Bell v Linfox Australia Pty Ltd

LEGISLATION CITED: Industrial Relations Act 1996

Antonakopoulos v State Bank (1999) 91 IR 385 Bankstown City Council v Paris (unreported) IRC262 of 1999 Bigg & Anor v New South Wales Police Service (1998) 80 IR 434 Briginshaw v Briginshaw (1938) 60 CLR 336 Burke v McGirr (1998) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne & Anor v Australian Airlines (19995) 61 IR 32 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Franklins Ltd v Webb (1996) 72 IR 257 CASES CITED: Hill v Department of Juvenile Justice [3000] NSWIRComm 128 New South Wales Fire Brigade Employees' Union (on behalf of Natoli) v New South Wales Fire Brigades NSWIRComm 440 Outboard World v Muir (Cahill VP, Peterson J and Tabbaa C) (1993) 51 IR 167 at 182 Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) V Gartrell White (No 3) (1990) 35 IR 70 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Rapp v Wauchope RSL Club (1998) 81 IR 116 Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273

LEGAL REPRESENTATIVES: Mr. A.B. Gotting of Counsel Instructed by: Minter Ellison

DECISION: 33 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Harley Bell re Unfair Dismissal pursuant to section 84 of the Industrial Relation Act 1996

1 This is an application by Harley Bell against Linfox Australia Pty Ltd for a remedy pursuant to S.84 of the Industrial Relations Act, 1996. Mr. Bell was dismissed from his position of Storeman with the Company on the 18 April 2005. The application was filed on the 20 June 2005, however an earlier application had been filed within the 21 day time limit with the Australian Industrial Relations Commission but discontinued on advice that Mr. Bell was covered by a State Industrial Agreement. Therefore no out of time issue is raised by this application. 2 Mr. Bell's application had been prepared and filed by Dooley & Associates, Solicitors. However a Notice of Ceasing to Act was filed on 6 July 2005.

3 Mr. Bell sought re-instatement, re-employment or, alternatively, monetary compensation in lieu thereof. 4 The matter was listed for conciliation and directions before me on the 7 July 2005 at which time conciliation took place. The parties were directed to confer and the matter set down for further conciliation 19 July 2005. As no settlement could be reached the matter was set down for hearing on the 28 and 29 November 2005. Directions were issued as to the filing and exchange of witness statements.

5 At the hearing Mr. Friend appeared on behalf of Mr. Bell and called the following witnesses:- Harley Bell - Applicant (Exhibits 1,2 and 3) Dominic Santangelo - Storeman Grade 3 Linfox (Exhibits 8 and 9)

6 Mr. Gotting of Counsel, with Ms. Brown, Solicitor, appeared on behalf of the Company and called the following witnesses:- Scott Bond - Storeperson Grade 2 Linfox (Exhibit 10) Lee Ball - Nightshift Supervisor Linfox (Exhibit 11) Gaylynne Neill - Operations Manager Linfox (Exhibit 12) Tony Burn - Afternoon Shift Supervisor Linfox (Exhibit 13)

Background and Chronology - based on the evidence filed. 7 Mr. Bell commenced employment with Linfox at the Huntingwood site as a permanent storeworker Grade 2 on 18 September 2004, initially on day shift and later was transferred to night shift.

8 Linfox provides warehouse and logistics services to Campbell/Arnott's. Mr. Bell was formerly employed by Arnott's at the Huntingwood site, commencing on February 2000.

9 When Linfox took over the operations at the site Mr. Bell declined to take up redundancy from Arnott's and accepted ongoing employment with Linfox. He received a weekly site allowance to maintain the former Arnott's rate of pay.

10 In late January/February, Mr. Bell acted up as the Nightshift Supervisor whilst Mr. Tony Burn was on leave. Whilst he was not paid at any higher rate whilst he performed such supervisory duties, he was given a $500 gift voucher by Ms. Neill in recognition of his performance.

11 In late March/early April 2005, Linfox terminated the services of another employee who had falsified his time sheet by entering a finish time on his time sheet that was later (by some 30 minutes) than the time he actually left the site. This had been observed by Ms. Neill.

12 On 6 April, Mr. Burn held a Toolbox meeting of the nightshift employees (five in total - 2 permanents and 3 casuals) including Mr. Bell at which the issue of termination of the employee for falsifying his time sheet was raised and employees warned about such a practice.

13 The Friday nightshift of 15 April 2005 was a 12 hour unsupervised overtime shift. The Afternoonshift Supervisor Pat Quiroz, finished about 2.00 am. Mr. Burn was due to come in at 6.30 am (Saturday) the start of the day shift.

14 During the nightshift, Mr. Bell left the premises for 45 minutes to purchase pizza. He obtained approval for this from Mr. Quiroz who told him to sign out and in which he did.

15 Mr. Bell became fatigued and decided it was unsafe to continue working and arranged for another employee Brian Bonser to take over his work and left the site at about 4.30 am.

16 It was Mr. Bell's practice to sign in and sign off at the same time on commencement of his shift. He did not correct his sign off time on finishing the Friday 15 April shift.

17 Casual employees work until 7.00 am; permanents till 7.30 am. Day shift employees commence at 7.00 am. There are separate time sheets for casuals and permanent employees. The time sheets are put out on a desk in the sign-on room. Mr. Burn also has a desk at the other end of that room.

18 Whilst Mr. Bell maintains he told the casual employees he was leaving he did not contact Mr. Burn either before leaving or during the ensuing weekend.

19 Mr. Burns ascertained on his arrival at 6.30 am on Saturday 16 April that Mr. Bell had left the site early but not altered his time sheet to reflect that. Mr. Burn contacted Ms. Neill and advised her of what had happened.

20 Ms. Neill contacted higher management and was advised to stand Mr. Bell down pending an investigation of the incident.

21 On Sunday 17 April Mr. Bell arrived at the site at about 10.15 pm. Mr. Burn and Ms. Neill were present in the canteen where Mr. Bell proceeded to have coffee before he was due to commence work at 10.30 pm.

22 Prior to his commencing work, Mr. Burn and Ms. Neill held a meeting with Mr. Bell with Mr. Adam Kliendienst as a witness. The issue of falsifying the time sheet of 15 April was raised and Mr. Bell stood down pending further investigation.

23 As a result of a further meeting between Mr. Burn and Ms. Neill with Mr. Bell (with NUW Delegate Dominic Santangelo) on Monday 18 April 2005. Mr. Bell was terminated from his employment.

24 Mr. Bell sought re-instatement to his former position.

25 It was Mr. Bell's evidence that it had always been his practice to sign off at the same time he signed in. Mr. Ball also said that he did the same. His reason was so that he didn't get caught up at 7.00 am with the day shift coming in. Mr. Ball ceased the practice after the April 6 Toolbox meeting.

26 Mr. Burn however denied that he was aware of either man's practice and insisted that on at least 3 out of 5 shifts he would have been present in the office at his desk (at the other end of the sign-in room) and observed workers including Mr. Bell and Mr. Ball (as a casual) at the sign off desk and signing off.

27 Ms. Neill was also unaware that this was Mr. Bell's practice. She also expected that after the April 6 Toolbox meeting, Mr. Burn would have checked that that instruction to sign off only at the end of shift would have been followed. Mr. Burn indicated he did not make any check on the shifts following.

28 Ms. Neill also indicated that if she had been aware that that had been Mr. Bell's practice, then a formal warning only may have been issued as a result of the events of 15 April.

29 Mr. Bell gave evidence about an earlier occasion in early March, not long after his stint as Nightshift Supervisor when he left the site early and did not sign off. He maintained this was because Mr. Burn was going to send a casual home early so he went instead. He said Mr. Burn was well aware that he was leaving early, gave him approval and he walked with him from the desk to the canteen. Mr. Bell maintained this was why he forgot to alter his timesheet.

30 Mr. Burn had also given evidence about Mr. Bell leaving early at 4.00 am and he discovered he had not changed the sign out time of 7.30 am. Mr. Burn altered it to 4.00 am. He said he told Mr. Bell about this on the next shift after Mr. Bell challenged that his time had been changed. Mr. Burn maintained that he also told Mr. Bell that he had to sign off when he left and have approval to leave.

31 This was regarded as an informal warning by both Mr. Burn and Ms. Neill. However, Mr. Bell denied that Mr. Burn told him anything about having to sign off properly, he simply told him he'd altered the time. Mr. Bell also said that conversations took place after the April 6 Toolbox meeting.

32 An examination of Mr. Bell's time sheet records (Exhibit 15) show that that incident took place on the shift of 30 March. It can clearly be seen that the "7.30" has been altered to read "3.30" (not 4.00 am as was Mr. Burn's evidence). It was apparently due to be a 9 hour shift with a 22.30 start (as was the shift of Monday 4 April) with the "9" altered to "5". There were also alterations to the start time of that and the next two shifts where Mr. Bell had put either "10.30" or "11.30" rather than "22.30" and "23.30".

33 There is also another altered entry (finish time and hours worked) for Wednesday 16 February where "7.30" has been altered to "8.00" and "8" crossed out and "9" inserted above.

34 It was also apparent during the evidence and consideration of the time sheets that the times for the Tuesday shift each week are not completed by the worker but by the pay office - the sheets having been returned at the end of the pay week for processing. This was established initially as a result of the repeated and consistent use of a continental 7 on a Tuesday shift as distinct from how Mr. Bell wrote a 7.

35 It was also the evidence (Mr. Burn) that there was a brief toolbox meeting at the beginning of each shift. These were held in the sign on room. However, it was the evidence of Mr. Burn, Mr. Ball and Mr. Bond that the April 6 meeting took place outside the canteen.

36 This was disputed by Mr. Bell who said it took place in the sign on room. There was background noise from the machinery and for this reason (as well as a 15% hearing loss problem) he maintained that whilst he heard Mr. Burn talk about an employee being dismissed for falsifying his time sheet and that the company considered this theft, he did not hear Mr. Burn specifically talk about making sure you only signed off at the end of a shift. All the Company witnesses indicated that they had never noticed or experienced that Mr. Bell had any hearing difficulty.

37 Both Mr. Bond and Mr. Ball said that at some stage toolbox meetings moved from the sign-in room to outside the canteen.

38 Mr. Santangelo also gave evidence that the combined Afternoonshift/Night shift meeting that Ms. Neill addressed about the issue of the termination of the employee took place outside the canteen.

39 Ms. Neill held two such meetings (the other with Dayshift). Mr. Bell could not recall being present at that meeting. Ms. Neill could not say whether Mr. Bell was at the meeting and no other witness attested to the fact that Mr. Bell was present.

40 There were no signs up anywhere adjacent to the sign-on table (or on the time sheets themselves) to indicate that employees must sign on and off only at the commencement and completion of the shift. Ms. Neill said that following the toolbox meeting of 6 April she directed that appropriate signs be put up. She expected that this had been done and there were now signs up. She could not definitely say however, that that had occurred before Mr. Bell was terminated. Mr. Ball said the signs appeared after Mr. Bell was terminated.

41 On the Nightshift of 15 April there was no dispute that Mr. Bell left the site for some 45 minutes to purchase pizza. This was approved by Pat Quiroz, the Afternoonshift Supervisor, who told Mr. Bell to sign out and back in. Mr. Bell said this was the first time he had left the site to get pizza (they would not deliver that night) though he had left the site when working on Dayshift to get milk from the local Service Station (with approval) a couple of times. He had also done this on Nightshift (about twice) and said he had never signed out and in and had not been asked to on those occasions.

42 The pizza was eaten in the canteen area with the other casuals on the shift. Whilst they ate the pizza on that night shift, Mr. Bell said that he mentioned he felt tired and might go home early. Neither Mr. Bond or Mr. Ball had any recollection of this.

43 Mr. Bell said he became fatigued driving the machinery and was concerned for his safety and decided to go home. He called for Mr. Bonser to come up from where he had finished his work on the deshroud and showed him how to operate the robot. He told him he was going home and also told Scott Bond the same. Mr. Bond could recall Mr. Bell telling him he was going home, the time he left (about 4.30 am) and that he called the other employee up to take over his work on the robot. Mr. Bell thought they would pass the message on to the Supervisor.

44 Mr. Ball however, said he did not know Mr. Bell had left the shift early and questioned Mr. Bond about that on observing Mr. Bonser working in the robot area and not Mr. Bell at about 4.20 am. Mr. Bond told him he didn't know why he left early.

45 Mr. Ball also said he had observed Mr. Bell leaving the shift early on more than one occasion before but didn't report him as he didn't check his timesheet to see if he had signed out correctly.

46 Mr. Bell agreed there were occasions he had left early but thought it was only twice, one of which was where Mr. Burn altered his time sheet. He relied on his time sheets as being an accurate record of his attendance. Mr. Bell's time sheets show an earlier occurrence of leaving early being Monday 14 March where a finish time of 1.30 was entered and a notation "sick" was also entered.

47 When Mr. Burn arrived at the site at 6.30 am on the 16 April, he noticed Mr. Bell's car was missing and questioned Mr. Bond and Mr. Ball about Mr. Bell leaving early. Whilst they agreed he left early, Mr. Bond initially said he didn't know when. Mr. Ball was also initially not forthcoming about the time. Both men said they were reluctant to speak out as they were both casuals, Mr. Bell was more senior and they had a concern they might get less casual hours/shifts because of Mr. Bell.

48 Mr. Bell maintained he told Mr. Bonser and Mr. Bond why he was leaving expecting them to pass it on. He did not ring Mr. Burn due to the hour it was and as Mr. Burn had six week old twins and he didn't want to disturb him. He agreed he had rang Mr. Burn on night shift before. He also agreed he rang Mr. Burn at 1.00 am on Monday 18 (following the Saturday night 17th) meeting with Ms. Neill and Mr. Burn querying "Why have you done this?" but principally the purpose of the call was to advise Mr. Burn that he was taking the Monday night off as an RDO.

49 Mr. Bell did not ring Mr. Burn on Saturday as that was non work time. He queried why Mr. Burn did not ring him to tell him he hadn't changed his sign out time. Mr. Bell said it was his intention to correct the time when he signed on for the Sunday Nightshift (17th).

50 Mr. Burn then contacted Ms. Neill and told her what had happened. He also told Ms. Neill in response to her questions that he would have expected Mr. Bell to contact him by phone. Ms. Neill then rang Mr. Peter Smith (the former Linfox Industrial Relations Manager) to discuss the matter.

51 On the 17th April (Sunday) Mr. Bell arrived at work at about 10.15 pm proceeded to the canteen where he sat down with Adam Kliendienst. Mr. Burn and Ms. Neill were at an adjourning table (although according to Mr. Burn and Ms. Neill they all sat at the same table). At some stage Mr. Bell got up to get coffee and also to go to the bathroom. Ms. Neill and Mr. Burn expected that during this time he would have gone and corrected his time sheet.

52 At 10.30 he got up and went to proceed along the corridor to the sign-on room. However, at this stage Mr. Burn called him into the office and the meeting with Ms. Neill and Mr. Burn (with Mr. Kliendienst as witness) then proceeded.

53 Ms. Neill maintained Mr. Bell agreed that he left early, said he was going to change it that night, that he had signed on and off at the same time and forgot to change it, let Mr. Ball know and asked if he could change it now. Ms. Neill told him he couldn't, that she had to be satisfied that he was going to change it. She was standing him down pending a full investigation and he'd be required to come in the next day for a meeting.

54 Mr. Burn's recollection of what was said at the meeting appears to mix it up with what Ms. Neill (and to a lesser extent Mr. Bell and Mr. Santangelo) say was what was said on the Monday (particularly an exchange with Mr. Bell about the earlier occasion when Mr. Burn had corrected his time sheet and Mr. Bell "testing" him by doing this). However, Mr. Burn did confirm that Mr. Bell said that he signed on and off at the same time. He made no mention of Mr. Bell asking to change his time sheet.

55 Mr. Bell had not referred in his witness statements to what was said in the meetings (both the Saturday and Monday meetings) in detail as in "she said, I said" etc, he merely shortly summarised what was the subject matter. He said in cross-examination however, that on the Saturday night, he told Ms. Neill he always signed on and off at the start of the shift. He denied asking if he could change the time now, however, he couldn't recall whether Ms. Neill said something about not being sure he would have changed it at the first meeting or the second.

56 Ms. Neill handed him a letter stating he was stood down pending an investigation. Mr. Bell denied that the letter was read out to him first. Ms. Neill maintained that when she prepared the letter she had made no final decision about standing Mr. Bell down but wanted to hear his explanation.

57 Effectively, Ms. Neill also said in evidence that had she been aware that it had been Mr. Bell's practice to sign on and off at the start of a shift and that this is what in fact had happened then he would have received a formal warning or counselling. She also agreed that if Mr. Bell had changed his time sheet at the beginning of the shift it would not still have been a falsified time sheet. She also said she would not have dismissed him for signing on and off at the same time. She also deposed that she told Mr. Bell on termination that if he had called Mr. Burn or left a message they would be in a different situation.

58 After the meeting on the Saturday night Ms. Neill carried out her investigation speaking to Mr. Ball and Mr. Bonser. Mr. Ball told her he couldn't remember whether Mr. Bell left early. Mr. Bonser told her he left about 5-5.30 am and showed him a couple of things on the robots and then left. She was unable to contact Mr. Bond. Ms. Neill also spoke to Mr. Quiroz and confirmed what had happened concerning leaving the site for the pizza.

59 Ms. Neill rang Mr. Bell on the Monday morning and arranged for him to come in that afternoon and for Mr. Santangelo to be present as a Union representative and witness.

60 Again there are some differences between Ms. Neill, Mr. Burn, Mr. Bell and Mr. Santagelo about exactly what was said and also whether the exchange became so heated Mr. Bell had to tell Mr. Santangelo to shut up (denied by Mr. Bell) and they both had to wait outside.

61 Mr. Santangelo essentially challenged why they were treating Mr. Bell, a good employee, the same way they treated a casual. However, he also confirmed that there was an exchange between Mr. Bell and Mr. Burn about changing his time sheet with Mr. Santangelo also challenging the basis of Mr. Burn's authority to do that.

62 It does not appear that during the meeting the issue of Mr. Bell's practice of regularly signing on and off was raised. Mr. Bell again indicated it was his intention to change the time at the commencement of the shift. Generally speaking, the issue of Mr. Bell failing to correct his time sheet within the window of opportunity given to him and failing to notify his supervisor in any way that he was leaving was again traversed as was the reason he left. The incident with signing out and back in to collect the pizza was also raised. Mr. Bell had also initially said that he left because he was "sick" but later said that it was because he became tired.

63 Mr. Bell and Mr. Santangelo were asked to wait outside for about forty five minutes during which time Ms. Neill consulted further with Mr. Smith and Linfox's National Business Manager before preparing a letter of termination. The termination letter said that Linfox didn't believe he had given a reasonable explanation concerning the allegation of falsifying his timesheet. He was terminated "immediately" with accrued entitlements paid.

64 There was also evidence as to casual work that Mr. Bell had obtained since his termination and earnings of approximately $20,000 as at the date of the hearing.

65 Mr. Friend, on behalf of the applicant, had filed written submissions (Exhibit 16 & 17). Generally (and relevantly) it was submitted that:- · Mr. Bell had left the site early after telling 3 other employees and ensuring another worker carried out his duties. · There was no intention to falsify time sheets and signing on and off at the same time did not amount to time sheet falsification nor did failure to change a time sheet. · The practice had been condoned by the Supervisor who had previously corrected his time sheet. His practice of doing this would have been immediately obvious to anyone examining timesheets on a regular basis. · This was not a case of "nicking off early" and how could anyone think that in a shift of 8 hours finishing at 7.30 am with a daytime supervisor starting at 6.00 or 6.30 am one could escape detection? · Mr. Bell could only remember attending a toolbox meeting in the context of discussing what the former employee had done. · Mr. Bell had not contacted Mr. Burn because of his family circumstances (the young babies) and intended to change the time at the start of his next shift. · He was prevented from starting this shift and signing in and adjusting his time sheet and was thus denied natural justice. · Mr. Bell answered all questions put to him in the interviews truthfully but was not believed when he said he intended to change his timesheet. · Whilst it was accepted that time sheet falsification could be accepted as a fraud against Linfox, comparison was made with a criminal case and the concept of "mens rea". The issue arising was when did Mr. Bell decide to falsify his time sheet. He was following the practice he had always followed, intended to change it, and had notified others he was leaving. He left no instructions or took no action to cover up his absence. · Ms. Neill erred in saying he had until the start of the shift to correct his time sheet, he had until 9.30 am on the following Tuesday to make the adjustment. · The termination of Mr. Bell was harsh, unjust and unreasonable.

66 Mr. Friend submitted that the Commission should impose the maximum unfair dismissal penalty on Linfox together with re-instatement for the following reasons: · By his behaviour Mr. Bell showed that fraud was the furthest thing from his mind. · He responded honestly to all questions put to him but the Company refused to believe him on the substantive issue. · He advised 3 people he was leaving and appointed one of them in his place.

67 Mr. Gotting, for the Company, summarised the matters that were common ground between the parties (mainly information and events covered in the Background and Chronology).

68 It was then submitted that the assertions that Mr. Bell forgot to change his time sheet on 16 April should be rejected for the following reasons: · He had been reminded by the Afternoonshift Supervisor less than 5 hours earlier to complete the timesheet · He had opportunities to correct his time sheet when he arrived at work on 17 April yet failed to do so. · He had been reminded by Mr. Burn on 6 April that falsification of time sheets was serious and could lead to dismissal. · He had been told by Mr. Burn in late March that if he left early he was to tell someone. · He had been previously detected by Mr. Burn with an incorrect timesheet on 31 March.

69 It was submitted that the Company caught out Mr. Bell falsifying his time sheet and attempting to claim 3 extra hours at double time rates on an overtime shift. All other employees on the shift were casual and it was an unsupervised shift.

70 The assertions that Mr. Bell was intending to change his timesheet should be rejected. He had two opportunities to do that when he arrived at work but did not. He did not tell either Mr. Burn or Ms. Neill when they asked him to attend the meeting that he was going to change his timesheet and they were preventing him from doing so.

71 The reasons given by Mr. Bell for not calling Mr. Burn to tell him he was leaving should also be rejected. Mr. Bell had no difficulty calling him the very next day at a later hour to arrange a rostered day off.

72 Mr. Gotting also raised the issue of the credit of Mr. Bell on the following basis: · His denial he was a party to a conversation with Mr. Burn about his time sheet of 30 March. · His assertion that the 6 April meeting took place in the sign in room rather than outside the canteen. · His attempt to rely on a 15% hearing loss as why he experienced difficulty in hearing what Mr. Burn said at the 6 April meeting. · He said he told Mr. Ball he was leaving the site. This was rejected by Mr. Ball. · He said he told Mr. Bond why he was leaving the site. This was rejected by Mr. Bond. · Mr. Bell sought to suggest in his witness statement that the Company had taken deliberate action to sabotage subsequent employment by refusing to come to the phone to discuss the circumstances of his termination. · Additionally, he attempted to suggest he was discriminated against as a former employee of Arnotts. The evidence of Ms. Neill did not support this particularly in relation to his acting up as Supervisor for a period.

73 In contrast the evidence of the Company's witnesses was such that they all gave direct and clear responses. Mr. Bond and Mr. Ball explained their initial reluctance to give information to Ms. Neill on the basis of a concern about the type of work they would receive if they made complaints against Mr. Bell. Mr. Ball, Ms. Neill and Mr. Burn all made concessions in cross-examination either against themselves or the Company where it was appropriate to do so.

74 Mr. Gotting then addressed those areas of concern raised by the Commission over the course of the hearing.

75 The first two issues had to do with the practice of the applicant in signing on/off at the same time pre 6 April and also continuing to do so from 6 April to 16 April. The grounds of termination were not related to the sign on/off procedure but rather falsification of the time sheet. To that extent, the Commission may not need to address those concerns.

76 The third area of concern raised was that Mr. Burn stated he was not aware of Mr. Bell's sign on/off practice. It was concluded that in a ideal world this should have been picked up and wasn't. Nevertheless, that should not detract from the cold hard facts that Mr. Bell falsified his time sheet on 16 April. The evidence collectively suggested that all along it was Mr. Bell's intention to falsify his time sheet.

77 The Commission should also take into account that Ms. Neill was unaware that the sign on/off policy was not being adhered to. The compliance or otherwise with the policy was a "red herring" issue. The real issue was falsification.

78 On the issue of whether the applicant was given an opportunity to change his timesheet, it was submitted that he had a fair opportunity. The window of opportunity ran from 4.30 am on 16 April until 10.30 pm on 17 April. If the falsification had not been detected by Mr. Burn he would have been paid for 3 hours at double time, a payment he was not entitled to.

79 Mr. Gotting addressed the substantive and procedural issues necessary. On a substantive basis there was a valid reason for termination - the falsification of the time sheet constituted serious misconduct at both common law and in terms of the provisions of the site Enterprise Agreement - clause 12.2 (b). Additionally, this falsification amounted to a breach of the implied duty in all contracts of employment of honesty.

80 There was also an implied term in this jurisdiction of mutual trust and confidence. The falsification of the timesheets was a serious breach which struck at the heart of the fundamental contract of employment.

81 Mr. Bell was afforded procedural fairness. He was advised of the allegations against him. The seriousness of those and possible consequences was indicated. Mr. Bell appreciated what the purpose of the 18 April meeting was and was afforded the opportunity of responding further. The NUW delegate was present and they both had the opportunity of raising matters relevant to the issue of termination and did so (his good record and willingness to do whatever was necessary to return to his job). In addition the termination letter was formulated after the meeting.

82 It was submitted that re-instatement was impractical as there was a lack of trust and confidence by management in Mr. Bell returning to the workplace. There was also the need to occasionally work unsupervised so there was a need to be able to trust the appropriate performance of duties by Mr. Bell whilst at work.

83 Additionally, re-instatement would mean another employee would have to be stood down or terminated. This was a factor that should be taken into account by the Commission.

84 Mr. Gotting also responded in detail to Mr. Bell's Part A application and the various grounds contained therein. Those responses generally traversed grounds already dealt with in his submissions.

85 Mr. Friend in reply submitted that the evidence showed the time sheets had to be completed by 9.00 am on a Tuesday. Any employee reading that would conclude that that would be the time given by an employer to effect any rectification.

86 Mr. Bell was not permitted to go into the sign on room and the opportunity alluded to by Ms. Neill was denied him.

87 Mr. Bell was prepared to return to day shift or in whatever capacity, other than duties and pay, that the Company would allow.

88 In relation to not calling Mr. Burn at home due to having small children in the house, the second call to Mr. Burn was at work.

89 Finally, Mr. Bell's actions should be looked at in that he told three employees he was leaving, Mr. Ball's evidence was not credible. He also organised for someone to do his work. When all the facts were looked at, it was more than likely the three other employees were told. This was unusual.

90 I have very carefully considered the evidence and submissions of the parties in this matter. In the interests of brevity and issuing a decision expeditiously, I have not summarised the evidence with the degree of detail that is my usual practice however.

91 Whilst neither party addressed the Commission on any relevant case law, the Commission is bound to give consideration to such cases in this matter.

92 Mr. Bell was summarily terminated for serious misconduct on 18 April 2005. Whilst the termination letter does not use that terminology it refers to the falsification of the timesheet with his employment "terminated immediately". Only accrued entitlements were paid. In submissions Mr. Gotting clearly stated that the Company terminated Mr. Bell for "serious misconduct".

93 The onus is clearly on the Company to establish that misconduct has taken place per Pastrycooks, Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70. The Commission must then be satisfied that that onus has been discharged and that the misconduct occurred.

94 However, even if it is established that misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise, whether termination was harsh or unjust or unreasonable per S.88 of the Act. Here however, the onus moves back to the applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273.

95 The test to be applied by the Commission is found in Brigenshaw v Brigenshaw. That test is on a probability level that approaches but does not meet the criminal standard.

96 Mr. Gotting submitted that the issue of the sign on/off policy and the practice of Mr. Bell were essentially a "red herring". I do not entirely agree with that proposition.

97 True it is that Mr. Bell was not terminated for his sign on/off practice but for alleged falsification of his time sheet. However, the issue of whether he intended to falsify his time sheet is for me the key issue for consideration. Particularly, in view of the Company's contention that Mr. Bell's actions were deliberate and an attempt to gain payment for overtime hours not worked for which he was not entitled. That then clearly raises the issue of what Mr. Bell's practice was in relation to signing on/off.

98 Mr. Friend makes valid criticisms of the time sheets. I have further criticisms:- · They do not require the employee to sign his signature (or even initials), only to indicate times. · There is no notation on the time sheet that an employee should sign on only at the start of shift and sign off at the end of the shift. · The employee does not in fact enter the times at all for a Tuesday shift. That is done by the pay office. · The time sheet does in fact say at the top "PLEASE ENSURE TIME SHEET IS COMPLETED BY 9.00AM EACH TUESDAY". · In relation to the time sheets for Mr. Bell for the period 2 February 2005 to 6 April 2005 tendered as Exhibit 15, not one sheet had a signature in the designated spaces for - "Shift Leader Authorised Signature" or "Manager Authorised Signature".

99 Clearly an employee could not solely rely on the fact that the time sheet only had to be completed by 9.00 am each Tuesday. It is however a cogent point in my view.

100 I suggest strongly that the time sheets be re-vamped to include a reference to requirement to sign on and off in the appropriate manner and that return of the sheets to the pay office is carried out by 9.00 am on Tuesday, which is what it obviously means. I also consider that, at the least, an employee should be required to initial his entry if not able to preferably sign the time sheet as is the more usual practice in workplaces.

101 There is just no way that the employer could check in any way whether the Linfox timesheet had in fact been completed in the appropriate way by looking at it subsequently. Linfox couldn't even categorically guarantee which employee had completed the timesheet.

102 It was the evidence that there were now appropriate signs up to indicate the Company policy. They were clearly not in place, on the evidence, prior to Mr. Bell's termination.

103 I accept Mr. Bell's evidence and that of Mr. Ball that both had a practice of signing on/off at point of commencing the shift. Mr. Ball says he ceased this practice after 6 April.

104 Frankly there is no way of knowing how many other employees had the same practice.

105 If one accepts Mr. Burn's evidence he knew nothing of that practice. However I am firmly of the view that his evidence cannot be accepted.

106 I consider that Mr. Burn has been less than honest with the Commission. I also consider that he was well aware of the practice of both Mr. Bell and Mr. Ball. I just do not believe Mr. Burn and his explanations. At worst he has been untruthful, at best he has been incredibly slack in his supervision.

107 I also find it incredible that he did not make any checks of timesheets following the specific meeting of 6 April.

108 I agree that Mr. Bell's credibility is not served by issues such as an alleged hearing problem. I am not so sure that there is an issue about where the meeting took place however. On the evidence there was a combined afternoon and night shift meeting addressed by Ms. Neill, that clearly did not take place in the sign on room but at the canteen area. Mr. Ball indicated that it had been more recent practice to move the toolbox meetings from the sign on room to outside the canteen. There was also Mr. Burn's evidence about what occurred at the beginning of the shift (that is a brief meeting in the sign on room). Therefore there may justifiably be a degree of confusion by all parties as to where the particular 6 April Toolbox meeting took place. I do not consider that it raises issues of credibility for any witness.

109 It is apparent that for whatever reason, Mr. Bell didn't appreciate or take in all that was said at the meeting. The minutes were typed up by someone else on Mr. Burn's directions.

110 However, I have my doubts about the credibility of Mr. Burns as a witness altogether. That extends to Mr. Bond and Mr. Ball. I think it is frankly ludicrous for them to suggest they were less than forthcoming about the initial information they gave about Mr. Bell leaving because of a concern he could influence what hours/shifts they got. I consider that just rubbish. There is not a skerrick of evidence that Mr. Bell either had such influence or indeed was of a personality type to cause problems for fellow employees. I also had the opportunity of observing the demeanour of Mr. Bell in the witness box and at the bar table and he did not come across in any way a person who would either be difficult to work with or cause difficulties for others.

111 I note Mr. Bond was a casual at the time but became permanent in September 2005. Indeed in relation to Mr. Ball it seems an amazing stroke of good fortune and obviously merely coincidence that he became a permanent in July 2005 (this matter was listed for two conciliations in July) and just 3 weeks later he became a Supervisor. There has certainly been no disadvantage experienced by either Mr. Bond or Mr. Ball as a consequence of any information they either did or didn't give to the Company (indeed quite the reverse).

112 I also am minded to note that particularly in the case of Mr. Bond and Mr. Bell it is obvious they had assistance in producing their witness statements which under circumstances where Mr. Bell was legally represented would probably have been the subject of some objection as to content, and comment as to form. I do not usually get too excited when such issues are raised by legal representatives in the course of a hearing. In my experience it is somewhat rare for a witness statement to be solely word for word the work of the witness concerned. There is always obvious assistance from whomever prepared the witness statement. In this matter however, I have some disquiet about that process because of the form and content (information about processes).

113 There is no doubt that there are conflicts in evidence however, after very careful consideration I have to say I find myself compelled overall by the evidence of Mr. Bell.

114 I accept Ms. Neill's evidence was honestly given and she did indeed make certain concessions against herself and the Company and critical ones from my point of view.

115 The criticisms of Mr. Bell for not contacting Mr. Burn personally or leaving a note are justified. I do not accept however, that the fact that he called him on the 18th at 1.00 am (not the 17th as suggested) to seek to have the Monday night shift as a RDO (and essentially have "a go at him" for the line he had taken at the meeting) is a basis for saying he knew he could ring Mr. Burn during the night as Mr. Gotting tried to suggest. After all this call came after the meeting of 17 April when the issue of Mr. Bell not contacting Mr. Burn during the nightshift of the Friday had already been raised so clearly he was well aware it was now appropriate to do so. In any event, that call appears on the evidence to have been made to Mr. Burn whilst he was at work on the nightshift.

116 Similarly no comfort can be drawn, in my view, from the fact that Mr. Bell had signed out and in to get the pizza on the Friday night shift and therefore knew he had to fill out a time sheet correctly.

117 That was an entirely different situation. He was instructed to sign out and in by Mr. Quiroz. The form he signed (as attached to Exhibit 12) was not a usual time sheet and clearly only for the purposes of leaving a site during a shift. At the time of leaving Mr. Bell would not have known what time he was returning so would not have been able to sign out and in at the same time.

118 This contrasts entirely with the sign on/off practice in relation to working an entire shift where there is a standard start and finish time.

119 Leaving aside all the various minor issues that could be traversed, the fundamental issue is that Mr. Bell never got to start his shift on 17 April. He was prevented from commencing by Mr. Burn and Ms. Neill calling him to a meeting. He therefore never got the opportunity to correct the incorrect finishing time in the process of signing on/off for the Saturday Nightshift.

120 It matters not, in my view, that he had a window of opportunity between 10.15 pm (or indeed 4.30 am) and 10.30 pm to go and correct his timesheet. If he had been intending to defraud the Company and knowingly had left the site at 4.30 am on 16 April with the intention of claiming payment for time not worked I would have expected him to make a dash for the time sheet as soon as he saw Ms. Neill and Mr. Burn in the canteen as he may have been entitled to believe he had been "sprung" as it were.

121 If, as he says, he was going to change the time when he signed on at the start of the shift then he would not have done that until 10.30 pm when he went into the sign on room.

122 When Mr. Bell left at 4.30 am on 16 April he did not skulk away. He did not attempt to disguise his leaving as the other employee who was terminated for fraud had by leaving when other employees left at 3.00 pm when he was rostered off at 3.30 pm (Ms. Neill's evidence). He told his other co-workers he was leaving, the reason for leaving - though in fairness to them this may not have been spelt out enough. He also arranged for another employee to take over his work and showed him what to do.

123 These hardly are the actions of an employee who is setting out to deliberately falsify a time sheet and defraud the Company.

124 He had been an employee with an unblemished record with no previous warnings either formal or informal. I accept Mr. Bell's evidence in relation to what Mr. Burn said about altering the time sheet for 30 March and when he said it and the circumstances of that night (i.e. that Mr. Burn knew he was leaving in any event) and that there was no "informal" warning of any sort issued.

125 In the meeting of 17 April, Mr. Bell said it was his intention to correct his timesheet when he signed in. Ms. Neill finished the meeting by saying she was going to carry out an investigation to determine whether he would have changed his timesheet (Exhibit 12). I really don't know how on earth she was ever going to be able to establish that given that he was in fact prevented from commencing his shift and signing on and therefore changing his timesheet.

126 Ms. Neill and Mr. Burn should have waited until Mr. Bell had commenced his shift and then checked the time sheet. Their action was precipitous. No falsification of a time sheet to gain a payment had yet been established only a failure to sign out at the time of leaving the site.

127 I also note that quite clearly it was Ms. Neill's admission (to her credit) that if Mr. Bell had simply intended to change his time sheet on commencement of the next shift that would only have warranted a warning or counselling.

128 I accept that Mr. Bell did not jump up and down and say "but that's always been my practice, I was going to change it, you stopped me". It seems to me too much emphasis was placed on terms such as falsification and fraud. I also don't see how it is relevant that Mr. Bell didn't say something about going to change his timesheet before he was diverted into the office. At that stage he didn't know what the purpose of the meeting was or that he wasn't going to get to start his shift.

129 Similarly, the silly issue of Mr. Bell trying to suggest he was testing Mr. Burn on the face of it does seem inconsistent but not overwhelmingly significant. However, it keeps coming back to the fundamental issue that we just don't know that he would not have changed the timesheet. The evidence points to the contrary and yes, on the face of it, he had (or someone had) until 9.00 am Tuesday to put in a correct time sheet.

130 There were other issues of credit raised against Mr. Bell and his witness statement that I don't consider fatal or particularly relevant given the circumstances. Whilst it is not apparent from the case as it was run, it is relevant to note that Mr. Friend is Mr. Bell's Father-in-law and is not legally qualified (although he has accountancy qualifications). There was understandably a degree of subjectivity in the witness statement and the approach to the matter. However, on the whole he conducted a well researched and thorough case for an inexperienced advocate.

131 Mr. Gotting was thorough as usual, extremely competent and prepared but despite his persuasive and cogent submissions, I am unable to find for the Company.

132 In New South Wales Fire Brigade Employees Union (on behalf of Natoli) and New South Wales Fire Brigade [2005] NSWIRComm 440, Sams DP identifies at p.218, the four questions that arise for consideration in a case for summary dismissal for misconduct. 1. Was the conduct against the dismissed employee proven? 2. Did the seriousness of the conduct justify summary dismissal? 3.Did the conduct constitute a fundamental and wilful representation of the contract of employment? 4. Were mitigating factors taken into account?

133 Having carefully considered the evidence I am strongly of the view, without any doubts whatsoever, that the Company has not discharged the onus on it to establish that Mr. Bell committed serious misconduct.

134 That being the case it then follows that his summary termination for serious misconduct was harsh, unjust and unreasonable.

135 It also follows that there was no conduct of Mr. Bell's that could constitute a repudiation of the fundamental contract of employment between the parties.

136 On the issue of repudiation of the employment contract Sams DP observed in Natoli at para. 255 "The allegations against the applicant were described as misconduct - the additional adjectives "wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the very core of the employment relationship".

137 There was no evidence to establish any wilful or deliberate intent by Mr. Bell to commit misconduct, quite the reverse in fact.

138 The issue of the consequences for an applicant of such a decision, the need for that to be considered by the Commission and for employers to be fully satisfied that misconduct has taken place is dealt with by the Full Bench in Franklins Ltd v Webb (1996) 72 IR 257 at p. 261 and also by Sams DP in Hill v Department of Juvenile Justice (2000) NSWIRComm 128 at para. 62-63.

139 In Natoli, Sams D.P. also considers the issue of harshness of penalty citing the various relevant authorities - Byrne and Anor v Australian Airlines (1995) 61 IR 32 (p 72), Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 (at p. 302), Little v Commissioner of Police (No. 2) (2002) 112 IR 212, Busways v Johnson (1994) 55 IR 255, Wells v Commissioner of Police (2000) 100 IR 106.

140 In considering the above authorities, I accept that Mr. Bell has been able to secure substantial alternate casual employment. However, I note that such a termination (for misconduct) can have a very deleterious effect on future permanent employment. Mr. Bell passed up the opportunity to take redundancy from Arnotts in 2004 seeking instead to make his employment future with Linfox.

141 The treatment of Mr. Bell in the same way as the previous employee dismissed given the different circumstances of the two incidents and Mr. Bell's good record was also too harsh and unreasonable.

142 A dismissal can be both substantively and procedurally unfair. The case usually quoted in this regard is the High Court Judgement in Byrne & Anor v Australian Airlines (1995) 61 IR 32 at p72.

143 Byrne v Anor v Australian Airlines has often been relied on in Full Bench Decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255; and Antanakopoulos v State Bank (1999) 91 IR 385.

144 I have already found that Mr. Bell did not commit misconduct and that the Company has not discharged the onus on it to establish such. Therefore applying Byrne & Anor v Australian Airlines and the other cases cited there is clear basis for finding that the termination of Mr. Simmons was harsh, unjust or unreasonable on a substantive basis.

145 In arriving at that conclusion I have been mindful of the tests to be applied per Brigenshaw v Brigenshaw and they have been satisfied as indicated earlier. I have no doubts in this matter.

146 I also have some problems with procedures. I consider the Company was precipitous in holding the meeting on Saturday 17 April before Mr. Bell had commenced his shift.

147 Procedures in relation to timesheets, were also, to say the least, slack from the point of view of supervision, clear unequivocal written directions and also the format of the time sheet.

148 The expression "harsh, unjust or unreasonable", was also considered in Byrne & Anor v Australian Airlines at p. 72. The principle was further discussed in Outboard World v Muir (Cahill VP, Peterson J. and Tabbaa C) (1993) 51 IR 167 at p.182. Essentially, those cases hold that it is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three.

149 The meaning of those individual terms has been considered in detail by Connor C in Parker v Capitol Painters & Decorators P/L (1996) 68 IR 100 at 104 and by Sams DP in Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18. I adopt those considerations.

150 Bankstown City Council v Paris (Wright P, Peterson J and Bishop C) IRC 262 of 1999 23 August 1999, is authority for the fact that I must make a positive finding as to whether the termination of Mr. Bell was harsh, or unjust, or unreasonable (or any combination thereof).

151 Given that I have found he did not commit misconduct, did not intend to falsify his time sheet or defraud the Company and in view of his previous good record, I find his termination was harsh, it was unjust and it was unreasonable.

152 Mr. Bell sought re-instatement. I have pondered long and hard on the wisdom of returning him to the workplace and any problems he might encounter (particularly given the change in Supervisors). However, if he should not have been dismissed in the first place he should be returned to his position.

153 There is no evidence of any personal conflict or difficulties between Mr. Bell and his co-workers. I believe he is an employee who can be trusted and should be given the opportunity of showing he can be trusted. Mr. Friend indicated a preparedness of Mr. Bell to go back on day shift (but on his former rates).

154 I reject the submission of the Company that re-instatement would cause a problem because another worker has been employed. That has never been a sufficient basis for the Commission to reject re-instatement. It was always clearly and unequivocally put that Mr. Bell sought re-instatement. This should have been kept in mind by the Company.

155 I propose to re-instate Mr. Bell from the date of his dismissal. To do otherwise without good reason would be to visit a further injustice on Mr. Bell.

156 However, I expect that a formal warning be placed on his file (I stress not a final warning) for failing to notify his Supervisor he was leaving early and failing to follow the correct sign on/off procedure.

157 I am mindful of the monies Mr. Bell has earned since he has been terminated (at least as at the date of hearing) I therefore also expect that any back payment of wages to take into account any monies he has earned since his termination. I expect the parties to work that out in a sensible fashion. Just as I expect Linfox to take appropriate steps to ensure a smooth transition back to the workforce.

I therefore make the following orders: ORDERS

Harley Bell is to be re-instated to his position of Grade 2 Storeperson with Linfox Australia Pty Ltd at the Huntingwood site.

Such re-instatement is effective from 18 April 2005 without loss of continuity or service.

Any payment of wages from that date is to be adjusted to take into account monies earned by Mr. Bell since termination.

Any dispute as to that amount is to be referred to the Commission and leave is reserved to the parties to have this matter re-listed to resolve any such dispute.

Mr. Bell is to commence work on the next shift practicable.

These orders take effect on and from 10 February 2006.

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