12 month period September 2018 - September 2019 the GPS data has recorded a log that the Applicant had either driven to, driven from or otherwise spent time at her partner's residence in Melton Mowbray ninety (90) times during the hours 8.30am to 5.20pm when the Applicant was meant to be working.
(ii) The Applicant has not claimed any leave or consent/approval (from management) to be driving to, driving from or visiting her partner on a regular and extensive basis during work hours (Monday to Friday not inclusive of her rostered day off). The Melton Mowbray residence is 22km from the Oatlands Office and 16km from the Kempton Office. 10
[42] The Applicant does not dispute the accuracy of the GPS data. 11 However, the Applicant’s evidence as to what she was doing with her time during work hours includes:
• That the role did not require specific office time, and that the role was dealing with compliance issues in the field with follow up administration work; 12
• That she often spent the first part of the day “working from home”;
• Her son gave evidence that he observed his mother working every morning. 13
[43] I accept that the Applicant’s son has seen her speaking on the phone during some of the mornings. His evidence during the determinative conference was that the Applicant “would deal with a lot of people, drive a lot to different locations, receive a lot of phone calls of any issues”. He also stated that when he saw his mother working from home, she “was on the phone a lot, to a lot of people. That was usually the main thing she was doing. She was looking at maps a lot.” 14
[44] However, the Applicant’s claims that she was performing work during the morning between 8:30 am and 10:30 am (ish), is not supported by any of the other evidence. For example, on a number of days where the Applicant was at home until approximately 10:30 am, there were no emails at all sent:
“(a) On 25 June 2019 the GPS log records the vehicle leaving the Applicant's home at 10:33am. However there are no corresponding email records between 8.30am and 10.33am. Therefore, the Applicant was not sending any emails during this 2 hour period;
(b) On 11 July 2019 the GPS log records the vehicle leaving the Applicant's partner's residence at Muddy Plains at 10.16am. At 8.37am an email is received from Kogans (a retailer). There are no emails sent by the Applicant during the period 8.30am to 10.16am. The Applicant was not at home on this particular morning; and
(c) On the 19 July 2019 the GPS log records the vehicle leaving the Applicant's home at 10.55am. There are no emails sent or received during the period 8.30am to 10.55am.” 15
[45] The Applicant points out that this does not account for emails internal to the organisation which the Applicant claims were sent and received. However, no record of internal emails was able to be made available. 16 On the balance of probabilities, I do not accept that the Applicant was engaged in any significant amount of sending emails while she was “working from home”. It is not credible that the only emails she was sending were internal to the organisation on the particular days on which specific evidence was provided. Further, her son was clear during the determinative conference that he saw his mother on the phone and looking at maps.
[46] As to phone calls, and in contrast to the evidence of her son, only one was made on 25 June 2019 during work hours at 8:34 am. On 11 July 2019, no outgoing calls were made during the 8:30 am – 10:16 am period. On 19 July 2019, no outgoing calls were made at all during the morning.
[47] Again, the Applicant points out that the phone records do not record incoming calls. Her evidence on this point was that she was receiving most of the calls, and not making them. The Applicant stated that the calls would come in “from the office, from the admin, reported issues, or direct in to me, from members of the public, for issues.” 17 This evidence is not credible. There is no credible reason that for the first two hours or so of most working days, the Applicant was required to stay home to answer the phone. There was no cogent evidence from the Applicant as to who these calls might be coming from or what they entailed. While her son has observed her on the phone on some days, I am not satisfied that he observed her doing so on a frequent basis.
[48] Considering the evidence, the claim of the Applicant that she was frequently working the first two hours or so of her contracted working hours is on the balance of probabilities not accepted. In any case, the Applicant was at no stage given permission by the Respondent to work from home. The Applicant initially claimed that this arrangement to ‘work from home’ was ‘implied’ as the employer had given her a ‘mobile enhancer box’. 18 Ultimately, during the determinative conference, the Applicant accepted that she was not authorised to work from home.19 Despite this, the Applicant disputed that she had been dishonest with her employer about her whereabouts during the working day.20
[49] The Applicant has been dishonest with the Respondent as to what she was doing frequently for the first two hours of most days. This dishonesty extends over a long period of time. Even if the Applicant was performing some work, which the evidence, other than that of her son, does not support, she was not authorised to work from home in this manner. This dishonesty, described by the Respondent as ‘time fraud’, I am satisfied occurred and I am satisfied is misconduct.
Time spent at partner’s house
[50] It is alleged that the Applicant spent a significant amount of her time either at her partner’s house or driving to and from his house as well as to other destinations which constituted private travel. Mr Cundall’s evidence was that, During the 12-month period examined:
“(i) … the GPS data has recorded a log that the Applicant had either driven to, driven from or otherwise spent time at her partner's residence in Melton Mowbray ninety (90) times during the hours 8.30am to 5.20pm when the Applicant was meant to be working.
(ii) The Applicant has not claimed any leave or consent/approval (from management) to be driving to, driving from or visiting her partner on a regular and extensive basis during work hours (Monday to Friday not inclusive of her rostered day off). The Melton Mowbray residence is 22km from the Oatlands Office and 16km from the Kempton Office.” 21
[51] The Applicant offered vague and implausible explanations as to her frequent attendance at her partner’s house during working hours, to the effect that she was making coffee, or making lunch, or going to the toilet. as she was out ‘patrolling’. 22 The Applicant initially claimed that stopping at her partners house was no different to stopping at “Mood Food” to buy lunch.23 However, the Applicant then changed that evidence. The relevant part of the evidence follows:
“THE COMMISSIONER: You weren't working when you were going back and forth to your boyfriend's house, were you?
MS BRYANT: It was en route from one office to another, so it was certainly on the way.
THE COMMISSIONER: It was en route from Kempton?
MS BRYANT: Oatlands to Kempton, yes. It's sort of on the highway. You've got to go off the highway about 10 kilometres.
THE COMMISSIONER: Ten kilometres off the highway?
MS BRYANT: Yes. Sort of round it and it takes you back onto the highway further down. So it loops around.
THE COMMISSIONER: So the distance between Kempton and Oatlands is how many kilometres?
MS BRYANT: Just over 20, I think. I don't know, it's about 20.
THE COMMISSIONER: Right. So it's 50 per cent longer to go to your boyfriend's house than it is to just go directly between Kempton and Oatlands?
MS BRYANT: Well, considering it runs parallel with the highway you could shave off some of that. You don't leave and exit the highway, return to the highway at the same point. You come off the highway - - -
THE COMMISSIONER: You didn't drive past his house, did you, Ms Bryant?
MS BRYANT: Not completely past, no.”
THE COMMISSIONER: Not completely at all. You would actually divert and go off to his house, which was not on the way between Kempton and Oatlands, was it?
MS BRYANT: No.” 24
[52] Further, the claim by the Applicant that her frequent patrolling was part of the explanation that her frequent attendance at her partners home was reasonable, is not accepted. As set out below, the claim of the Applicant that her role included significant patrolling duties is not accepted.
[53] The frequency of the Applicant’s visits to her partner's house during working hours, combined with the significant distance of his property from the Respondent’s offices and the inconsistent and vague evidence of the Applicant as to what activities she was engaging in while patrolling, weighs towards a finding that the Applicant’s frequent visits to her partner’s house during working hours were nothing more than further examples of the Applicant not performing work during the hours when she was obliged to be working, and using the vehicle for private purposes, which she was not entitled to do.
[54] In summary, the evidence pertaining to the Applicant’s frequent visits to her partner’s house during work hours demonstrates that the Applicant has spent significant amounts of time engaged in personal matters during periods she should have been performing work for the Respondent.
[55] The failure of the Applicant to perform her job during work hours, and instead spending significant amounts of the day’s work hours engaged in personal activities, I am satisfied on the evidence occurred, and I am satisfied that by engaging in this practice that the Applicant is guilty of misconduct. Further, the dishonesty of the Applicant in misrepresenting to the Respondent her activities over a long period of time, is also misconduct.
The private use of the vehicle
[56] When the Applicant was employed, she was provided with a copy of the Respondent’s Motor Vehicle Policy. There are two types of use permitted for council vehicles, both of which are subject to agreement being established for private use. It is apparent that no such agreement was entered into with the Applicant. Under the Motor Vehicle Policy, the Applicant was entitled to commuter use of the vehicle only.
[57] However, the Applicant was initially evasive as to whether the Motor Vehicle Policy applied to her, whether she had received it, and whether the version had changed. 25 However, it is apparent on the evidence that this is the vehicle policy that applies to the Applicant.26
[58] The Applicant signed a Position Acceptance Letter which stated that:
“You are advised there is a vehicle available with this position for work duties and commuter use, in accordance with Council's Motor Vehicle Policy.” 27
[59] The Applicant’s ‘understanding’ about her having private use of the vehicle was largely based on the conversation she had with Mr Cundall early in her engagement. I will deal with that aspect of the evidence in more detail later in this decision.
[60] Mr Cundall states that the Motor Vehicle Policy:
“… was provided to the Applicant at the time of employment and copy is kept in the Kempton Office. The vehicle provided to the Applicant and the arrangements made with the Applicant best fit the Part 3.1 Commuter Use Only category. This allows for the following of note:
(a) Work-related use during normal work hours;
(b) Return travel between normal workplace (depot of office) and usual residence in the morning and evening by the shortest practical route; and
(c) Work related travel outside normal working hours for on-call roster duty”. 28
[61] I accept that this was the policy that applied to the Applicant in respect to her use of the council vehicle and there is no evidence to suggest that the Applicant was not provided with the policy as stated by Mr Cundall.
[62] Despite this, the evidence is clear that the Applicant used the vehicle on frequent occasions for private use. A snapshot of the extent of private use can be found in the report of the vehicle movements and absenteeism prepared by Mr Cundall. This shows that in a sample of 5 pay periods between September 2018 and September 2019 (fortnightly pay periods), approximately 50 working days (10 days x 5) the Applicant used the vehicle for non-work related after hours use on 29 occasions.
[63] The Applicant used the vehicle to pick up her children, or at least one of her children, from the bus at Sorrell on a near daily basis. The Applicant accepted that this was private use of the vehicle that was not permitted by the Motor Vehicle Policy. 29
[64] The Applicant claimed that conversations that she had with Mr Cundall and Mr Kirkwood implied that she could use the council vehicle for private purposes. However, when I put to the Applicant that it was a long stretch to say that the conversations replaced the clear policy of the council that the vehicle is not be used for private purposes, the Applicant said that ‘yes, it is’. 30 Ultimately the Applicant conceded that:
• She would pick up her children from Sorrel “pretty much daily, in the first couple of years, until they finished school and then it was after TAFE.”
• That she was regularly using the vehicle for private use, and that this was in contravention of the terms and conditions of her employment. 31
[65] Notwithstanding the concessions of the Applicant on the point, some things need to be said about the conversations with Mr Kirkwood and Mr Cundall regarding private use of the vehicle. Firstly, the conversation with Mr Kirkwood occurred in August 2019, not long before the Applicant was stood down for the investigation. This conversation can hardly be a basis to justify the Applicant’s private use of the vehicle retrospectively and is largely irrelevant.
[66] The conversation between the Applicant and Mr Cundall that occurred earlier in the Applicant’s employment is relevant. The Applicant’s evidence was:
“… when I first started, you know we'd catch up regularly for a chat and I made it well known that I had to get my kids to and from the school bus, or bus to uni, for the daughter, so that I did need to go down there, in the beginning, in the mornings, to drop them off, and in the afternoons to pick them up. So that's what I noted on there and that's when he crossed it out and said, "No, no. Look, it's all swings and roundabouts". I do a bit of overtime here and there, which I've certainly done plenty of that, never claimed that. "It all works out in the end, don't worry about it", is what I was told and that's why he crossed it out and I never included it again. However, I still proceeded to drop my kids off and pick them up.” 32
[67] Mr Cundall said:
“Look, that's not exactly a fair comment to make. I mean, with the private usage, it was simply written, I think when she filled out her first timesheet or very early on in her employment that she'd put on the timesheet the kilometres travelled during the working week, and she'd allocated kilometres for work specific activities, but had also put in there, from memory, a small amount of kilometres and she put it down to private usage, to which I said, "Well, hang on a second, you don't actually have private usage". Private usage of a council vehicle is in a whole different category in the policy. It's only really for the general manager and for the manager of developmental and environmental services or then otherwise by a formalised agreement where the person actually has to pay some money back to the council or it's built into their salary.
…
You can't put 'private usage' on it. It's not - you don't have private usage. “What's the story"? She said, I think - from memory, sorry, I recall that it was because she had to pick her children or something like that, and I said, "Look, that happens, you know, we're a good organisation, we understand from time to time that's going to happen, so, look, don't write on there 'private usage', if it's just really in the course of travelling to and from work you have to go and do a quick errand like that, we're not here to penalise you for that, but you can't be writing there 'private usage'". It's only that without that qualification of "private usage" it seems that the kilometres that were put on the timesheets thereafter were inclusive of a massive amount of private usage, which was not discovered until August/September 2019.” 33
[68] When asked whether the conversation gives rise to a basis for the Applicant to be confused about the extent to which she could use the car for private usage, Mr Cundall said:
“I don't believe it does. I think any reasonable employee would think, look, I've been using the car extensively after work for driving to friends' places or into other towns and places that would constitute more than just stopping off at the shop on the way home or picking children up from school
…
any reasonable person would've thought to come and have a talk with their manager or the general manager and say that, "Look, I've had to use the vehicle extensively" or get further permissions before doing this amount of driving.” 34
[69] Mr Cundall did not contradict the evidence of the Applicant to the effect that it was broadly known that she regularly picked up her children from Sorrell. In fact, when questioned about it by the Applicant, Mr Cundall said:
“Look, it's something that you should have discussed with me in more detail about collecting kids from school. The way that it was framed to me when you and I spoke about that, that was an incidental thing that you had to do. In no way is that something that I was comfortable with in hindsight and looking at finding out more about you and your vehicle movements and what you've been up to in those times showed to me that really your take of this is very unreasonable.” 35
[70] Frankly, the evidence of Mr Cundall demonstrates that there were mixed messages sent from him to the Applicant as to the acceptance or otherwise of the use of the vehicle for picking up her children from Sorrell. It may be that the Applicant has been given an inch and taken a mile as the saying goes. However, there is at least some basis for the Applicant to be confused as to whether she was permitted to pick up her children from Sorrell, albeit that she now concedes that she was not permitted to do so. I am not satisfied, having regard to the evidence that it is a sound and defensible reason for the Respondent, given the rather vague direction on the point from Mr Cundall, to now rely on private use of the vehicle to pick up her children from school as misconduct. However, the private use of the vehicle for other purposes, other than for the school pick-ups is clearly not permitted under the policy that applied to the Applicant and is misconduct.
Did the Applicant’s role include extensive “patrolling”
[71] There is a dispute as to what the Applicant’s duties did and didn’t include. In summary, the dispute revolves around the claim of the Applicant that ‘a large part’ her role included ‘patrolling the area, identifying problems and doing associated follow ups and paperwork to do with those problems’. 36 The Respondent disputes that the Applicant was required to perform this type of random patrolling. The dispute is relevant as the Applicant to a significant extent defends her use of the motor vehicle and her use of time on the basis that she was performing these duties and she was required to perform them.
[72] The Applicant’s position description includes the following:
“• Perform the duties of an “Authorised Person” as appointed by the General Manager. Including:
◦ the enforcement of legislation/by-laws/policies and programs, as required/directed by the Manager of Development and Environmental Services; and
◦ issue relevant Notices, Orders, Directions, Infringement Notices and First and Final Warning Notices;
◦ Assist the Planning Officer and Environmental Health Officer in the investigation and resolution of compliance matters.
• Preparation and completion of documentation in relation to compliance activities and investigations.
• Ensure actions are evidence based and managed in accordance with legislation and Council policies and procedures:
◦ Maintain records (written and computer software based)
◦ Research and develop options and information papers for senior
◦ decision
◦ Prepare reports to Council
◦ Prepare evidence and statements for court or tribunal hearings
• Animal management and dog control in line with the provisions of the Dog Control Act 2000 and Dog Management Policy, including:
◦ Provide advice to the public and dog owners in relation to nuisance dogs
◦ Provide advice and assess applications for kennel licences
◦ Provide technical guidance in multifaceted and complex issues arising in the course of animal management and inspectorial/compliance activities
◦ Investigate and follow up complaints about nuisance dogs and dog attacks
◦ Seizing and impounding roaming dogs and other animals and having them impounded in appropriate security
◦ Maintenance and management of the Council Pound (Municipal Pound Keeper as required)
◦ Attend out of hours activity in regards to animals on public roads, injured animals, stray and/or dangerous animals, as required.
◦ Rigorously ensure that all dogs in the local government area are registered and comply with Council requirements
…
• Undertake other miscellaneous duties associated with Council facilities, functions and activities as required/directed by the General Manager.” 37
[73] Other duties are to be directed by the Manager Development & Environmental Services, or the General Manager.
[74] On review of the position description, there is nothing to indicate that the role encompassed the Applicant being required to conduct ‘patrols’ of the type the Applicant describes.
[75] The Applicant however maintains that “most of my job was patrolling and going to different areas and identifying problems.” The Applicant claims the Dog Management Policy requires her to do so. The Applicant also claims the GPS will show that “there is a lot of slowing down and stopping to check out issues”. 38 Despite the breadth of the role she was employed to perform, the Applicant claims that she was out on the road for 75% of the time and that her office work was minimal.39 When I asked the Applicant whether driving around and looking at things is what she understood her job to be, the Applicant said, “Patrolling, yes. A very large portion of it was patrolling.”40
[76] However, Mr Cundall pointed out that the Respondent’s Dog Management Policy allowed only for targeted patrols. Mr Cundall said:
“I've got to make very clear, that patrolling is for targeted areas only where it is necessary to go on patrol. There is nothing in her job description or any conversation with me - we spoke regularly - where she was given approval to just drive around looking for crime or compliance in the Southerland midlands. The patrolling aspect of it is targeted.” 41
[77] Further, the claims that while the Applicant was on her frequent trips to home or her partners during work hours there is ‘a lot of slowing down and stopping to check out issues’ 42 does not align with the GPS evidence. Mr Cundall said at the determinative conference:
“We're not disputing that point of her going out to a particular area to patrol. The only thing that we dispute is driving around patrolling, especially driving around the vicinity of her partner's place, Mr Bowden, and of her own home. When we reviewed the GPS the journeys taken were specifically from one of the offices, say, Oatlands or Kempton, directly to her home or directly to a Melton Mowbray, Muddy Plains resident. These weren't - when we looked at the GPS, and, look, you know, it's extremely accurate, there were no regular vehicle stops, it was just a direct route from A to B to and from home.
We dispute that they are patrols. They are not patrols.” 43
[78] The claims of the Applicant that she was working while driving to and from her home and her partner’s home during working hours is contradicted by the GPS evidence and is not accepted. It is another fiction created by the Applicant to justify her failure to abide by her employment obligations. In any case, the claim is rather absurd. The bulk of the key duties in her position description under Animal Management cannot be performed by the Applicant simply driving around looking at things but not stopping and getting out of her car. I agree with Mr Cundall that “this is something she has come up with in the course of the investigation”. 44
[79] Further, the claim that her patrols occasioned her to conveniently be within the vicinity of her partner’s house and would therefore conveniently visit that house on such a large number of occasions defies credibility. I do not accept that the Applicant was required to engage in the level and type of random patrolling that she claims to have been engaged in. Nor do I accept that she was engaging in “patrolling” on the extensive number of occasions she travelled to her partner’s house or other non work related locations during work hours. It follows that I do not accept that these claimed patrols explain or mitigate the findings made above that the Applicant was engaged in private activities or simply sitting at home when she should have been working nor does it explain or mitigate the extensive use of the private vehicle.
The supervision of Mr Cundall
[80] The Respondent submitted that:
“the Applicant’s lateness/non-attendance at work-related meetings was raised with the Applicant informally in the first six (6) months of her employment. For at least the period of the investigation between 1 September 2018 and 31 September 2019, the Applicant dishonestly reported her whereabouts when the Respondent inquired about lateness/non-attendance at work or work-related meetings” 45
[81] Mr Cundall’s evidence, which I accept, is that he accepted the Applicant’s explanations that she failed to attend these meetings because she was out in the field working. However, it is apparent from the evidence set out above that the Applicant misrepresented to Mr Cundall as to what she was actually doing during these periods.
[82] I have considered the evidence of the Applicant to the effect that the Respondent did not raise issues with her related to the manner in which she performed her work, prior to the investigation. In her response to the Respondent’s ‘Findings of Workplace Investigation’ she put it this way:
“Despite Council having access to the data of my vehicle, and a fortnightly vehicle log submitted with my time sheet showing kilometres travelled, at no point was my driving routes raised as a point of concern with me.” 46
[83] The fact that the Respondent did not notice what the Applicant was doing, despite the data being right there in front of them, reflects poorly on the management of the Respondent. Mr Cundall was the direct manager of the Applicant. The fact that the Applicant was able to get away with her errant behaviour for such a long period of time suggests that Mr Cundall was “asleep at the wheel” when it came to managing the Applicant.
[84] However, the fact that the Respondent had not raised the issues with the Applicant previously does not excuse the Applicant from engaging in the behaviour as the evidence demonstrates that she whilst she knew that it was wrong, she nevertheless engaged in the misconduct. In that context, the failure of the Respondent to raise the matters with the Applicant meant that the Applicant was able to continue the behaviour for a long time. However, I do not consider that the Respondent’s failure to properly manage the Applicant had the effect of condoning the Applicant’s behaviour.
The car condition
[85] The evidence of Mr Cundall was that the Respondent’s vehicle was in an appalling state when returned by the Applicant. The evidence of Mr Cundall was:
“(i) Inside of the Council vehicle the following was discovered: deep grime and stains in the car seat covers, thick grime and dog hair throughout the vehicle, strong and unpleasant odours of old food and dog, filth smears on interior windows, filth of food crumbs and scraps, spilt coffee and liquids, leaking makeup, lollies and grime in storage spaces. Council subsequently disposed of the car seat covers and paid $200 for the vehicle to be professionally cleaned; and
(ii) Outside of the Council vehicle the following was discovered: multiple points of damage which the Applicant should have reported to management for repair and a report by Jackson Motor Company identified that a cable or cables for the external lighting system (emergency and flood lights) had been deliberately damaged and possibly cut with an implement, i.e. a person had caused the damage. Annexed and marked “A24” is a copy of the report by Jackson Motor Company.” 47
[86] The Applicant when asked about this said:
“I strongly deny that. I was given 20 minutes notice to return the vehicle, first and foremost, which of course I was straight home, into the car and returned it. I wasn't given an opportunity to clean it. It's a daily work vehicle, it's in no different condition than any of the other work vehicles that are out on the road, not talking office staff. It's a vehicle for conveying dogs and other animals.” 48
[87] Mr Cundall was aware of the condition of the vehicle in August 2019, yet it did not feature in the reasons for termination. I’m not satisfied it is a valid reason for dismissal. There is insufficient evidence to determine that this alleged misconduct occurred.
The unregistered dogs and the Applicant’s dog attack on a goat
[88] There was a claim that there were 8 unregistered dogs on the Applicant’s property for approximately 3 months while she was still employed by the Respondent. The Applicant at first denied this but then did not dispute that the dogs were unregistered but claimed she was unable to register them as she was not allowed to attend the Respondent’s offices during the investigation. 49 In any case, this is not a matter that I understood the Respondent to rely on as a valid reason for dismissal. It may be relevant to a consideration of reinstatement were that to arise.
[89] Similarly, it became apparent that the Applicant’s dogs had attacked a goat leading to the Respondent’s recommendation that “they be contained in the house yard, away from the boundary fencing, unless accompanied by a responsible person”. 50 The Applicant admitted that she had not complied with that recommendation and thought it appropriate to ignore it. Again, this is a factor that goes to the relationship of the Applicant with the Respondent and would be relevant to a consideration of reinstatement as a remedy.
The Facebook posts
[90] The Applicant has, since her termination posted on her own publicly accessible Facebook page:
“(i) On or about 15 January 2020, the Applicant, posted on Council’s Facebook page “and so it begins [laugh emoji], keep digging auditors, leave no Council executive unturned!!”.
The post was made as comment in response to a post (media statement) made by Council with regard to an audit.
(ii) On or about the 15 January 2020, the Applicant, posted on her own and publicly accessible Facebook profile the following “& so it begins! ‘Let he who throws the first stone’ hey boys?? As crooked and corrupt as the ‘preferred’ ratepayers (aka friends and relatives) they protect! [two emojis].” 51
[91] The Applicant also responded positively with ‘likes’ and the laugh emoji to posts made by the Applicant’s daughter about the Respondent. These occurred post dismissal and were not relevant to valid reason but would be likely relevant to consideration of remedy in the event that it was found that the dismissal was unfair.
The process leading up to the dismissal
[92] Mr Cundall’s largely uncontested evidence sets out the process followed by the Respondent in effecting the dismissal.
[93] On 26 September 2019, the Respondent sent the Applicant a letter providing notice of the investigation, particulars of the allegations, and raised prospect of disciplinary action against the Applicant. 52 The Notice Letter advised the Applicant that she was suspended from her position until the completion of the investigation, and contained three relevant procedure policy documents, including the Fraud Control and Corrupt Conduct Prevention Policy, the Disciplinary Procedure and the Disciplinary Policy. The Notice Letter also outlined:
• the particulars of allegations against the Applicant;
• the proposed interview with the Applicant;
• the Applicant's right to have a support person present at the interview; and
• the Applicant's right to respond to the particulars of allegations. 53
[94] The Applicant appointed her union representative of the Australian Municipal, Administrative, Clerical and Services Union (ASU) to assist her. The Respondent provided the Applicant and her ASU representative the following documents:
• 12 months of GPS vehicle log data for the Respondent’s vehicle between September 2018 and September 2019;
• A draft detailed account of vehicle movements cross-checked against the Applicant’s time sheets alongside an annotated sample of 5 pay periods (two-weeks per pay period); and
• The Respondent’s Remote and Isolated Worker Policy. 54
[95] On 22 November 2019, an interview for the purposes of the investigation took place with the Applicant, her ASU representative, Mr Cundall and the Corporate Compliance Officer. Mr Cundall then prepared an internal investigation report for the General Manager.
[96] On 13 December 2019, The Respondent sent a letter concerning the ‘Findings of Workplace Investigation’ and allegations via email to the Application. The relevant letter:
• identifies the specific allegations against the Applicant concerning time fraud and use of Council's vehicle for private purposes without consent;
• affords the Applicant an opportunity to respond to the allegations; and
• identifies that if Council adopted the findings of the investigation that termination of the Applicant's employment would be the outcome. 55
[97] On or about 20 December 2019, the Applicant provided a response to the ‘Findings of Workplace Investigation’, which was considered during a meeting on 3 January 2020 held between the General Manager, Deputy General Manager, Acting General Manager and Mr Cundall. It was in this meeting that it was determined to terminate the Applicant’s employment in line with the Respondent’s standard procedure for termination.
[98] On 8 January 2020, the Respondent terminated the Applicant’s employment on the basis that the Applicant engaged in serious misconduct in breach of clause 4.6 of the Disciplinary Policy by committing time fraud as well as regularly using the Respondent’s vehicle for private purposes without consent.
[99] The Applicant claimed that she asked the Respondent for copies of her incoming call logs and email records, and that by not providing these, she was not provided procedural fairness as she was unable to access the requisite records to justify the work she was doing at the time. 56 However, it is apparent that these records do not exist and this was dealt with earlier in the decision.
[100] I do not accept the claims of the Applicant that there were procedural flaws in the process. It is apparent from the evidence that the process of effecting the dismissal was overall procedurally fair.
[101] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[102] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 57 I set out my consideration of each below.
[103] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 58 and should not be “capricious, fanciful, spiteful or prejudiced.”59 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.60
[104] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.61 “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.” 62
[105] As set out above I am satisfied on the evidence that the Applicant engaged in misconduct. Over the period September 2018 to September 2019, the Applicant has engaged in ‘time fraud’ by way of spending significant amounts of time when she claimed to be working, either at home not working or travelling to her partner’s house or to other destinations for private purposes. Secondly, the Applicant has been engaged in driving her work supplied vehicle extensively for private use in breach of the Motor Vehicle Policy which allowed the Applicant to use the vehicle for commuter use only. In making this finding, I have taken into account that in the circumstances the use of the vehicle for school bus pick-ups does not form part of the valid reason for dismissal. The Applicant has misrepresented her activities over a long period of time to her employer and deceived her employer. Her actions were deliberate and wilful.
[106] The Applicant was provided with and was bound by the employer’s code of conduct. 63 The Applicant actions have breached the employers code of conduct. The breaches include:
“• Clause 5.1(b): Failing to act with honesty and integrity by taking improper advantage of your position in order to obtain a benefit for yourself;
• Clause 5.2(a): Failed to act with professionalism by engaging in Infringing Workplace Behaviour;
• Clause 5.3(e): Failed to act in the spirit and intent of the Applicable Laws governing Council's activities and failed to comply with relevant laws and policies and procedures by not using Council Property for Council purposes and in accordance with appropriate authorisations;
• Clause 5.4(e): Used or took advantage of Council Property for personal benefit;” 64
[107] These are sound and defensible and well-founded reasons and are valid reasons. for dismissal. Consideration of this factor weighs against a finding the dismissal was unfair.
Was the Applicant notified of the valid reason?
[108] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 65 and in explicit66 and plain and clear terms.67
[109] The Applicant was notified of the reason for the dismissal in clear terms as set out above. The allegations were set out in a letter dated 26 September 2019. There was then a process of investigation and the finalised allegations were put to the Applicant on 13 December 2019 in considerable detail and clear terms. Consideration of this factor weighs against a finding of unfairness.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[110] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 68
[111] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 69 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.70
[112] The Applicant was provided with an opportunity to respond in writing and was provided with a reasonable period of time in which to do so. The Findings of Workplace Investigation letter dated Friday 13 December 2019 requested written response from the Applicant by 4:00 pm Tuesday, 17 December 2019. 71 The Applicant provided a letter in response on or about 20 December 2019, which was then considered in a meeting between the General Manager, Deputy General Manager and the Development and Environmental Services Manager on 3 January 2020.
[113] In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for her dismissal prior to the decision to terminate her employment. Consideration of this factor weighs against a finding the dismissal was unfair.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[114] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[115] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”72
[116] The Respondent made clear to the Applicant in writing that she was permitted to have a support person. The Applicant was represented by the ASU at discussions relating to the dismissal on 22 November 2019. Consideration of this factor weighs against a finding of unfairness.
[117] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. Consideration of this factor weighs against a finding the dismissal was unfair.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[118] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[119] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. This is a neutral consideration in the circumstances
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[120] The Respondent submitted that:
“there is no evidence warranting a consideration of the absence of human resources impacting the procedures followed in the dismissal”. 73
[121] Having regard to the foregoing, I find that this is a neutral consideration in the circumstances.
What other matters are relevant?
[122] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Submissions Other relevant matters – s.387(h) issues:
• Despite the seriousness of the misconduct, the Applicant was paid notice.
• The Applicant has one adult child living with her. 74
• The Applicant claimed that the bank is foreclosing on her house. No evidence was provided that this was occurring. At the determinative conference the Applicant said that she was about to leave her house. 75 I accept the Applicant may be at risk of losing her home.
• Since her termination, the Applicant claims to have been proactively seeking other employment but has been unsuccessful. The Applicant also claims that she has been approved to receive Centrelink Job Seeker Allowance but has no other means of financial assistance. 76
• The Applicant was employed for 3 years. This is not a significantly long period.
[123] Having considered these additional matters, I accept that the risk of the Applicant losing her home and her financial circumstances are factors that weigh in favour of a finding of that the dismissal was harsh.
[124] I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.
[125] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 77
[126] Having considered each of the matters specified in s.387 of the FW Act, it is apparent that there are valid reasons for the dismissal and this weighs against a finding of unfairness. The Applicant has wilfully engaged in misconduct over a long period of time. This weighs significantly against a finding that the dismissal was unfair. The consideration of all the other factors in s.387(b) to (g) relevant to the process of effecting the dismissal also weigh against a finding that the dismissal was unfair or are neutral. The impact of the dismissal on the Applicant weighs towards a finding of harshness. However, taking into account all of the factors, the impact of the dismissal on the Applicant does not outweigh the factors weighing against a finding that the dismissal was unfair. Therefore, I am not satisfied that the dismissal was harsh, unjust or unreasonable.
[127] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act. The Applicant’s application is therefore dismissed.
COMMISSIONER
Appearances:
Ms H. Bryant on behalf of herself
Mr D. Cundall on behalf of the Respondent
Determinative Conference details:
2020
Melbourne (via MS Teams)
17 and 18 August
Printed by authority of the Commonwealth Government Printer
<PR722509>
1 Transcript at PN21 - PN22
2 Position Description Animal Management / Compliance Officer dated September 2016
3 Witness Statement of Timothy Kirkwood dated 29 April 2020, at paragraph 2.1
4 Southern Midlands Council Enterprise Agreement Number 10 of 2017 [2017] FWCA 199, clause 5.10
5 Animal Management / Compliance Officer signed acceptance letter dated 30 October 2016
6 Witness Statement of Timothy Kirkwood dated 29 April 2020, at paragraph 3.1
7 Transcript at PN219 - PN221
8 Witness Statement of David Cundall dated 30 April 2020, at paragraph 3.9 - 3.11
9 Ibid at paragraph 4.7 - 4.10
10 Ibid at paragraph 4.20(i), (i) - (iii)
11 Transcript at PN329
12 Applicant’s Outline of arguments: merits, question 4d.
13 Transcript at PN669
14 Transcript at PN684 - 685
15 Witness Statement of David Cundall dated 30 April 2020, at paragraph 4.17(a) - (c)
16 Transcript at PN795
17 Transcript at PN439
18 Transcript at PN624
19 Transcript at PN389 - 390
20 Transcript at PN313
21 Witness Statement of David Cundall dated 30 April 2020, at paragraph 4.20(h)(i)
22 Transcript at PN325; PN491
23 Transcript at PN499
24 Transcript at PN504 - PN517
25 Transcript at PN257 - PN258
26 Transcript at PN807
27 Animal Management / Compliance Officer signed acceptance letter dated 30 October 2016
28 Witness Statement of David Cundall dated 30 April 2020, at paragraph 4.21
29 Transcript at PN338 - 342 and 520 - 523
30 Transcript at PN347 - 350
31 Transcript at PN352 - 354
32 Transcript at PN531
33 Transcript at PN821 - 822
34 Transcript at PN823 - 824
35 Transcript at PN860
36 Transcript at PN408
37 Position Description Animal Management / Compliance Officer dated September 2016
38 Transcript at PN415, PN417
39 Transcript at PN417
40 Transcript at PN418 - PN419
41 Transcript at PN783
42 Transcript at PN415
43 Transcript at PN784 - PN785
44 Transcript at PN781
45 Respondent’s Outline of Submissions dated 30 April 2020, at paragraph 2.20(b)
46 Applicant’s response to Findings of Workplace Investigation, emailed on 20 December 2019
47 Witness Statement of David Cundall dated 30 April 2020, at paragraph 5.2
48 Transcript at PN554
49 Transcript at PN571 - PN572
50 Transcript at PN586
51 Witness Statement of David Cundall dated 30 April 2020, at paragraph 5.4
52 Workplace Investigation Letter, dated 26 September 2019
53 Witness Statement of David Cundall dated 30 April 2020, at paragraph 3.13
54 Ibid at paragraph 3.15
55 Findings of Workplace Investigation Letter, dated 13 December 2019
56 Applicant’s Outline of arguments: merits, lodged 6 April 2020
57 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
58 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
59 Ibid.
60 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
61 Edwards v Justice Giudice [1999] FCA 1836, [7].
62 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
63 Transcript at PN398 - PN400
64 Findings of Workplace Investigation Letter, dated 13 December 2019
65 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
66 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
67 Ibid.
68 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]
69 RMIT v Asher (2010) 194 IR 1, 14-15
70 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
71 Findings of Workplace Investigation Letter, dated 13 December 2019
72 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542]
73 Respondent’s Outline of Submissions dated 30 April 2020, at paragraph 2.19
74 Applicant’s Outline of arguments: merits, question 4e
75 Transcript at PN952
76 Witness Statement of Helen Margaret Bryant, lodged 9 April 2020
77 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].