[46] The applicant was unable to provide details of the particular work-related events, functions or meetings that he attended with the use of his friend's car involving a total of 475 kms of travel around Melbourne over two days during which time he was also attending the Melbourne conference. Consequently, the employer rejected the applicant's explanation for the mileage claims that he made for 15 and 16 June 2016. The employer arrived at the unsurprising conclusion that it would have been very difficult to have actually travelled 300 kms around metropolitan Melbourne on one day whilst also attending the Melbourne conference.

[47] The applicant's mileage claims of 15 and 16 June 2016 in respect of the use of his friend's car whilst in Melbourne, was further scrutinised during the Hearing and unfortunately the applicant provided no logical explanation that would justify these expenses claims. The applicant provided very unconvincing evidence when questioned by the Commission about his apparent mistake in the description of the basis for the mileage claims of 15 and 16 June 2016. The applicant's unfortunate testimony is exampled by the following extract from transcript:

"Why did you say you made your claim because you were using your friend's car, where's that claim? --- Sir, that was part of the mileage claim.

Which part of that? --- On that particular - the same - the same instance you are talking about, 15 to 16 of June. Can I - Sir this is point number 2 in my reply on the show cause notice. I explained that this is what happened.

Yes, this is the - this, as you said, you made a claim while you were in Melbourne because you used one of your friends cars? --- Yes, sir.

But the basis for your claim isn't using your friend's car, it's going to Newcastle? --- Yes, sir, because I - I - I was a Sales Director. I (indistinct) the legal (indistinct) work to my account - visit account on a daily or, you know, sometimes three times a week or four times in a week, I have a responsibility, and when I go there I take the claim - claim those sort of things on the day basis because my customer is based out of particular places.

You didn't put in here at point 2 that you made the mistake because you referred back to your electronic calendar and you got confused because your electronic calendar had you at a meeting in Newcastle? --- Sir, I remember I was booking us there - - -

You put in there that you made the mistake because you used your friend's car? --- I was trying to explain this, which I was trying to explain that I put an initial cost (indistinct) I'm not able to find now.

But in any event then, what, you were proposing to give your friend whatever you claimed for using his car? Because you didn't use your car, you used his car. So is that what you did? You gave him - the money that you got from this claim, you gave to your friend, did you? --- No, I did not. I did not transfer it to my friend."[2]

[48] The second event involving an expenses claim made by the applicant which was the subject of audit scrutiny concerned his claim for mileage of 300 kms on 21 December 2015, shown as "Waitara-Newcastle-Waitara." Attention was drawn to this mileage claim because the e-toll records for the applicant's car show the vehicle to have been passing toll points in and around Sydney between 11:25 and 21:51 on 21 December 2015.

1. The employer asked the applicant to explain his claim for mileage of 300 kms for a trip to Newcastle on the day when his e-toll records showed his vehicle travelling around Sydney. The applicant responded by advising that he "was travelling to meet Jennifer in Newcastle however the meeting got cancelled in the morning (while I was on my way) and hence travelled to Belavista for meeting with Richard (head of supermarket)."[3][emphasis added] In response to the employer's further inquiries the applicant provided the following further information about his activity on 21 December 2015: "I was supposed to meet Jennifer from Woolworth in the Newcastle office as wasn't sure about Richard. Last moment the meeting with Jenny was cancelled (while I was on my way to meet her) and instead of Woolworth Newcastle office, I went to other office towards Belavista to catch up with Richard."[4] [Emphasis added]

2. The employer did not accept the explanation offered by the applicant for his mileage claim for travel to Newcastle which was seemingly contradicted by the e-toll account records showing his vehicle travelling on toll roads around Sydney on the same day. During the Hearing the apparent incongruity between the claim for travel to Newcastle and the e-toll records of movements around metropolitan Sydney was the subject of further scrutiny. In answer to further questioning as to why the applicant had maintained a claim for travel to Newcastle despite the meeting having been cancelled, the applicant said that on the morning of 21 December 2015 he had in fact travelled all the way to Newcastle before the meeting with Jennifer was cancelled.[5]

[51] Strangely, the applicant had previously not made any mention of the actual completion of the journey to Newcastle, but instead he indicated (as emphasised above) that the meeting was cancelled while he was "on my way." If, in fact, the applicant had completed the journey to Newcastle and returned such that at 11:25 am he passed a toll point on the M2 toll-way, he would have logically told the employer that his claim for mileage to Newcastle was legitimised by the fact that he had made it all the way before being advised of the cancellation of the meeting. The absence of any such advice to the employer, and the impracticality that the applicant had completed a trip to Newcastle and returned to the M2 toll-way by 11:25 on 21 December 2015, discredited his explanation and provided strong support for the employer's conclusion that this was another fraudulent expenses claim.

[52] The third event that involved another example of the scrutinised expenses claims made by the applicant concerned a claim that he made for mileage of 300 kms on 3 February 2017, shown as travel "Waitara-Canberra-Waitara." Attention was drawn to this claim because on the same day, 3 February 2017, the applicant had undertaken air travel from Sydney to Melbourne and return. Consequently, the employer understandably questioned how the applicant could have flown to Melbourne, then returned to Sydney, and then driven to Canberra, and then back to Sydney all on the one day.

1. The applicant responded to the employer's inquiry as to his activities on 3 February 2017, by way of confirmation that he had "landed back in Sydney around 4 PM and being invited by HSBC client into a dinner meeting along with some Sn partners."[6] There was no claim made by the applicant for an overnight stay in Canberra on the night of 3 February 2017. Further, the applicant could not provide the employer with any evidence to verify the client dinner meeting that he allegedly attended in Canberra. The employer concluded that the applicant had not driven from Sydney to Canberra upon his 4 pm return from Melbourne, and therefore the mileage claim for the alleged travel to Canberra on 3 February 2017 was false.

[54] The applicant provided some curious evidence during the Hearing when he was questioned about his alleged travel to Canberra on 3 February 2017, after he had arrived back at Sydney airport at about 4 pm. The following extract of the applicant's answers to questions from the Commission is relevant:

"Now it's conceivable but you'd have to be doing a very long day to do Melbourne and Sydney return trip and then also get in your car and drive to Canberra and back again? --- Yes, sir. Yes, sir, I understand that I'm just looking in the - where I mentioned it. But off the top of my head which I remember this, I still - went to Melbourne and did my meeting because there was one opportunity I was working on with the client, and I had to go back to Canberra to work on that. I'm just seeing where is - is that the same one.

On page 71 you see to suggest that you got back at 4 pm and then immediately jumped in your car and drove to Canberra, did you? --- Yes, if the client request I have to go, sir.

Is that what you did? --- Yes, sir, that is what I've said, yes. This is what I did.

So Canberra back home that night? --- Late night's arrival, I didn't have any place to stay there."[7] [emphasis added]

[55] The applicant must have forgotten the above evidence that he provided on the first day of Hearing when on the second day, during his cross-examination of the employer's witnesses, Mr Chauhan, who asserted that it was impossible to have undertaken the road trip and dinner to Canberra after returning to Sydney at 4 pm, the applicant stated:

"I go there to the dinner. Then I stayed there. Did I also claim for the night stay whether I stayed with a friend or somebody? That's nobody's question."[8][emphasis added]

"THE COMMISSIONER: So we would get a picture, then, of you getting back at 4 o'clock, to the airport, going home first or going from the airport directly to ---

THE COMMISSIONER: --- straight to Canberra to the HSBC meeting ---

THE COMMISSIONER: having dinner in Canberra and then driving home?

MR AMBA: Not probably on the same night - I stayed with my friend."[9][emphasis added]

[56] The applicant's directly contradictory evidence about firstly not having any place to stay in Canberra, and then subsequently he asserted that he stayed with his friend, operates to discredit his evidence in respect to this further expenses claim. The contradictory evidence of the applicant has provided sound basis to support the employer's conclusion that the mileage claim made by the applicant for 3 February 2017, shown as travel for "Waitara-Canberra-Waitara" was another example of a fraudulent expenses claim.

[57] There were numerous other examples of expenses claims made by the applicant which upon any reasonable and objective analysis, would be held to have been false. However, the employer erroneously asserted that all of the applicant's expenses claims were fraudulent. However, in fairness, many of the applicant's expenses claims were probably legitimate, but unfortunately for the applicant, there were numerous examples of false claims which could not be accommodated as having arisen from some inadvertent mistakes.

[58] As the applicant stated: "not all my $85,000 expenses for the two years are fraudulent." Regrettably however, a significant number of false claims were identified, and many others were plainly implausible, and would have invited more detailed scrutiny as the applicant himself acknowledged during the following exchange regarding another event that he claimed for 29 June 2016:

"THE COMMISSIONER: But in that instance, you claimed $280 in taxis plus 175 miles travelled in the one day and I suppose that's where the query arises doesn't it?

THE COMMISSIONER: How do you do both? $280 worth of taxis and a 175 of your own vehicle as well.

[59] The evidence of the particular expenses claims that have been the subject of analysis in this Decision represents a few examples of a significant number of claims which regrettably, were fraudulent. It is unnecessary to mention many other claims including those made by the applicant for mileage on Saturdays and Sundays when he was allegedly travelling to play golf with clients. Consequently, the conduct of the applicant involving his fraudulent expenses claims was, prima facie, misconduct that would justify dismissal from employment and the applicant's approach to defence or justification of that misconduct must be rejected. Consequently, the findings of serious misconduct made by the employer against the applicant must be supported as representing valid reason for the summary dismissal of the applicant.

S. 387 (b) - Notification of Reason for Dismissal

[60] The employer provided written notification of the reason for the applicant's dismissal as set out in the termination of employment letter dated January 9, 2018.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

1. The applicant was given numerous opportunities to respond to the allegations of misconduct made against him in respect to his expenses claims. The procedural fairness that was provided to the applicant was recognised in the following extract from the letter of 22 December 2017, sent to the employer from the applicant's (then) lawyers wherein it was stated: "Our client has provided detailed responses to the allegations..."[11]

[62] The employer conducted a thorough investigation into what had initially been discovered as irregularities by the global audit team and which subsequently developed to become allegations of serious misconduct made against the applicant. Further, the employer implemented a show cause process which enabled the applicant to make out a defence or offer an explanation in respect to the allegations of serious misconduct.

[63] Unfortunately for the applicant he was unable to provide any satisfactory explanation for the numerous false expenses claims that he had made. The process adopted by the employer for investigation into the issues surrounding the applicant's expenses claims, and ultimately the findings of serious misconduct providing for the determination to dismiss the applicant, was without any significant procedural deficiency.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[64] There was no evidence that the employer unreasonably refused or otherwise avoided the presence of a support person to assist the applicant. However, the employer's procedure would have been enhanced if it had clearly advised the applicant that he would be provided with the opportunity to have the assistance of a support person at the meetings held on 30 October and 13 December 2017.

S. 387 (e) - Warning about Unsatisfactory Performance

[65] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead, serious misconduct.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[66] The employer is a large size business operation. It adopted relevant procedures to deal with both the investigation of the allegations made against the applicant, and the show cause process that lead to the final determination involving dismissal.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[67] There was evidence that the employer did have management specialists or other expertise and this factor has not been relevant in this instance.

[68] The confirmation of the particular nature of the misconduct which has provided valid reason for the dismissal of the applicant has involved findings of very regrettable misconduct. Understandably the employer was aggrieved that a person in a relatively senior position breached the fundamental trust to act with honesty when making expenses claims. However, the employer may wish to consider reviewing its procedures so that some verification should be provided to support all mileage expenses claims.

[69] Further, there was evidence that the employer carefully considered all of the employment and personal circumstances of the applicant. In particular, the employer was cognisance of the 457 Visa status of the applicant. These factors were appropriately balanced against the serious misconduct committed by the applicant which involved significant and persistent fraudulent claims for expenses. Accordingly, the Commission is not prepared to disturb the balanced and properly considered determination made by the employer.

[70] The applicant was dismissed for serious misconduct involving the employer's findings that he had dishonestly and intentionally made and received expenses claims which were fraudulent. Upon analysis, the employer's findings of serious misconduct have been confirmed.

[71] In view of the particular nature of the misconduct which has been established in this instance, that serious misconduct has provided valid reason for the summary dismissal of the applicant. There were no significant procedural deficiencies associated with the employer's investigation and determination to dismiss the applicant. There were no other factors which might mitigate or otherwise impact upon the established serious misconduct of the applicant.

[72] In conclusion, the dismissal of the applicant was not harsh, unjust or unreasonable. Accordingly, the applicant's claim for unfair dismissal remedy must be dismissed, and an Order dismissing the application shall be issued.

Mr A Lunn, solicitor of Mills Oakley Lawyers appeared for the employer.

1. [1] Exhibit 1 @ Annexure GA12.
2. [2] Transcript @ PN1032 - PN1038.
3. [3] Exhibit 1 - Annexure GA14 @ page 72.
4. [4] Exhibit 3 - Annexure KC-11 @ page 112.
5. [5] Transcript @ PN1058 - PN1064.
6. [6] Exhibit 1 - Annexure GA14 @ page 71.
7. [7] Transcript @ PN1077 - PN1080.
8. [8] Transcript @ PN1616.
9. [9] Transcript @ PN1625 - PN1630.
10. [10] Transcript @ PN1732 - PN1736.
11. [11] Exhibit 3 - Annexure KC-25 @ page 184.

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