Fair Work Act 2009

s.394 - Unfair dismissal

Stay Cool Refrigeration (Aust) Pty Ltd T/A Gladstone Refrigeration And Air-Conditioning

[1] On 29 September 2022, Mr Glenn Andrews made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with Stay Cool Refrigeration (Aust) Pty Ltd T/A Gladstone Refrigeration and Air-Conditioning (the Respondent) and that his dismissal was harsh, unjust and unreasonable.

[2] On 20 October 2022, the Respondent filed a Form F3 Employer Response to the application in which it raised a jurisdictional objection that the Respondent is a small business employer having employed less than 15 employees at the time of Mr Andrews' dismissal and that the Respondent had complied with the Small Business Fair Dismissal Code (the Code).

[3] The matter was heard before me by video using Microsoft Teams on 10 January 2023. Mr Andrews was represented by Mr Taylor Bunnag, Industrial Advocate of the Australian Manufacturing Workers' Union. The Respondent was represented by Ms Lara Barreto de Mattos, Accounts Manager and Mr Gary Murray, Workshop Manager of the Respondent. Ms Barreto de Mattos and Mr Murray both commenced employment with the Respondent in June 2022.

[4] I decided to conduct the matter as a determinative conference. During the determinative conference I considered it necessary to hear oral evidence from Mr Shaun Payne, General Manager. He made himself available later in the day to give evidence.

[5] Mr Andrews commenced employment with the Respondent on 19 July 2021 as a full-time Sheet Metal Tradesperson. Mr Andrews was employed by the Respondent, however he primarily performed work for Gladstone Sheet Metal (GSM).

[6] The Respondent and GSM have workshops on the same premises in Gladstone, sharing a common driveway. The two entities are managed by Mr Payne.

[7] Mr Andrews' role involved him performing both workshop and site-based work for contractors at locations such as Queensland Alumina Limited (QAL). During his employment with the Respondent, Mr Andrews performed work at QAL to which the Respondent was subcontracted by a contractor called Cutuli Electrical.

[8] Each day, Mr Andrews was expected to complete handwritten timesheets for the work he had performed. The timesheets were then provided to the Respondent's accounts department and management. The Respondent's accounts department then entered the timesheets electronically into the payroll system and sent invoices to clients such as Cutuli Electrical.

[9] On 5 September 2022, Ms Barreto de Mattos sent the following email to Cutuli Electrical:

We have contacted you on several occasions regarding the above invoices for the Total Amount of $8,412.94.

As to date this outstanding account has not been settled in full, we confirm that we will be lodging a Minor Debt Claim in the Gladstone Magistrates Court within the next 7 days.

If we receive payment within the next 7 days, we will cancel this action.

[10] On 7 September 2022, Mr Brett Lodding, Director - Commercial Operations of Cutuli Electrical responded as follows:

Can you please provide us up to the 16th September while we investigate this further.

No PO was raised internally for this work and we had not received these (Feb & May) invoices until recently. You also have never issued Cutuli a monthly statement, so it's very hard on our end to know these were outstanding. You mentioned these invoices were sent and were sent directly to Tyrone. Can you please provide these sent emails.

[11] Ms Barreto de Mattos responded that day as follows:

Cutuli Electrical have not applied for a Credit Account with GSM and therefore Payment Terms are COD so even if you did not receive the invoices back in February and May, once the copies were sent 3 weeks ago, they should have been paid straight away.

Both Gary, our Workshop Manager, and Danielle, our Accounts receivable, have spoken to Tyrone over the phone and he has acknowledged that these invoices were due and that he was arranging payment straight away which never happened. The same happened to your Accounts Department, acknowledge of receipt of Invoices, promised payment and no payment received.

Below is the email Log GSM - Cutuli. As you can see quotes were first sent, approved, service completed, and invoices sent. Statements were also sent in June and July.

Hopefully this clears everything and you can make prompt payment of outstanding invoices."

[12] Mr Lodding replied the same day as follows:

If a company send us an invoice for $8,000 that are 2/3 months old with no internal confirmation this work was ever completed we need to investigate this before paying.

"Both Gary, our Workshop Manager, and Danielle, our Accounts receivable, have spoken to Tyrone over the phone and he has acknowledged that these invoices were due and that he was arranging payment straight away which never happened" I have spoken to Tyrone and he certainly never confirmed these would be paid straight away.

Can you please send me the actual email where these invoices were sent from. I will always follow up with the team on our end to see if they have been missed.

[13] At 1:23pm on 12 September 2022, Ms Tahnee Jenkinson, Contract and Administration Manager of Cutuli Electrical sent the following email:

We have been provided a report from QAL which outlines all the swipe card entry dates & times for employee/contractors entering site.

This report has identified the following for Glenn Andrews:

18/03/22 - Charged 8.4 hours on the invoice - cardax didn't have Glenn swiped in on site at all for this date

19/03/22 - Charged 10 hours - Glenn signed in for total of 7.3 hours (back & forth on site 3 times throughout the day)

29/04/22 - Charged 8.4 hours on invoice - no sign of Glenn swiping onto QAL

30/04/22 - Charged 10.5 hours on invoice - signed in for 7.6 hours

19/05/22 - Charged 3 hours - Glenn was on site for 2.5

Can you please advise how you came to the figures/hours provided on invoice 1657?

[14] Around 6:50am on 13 September 2022, Mr Andrews entered the front office of the GSM workshop to find his work belongings and tools there. Mr Murray then met with him, informing him that his employment was being terminated because of fraudulent timekeeping.

[15] According to Mr Andrews, he sought further information as he had never had this assertion put to him before. Mr Murray said words to the effect that he could not speak to anyone in person and he was to email Mr Murray or "next door" (referring to Mr Payne). Mr Andrews was then handed a termination letter (the First Termination Letter), as follows:

I am writing to you about your recent performance during your employment with Gladstone Sheetmetal

Over the past 3 months yourself and I have had several discussions about your performance in all areas of your obligations. You have been given two verbal warnings relating to this performance related matter.

On the 02-09-2022 a investigation was put in place regarding your fraudulent time keeping with one of our clients on a site based work front. Our client has engaged the site owner and recovered all relevant documents regarding time spent on the work site. This has now been analyzed and proven that the hours you had submitted were false and deceptive in all regards.

Regarding the possible industrial relations fall out regarding this matter and the nature of the act, I'm left with the decision to terminate your employment as of immediately - 7.00am Tuesday the 18th of September

[16] Mr Andrews learnt that the job in which the issues related to were in respect to Cutuli Electrical. At 8:34am, the same day, Mr Andrews sent a text message to Mr Murray seeking an email address he should use to communicate with the Respondent and sought details of the hours in question. At 4:39pm that day, Mr Murray sent Mr Andrews an email with two attachments; a revised copy of the termination letter and a list of entry and exit dates and times Mr Andrews left the QAL site between 19 March 2022 and 20 May 2022. The revised copy of the termination letter amended the date of termination to 13 September 2022 in the last paragraph.

[17] It is noted that the list of entry and exit dates and times between 19 March 2022 and 20 May 2022 provide Mr Andrews with no awareness as to what he had been accused of.

[18] At 3:05pm on 13 September 2022, Ms Barreto de Mattos sent the following email to Ms Jenkinson:

Base on the email below we have adjusted the Invoice 1657 to reflect the correct hours.

Like I explained to you over the phone, our charges were based on the timesheet that the employee completed claiming the hours of work for the project. Since finding out that the time claimed, and the time worked did not match, we have terminated such employee as this is unacceptable behaviour.

[19] Mr Lodding sent a further email on 13 September 2022, advising that on account of what the Respondent had said it had uncovered in respect of the particular invoice, Cutuli Electrical wished to further scrutinise invoices and ensure that if Mr Andrews had gone 'rogue', Cutuli Electrical had not been overcharged on other occasions. Ms Barreto de Mattos agreed and confirmed the Letter of Intent sent by the Respondent to Cutuli Electrical could be disregarded. She requested Mr Lodding to inform her of 'any further findings'.

[20] On 10 October 2022, Ms Barreto de Mattos chased Mr Lodding up in respect of the two outstanding invoices. Mr Lodding requested Ms Jenkinson provide a breakdown of the charges claimed.

[21] On 10 October 2022, Ms Jenkinson replied to Mr Lodding, copying in Ms Barreto de Mattos as follows:

I have reviewed the hours on the cardax report for Glenn Andrews back to start of January and there are inconsistencies with the attached invoice (Which Cutuli has already paid in full). GSM provided the hours breakdown for this invoice as per below, & there are multiple days they have charged us for Glenn Andrews but he hadn't attended QAL site based off cardax report.

Total hours overcharged = 33.5 hours x $135 hr = $4522.50 + GST

Discussions with Tyrone, Duane Kent would have accompanied Glenn Andrews on site. As Glenn wasn't on site for the 27/01 & 16/02, hours for Duane on these dates are not to be paid.

27/01/2022 Andrews, Glenn Patrick Labour ‐ NT 2.00 - Not on site

15/02/2022 Andrews, Glenn Patrick Labour ‐ T.5 2.40 - Not on site

15/02/2022 Andrews, Glenn Patrick Labour ‐ NT 5.50 - Not on site

9/02/2022 Andrews, Glenn Patrick Labour ‐ NT 2.00 - Not on site

8/02/2022 Andrews, Glenn Patrick Labour ‐ NT 7.00 ‐ Correct

4/02/2022 Andrews, Glenn Patrick Labour ‐ NT 3.00 - Only on site from 11am - 12pm (overcharged 2 hrs)

3/02/2022 Andrews, Glenn Patrick Labour ‐ NT 7.60 ‐ Correct

3/02/2022 Andrews, Glenn Patrick Labour ‐ T.5 0.40 ‐ Correct

2/02/2022 Andrews, Glenn Patrick Labour ‐ NT 7.60 ‐ Correct

2/02/2022 Andrews, Glenn Patrick Labour ‐ T.5 0.90 ‐ Correct

17/02/2022 Andrews, Glenn Patrick Labour ‐ NT 7.60 - Not on Site

1/02/2022 Andrews, Glenn Patrick Labour ‐ T.5 1.40 ‐ Correct

1/02/2022 Andrews, Glenn Patrick Labour ‐ NT 7.60 ‐ Correct

31/01/2022 Andrews, Glenn Patrick Labour ‐ NT 0.60 - Not on Site

28/01/2022 Andrews, Glenn Patrick Labour ‐ T.5 0.90 - Only on Site from 7:30am - 1:30pm (Total 6hrs - Overcharged by 3hrs)

27/01/2022 Andrews, Glenn Patrick Labour ‐ T.5 1.00 - Not on Site

27/01/2022 Andrews, Glenn Patrick Labour ‐ NT 2.00 - Not on Site

27/01/2022 Kent, Duane Labour T.5 1.00 - Unsure as don't have records for Duane Kent - As Glenn wasn't on site, Duane Kent wouldn't have been on site to accompany Glenn.

16/02/2022 Kent, Duane Labour ‐ NT 3.10 - As Glenn wasn't on site, Duane Kent wouldn't have been on site to accompany Glenn.

[22] It is apparent that the Respondent was of the view, at the time that it dismissed Mr Andrews, that he had engaged in time fraud on the following dates:

• 18 March 2022;
• 19 March 2022;
• 29 April 2022;
• 30 April 2022; and
• 19 May 2022.

[23] Post-termination, the Respondent was of the view that Mr Andrews had engaged in time fraud on the following additional dates:

• 27 January 2022;
• 28 January 2022;
• 31 January 2022;
• 4 February 2022;
• 9 February 2022;
• 15 February 2022; and
• 17 February 2022.

[24] On 17 November 2022, Mr Payne advised that he had reported the matter to the police and sought a stay of the proceedings until a criminal investigation was complete.

[25] The following correspondence was sent to the parties on 17 November 2022:

The Commissioner acknowledges receipt of the Respondent's email below which the Commissioner understands to be an application for a stay of the proceedings pending an outcome in a potential criminal matter which has been reported to the police by the Respondent.

A leading authority in determining whether a stay should be granted is the decision in McMahon v Gould (1982) 7 ACLR 202. In that case, the following are said to be the relevant considerations:

(a) prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;

(b) it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;

(c) the burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with;

(d) neither an accused or the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e) this court's task is one of the `balancing of justice between the parties', taking account of all relevant factors;

(f) each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;

(g) one factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's 'right of silence', and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding;

(h) however, the so-called 'right of silence' does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;

(i) the court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;

(j) in this regard factors which may be relevant include:

1. the possibility of publicity that might reach and influence jurors in the civil proceedings;
2. the proximity of the criminal hearing;
3. the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
4. the burden on the defendant of preparing for both sets of proceedings concurrently;
5. whether the defendant has already disclosed his defence to the allegations.

(k) the effect on the plaintiff must also be considered and weighed against the effect on the defendant; and

(l) in an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed.

At paragraph [31] of Sanford v Austin Clothing Company Pty Ltd t/a Gaz Man, the following was stated: "The respondent is prima facie entitled to have the matter determined as quickly as practicable. An adjournment should not be lightly entertained. The onus to make good the adjournment application lies with the applicant for the adjournment. The applicant is not entitled, of right, to an adjournment in light of the criminal proceedings. Each application for adjournment must be made on its own merits and balance the interests of the parties".

The Commissioner invites the Applicant to provide his views in respect to the Respondent's request below by 4:00pm (AEST) on Friday, 18 November 2022. Upon receipt of the Applicant's response, the Commissioner will make a determination as to whether to grant the request sought and may seek further submissions from the parties in respect of the application."

[26] On 18 November 2022, Mr Bunnag, on behalf of Mr Andrews, provided reasons why the stay application should not be granted. On 21 November 2022, I informed the parties that I had decided against granting the stay application and reasons would be provided in the substantive decision.

[27] My reasons against granting the stay application are as follows:

• The Respondent first visited upon the police on 17 November 2022, just days before it was required to file material in these proceedings;

• I did not consider there were proper grounds for granting the stay application given the incredible speed at which the Respondent undertook the dismissal with very scant information before it;

• I had conducted a telephone conference between the parties on 15 November 2022 and the Respondent did not provide to me any confidence that it had conducted any sort of basic workplace investigation into the allegations of timesheet fraud other than the timesheets appear not to match the clients' records; and

• Mr Andrews' desire to have this application heard and determined in the ordinary course of the procedure and business of the Commission.

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position."

[29] Further, ss.385 and 387 of the Act provides as follows:

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

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

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

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

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

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

Small business employer jurisdictional objection

• [30] A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at the time.[1] For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) all employees employed by the employer at the time (including the dismissed employee who has made the unfair dismissal application) are to be counted subject to the caveat that a casual employee is not to be counted unless, at the time, he or she has been employed by the employer on a regular and systematic basis;[2] and

(b) associated entities are taken to be one entity.[3] The expression of "associated entity" has the meaning given by s.50AAA of the Corporations Act 2001 (Cth) (the Corporations Act).

[31] Section 50AAA of the Corporations Act provides as follows:

• (1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

• (2) This subsection is satisfied the associate and the principal are related bodies corporate.

• (3) This subsection is satisfied if the principal controls the associate.

(b) the operations, resources or affairs of the principal are material to the associate.

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

• (8) For the purpose of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(a) has an asset that is an investment in the second entity; or

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset."

[32] Section 50AA of the Corporations Act defines "control" as follows:

• (1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity's financial and operating policies.

• (2) In determining whether the first entity has this capacity:

(a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

(b) any practice or pattern of behaviour affecting the second entity's financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).

• (3) The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity's financial and operating policies.

(a) has the capacity to influence decisions about the second entity's financial operating policies; and

(b) is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity's members;

the first entity is taken not to control the second entity."

• [33] Except in chapter 2E of the Corporations Act, a reference to an "entity" in the Corporations Act is a reference to "a natural person, a body corporate (other than an exempt public authority), a partnership or a trust".[4]

[34] On 1 December 2022, the Respondent sent correspondence that it withdrew its jurisdictional objection.

[35] I am satisfied that the Respondent, including its associated entities such as GSM, employed at least 15 employees at the time of Mr Andrews' dismissal. Accordingly, it is not necessary to consider the Small Business Fair Dismissal Code. The consideration required is only pursuant to s.387 of the Act; was the dismissal harsh, unjust or unreasonable.

[36] In respect of matters that were not within the Respondent's knowledge at the time of the dismissal, the relevant authority is Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359. The decision is good law for the general proposition that if an employer is not aware of the ground of a valid reason for the dismissal at the time the dismissal occurs, it is a ground that can be relied upon to satisfy a valid reason for dismissal. In respect of this matter, if the Respondent can satisfy the Commission that the subsequent dates it was informed of alleged time fraud, those being the January and February 2022 dates, that Mr Andrews did commit time fraud, that would constitute a valid reason for the dismissal, even if it was not known to the Respondent at the time of the dismissal.

[37] Mr Andrews is trade qualified as a sheet-metal worker. In 2021, Mr Payne approached him to work for him, noting that Mr Andrews had previously supplied his CV for consideration.

[38] Mr Andrews knew of the association between the Respondent and GSM, noting that Mr Payne is the manager of both entities and there is a shared driveway. Mr Andrews noted that even if he did work for GSM, he was paid by the Respondent.

[39] Mr Dwayne Kent was his first manager but was replaced by Mr Murray on 24 June 2022. Mr Kent, or later Mr Murray would tell him the jobs he needed to work on. He understood the direction came from Mr Payne. Some days he would be working in the workshop, fabricating items to be used onsite. Other times he would be working onsite. He estimated he worked approximately 70% of his time onsite.

[40] His evidence is that Mr Kent's instructions regarding billing time were very generalised. He was told that everything he did in work hours had to be accounted for and had to be assigned to a job number, which was usually displayed on a whiteboard in the workshop. There was a job number that could be used for general workshop activities, such as tidying or cleaning machinery. However, Mr Andrews said there wasn't always an appropriate job number on the board and in those circumstances, Mr Kent told him to just write down what he did on his timesheets and the office accounts team would sort it from there.

[41] Mr Andrews recalled that when Mr Murray became the manager in June 2022, he gave revised instructions about recording work to job numbers. Mr Andrews questioned what code should be used when assisting colleagues in the workshop, to which Mr Murray said they should bill the work to a job number. Mr Andrews explained to Mr Murray he had been assisting another employee, Trent, but there was no appropriate job number on the board for him to record his time to.

[42] In September 2022, Mr Murray had further conversations with the workforce about recording their time to the general workshop job number. Mr Murray informed the employees there would be a crackdown on the billing of hours to the workshop job number because this cost the business money if they were not charging a client, so they had to make sure they billed all their work and activities to a client job number.

[43] The completed timesheets were taken by Mr Andrews or his manager to Ms Barreto de Mattos in accounts, or to her predecessor. There were some occasions where he did not write the job number for the client on his timesheets because there were times where there wasn't an appropriate job number to record the work to.

[44] Mr Andrews was not responsible for inputting his timesheet data electronically and was not involved in producing invoices which were then sent to clients for payment.

[45] Throughout the late stages of Mr Andrews' employment, he raised concerns regarding several deductions from his pay. On 14 July 2022, he recalled having a conversation with Ms Barreto de Mattos about his tool account. Ms Barreto de Mattos informed him that he owed about $600 for a masonry drill. He said that was correct, but he volunteered that there were more tools outstanding, including an impact and drill set along with a pop rivet gun. Mr Andrews told Ms Barreto de Mattos that he had already paid some of the balance off and agreed to pay $100 per week to reduce his debt.

[46] On 12 August 2022, Ms Barreto de Mattos held a discussion with Mr Andrews, informing him that on account of the other tools he had mentioned, he owed $1,319. Mr Andrews agreed to that amount in that discussion, even though he was certain he had paid some of the balance already. Ms Barreto de Mattos told Mr Andrews that he had to pay more towards the tool account so that it could be settled quickly. Mr Andrews agreed and said that he would talk with his partner over the weekend as to an amount he could afford to have deducted from his pay.

[47] On 15 August 2022, Mr Andrews said he forgot to see Ms Barreto de Mattos about the tool account, noting that she did not approach him to discuss the issue. He was not at work for the following three days.

[48] On 19 August 2022, Ms Barreto de Mattos came to see Mr Andrews, informing him that she had put his tool account deductions up to $140 for the week. Mr Andrews informed her that he was not in agreement. After speaking with Mr Payne, Ms Barreto de Mattos returned to Mr Andrews and said that he would need to pay the full remaining amount of his tool debt immediately. Mr Andrews did not agree and went to speak with Mr Payne, informing him that he could only afford to pay the remaining amount at the rate of $100 per week. Mr Payne assured him that amount was agreed.

[49] At this point, Mr Andrews held concerns as to which deductions had been recorded in his payslips for his tool debt.

[50] On 5 September 2022, Mr Andrews asked Ms Barreto de Mattos for a full print out of his payslips and timesheets. On 8 September 2022, Mr Andrews repeated his request. On 9 September 2022, Ms Barreto de Mattos provided him with a full print out of the payslips and timesheets. Mr Andrews said he reviewed the documents over the weekend. On 12 September 2022, Mr Andrews spoke with Mr Murray and raised concerns about being underpaid and the amount owing on his tool account.

[51] The following morning he was dismissed from his employment.

[52] After being dismissed, Mr Andrews received two payslips. Having reviewed the payslips, he understood that he was not paid any notice period.

[53] Mr Andrew put on reply material in response to Mr Murray's witness statement.

[54] In respect of a conversation with Mr Murray on 20 June 2022, Mr Andrews does not recall having received a verbal warning relating to his attitude or workmanship. He recalls a conversation regarding his punctuality but does not consider that he was given a verbal warning.

[55] In respect of a conversation with Mr Murray on 21 July 2022, Mr Andrews does not recall being given a verbal warning. Mr Andrews notes, however, that the same week he had a discussion with Mr Payne about potentially leaving the Respondent to work elsewhere. Mr Payne offered to and did thereafter increase his hourly rate by $1 from $34 to $35.

[56] In respect of a conversation with Mr Murray on 9 August 2022, Mr Andrews does not recall being addressed about his ability to follow directions.

[57] In respect of a conversation with Mr Murray on 5 September 2022, Mr Andrews agrees that Mr Murray spoke to him about his punctuality. Mr Andrews accepts that he had, on a handful of occasions, been late to work by a few minutes. He did not, however, consider it to be a second verbal warning.

[58] In respect of alleged timesheet fraud, Mr Andrews noted that prior to his dismissal, he had not been provided with any information relating to dates and times he was said to have not been at work. He did not become privy to the material until he commenced this application.

[59] In re-examination during the determinative conference, Mr Andrews explained the QAL site. His evidence included the following:

Mr Bunnag: Mr Andrews, in terms of getting on and off QAL can you just describe what QAL site is like?

Mr Andrews: Yes, it is quite hard to get on and off - not so much off site, but on site most of the time. Card access can be a problem. There is a train that runs out the front across the road, so you can't actually enter anywhere near the site at the time. It is quite difficult sometimes to actually get access. Other times it can be quite easy and you just walk in. Other times it can be quite hard. Yes.

Mr Bunnag: And were there any particular measures in place on site regarding COVID-19?

Mr Andrews: Yes, there was. There was a limited amount of people allowed in vehicles and crib huts, and also if you're an unvaccinated worker you did have to do a nose swab which sometimes that took up to three or four hours in a morning waiting to be tested for COVID as well.

Mr Bunnag: But just for clarity you weren't one of those workers, were you?

Mr Andrews: No. At the start I was, and then, yes, no. I, yes, got vaccinated.

Mr Bunnag: But just to be clear going on to the QAL site it's a live site, it's not like swiping into a car park for instance, is it?

Mr Andrews: No. There is security at the gate and what not. You can get to the car park of QAL quite easily, but actually to swipe in and on to site is quite difficult sometimes.

Mr Bunnag: And typically how far away from the car park - and I'm familiar with the site, but perhaps other people here today aren't - how far away is the car park and the swipe access to the particular job fronts that you were doing at any time?

Mr Andrews: From the car park to the job front itself, well 15 minutes, 20 minutes sometimes, depending on which car park. They have a car park on one side of the train tracks and a car park on the other side that's closer, but the closer one you wouldn't find a park there at any time because it's already taken.

• [60] In written submissions, the Respondent asserted that Mr Andrews claimed to be onsite between 6am and 9am, yet the card data did not demonstrate that he had been on site.[5] The handwritten timesheet records the following for 27 January 2022, noting that the handwriting for the Job No was completed by somebody other than Mr Andrews:

[61] An annotation was made as follows in handwriting which is not Mr Andrews':

[62] It is interesting to note that whoever allocated normal time and time and a half decided to allocate time and a half for one of the hours Mr Andrews worked at QAL for Cutuli, yet it was within his first three hours of work. Mr Andrews was paid $10.50 for site allowance being three times $3.50.

[63] In his witness statement, Mr Andrews said he had difficulty accessing the QAL site on 27 January 2022 to perform work for Cutuli. He recalled that when he got to the QAL site, he could not find his visor or his QAL swipe access card in the ute because the ute had been cleaned out. Mr Andrews messaged Mr Tyrone Cutuli to tell him this:

I don't have a visor for my helmet or swipe card will have to go back to the workshop to grab it

You missed a call, but the caller didn't leave a message

[64] Mr Andrews called Mr Cutuli, however he cannot recall the exact details of the conversation. He does, however, remember that the upshot of the conversation was that he could not come onsite because there was a hold up at Cutuli's end. Therefore, Mr Andrews had to unload the material and equipment from the work ute after travelling back to the workshop. He didn't hear again from Mr Cutuli until 11:00am when he said that they were ready for Mr Andrews, but by that time, Mr Andrews was already working on another job for Frost Engineering, which he started at 9:00am.

[65] The following evidence was given during the determinative conference in respect of 27 January 2022:

Mr Bunnag Now, Mr Andrews, in terms of - if I take you to a further date where there has been an allegation that you haven't been on site. That date is in respect of 27 January 2022. If I take you to your statement, which in that respect is on that particular date in question, is detailed on page 45 of the court book and it's at paragraph 36(i). You detail what you were doing on that day. It seems to me that the allegation that's being made against you, Mr Andrews, is that for a period in the morning that you weren't actually on site. Can you explain to the Commission what you were doing at that time?

Mr Andrews: I was meant to attend the site on that day. Someone's cleaned out the work ute and left me helmet and all that out of the car that I need to attend QAL site. So I've had to come back to the workshop and then go back out, and at the time when I went back out they must have been having a blow off or permit issues, and I wasn't actually able to go on to that site that day. By text messages with Cutuli they said that I wasn't able to attend site that day.

Mr Bunnag: So your evidence is that you attempted to get onto site. You've corresponded with the contractor at the site about going onto site?

Mr Bunnag: Is it fair to say that you were performing tasks associated with that job, such as loading, de-loading equipment?

Mr Andrews: Yes. Yes, I was. I was meant to be on site that day, but, yes, I travelled to and from site to try and get on site and unloaded equipment and loaded equipment.

Mr Bunnag: Just for the benefit of the Commission when we're talking about equipment we're not talking about a tool bag. What sort of equipment were you having to unload between site?

Mr Andrews: Ducting and flashing, and obviously my tools and equipment as well.

Mr Bunnag: And you had to travel from the workshop in a work car. Could you estimate how long that takes to get out to QAL from there?

[66] It is noted that Mr Bunnag was cautioned in respect of asking leading questions.

[67] In reply submissions, the Respondent put the following:

"27/01/2022: As per Handwritten timesheet submitted Mr Andrews claimed to have been on site from 6am to 9am (He has written ON SITE RATE). No where on his time sheet he notifies that he was not onsite. From the message sent to Tyrone from Cutuli Electrical at 6:20am Mr Andrews makes believe that he is going to workshop to grab missing items and will return to site and that is not what happened. Mr Andrews only reported back to the workshop at 9am and then started working on the next job for frost engineering. If Mr Andrews where not onsite from 6am to 9am he should not have been paid onsite rate. Mr Andrews did not report to GSM or GRA management that he was not on site. He claimed payment for those hours though."

[68] In cross-examination, the following was put and answered:

Ms Barreto de Mattos: Okay. Another question that I have for you is you were aware that for you to enter QAL site you were required to swipe your personal card to enter that site, and that will register that you have been on site. Is that correct?

Ms Barreto de Mattos: Okay. So if you are aware of that, that that would be recording that you were on site, why in certain situations you claim on your timesheets to be on site, but there is no recorded swipe card records for you being on site. How do you explain that?

Mr Andrews: Because I was doing jobs associated with that job that's on site, like travelling from site or to site, and things happen on these sites that you might not be able to attend onto the site to do the job itself. So I just put down the job and what I was doing.

Ms Barreto de Matos: Okay. But you just said, Mr Andrews, that you were aware on how to record your timesheets in site rates, and site rates means being on site. So if you fabricating something at the workshop or anywhere else that is not on site would that be on site rates?

Mr Andrews: If I was been on site and I'm travelling to and from site picking up materials or whatever I assume that that was part of the site rate, and I was never informed otherwise that it wasn't.

Ms Barreto de Mattos: Okay. In this case you just said that if you are going to site and from site you would record as site rate. However, in these particular instances you were never on site. So if you were never on site you could not have claimed site rates, even if you're going to there and back, because there is no record of you being there. So do you agree with me that those were incorrect claims?

Mr Andrews: Because I'm travelling to and from site. I'm still on the job - - -

Mr Andrews: The Cutuli's job, the Young's job, or any of the jobs that I've been on site I'm travelling to and from site. So you're going to and from site, so site - that was my knowledge that's site rate.

[69] In written submissions, the Respondent asserted that Mr Andrews was on site for only 5.5 hours and attempted to enter the site after 11pm which blocked his access card. Mr Andrews claimed for 8.5 hours of work.

[70] The handwritten timesheet records the following for 28 January 2022:

[71] The above is a claim for 9 hours and 6 minutes of work less a 30 minute unpaid meal break, totalling 8 hours and 36 minutes. He was paid for 7 hrs and 36 minutes at normal time and 0.9 hours at time and a half.

[72] In relation to work performed on 28 January 2022, the card data demonstrates the following swipe in and swipe out times for Mr Andrews at the QAL site:

7:12:05am gained entry through Main Gate Boom Entry

10:24:14am exited to offsite through Main Gate Boom Exit

11:00:22am gained entry through Main Gate Boom Entry

1:31:57pm exited to offsite through Main Gate Boom Exit

[73] In his witness statement, Mr Andrews said that on 28 January 2022 he performed work on site at QAL for Cutuli, together with working offsite with tasks associated with the onsite work. He stated that he had a lunch break between 12:00pm to 12:30pm in which he has recorded in his handwritten timesheet.

[74] Mr Andrews recalled travelling to and from site in the work ute as he always had. He also recalls having to collect material for the job on the way back to the workshop. He denied attempting to access the site after 11:00pm on this day, as alleged. Mr Andrews stated that QAL is a 24-hour operation; if he had tried to access the site, he would have been permitted to do so however the access record simply shows that his card had expired, not that he had attempted to re-enter the site at 11:59pm. Mr Andrews said he was unaware that his card had expired.

[75] Mr Andrews was not asked questions in cross-examination in relation to the work performed by him on 28 January 2022. The Respondent did not include any further submissions in its reply submissions with respect to 28 January 2022.

[76] The Respondent stated that on 31 January 2022, Mr Andrews attempted to enter the QAL site but was denied access due to his card having been blocked. It's not clear what the allegation is, however, it is noted that post-termination, Cutuli Electrical complained to the Respondent that it had been charged in respect of 36 minutes of work performed by Mr Andrews, yet his card was not recorded onsite.

[77] In his witness statement, Mr Andrews stated that at around 11:00am on 31 January 2022, he had tried accessing the QAL site but could not due to the card expiring. He was not aware of it prior to going to site. Mr Andrews continued trying to access the site but could not. Mr Andrews noted that this is demonstrated within the swipe access record for this day. It is evident that he made numerous attempts at around 11:00am. To address the expiration of his swipe card, Mr Andrews texted Mr Cutuli who organised for his card to be activated again. The text message is extracted below.

Hey mate what time will you be going to measure the flashings today

You missed a call, but the caller didn't leave a message.

You missed a call, but the caller didn't leave a message.

Should be ill send a photo though. Complete date is 23/10/2020

Thanks, pretty sure they last 2 years so no issues with that

And just sent driver's licence though if you need that

[78] The card data demonstrates that the card was activated at 12:43pm.

[79] The Respondent stated that on 4 February 2022, Mr Andrews claimed to be onsite for three hours, but his card data shows that he was only onsite for one hour.

[80] The handwritten timesheet records the following for 4 February 2022, noting that the handwriting for the Job No was completed by somebody other than Mr Andrews:

[81] In his witness statement, Mr Andrews stated that between 9:00am and 12:00pm on 4 February 2022, he worked onsite at QAL for Cutuli and off-site, doing tasks associated with the job. His work involved travelling to and from the QAL site to measure a job and on the way back to the workshop, he picked up material to fabricate as part of the job.

[82] The card data demonstrates that he was onsite between approximately 11:05am and 12:05pm.

[83] The following evidence was given during the determinative conference in relation to Mr Andrews' activities on 4 February 2022:

Ms Barreto de Mattos: Yes. Mr Andrews, would you agree with me that QAL site is about 20 minutes from here, or even less than that, and if you were there to drop off and do work on site and you claim to have been there from 9 to 12 and you say that you were driving to and from site would be basically impossible for you to spend three hours there and only have swiped your card between 11 and 12?

Mr Andrews: I picked up material as well for the job to make the job that I've just measured. So I went to the steel supplies to get the steel for the job, and I'm pretty sure at the time they were on a smoko break or something like that so it's taken a bit longer. It was a toolbox meeting, sorry. It took a bit longer for them to get the order done.

Ms Barreto de Mattos: Yes, Mr Andrews, but you just said previously that you were aware that on site rates (audio malfunction) nothing regards to job or waiting for an order. Would you be right to charge a site rate for that?

Mr Andrews: Sorry, you cut out a bit there, can you ask that question again, please.

Ms Barreto de Mattos: We've spoken previously about the site rates and you said that you understood how those site rates were applied. Do you agree with me that if you're taking a smoko break or you sitting in a supplier waiting for material you shouldn't be charging a site rate for that?

Mr Andrews: No. I thought that's associated with the job and I'm travelling to and from site. I'm not in the workshop. I thought that was part of the job. Yes. I - - -

Ms Barreto de Mattos: But you said that you were there to deliver. You said you were going to the site to deliver and to measure the site. So where is the picking up materials since you said that - you know, in various times in your statement you said that you would prepare the materials and load the truck on the previous day. So what happened on this day?

Mr Andrews: Well, as you can see I started at a later time to get that material to the job, so I obviously had to load up, and as for - yes, that's pretty much it, sorry.

Ms Barreto de Mattos: Okay. So it took you three hours to get the materials - well, two hours to get the materials to drive to site which is only 20 minutes from here, and then you claimed site rates on that?

Mr Andrews: No, I was picking up the materials after I measured the job. I loaded the truck, took the materials for the job out there, delivered it, measured up other parts of the job, and then picked up the materials on the way back. This was more than one job on this occasion. There was downstairs at the substation, the upstairs of the substation, and the boiler house, so there was another job going on there. That was all with Cutuli that they wanted done out there, so there was multiple work fronts, it wasn't just one job.

Ms Barreto de Mattos: Okay, Mr Andrews, there is a discrepancy with your information right now, because on your timesheet you said that you were there between 9 and 12 measuring and getting material. You just told me now that it was after the fact, after leaving the site. According to the Cardax report you left the site at 12. So you just said that you were not picking up material or you were preparing anything between 9 and 11, which is the extra hours you claimed to be on site. So you just confirmed right now that that particular case you charged us incorrectly?

Mr Andrews: I needed to load the vehicle, to get to site, and then - - -

Ms Barreto de Matos: That's not what you said previously?

Ms Barreto de Mattos: No. You just said that you had to collect materials after the site and that's why you took longer, and then you had to go back on the site, but nothing like that is confirmed by the Cardax report. So you (audio malfunction) that you were there between 9 and 12. Cardax (indistinct) you being there for one hour, and you just said that you went to get materials after visiting the site. So I've got no more questions about that specific date, Commissioner.

Commissioner: Mr Andrews, do you want to clarify what you did on the day?

Mr Andrews: I have loaded up the work vehicle to go to site.

Mr Andrews: That would have been about 9 o'clock. I'm pretty sure, yes. And then I've - well, I've gone to site, unloaded the material - - -

Commissioner: Have you swiped your card at this point in time?

Commissioner: So what were you doing between 9 and 11?

Mr Andrews: I was loading materials and driving to site.

Commissioner: I have asked you did you leave the workshop at 9; did you?

Mr Andrews: Well, I was loading the materials for that job at 9.

Mr Andrews: About 20 minutes, half an hour I would say. I wasn't sure - I'm not sure what materials at the time was going on site, but I did load materials to take out to site.

Commissioner: So if you left at say 9.30 and it takes 20 minutes you'd arrive on site at about 10 to 10?

Mr Andrews: I've unloaded the materials and I've - - -

Commissioner: Have you swiped by this time to unload the materials?

Commissioner: So help me out with, you know, between 10 and 11, what are you doing?

Mr Andrews: Between 10 and 11? So - well, I thought that - the Cardax was at 10, sorry. I'm not sure. I've just taken the job out there and, yes, that's about it.

Commissioner: Okay. But then when do you go to the steelworks?

Mr Andrews: Yes. I might have had to pick up screws or something like that as well. I don't know, I've - - -

Commissioner: This is your account of between 9 and 12, but it's not making much sense to me?

Mr Andrews: Yes. Well, I grab a bite to eat before I went out. Obviously that's around smoko time, and that's part of my lunch. So I just had a bite to eat and went out there.

Commissioner: Do you recall what you might have bought and would you have paid by cash or by credit card?

Mr Andrews: I would have just paid by cash probably. I keep 20 bucks just for when I'm on jobs so I can grab a bite to eat.

Commissioner: Where would you normally stop from the workshop to site to buy something?

Mr Andrews: There's a smoko shop just across the road from the - from work, or on the way through there's Subway. There's a few different spots to stop on the way out to QAL.

Commissioner: Okay. But do you understand that there's a concern now between say - you know, there's an hour's gap that may not be accounted for?

Mr Andrews: Yes. I do see that. I don't know how there's an hour's gap. I probably - more than likely I've grabbed something to eat, needed materials for the job beforehand and got them, screws, fixings, stuff like that.

Commissioner: Is that before you leave the workshop or after you leave the workshop?

Commissioner: I thought you said you took say half an hour to pack the vehicle?

Commissioner: You then drive 20 minutes. It only takes 20 minutes. I don't know when you've done that, either before you've had a smoko break or after. But now you're saying that you also needed to pick up materials. Where would you have picked the materials up from?

Mr Andrews: United Fasteners or something like that.

Mr Andrews: That's where we get our screws from, so - yes. With the account order.

Commissioner: Do you recall doing that on this day?

Commissioner: Is this the first time you've given evidence to that effect?

Mr Andrews: I do recall picking up items for the job, yes.

Commissioner: What do you think you needed to pick up?

Commissioner: And there would be a record of that, would there?

Commissioner: Where do you drive to? You go to United Fasteners and what do you say, 'I need X, Y, Z' and they give it to you and it's on account; is that right?

Mr Andrews: Yes. Go through accounts, they do a PO order and then I go up there with the purchase order.

Commissioner: So there would be a record of this, would there, to assist in the half hour to an hour discrepancy in your timing?

Commissioner: All right. We can ask for that to be produced. Ms Barreto de Mattos, do you look after that area?

Commissioner: So if I asked for any purchases made on 4 February 2022 that could be produced?

Ms Barreto de Mattos: I want to also let you know, because every PO that is order like they have to call the office for a PO. We have to put that PO into our system, and we also like who ask for that PO, and once the invoice is produced by our supplier we are also able to tell you who purchased that. So if there is any purchases for United Fasteners on 4 February that Mr Andrews purchased I'll have a record of it.

Commissioner: All right, fabulous. We can do that after the hearing.

Commissioner: All right, so that's what you did, Mr Andrews. You packed the vehicle, either got the material first or had a smoko, you're not sure. Do you recall which order?

Mr Andrews: No, I don't. I don't recall which order I did that. I'd say I would have got all the materials and that ready for the job before I had the smoko, so I was right to go out there.

Commissioner: So do you think that you left the workshop with the materials, went to United Fasteners, picked up the items that you needed and then had smoko?

Commissioner: Right. So would that have you at United Fasteners at about say 10 pm, would it, or 9.45 or something like that, would it?

Commissioner: Yes, okay. Then you might have had smoko, you can't recall - - -?

Commissioner: - - - and then you've gone out to site?

Mr Andrews: Yes. And then I would have went out to site from there.

Commissioner: And that has you using your card at about 11.05, is that right?

Commissioner: All right. You're there until 12, and then what happens, you then go to the steel suppliers, is that right?

Commissioner: And that would have had you returning quite late then?

Commissioner: Yes, but well beyond 12 because you've left the site at 12?

Commissioner: What page again, was that 169, was it?

Commissioner: Thank you. So then you've recorded lunch between 12 and 12.30?

Commissioner: But that can't be right, can it, because you would have been at the steel suppliers at that time?

Mr Andrews: I would have - I stopped when I was at the steel suppliers, because they were in a toolbox meeting.

Commissioner: Yes, but the timesheet is not an accurate recording because you were at the steel suppliers. If you left site at 12 how long does it take you to get to the steel suppliers?

Mr Andrews: About 20 minutes, half an hour, depending on traffic.

Commissioner: So you don't get to the steel suppliers until 12.30-ish?

Commissioner: And you're there for how long do you think?

Mr Andrews: About half an hour, 20 minutes, waiting for them.

Commissioner: Right. So then you leave at about one and then you go back to the workshop?

Commissioner: Your timesheet doesn't properly record your actions of the day. Do you agree with that?

Mr Andrews: Well, not specifically. Yes. I only write down what I'm doing for the day. Like that's all I do is write down what I've done for the day. It was a fair while ago to recall exactly then what's happened as well, you know, but, yes. All right, well that's - yes, I didn't - didn't write that down correctly 100 per cent.

Commissioner: The reason this came to the company's attention was because you claimed three hours on site and the client says he's only here for one. You have said that you think for the travel to and from constitutes that kind of work, and then we've drilled a little deeper to find out that there's quite a gap before you actually go to site at 11.05, and you've helped explain where you were, acknowledged there might have been a smoko there. Clearly you couldn't have been having lunch if you're correct about going to the steel suppliers straight after leaving site and then going to the workshop?

Mr Andrews: Yes. Well, I just writ down what I did for the day on my timesheet, and I was doing work associated with that at the time beforehand.

Commissioner: But it's not accurate, it can't be accurate. You agree that 12 to 12.30 lunch is not accurate?

Mr Andrews: Well, I had a break at about that time. That's when we're meant to have lunch is at 12 to 12.30, so - - -

Commissioner: You didn't, you drove from the site to the steel suppliers at about that time?

Mr Andrews: Yes, but we normally have lunch at about 12 to 12.30 and I've had lunch that day, so I put it down in there.

Mr Andrews: On my way there, or when I was there. I don't recall where I actually had lunch that day.

[84] Following the determinative conference, the Respondent produced all Purchase Orders made on 4 February 2022. There were no Purchase Orders made on that day to United Fasteners or nominating Mr Andrews on the purchase order.

[85] The Respondent noted that Cutuli Electrical had informed the Respondent that on 9 February 2022, Mr Andrews claimed to be onsite for two hours, but his card data shows that he was only onsite for one hour.

[86] The handwritten timesheet records the following for 9 February 2022, noting that the handwriting for the Job No was completed by somebody other than Mr Andrews:

[87] An annotation was made as follows in handwriting which is not Mr Andrews':

[88] In his witness statements, Mr Andrews stated that from 4:00pm to 6:00pm on 9 February 2022, he worked at QAL, attending a site induction. He recorded this in his timesheet as "Cutuli/monos", which referred to Monadelphous, which is another contractor that for which he and the Respondent perform work for at QAL. Mr Andrews confirmed he did not write the job number on his timesheet.

[89] On 10 February 2022, Mr Andrews' swipe pass at QAL was amended to reflect him having completed a QAL induction on 9 February 2022. The company data field was changed from Monadelphous to Cutuli Electrical.

[90] Mr Andrews was not asked questions in cross-examination in relation to the two hours of induction he performed at QAL on 9 February 2022. The Respondent did not include any further submissions in its reply submissions with respect to 9 February 2022.

[91] The Respondent noted that Cutuli Electrical had informed the Respondent that on 15 February 2022, Mr Andrews claimed to be onsite for 5.5 hours. In fact, Cutluli Electrical noted it had been charged for 5.5 hours at single time and 2.4 hours at time and a half.

[92] The handwritten timesheet records the following for 15 February 2022, noting that the handwriting for the Job No was completed by somebody other than Mr Andrews:

[93] An annotation was made as follows in handwriting which is not Mr Andrews':

[94] It is interesting to note that Mr Andrews was onsite at QAL for only 5.5 hours, yet whoever attributed his work time added an additional 2.4 hours in cost to the Cutuli Electrical account. This was not done by Mr Andrews. It appears that Cutuli Electrical was incorrectly charged 2.4 hours which should have otherwise been charged to the 1615 job number. This was further exacerbated to Cutuli Electrical on account of the 2.4 hours being charged at time and a half.

[95] Mr Andrews' payslip does not record him being paid any site allowance for work performed on 15 February 2022.

[96] Mr Andrews was not asked questions in cross-examination in relation to the 5.5 hours of induction he performed at QAL on 15 February 2022. The Respondent did not include any further submissions in its reply submissions with respect to 15 February 2022.

[97] The Respondent noted that Cutuli Electrical had informed the Respondent that on 17 February 2022, Mr Andrews claimed to be onsite for 7.6 hours.

[98] The handwritten timesheet records the following for 17 February 2022, noting that the handwriting for the Job No appears to have been completed by Mr Andrews:

• [99] Mr Andrews' payslip does not record him being paid any site allowance for work performed on 17 February 2022. It appears on the electronic pay slip,[6] he was incorrectly coded to the Cutuli Electrical job number of 1215 by whomever did the payroll.

[100] In relation to Invoice 1657 for work with Cutuli Electrical, the handwritten timesheet records the following for Friday, 18 March 2022:

[101] The relevant payslip demonstrates Mr Andrews was paid the following for the day:

[102] In relation to Invoice 1657 for work with Cutuli Electrical, the handwritten timesheet records the following for Saturday, 19 March 2022:

[103] The relevant payslip demonstrates Mr Andrews was paid the following for the day:

[104] Mr Andrews stated the following with respect to the above two days, 18 and 19 March 2022, and in particular, noting that he was not the person who completed the job number on the handwritten timesheets; this was completed by another person:

(a) On 18 March 2022, Mr Andrews worked 7 hours from 7:30am to 2:30pm doing installation at Penser. From 2:30pm to 4:30pm, Mr Andrews worked for 2 hours preparing for installation/fabrication for Cutuli Electrical. This is recorded on Mr Andrews' handwritten timesheet. Mr Andrews did not write the job number for Cutuli Electrical on his manual timesheet. However, the electronic payroll timesheet does not record a site allowance for his work at Cutuli Electrical, which confirmed why he was not onsite because he was doing work associated with that job, but not onsite.

(b) On 19 March 2022, Mr Andrews was performing work between 7:00am and 5:00pm for Cutuli Electrical. Some of the work was performed onsite at QAL. When he was working offsite it was for the tasks associated with the onsite work. Mr Andrews said this is recorded on his handwritten timesheet and noted that the job number for Cutuli Electrical was not written on his manual timesheet. Mr Andrews recalled picking the work ute up from the workshop in the morning and driving to QAL. Between around 10:30am until around 11:35am, Mr Andrews said he left site and went to Bunnings to get some spray foam and silicon for the job, grabbed some food and ate on the way back to QAL. Between 1:42pm and 3:05pm, Mr Andrews left QAL and went to the workshop to fabricate some flashings that needed to be installed. Mr Andrews texted Mr Darryl Burr, a colleague who works for the Respondent, confirming he needed access to the workshop. He sent a further text when he had completed the work at the workshop. Mr Burr had the workshop keys and knew the alarm codes. The text messages are extracted below:

8:30am Mr Andrews: Hey mate how's it going do you know if anyone

2:54pm Darryl: No worries I will call back and turn on the alarm"

[105] Mr Andrews advised that after he completed the work at the workshop, he headed back to QAL to seal the job as rain was forecast. When he left the site, he used the QAL carwash to remove the caustic and bauxite residue off the work ute.

[106] In further evidence given during the determinative conference, Mr Andrews stated that he went to Bunnings on 18 March 2022 and purchased items for the work to be performed, including fire retardant spray foam. He didn't have a toolbox in the vehicle, and regrettably, the drill in the back seat punctured the spray foam in the vehicle. It is pink and it made a significant mess in the vehicle.

• [107] The Respondent's evidence demonstrates that on 18 March 2022, Mr Andrews used the Respondent's account to purchase items, including two spray foam canisters worth approximately $45 each (inclusive of a 5% discount).[7]

• [108] Mr Andrews stated that he returned to Bunnings on 19 March 2022 and paid for the spray foam at his own expense as he considered he had destroyed the company purchased can the day earlier.[8] He attested to the spray foam costing approximately $180.[9] His bank statement does not show him having paid for the spray foam on his credit card and he thinks he may have paid for it by cash.

[109] Mr Andrews reported the spray foam incident to Mr Kent by way of text message and a photo at 6:29pm on 19 March 2022. The text messages exchanged between Mr Andrews and Mr Kent on 19 March 2022 are as follows:

Mr Andrews: Nah the misso will get it cleaned comes off pretty easy

Mr Andrews: Upholsterers resume the other day haha"

• [110] In cross-examination, Mr Andrews stated that the spray foam was punctured shortly after 7am on his way in the vehicle to the site. He later went to Bunnings at approximately 10am. He was challenged as to what kind of work he was performing on site if the spray foam was necessary for the work to be performed. He responded that he had plenty of work to do, including flashing off and putting bits of duct in.[10]

[111] Mr Andrews was asked why he would charge site rates when he had to come and go from site that day? He answered that he understood that because the work was associated with the job, which was the appropriate charge to put.

[112] In respect of hours claimed to have been worked on 29 April 2022, in written submissions prepared by Ms Barreto de Mattos, the Respondent asserted that Mr Andrews had claimed that he had been at work, onsite for 8.4 hours. The Respondent could not demonstrate on the client's log that Mr Andrews had been onsite.

[113] Mr Andrews gave evidence, and his payslip supports the fact that he was not at work on that day. He did not claim to have worked that day and did not receive payment for that day.

• [114] In cross-examination, Ms Barreto de Mattos accepted that when she had put the written submissions together in the defence of this application, she had been wrong about asserting Mr Andrews had fraudulently claimed to have been at work on 29 April 2022. In reply written submissions filed 20 December 2022, Ms Barreto de Mattos did not alert the Commission to the withdrawal of the accusation. I had the following exchange with Ms Barreto de Mattos:[11]

Commissioner: Ms Barreto de Mattos, there's the second lot of material that you provide, but you don't amend your submissions, do you, and you just let 29 April just fall away, do you, at page 323, in the same way that you let 17 February just fall away? You didn't seek to amend that and bring it to my attention?

Ms Barreto de Mattos: I am sorry, Commissioner, I didn't know I had to do that. Like I said, I did - I've never done or held any time of unfair dismissal cases. This is my - I'm not HR, I'm doing - I did basically following the guidelines on site. I didn't know that I'm supposed to bring to your attention that this was incorrect.

Commissioner: You concluded at some point that you were wrong about those two dates?

Ms Barreto de Mattos: I did, when I was doing my second submissions.

Commissioner: How did you feel when you realised that perhaps the company has invoiced the client incorrectly and given the client the wrong charges and it's not Mr Andrews' fault?

Ms Barreto de Mattos: No, when I went back to ask about this, I was informed that those were not directly related because, at the time, Dwayne also did work for the same customer, and then I was informed that it was actually under Dwayne's hours and not Glenn. So, like I said, this was - - -

Commissioner: Wow. So the client hasn't been overcharged, Dwayne did the work, but you pinned it on Mr Andrews?

Ms Barreto de Mattos: No, I did not. The customer - - -

[115] In relation to work performed on 30 April 2022, the card data demonstrates the following swipe in and swipe out times for Mr Andrews at the QAL site:

7:11:51am gained entry through Main Gate Boom Entry

9:48:09am exited to offsite through Main Gate Boom Exit

10:35:43am gained entry through Main Gate Boom Entry

12:51:13pm exited to offsite through Main Gate Boom Exit

1:03:50pm gained entry through Main Gate Boom Entry

3:57:47pm exited to offsite through Main Gate Boom Exit

[116] In relation to work performed on 30 April 2022, the handwritten timesheet records the following:

• [117] In evidence given during the determinative conference, Mr Andrews stated that the handwritten timesheet is not in his handwriting. In particular, it is labelled 'Glen'. Mr Andrews noted that his name is spelt 'Glenn'. Mr Andrews concluded that his former manager, Mr Kent would have completed the timesheet by ringing Mr Andrews the following Monday and asking him how many hours he worked.[12] It is further noted that it is Mr Kent, and not Mr Andrews who would have recorded the job number for the hours worked by him that day.

[118] Mr Andrews made the point in cross-examination that his payslip for 30 April 2022 demonstrates that he was not paid a site rate for the day. His payslip records the following for the work performed on the Saturday:

[119] Ms Barreto de Mattos pointed out in cross-examination that in the pay run, 13-19 May 2022, Mr Andrews was back paid a site allowance for 30 April 2022. I questioned Mr Andrews as to whether he had raised this as an issue. He answered that he often raised issues regarding his pay, and he considered that 90% of the time they were corrected. The payslip for 13-19 May 2022, produced by the Respondent following the determinative conference records simply that a site allowance of $3.50 per hour was paid for 30 hours. There is no reference to any part of that payment constituting 10.5 hours' backpay for work performed a fortnight earlier.

[120] In other material filed by the Respondent following the determinative conference, an email of 6 May 2022 was produced. I understand that the Respondent was attempting to suggest that Mr Andrews had completed the handwritten timesheet for 30 April 2022, and the email attaching his timesheet would demonstrate such assertion.

[121] The email of 6 May 2022 is from Ms Kimberly Mackenzie-Ross, using a Hotmail address. The email attaches seven timesheets of sorts. Some of the timesheets are on proper, lined timesheets. Others are a recording of a person's hours on a piece of paper ripped from a notebook. The email is addressed to Ivana of 'Ivanasbooks'. Presumably, Ivana is a bookkeeper.

[122] Ms Mackenzie-Ross emailed the admin email address of the Respondent on 9 May 2022 with the same attachments.

[123] The recording of hours demonstrates a very hap-hazard approach. One technician, Charles, has recorded his hours on a piece of paper torn from a notebook as follows:

[124] Mr Andrews' account of the hours of work performed by him on 30 April 2022 is as follows. From 6:00am to 4:30pm, he was performing work onsite at QAL for Cutuli, together with offsite tasks associated with this job. He recalled picking the work ute up from the workshop in the morning and driving to QAL. On the previous day, 29 April 2022, a day that he was not working and not being paid, he had been in contact with Mr Tyrone Cutuli of Cutuli Electrical. Mr Cutuli and Mr Andrews exchanged the following text messages on 29 April 2022, in readiness for the work required to be performed onsite on 30 April 2022:

As discussed yesterday, Shelton Hayward will be your Construction Supervisor for the air conditioning duct works at Substation 24 on Saturday. Shelton's mobile number is [redacted].

There has also been a recent focus on unapproved QAL vehicles entering site - please refer to the attached e-mail. Can you please ensure that GRA's vehicle has been QAL approved. If not, this vehicle will need to be left at the front gate and GRA will need access site in one of your approved vehicles.

[125] The following text messages were exchanged with Mr Cutuli on 29 April 2022:

To easy mate. Do you want me to check over out vehicle.

Could you forward the attachment though to [redacted outlook email]

If it's not already approved we won't be able to get it done by tomorrow mate

Yeah I'm pretty sure it's up to scratch. We have been out at Red mud dam.

Do you have the QAL 2022 sticker on your windscreen

You missed a call, but the caller didn't leave a message

[126] On 30 April 2022, Mr Andrews recalled having to wait a while in the carpark after contacting Darren, a Cutuli Electrical employee, who organised for two Cutuli employees to bring a vehicle to him. They arrived in two vehicles, and he was given use of one of the Cutuli vehicles for the day.

[127] There was also an occasion on that day where he had to go out to the QAL carpark and collect further materials. The following text messages were exchanged with Darryl of the Respondent, and Mr Andrews:

I will get them after golf and drop them to the carpark at QAL

[128] In cross-examination, Ms Barreto de Mattos put to Mr Andrews that he had left the site, as evidenced by the card data between 9:48am and 10:35am, and again between 12:51pm and 1:03pm. She wanted to know why he had claimed site rates for the time when he was not onsite.

[129] Mr Andrews responded that on the first occasion, being the period between 9:48am and 10:35am, he left site to get 'smoko'. On the second occasion he was picking up flashings from Darryl, as Darryl went to the workshop after he had finished playing golf and dropped the materials to Mr Andrews.

[130] Ms Barreto de Mattos challenged Mr Andrews as to why he had claimed that he hadn't taken lunch when he was admitting to leaving site to eat? Mr Andrews responded that he is entitled to two breaks per day. When asked where he went, he answered that he went to PieFace and had a pie and a drink. He stated that he had to switch vehicles from the Cutuli vehicle to the usual work vehicle either side of transaction. He had to ensure, when switching the vehicles, that equipment could not be stolen from them.

• [131] Ms Barreto de Mattos further challenged Mr Andrews by asserting that when he had informed his manager of the hours worked by him that day, he had claimed to have been onsite since 6:00am. Mr Andrews denied the assertion. He said the following:[13]

"I travelled to site and picked up the vehicle, and then went on to site, and then I had my smoko break, and I had to do the same thing, go off site, drop the Cutuli vehicle in the car park, walk over to our vehicle, grab our vehicle to go grab smoko, come back, drop it off, grab the other vehicle, go back on the site, and had to do that in the afternoon with the Cutuli workers so that they can take that vehicle back to wherever they take that vehicle."

• [132] Mr Andrews was asked to explain why he claimed to have worked until 4:30pm when had signed out of site at 3:57pm. He stated that he had to wash the bauxite residue and alumina dust off the car, and then return to the workshop to drop the ute off.[14]

• [133] On account of the Respondent being self-represented and not ever having asked Mr Andrews why he claimed site rates, including for travel from the workshop to site, I asked the following:[15]

Commissioner: So, Mr Andrews, do you think you should have written travel time and not claimed site allowance for travel time?

Mr Andrews: I feel it's associated with the job, so should have been charged at site rate because I'm not in the workshop, I'm travelling to the job, to and from the job and - - -

Mr Andrews: No, he never mentioned anything about it, and neither has Shaun or Gary has never mentioned anything to me about it either.

• [134] Mr Murray asked the following in cross-examination:[16]

Mr Murray: Are you well aware of all that time you spent with the company and prior to my engagement that if you were picking up material for the job that was the manufacturing, the work-based site, that's got nothing to do with the site side?

Mr Andrews: No. I thought if I was on site and I was travelling back to the workshop that was - and that's associated with the job that comes down to the site.

• [135] The concern held by Cutuli Electrical on 12 September 2022 was that on 19 May 2022, Mr Andrews had been charged as onsite for 3 hours when his card data shows that he was onsite for 2.5 hours. The card data shows that he entered the site at 1:23pm and exited at 3:53pm. Curiously, the invoice demonstrates that Cutuli Electrical were charged at the rate of double time for 1.5 hours and 'T.15' for one hour, that is, a total of 2.5 hours (in time) and not 3 hours.[17]

[136] In relation to work performed on 18 May 2022, the handwritten timesheet records the following:

[137] The electronic timesheet demonstrates that Mr Andrews was paid 1.6 hours at ordinary time for work performed for Cutuli Electrical at QAL, six hours for work performed at the other site, and then a further 1.4 hours at overtime rates at 1.5 for work performed for Cutuli Electrical at QAL. That is, Mr Andrews was paid for three hours for the Cutuli Electrical work, as claimed by him.

[138] Questions were not put in cross-examination as to the distance required to travel between Youngs/RMD and the QAL site, noting that Mr Andrews could not simultaneously be in two places. The Respondent's submissions never further addressed 19 May 2022 and it was never explained why.

[139] Mr Andrews included in his witness statement an attachment of the Respondent's Employee Handbook, Edition 3, October 2018. It is a very comprehensive document.

[140] Chapter 6, Working Hours and Attendance states the following with respect to timesheets and corrective action:

Employees are required to enter hours daily into AroFlo. Manual timesheets are to be handed to appropriate management for approval, before 8am Friday morning. Only entered and approved hours will be paid.

All absences and attendance times are recorded. Poor timekeeping will be tracked and relevant reports generated. Attendance will be monitored and periodically reviewed by the manager. Unsatisfactory attendance will be highlighted and investigated to ascertain whether employees are experiencing problems which require assistance."

[141] Chapter 16, Conduct and Performance Management states the following:

Incidents of theft, assault, fraud or other serious misconduct shall be deemed to be in violation of the employee's terms of employment, and will be subject to disciplinary action which will usually include instant dismissal. Serious misconduct includes, but is not limited to:

• Any form of dishonesty;
• Theft of company property or revenues, or that of fellow employees, visitors or customers;
• Wilfully defacing or destroying company property, or that of fellow employees, visitors or customers;
• Assault or physical violence towards fellow employees, visitors or customers;
• Fraudulent activities or the misrepresentation of work activities;
• Soliciting or accepting gratuities or bribes; or failure to follow a reasonable and lawful direction.

Please note that where action constitutes criminal behaviour, Police will be contacted.

Employees in breach of this policy can expect to be subject to the procedure outlined in the Performance Management Procedure at Attachment B. "

[142] The Performance Management Procedure is reproduced below:

• As soon as possible after the incident, the manager will talk to the employee. They will explain how the employee's behaviour or performance has deviated from GRA's expectations and will provide example(s) of such behaviour.
• The manager will explain to the employee that if such behaviour continues, disciplinary action will be taken in accordance with the following steps in this policy.
• If it is a performance issue, the employee may be required to undertaking additional training.
• The manager will make a diary note that the employee has received verbal counselling, and will advise them that this has been done. The diary note will include the date of counselling and a brief note as to who was counselled and the circumstances that led to the need for counselling.
• A specific timeframe will be provided to amend behaviour/improve performance.

• Repeated misconduct, unsatisfactory performance or unacceptable behaviour

• Misconduct or unacceptable behaviour that is serious enough to move directly to a written warning

• The manager will make an appointment with the employee to attend a disciplinary meeting, and will explain the reason for the meeting.
• The employee will be given the opportunity to invite someone to attend the meeting with them. The manager will also have a second person present.
• During the meeting, the employee will be:
  • - advised that a serious matter is to be discussed, and the manager will outline their understanding of the allegations;
  • - provided with specific examples, supported by documentary evidence if it is available, of where the employee's behaviour has deviated from GRA's expectations;
  • - given a clear explanation of the expected standard of behaviour, including what improvement is required;
  • - reminded that the employee has receive verbal counselling, if appropriate; and
  • - given the opportunity to respond, to provide explanations for their conduct, and to seek clarification if necessary. If any of the employee's explanations need to be investigated, the meeting may be adjourned at this point, to be recommenced as soon as investigations are complete.
• During the meeting, the manager will:
  • - Explain what changes in behaviour are necessary and together the manager and the employee will make and agree on an action plan to move forward;
  • - Offer any support, training or assistance that is necessary and reasonable to help; and
  • - Set a date to review the situation, usually 2 weeks after the interview.
• The manager will take Minutes of the meeting, detailing responses and the agreed action plans.
• The Manager will offer the employee and other people present at the meeting the opportunity to sign the Minutes and can make a copy of the signed Minutes available to the employee if they wish. If the employee refuses to sign the Minutes, the manager will make a note indicating this with the Minutes.
• Following the meeting, the employee will be provided with a letter, which is a written warning. The letter will refer to earlier instances of misconduct or unacceptable behaviour and the fact that verbal counselling was provided. It will also detail the current incident and state that if the behaviour is repeated, further disciplinary action will be taken, which could lead to and/or include dismissal.
• A copy of the written warning and the Minutes from the disciplinary meeting will be placed on the employee's personnel file.

• Repeated misconduct, misconduct or unsatisfactory performance or unacceptable behaviour after the written warning
• Serious misconduct, but does not warrant summary dismissal

• The manager will make an appointment with the employee to attend a disciplinary meeting, and will explain why the meeting is being called.
• The employee will be given the opportunity to invite someone to attend the meeting with them.
• The meeting will be conducted in the same manner as described in the section above.
• The manager will emphasise that this now constitutes a "final written warning" and the consequences of repeat misconduct may result in dismissal.
• The meeting will be documented in the same way as the above procedure.

• Serious misconduct that justifies instant dismissal

• Once the matter has been fully investigated, the manager will request the employee's attendance at a disciplinary meeting. The employee will be invited to bring a support person to the meeting with them.
• The meeting will be conducted as described in the section above, up to and including the employee being given an opportunity to respond to the allegations.
• The employee will be advised that this matter is serious and could potentially lead to summary dismissal.
• If any of the employee's explanations need to be further investigated, the meeting may be adjourned at this point, to be recommenced as soon as investigations are complete. If the manager is satisfied with the employee's version of events, the interview may be completed, however, the employee may receive a written warning and the manager will set a follow up date to review the situation. This date will usually be less than one (2) weeks. Th manager will also make and document arrangements to continue the employee's employment in the Minutes of the meeting.
• If the employee's evidence does not resolve the issues and all appropriate steps in this procedure have been followed, the manager will reiterate the reason for dismissal and advise that employment is terminated immediately.
• At the conclusion of the meeting, the manager will provide the employee with a dismissal letter, which states the reason for termination and the time and date of termination.
• The manager will offer the employee the opportunity to sign the letter of dismissal indicating that it has been read and understood. If the employee refuses to sign the letter, the manager will make a note indicating this with a copy of the letter placed on the personnel file.
• The meeting will be documented as outlined in previous sections.
• Following the meeting, the manager will:
  • - escort the employee to their workspace to collect their personal items;
  • - retrieve all company property from them; and
  • - escort the employee from the company premises.

Summary dismissals are without notice, and you will be paid only up to the time of the dismissal. The employee's final pay (including any accrued leave) will be deposited in to the employee's nominated bank account, and payslip will be forwarded to their home address.

[143] After being dismissed by the Respondent, Mr Andrews searched for other work, primarily through Seek. He applied for more than 15 jobs across a variety of industries and in roles both befitting of his skills and experience, and lower-level roles.

[144] Mr Andrews eventually found employment and commenced a new position on 1 November 2022 as a Fabricator. He continues to hold this position. Mr Andrews was unemployed for a period of seven weeks and seeks compensation to be ordered to cover that period.

[145] Mr Andrews was not paid notice on termination. His termination pay included a deduction of $1,179.26 for his tool account. He stated in evidence that he did not authorise the deduction to be made for his termination pay.

Evidence and submissions of Ms Barreto de Mattos

[146] Ms Barreto de Mattos did not make a witness statement, but did include relevant matters in the outline of submissions and reply outline of submissions.

[147] In the original outline of submissions, Ms Barreto de Mattos nominated the following dates as matters where time fraud had been committed by Mr Andrews:

• 18 March 2022
• 19 March 2022
• 29 April 2022
• 30 April 2022

[148] The 19 May 2022 concern fell away, it seems.

[149] Post-termination, the Respondent had issues with the following dates:

• 27 January 2022
• 28 January 2022
• 31 January 2022
• 4 February 2022
• 9 February 2022
• 15 February 2022
• 17 February 2022

[150] It was submitted in the original outline of submissions that the Respondent considered Mr Andrews had engaged in fraudulent time keeping and it constituted serious misconduct, warranting instant dismissal. It was submitted that Mr Andrews had not engaged in a single, foolish, dishonest act, but multiple acts.

[151] Noting that at the time of the dismissal the Respondent had before it only five dates of concern, it was submitted that the Respondent conducted a full extensive investigation into all relevant matters as was reasonable in the circumstances. After comparing Mr Andrews' handwritten timesheets and the card entry report, the Respondent determined it was clear that the hours claimed did not match what was recorded on site. The incident was multiple times, so according to the Respondent, it proved not to be an error on Mr Andrews' side but a deliberate, fraudulent activity.

[152] Curiously, it was submitted by the Respondent that a decision was made to stand Mr Andrews down. This did not occur; he was dismissed immediately.

[153] The Respondent referred to the employment contract entered into between it and Mr Andrews where it states the following:

"We may terminate your employment without notice if:

we have reasonable grounds to suspect that you have engaged in serious misconduct, which has its ordinary meaning at law, and includes:

"In the months leading up to his dismissal, Mr Andrews had also received 2 verbal warnings and a 3rd and final written warning regarding his conduct. (Please see attached summary of verbal warnings 1 and 2, and a copy of the Applicant's 3rd and final warning) This 3 proceedings contributed to the summary dismissal which took effect on the early morning of the 13/09/2022. It was deemed by Management that after 3 previous misconduct warnings, this final wilful breach of contract and law constituted the instant dismissal. The Applicant's actions constituted a widespread breaches of company policies and procedure. This was not only to protect our Company from further loss but also to salvage our reputation and avoid further action from customers after being accused of ripping them off through the applicant's actions."

[155] The Respondent submitted that Mr Andrews' actions has resulted in Cutuli Electrical no longer engaging with the Respondent. The Respondent submitted that Gladstone is a small community and it would be unfair to award compensation to Mr Andrews as he has already been paid for hours the Respondent contends he was not entitled to, and the Respondent has had to reimburse Cutuli Electrical.

[156] In the supplementary outline of submissions completed by Ms Barreto de Mattos, it was stated that the Respondent had proof of fraudulent time keeping by Mr Andrews and at the time of the dismissal all internal processes and procedures were followed in accordance with the Act. It was submitted, therefore, the dismissal could not be considered harsh, unjust or unreasonable.

[157] In respect of work claimed on 18 and 19 March 2022, it was submitted that Bunnings receipts demonstrate the spray foam was purchased at 3:22pm on 18 March 2022, and therefore he couldn't have purchased it on 19 March 2022.

[158] The 29 April 2022 concern fell away, without further mention, or acknowledgement to the Commission that the Respondent withdrew its concerns in respect of that day. Ms Barreto de Mattos apologised during the determinative conference for not bringing this to the Commission's attention, as she did with respect to other dates. She noted that the Respondent is self-represented and not accustomed to defending an unfair dismissal claim.

[159] In respect of the concerns held by the Respondent relevant to 30 April 2022, it was submitted that Mr Andrews must have committed time fraud on account of leaving site between 9:48am and 10:35am.

[160] In respect of the concerns held by the Respondent relevant to 27 January 2022, it was submitted that he wasn't on site and therefore was not entitled to claim to have been onsite.

[161] The Respondent's concerns in relation to 28 January and 31 January 2022, together with 9, 15 and 17 February 2022 were not addressed in the supplementary outline of submissions.

Oral evidence given during the determinative conference

• [162] In attempting to cross-examine Mr Andrews, Ms Barreto de Mattos declared that she had, on two occasions inadvertently paid to Mr Andrews $100 tool allowance instead of deducting $100 from his tool account.[18]

[163] Mr Bunnag asked Ms Barreto de Mattos the following in cross-examination with respect to the 17 February 2022 allegations the Respondent had made against Mr Andrews:

Mr Bunnag: All right. Let's just go to a couple of specific examples about how timesheet recording works at the company. Can I take you, please, to page 153 of the court book?

Mr Bunnag: Obviously this is before your time, so it's a little difficult and I'm asking you, I guess, to draw an inference from this about what you think this looks like. Do you accept that this appears to be a manually-recorded timesheet for Mr Andrews' work that he performed on 17 February 2022; yes?

Mr Bunnag: Can you see anywhere on the timesheet that makes reference to any work being done for a contractor called Cutuli Electrical?

Mr Bunnag: You said earlier today that you've prepared the material for the respondent in these proceedings; yes?

Mr Bunnag: So if I take you to your outline of submissions at page 214 of the court book, please?

Mr Bunnag: If I take you to paragraph (g) of that outline, you've suggested that Mr Andrews fraudulently time-kept on this day because Cutuli was invoiced for the work that had been done on that day; yes?

Ms Barreto de Mattos: Sorry, can you repeat that again?

Mr Bunnag: I ask you to have a look at paragraph (g)?

17 February 2022, Mr Andrews claimed to be on site. No sign in or out was found on that Cardax report.

Mr Bunnag: But if you go back to page 153 of the court book, which is in fact Mr Andrews' timesheet for that day, you would accept that Mr Andrews has not put in a timesheet that says that he was working at Cutuli Electrical that day; correct?

Ms Barreto de Mattos: I cannot say that for certain because I don't know what Frost is.

Mr Bunnag: Okay, but I've asked you a question, and I'll be very direct?

Mr Bunnag: There is no timesheet for 17 February 2022 that says Mr Andrews worked for Cutuli, is there?

Ms Barreto de Mattos: Here says 'Frost' - no, it doesn't say Cutuli.

Mr Bunnag: That's right, it doesn't say Cutuli, it says Frost?

Mr Bunnag: Yet, in your submissions, you have asserted that Mr Andrews claimed to be on site on that day working for Cutuli?

Ms Barreto de Mattos: I accept that it's not the case.

Ms Barreto de Mattos: But I'm not - yes, like I said, I didn't know at the time what Frost was and I assumed was Cutuli. I'm sorry.

Mr Bunnag: No, please don't rely on Mr Murray. The words 'Frost' and 'Cutuli' aren't the same, are they?

Commissioner: Don't you have a client called Frost Engineering?

Ms Barreto de Mattos: It just says 'Frost', so, at the time, I didn't know what Frost was and because I got the paperwork from Cutuli saying that they got charged and there was no Cardax report, I assumed that Frost, at the time, was Cutuli.

Mr Bunnag: So you assumed that Mr Andrews had fraudulently time-kept on that day? That's right, isn't it?

Mr Bunnag: Maybe? It's a 'Yes' or 'No' proposition, Ms Barreto de Mattos?

Ms Barreto de Mattos: I didn't know that Frost was not Cutuli and this job number was not Cutuli until later.

Mr Bunnag: So your evidence is that you assumed that Frost was Cutuli and that therefore that Mr Andrews had fraudulently time-kept on 17 February 2022; yes?

• [164] I questioned Ms Barreto de Mattos in respect of the investigation she conducted on 12 September 2022:[19]

Commissioner: I just want to be very clear. If we go to page 168, they are the only dates that you had knowledge of at the time of the dismissal, Ms Barreto de Mattos?

Commissioner: Did your investigation - was it limited to looking at his timesheets, looking at the report and then concluding that he couldn't have been on site because the card doesn't record him being on site for as long as what he's claimed? That's it? Is that the extent of the investigation?

Ms Barreto de Mattos: Yes, because, Commissioner, the people that were supervising him at the time were no longer here, so we couldn't even contact them.

Commissioner: The people who've approved his sheets?

Ms Barreto de Mattos: Well, if he is submitting this to us, we assume it's correct - right? If he got paid for this - - -

Commissioner: I don't know, I don't know. You might want to ask him, 'Is this right? Tell me more about 18 March, tell me more about 19 March, tell me more about 29 April, tell me more about 30 April and tell me more about 19 May.' That's what a prudent employer would/should/ought to have done?

Ms Barreto de Mattos: Commissioner, I understand that, but, at the time, like I said to you, I don't have any training. This was what I was told to follow and what if - it's my experience being here with Mr Andrews, when was any discrepancies that he disagreed with, he would come to me and complain about his - or make or raise an issue about his timesheets, so I would have assumed that if it was incorrect, then he would have raised that to me too.

Commissioner: Who told you to conduct the investigation in this matter?

Commissioner: Who told you to conduct the investigation in this matter on 12 September?

Ms Barreto de Mattos: Was Shaun - Mr Payne. He told me what I - yes, what I needed to do.

[165] Mr Bunnag asked Ms Barreto de Mattos the following in cross-examination with respect to the 29 April 2022 allegations the Respondent had made against Mr Andrews:

Mr Bunnag; Sorry, your evidence just a moment ago was that you compared what Mr Andrews was paid, the timesheets and the email from Cutuli and the Cardax times?

Mr Bunnag: Did you know that Mr Andrews hadn't in fact been working that day and therefore the information provided by Cutuli was wrong?

Ms Barreto de Mattos: Yes, I knew because I've got an email, sorry, that I don't have here, but I saw that he was off work on the 29th.

Mr Bunnag: And yet you persisted with claiming that he had been fraudulently time-keeping on that day in your outline of submissions; yes?

Ms Barreto de Mattos: I don't recall doing that, sorry. Can you tell me where?

Mr Bunnag: Sure. I will go to the particular page number if you just give me a moment. If I take you to page 213 of the court book?

29 April 2022, Mr Andrews claimed he was on site for 8.4 hours. No sign in or out was found on the Cardax report.

Mr Bunnag; But you've said that you did an investigation based on those dates and that you determined - - -?

Mr Bunnag: - - - that Mr Andrews had fraudulently time-recorded because of those dates and your comparison with the timesheets and with the pay data. You hadn't asked him any questions, but that was the basis on which it was decided that Mr Andrews would be terminated. That's right, isn't it?

Ms Barreto de Mattos: Yes. However, I am not investigator and I did what I was told. There are - - -

Ms Barreto de Mattos: - - - mistakes on my part, but there are also dates where the time-keeping don't match.

• [166] Mr Bunnag asked the following in cross-examination relevant to timesheet responsibilities:[20]

Mr Bunnag: Can you take me to the part of Mr Andrews' contract which stipulates how you're to complete timesheets, the meaning of a site allowance and whether travel to and from site is to be included?

Ms Barreto de Mattos: No, he's supposed to do it correctly and with correct information.

Mr Bunnag: I asked you: can you take me to the part of his employment contract which stipulates what you've said?

Ms Barreto de Mattos: - - - that is not stipulated on any of our employees' contacts. However, how is he the only one that doesn't know?

[167] I questioned Ms Barreto de Mattos regarding the hasty decision between learning at 1:23pm on 12 September 2022 that Cutuli Electrical had concerns in respect of five dates, and the dismissal of Mr Andrews early the next morning. She said the dismissal was as per Mr Payne's instructions. The following evidence was given:

Commissioner: So, 12 September, 1.23 pm, by the next morning Mr Andrews is dismissed?

Commissioner: Based on the five dates; is that right?

Commissioner: What do you think about that now, about the five dates? Do you think that there's anything that you could have done better?

Ms Barreto de Mattos: Yes. Well, like I said, I've never done this before, so I actually didn't know what to do then. I did what I was directed to do and, okay, like I said, five days might be some incorrect things that I've submitted, but there are also still some discrepancies and days - discrepancies that he failed to explain, so - - -

Commissioner: Did you think to look at your policy? It's a very well-written policy. Did you think to look at it and have it guide you, if you are inexperienced, to see what it might instruct you to do?

Ms Barreto de Mattos: Like I said, I'm not an HR person and I was not given this duty. All I was given was investigate and report back. That's what I did. I did not have any say on Mr Andrews' dismissal, I have no act on his dismissal at all. I submitted my findings and the dismissal was decided without my input.

Commissioner: Anything else that you want to say then, Ms Barreto de Mattos?

Ms Barreto de Mattos: I think that if I had known more and I'd known better, yes, I could now - moving forward, I can guarantee you that I would do things a bit different, but, yes, for my mistakes made on this, I would like to apologise to you and to everyone, but I still believe from what I've seen that there are discrepancies.

[168] Mr Murray is the Workshop Manager for the Respondent. He made two witness statements in this matter.

[169] The first witness statement detailed times when Mr Murray said that he provided verbal warnings to Mr Andrews. Mr Murray did not state how he knew the dates on which he provided the verbal warnings. He said they were as follows:

"20 June 2022 - verbal warning relating to current performance due to his attitude towards fellow team members, workmanship, punctuality of consistently not complying with employment agreement start times;

21 July 2022 - first 'active' verbal warning relating to his ability to follow directions, workmanship, time frames and punctuality, informing him that if he did not improve his punctuality it would lead to further action;

9 August 2022 - spoken to about his ability to follow directions relating to work procedures to follow clients' requests; and

5 September 2022 - given a second 'active' verbal warning regarding punctuality."

[170] The second witness statement explained Mr Murray's lengthy work experience. He holds over 30 years' experience within the construction and metal industries, from commercial through to industrial and mining projects within supervisor/management roles. Mr Murray said that he had a substantial number of staff under his supervision during his career with a reputation of holding a good rapport with them.

[171] On 12 September 2022, in the afternoon, Mr Murray said he was informed that Mr Andrews had engaged in fraudulent timekeeping. The client had informed the Respondent of the matter. The decision was made to dismiss Mr Andrews because of the serious nature of the matter.

[172] On 13 September 2022, the dismissal took effect. Mr Murray said that he informed Mr Andrews he would be paid one weeks' wages in lieu of notice. Mr Murray informed Mr Andrews that all communication would now need to be by email or text.

[173] With respect to prior warnings, Mr Murray stated that Mr Andrews had been coming in late 3-4 days out of 5 and it was causing conflict with the rest of the workforce. He considered that Mr Andrews showed no consideration to the other staff who were always punctual. Mr Murray considers that he gave him a final verbal warning and threatened dismissal if he was ever late again.

[174] Regarding the $1 per hour pay rise Mr Andrews received, Mr Murray stated he would not have approved the pay rise. He considers that Mr Andrews only received it on account of going through the sister company, dictating that if he didn't get a pay rise, he would resign his employment.

[175] In cross-examination, Mr Murray gave the following evidence, noting he commenced with the Respondent in June 2022:

Mr Bunnag: So it's fair to say, Mr Murray, that you weren't here on any of the dates where Mr Andrews allegedly was fraudulently timekeeping?

Mr Bunnag; Thank you. I want to start by asking you about timekeeping at GSM. Mr Murray, you accept that travel to and from site when using a company provided vehicle forms part of the duties of your employees, don't you?

Mr Murray: Whether it's site-based or general, correct.

Mr Bunnag: And you agree that collecting materials for jobs forms part of the duties of your employees as well; yes?

Mr Bunnag: Thank you. Mr Murray, let's talk about some other administrative arrangements within your company. Mr Andrews was not responsible for generating invoices, was he?

Mr Bunnag: And Mr Andrews was not responsible for inputting his hours into the electronic payroll system, was he?

Mr Bunnag: Do you accept that from time to time there are occasions where employees other than the employee who had completed the work would complete a manual timesheet or put information into a manual timesheet; do you accept that?

Mr Bunnag: So you'd agree that within your 30 years of experience as a manager and supervisor within the construction and metal industries that there have been occasions where a supervisor or another employee completes a timesheet for another employee; yes?

[176] Mr Murray agreed that on 12 September 2022, all the Respondent had before it was a list of five dates disputed by Cutuli Electrical, the card data in respect of those five dates and the handwritten time sheets. Mr Murray agreed that he was not conducting an investigation into the matter. He considered the investigation was a team effort between Mr Payne and Ms Barreto de Matos.

[177] Mr Murray accepted that on 13 September 2022, on Mr Andrews' arrival to work, he dismissed him. In communicating the dismissal, he did not specify any dates where Mr Andrews was alleged to have committed time fraud.

[178] Mr Murray stated that he approved paying Mr Andrews five days' pay. It was his decision and not Mr Payne's. During the determinative conference he stated that he instructed Ms Barreto de Mattos to make the payment, however he learned one day before the determinative conference that it had not been done.

[179] In respect of the Employee Handbook, Mr Murray claimed that yes, he had certainly read the handbook. His evidence is that he never gave Mr Andrews a written warning but had given to him two verbal warnings. When it was pointed out to Mr Murray that the Respondent's submissions referenced Mr Andrews having been given a third and final written warning, Mr Murray said that the third and final written warning was the termination letter. The following evidence was given:

Mr Bunnag: Mr Murray, that's not what a termination is, and I think you know that given your 30 years experience, surely?

Mr Murray: We all have different views and outlines on how we read things.

Mr Bunnag: Are you suggesting that terminating someone is a final written warning? You're not honestly suggesting that, are you, Mr Murray?

Mr Murray: My years of experience, 30 years, it was two verbal warnings and then the written warning was the final. So there's no malice in that. It's two verbal warnings, and you have - it's two verbal warnings and a written final warning.

Mr Bunnag: No, I understand that, but that's prior to termination; yes?

Mr Bunnag: And your evidence a couple of questions ago is that there was no written warning provided, correct?

Mr Bunnag: So the submission that has been made at paragraph (h) is incorrect; yes?

[180] In respect of the disciplinary policy within the Employee Handbook, Mr Murray was asked to read a passage of the policy relating to making an appointment with the employee, explaining the reason for the meeting, allowing the employee to invite someone to attend with them, and outlining the serious matter to be discussed. Further, the policy provides for the employee to respond and seek clarification, if necessary. The following evidence was given:

Mr Bunnag: Do you accept that that's what that says; yes?

Mr Murray: That is correct, and also serious misconduct can be deemed an instant dismissal.

Mr Bunnag: Okay. So we're going to get to now page 115 of the court book, which is relating to serious misconduct justifies instant dismissal. Can you go to that section, please?

Mr Bunnag: So I will just read it out for your benefit.

Once the matter has been fully investigated the manager will request the employee's attendance at a disciplinary meeting. The employee will be invited to bring a support person to the meeting with them. The meeting will be conducted as described in the section above up to and including the employee being given an opportunity to respond to the allegations.

Mr Bunnag: And that applies to summary dismissal, or in your words instant dismissal; yes?

Mr Bunnag: So the processes to be followed is there's to be a meeting as outlined in the above section; yes?

Mr Bunnag: So, Mr Murray, we've read the procedure. You accept, don't you, that you didn't make an appointment with Mr Andrews for him to attend a disciplinary meeting, correct?

Mr Bunnag: And you didn't tell him what the meeting was about, correct?

Mr Bunnag: Exactly. Thank you. You accept that you didn't give Mr Andrews the opportunity to bring a support person, because there was no meeting, correct?

Mr Bunnag: And you didn't have another person with you on the day that you dismissed Mr Andrews, did you?

Mr Bunnag: You didn't outline the allegations of fraudulent time recording to Mr Andrews, did you?

Mr Bunnag: You didn't provide Mr Andrews with specific examples, dates or any documentary evidence to support the allegations though, did you, Mr Murray?

Mr Bunnag: You just said it related to Cutuli, didn't you?

Mr Bunnag: You didn't give or ask Mr Andrews a chance, or give him a chance I should say, to respond at all, did you, Mr Murray?

Mr Murray: Yes, I did. I asked Glenn - I asked Mr Andrews is there anything else you need to say, and he said 'No'.

Mr Bunnag: Mr Murray, you didn't ask him if he wanted to respond to the allegations because you didn't tell him the allegations, the particulars of the allegations, did you?

Mr Bunnag: You just told him to communicate with the business by email if he had questions; that's right, isn't it?

Mr Bunnag; ...... Just so I can clarify for the transcript you accept that you didn't follow any aspect of the disciplinary procedure followed within the handbook?

Mr Bunnag: Thank you. Therefore if I take you to the outline of submissions that have been put forward by your company in this matter. One example is at page 323 of the court book. Please let me know when you're there. So these are the submissions in reply from your company, and at paragraph 2 it says:

At the time of the dismissal all internal processes and procedures were followed.

Mr Bunnag: So based on your evidence you must agree that that submission is entirely inaccurate?

[181] Mr Payne is the General Manager of the Respondent and of GSM. He gave oral evidence after I directed that he attend and give evidence. The following evidence was given:

Commissioner: So is that the first time that the respondent and you learned that the client holds concerns in respect of these invoices, these timesheets, these card entries?

Mr Payne: Well, it appears so, the 12th is when we received that email.

Commissioner: Yes. We know the next morning Mr Andrews was dismissed. Let me know your involvement that afternoon. What happened, who did you have conversations with, what decisions were made?

Mr Payne: So basically this information was brought to me.

Mr Payne: By Lara, our accounts - our accounts manager. We then had a discussion, a five minute discussion between Lara and myself and Gary, that's the sheet metal manager, and, yes, it was basically decided that after looking into it on our end and pulling out his timesheets that it was - there was enough evidence there to show that there was falsified entries.

Commissioner: Did the three of you sit together and work this out between yourselves?

Mr Payne: We had a conversation in the afternoon, yes.

Commissioner: Did you have a look at the timesheets and his payment summaries or his payroll reports or anything like that; did you have a look at that?

Mr Payne: I don't believe I had a look at payroll summaries or anything at that point.

Commissioner: All right. We've had Ms Barreto de Mattos agree today in evidence that she was wrong about 29 April and Mr Andrews didn't work that day at all. So what do you think about that? You're presented with five days where your client has simply said we've got concerns about this. You've concluded, have you, that he has to be dismissed, but on one of those dates he's not even at work, and you would have known that if proper investigation was undertaken?

Mr Payne: Well, if that's the case and one of the dates is incorrect, well obviously there's been an error made in that. But is that to say that the other dates are incorrect?

Commissioner: If you put a blanket over it Mr Andrews says, 'I was either heading out to work at those places or I was doing work for them. I've never been told differently that I have to say it's travel time.' But there's another date, because please remember the client comes back with some other dates, this is post termination, comes back with some other dates. One of those includes 17 February, and again Ms Barreto de Mattos has given evidence today that she made a mistake about that, and where it said - what was the term?

Commissioner: Frost. She assumed that that meant the client when in fact it means Frost Engineering, some other client. And where the client is concerned about a discrepancy it turns out that Dwayne worked that day and they might have been appropriately charged. That's what you look at when you do an investigation. You look at everything. What time of the afternoon do you think you made this decision to terminate him if this information became available at about 1.23 pm?

Mr Payne: It would have been some time after that. I can't recollect, it's months ago, but it would have been somewhere around the vicinity of 3 o'clock or 4 o'clock in the afternoon. Ultimately, you know, my feeling is that you can pick this apart however you want, but if there's - if there's one piece of evidence, there's multiple pieces of evidence, I feel that, you know, you can discredit some of it, but you can't discredit all of it, so where do you draw the line. At the end of the day for him to say that he wasn't instructed after his length of employment on how to complete the timesheet correctly I find that absolutely ridiculous. The fact of the matter is he was given many opportunities prior to this and to - you know, with advice on how to do his timesheets and all the rest of it, and I think that the entries do not relate to related travel or whatever around town. There is more than enough evidence here to show that it was falsely logged in his times. So I mean I think you can - you can pick apart all the little pieces you want, but at the end of the day the ones that are correct are correct and show that they were falsely entered.

Commissioner: That will be my task, Mr Payne, to look at all of the accusations and make a finding in respect of each of them, and if you put a blanket over what Mr Andrews says it's largely 'I was doing work for that client', and Dwayne, because he was the manager at the time, approves the timesheets?

Mr Payne: I guess, Commissioner, in dispute to that I mean that's the applicant's claim that they were doing work in relation - our claim is that that wasn't the case, and that that didn't happen. So I guess it's a he said she said, and, you know, to prove to us that he were doing work related to the job at hand. Outside of - - -

Commissioner: And if you're wrong about it then what?

Mr Payne: No, I'm not wrong about it because no evidence has been put forward that makes sense to justify these dates and these hours.

Commissioner: What enquiries have you made about these dates? I mean you've just been told about a bunch of dates, haven't you? I mean you wouldn't have known about - did you know before today before I told you about 29 April and 17 February being withdrawn?

Mr Payne: I can't give you the date, it was some time during the last couple of weeks in the lead up to this.

Mr Payne: That a couple of dates have been found to be either not related or there was some substance to what was put on the timesheet.

Commissioner: I am glad she told you, because she didn't tell the Commission. Those accusations just simply disappeared. There was no admission, concession that, 'We got these two dates wrong. Sorry about that.' But you knew about that, Mr Payne?

Commissioner: You knew about it because she told you about a week ago?

Mr Payne: Well, I knew that there were some dates that had been not validated, yes.

[182] In cross-examination, Mr Payne agreed that when an employee travels to and from site using a company vehicle it forms part of their employee duties. Further, he agreed that collecting materials for jobs forms part of the duties of employees.

[183] Mr Andrews submitted that he was summarily dismissed by the Respondent for conduct that did not occur and did not amount to a valid reason for dismissal. In the alternative, he submitted that if there was a valid reason, the dismissal was otherwise harsh, unjust or unreasonable, having regard to the various circumstances including the lack of procedural fairness afforded to him.

• [184] Mr Andrews referred to the Full Bench decision of Sydney Trains v Gary Hilder,[21] which has summarised the "well-established" principles in respect to valid reason for dismissal:

"(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee's dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee's conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee's contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable."

• [185] Mr Andrews referred to the decision in King v Freshmore (Vic) Pty Ltd,[22] where it was said:

"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."

[186] Mr Andrews submitted that there is no evidence before the Commission to support a finding that, on balance of probabilities, he was guilty of fraudulent time recording. At its highest, Mr Andrews contended that the evidence shows that there were invoicing discrepancies between the work which he performed and what Cutuli was invoiced for, but those discrepancies should have been investigated further.

[187] Regardless, Mr Andrews argued that those discrepancies do not amount to fraud on his part and most importantly, Mr Andrews should not bear the responsibility for all or many of those discrepancies based on the evidence.

[188] Whilst noting the Respondent claims that it "conducted a full extensive investigation" which included comparing Mr Andrews timesheets to the QAL gate time report, Mr Andrews submitted that the evidence supports a conclusion that no investigation took place at all. A genuine review of Mr Andrews' timesheets and a discussion with him about the work performed would have largely explained the discrepancies. For example, the Respondent states in its submissions that on 17 February 2022, "Mr Andrews claimed to be on site. No sign in or out was found on the Cardax report from QUAL". Mr Andrews' evidence is that on this date, he performed work at Frost Engineering, and this was clearly recorded on his handwritten timesheet for that day.

[189] Similarly, the Respondent raised in their submissions that "Mr Andrews claimed to be on site for 8.4 hours. No sign in or out was found on the Cardax report" from QAL. Mr Andrews refuted this, noting that his evidence was that he did not work on Friday, 29 April 2022 and the Respondent's own payroll records don't record Mr Andrews performing any hours of work on that Friday, meaning he could not have been paid for that work.

[190] Mr Andrews argued that how or why Cutuli Electrical was invoiced by the Respondent for work done by Mr Andrews at another site or when he was not at work, on both occasions clearly marked on the manual and payroll timesheets, is a matter for the Respondent to address but is not an allegation that Mr Andrews is answerable to. Moreover, Mr Andrews' evidence with respect to other dates provide similarly cogent explanations for the work he was performing. Mr Andrews asserted that had fulsome or at least some questions of him had been asked as part of an investigation, the Respondent could not have reasonably maintained their position that Mr Andrews had been fraudulently timekeeping. Therefore, Mr Andrews submitted there was no valid reason for dismissal relating to fraud or serious misconduct.

[191] During these proceedings, the Respondent identified a further reason to justify Mr Andrews' dismissal, namely that Mr Andrews had breached company policies which were known to him, in the context of a series of "earlier deliberate" and persistent breaches of company policies and procedures.

[192] Mr Andrews noted the Respondent's submission that, "in the months leading up to his dismissal, Mr Andrews had also received 2 verbal warnings and a 3rd and final written warning regarding his conduct". Mr Andrews submitted that the Respondent's attempt to rely on "performance" issues and breaches of unspecified company policies to justify his dismissal is unreasonable and insincere at best, highly contrived and manufactured at worst. It was submitted that the Respondent had not identified what company policies Mr Andrews breached, when Mr Andrews breached them or the nature of the breaches.

[193] Mr Andrews refuted Mr Murray's evidence about verbal warnings he had been given. Further, the Respondent's assertion that he had been issued with a written warning proved to be false.

[194] The Respondent refers in its submissions to the 'Employee Handbook'. Part 16 of the Handbook is centred around conduct and performance, and includes:

"...if employees of GRA are not meeting acceptable standards in their work, or if their work performance is negatively impacting on other team members or on the business, it must be addressed promptly...

Employees in breach of this policy can expect to be subject to the procedure outlined in the Performance Management Procedure at Attachment B."

[195] Mr Andrews noted that the first section of the Performance Management Procedure contained within the Employee Handbook indicates that with respect to instances of minor misconduct, unsatisfactory performance or unacceptable behaviour, verbal counselling is appropriate and that:

"The manager will make a diary note that the employee has received verbal counselling, and will advise them that this has been done. The diary note will include the date of counselling and a brief note as to who was counselled and the circumstances that led to the need for counselling."

[196] Further, the procedure indicates that with respect to continued and repeated instances of misconduct, unsatisfactory performance or unacceptable behaviour, an interview will be conducted and if appropriate, a written warning will be issued.

[197] It was submitted that at no stage during his employment with the Respondent was Mr Andrews issued with a written warning. Instead, the evidence of Mr Murray is that Mr Andrews was given several verbal warnings, yet the Respondent has not produced any evidence to substantiate that these discussions occurred or that they were appropriately documented as required under the Performance Management Procedure.

[198] If the Respondent held genuine concerns relating to Mr Andrews' performance and/or conduct, including his ability to abide by company policies, the Respondent would have implemented a written warning. In circumstances where no written warning was issued to Mr Andrews, he submitted that it is unreasonable for the Respondent to now assert that his performance was a valid reason for his dismissal. Accordingly, it is submitted that Mr Andrews' conduct or performance does not give rise to a valid reason for dismissal.

Section 387(b) Whether the person was notified of that reason

[199] Mr Andrews does not submit that there was any failure to notify him of the reason for dismissal.

Section 387(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• [200] Mr Andrews submitted that an opportunity to respond must be a fair and adequate opportunity, being one which in a practical common sense way ensures that the employee is treated fairly.[23] The opportunity to respond:

"...implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend."[24]

• [201] Mr Andrews referred to Gaudron and Gummow JJ in Minister for Immigration & Multicultural Affairs v Bhardwaj,[25] where it was said:

"Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it."

[202] Mr Andrews contended that relevant considerations as to whether procedural fairness has been afforded include:

• • whether the employee had an opportunity to explain their side of whatever happened;[26] and

• • whether an employer followed their own procedures in dismissing an employee.[27]

[203] Mr Andrews submitted that he was not afforded any opportunity to respond to the reason(s) for dismissal and was wholly deprived of procedural fairness. The Respondent was advised on 12 September 2022 at 1:23pm by Cutuli Electrical that there were discrepancies between the invoice by the Respondent and the gate access times at QAL for Mr Andrews. He argued that there is no evidence about what steps the Respondent took to verify the veracity of the claims by Cutuli Electrical and how or why the discrepancies came about. Before 7:00am the following day, Mr Andrews arrived at work and was told by Mr Murray that he was being terminated. Mr Andrews was handed a termination letter, was told he was terminated due to fraudulent timekeeping and was asked to leave the premises.

[204] By adopting this process, Mr Andrews submitted the Respondent had no regard to its own procedures, such as the Performance Management Procedure contained within the Employee Handbook. The final section of the Performance Management Procedure relates to suspected summary dismissal, being "serious misconduct that justifies instant dismissal". This section includes various steps, including that:

• Once the matter has been fully investigated, the manager will request the employee's attendance at a disciplinary meeting and the employee will be invited to bring a support person;

• A meeting will be conducted where the employee will be given an outline of the allegations;

• The employee will be provided with specific examples, supported by documentary evidence where available, where the employee's behaviour has deviated from company expectations; and

• The employee will be given the opportunity to respond, to provide explanations for their conduct, and to seek clarification if necessary.

[205] Mr Andrews contended that the evidence shows that the Respondent failed to show any of these procedures for the following reasons:

• The matter was not fully investigated. The Respondent was first advised on 12 September 2022 at 1:23pm by Cutuli that there were discrepancies between the invoice sent by the Respondent and the gate access times at QAL for Mr Andrews. Mr Andrews was terminated less than 24 hours later, and Mr Andrews' termination was referenced in an email from Ms Barreto de Mattos (the Respondent's Accounts Officer) to Cutuli Electrical at 3:05pm on the day Mr Andrews was terminated. There is no evidence before the Commission to substantiate that any investigation occurred within that timeframe. Moreover, the emails between Cutuli Electrical and the Respondent along with the Respondent's own submissions highlight the falseness of the Respondent's statement in the termination letter(s) that an investigation into Mr Andrews' time recording had commenced on '02-09-2022' and was completed by the time he was dismissed, given that the Respondent only became aware of the issues on 12 September 2022.

• No meeting occurred between Mr Andrews or any representative from the Respondent, apart from the exchange between Mr Andrews and Mr Murray when he was handed his termination letter.

• Mr Andrews was not invited to bring a support person to a meeting, as no meeting occurred.

• Mr Andrews was provided with scant detail about the nature of the allegations.

• Mr Andrews was provided with no specifics or documentary evidence relating to the allegedly fraudulent time recording, other than Mr Murray telling him that it related to Cutuli Electrical. It is submitted by the Applicant that this was a very procedurally unfair process adopted by the Respondent in circumstances where it was provided with specific dates and some documentation regarding the invoice and gate discrepancies by Cutuli Electrical the previous day.

• Mr Andrews was not given an opportunity to respond to any of the allegations or reasons for dismissal. He was instructed to seek clarification after-the-fact, by email.

[206] In light of the above reasons, Mr Andrews submitted that he was denied procedural fairness and an opportunity to respond.

Section 387(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[207] Mr Andrews does not submit that there was any unreasonable refusal by the Respondent to allow him to have a support person present to assist at any discussions relating to dismissal.

Section 387(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[208] Mr Andrews relied on the submissions at paragraph [191] to [198].

Section 387(f) and (g) The size of the Respondent and dedicated human resource management specialists or expertise

[209] Mr Andrews noted that there is no evidence before the Commission as to whether the Respondent has a dedicated human resource management specialist or not. The Respondent accepted that it is not a Small Business within the meaning of the Act. However, in the circumstances the Commission accepts the Respondent's submission that it lacked a dedicated human resource management specialist, Mr Andrews submitted that this should only have had limited impact on the procedures followed in effecting the dismissal.

[210] Mr Andrews contended that the Respondent had a procedurally sound Performance Management Procedure it could have followed. The Respondent was clearly aware of the existence of the Performance Management Procedure contained within the Employee Handbook but instead, opted to disregard that process.

Section 387(h) Any other matters the Commission considers relevant

• [211] In Byrne v Australian Airlines Ltd,[28] McHugh and Gummow JJ explained as follows:

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

[212] Even where there is a valid reason, Mr Andrews argued that reaching an overall determination of whether a given dismissal was harsh, unjust or unreasonable involves a weighing process. The Commission is required to consider all the circumstances of the case, having particular regard to the matters specified in s. 387, and then, to give effect to 'a fair go all round', weigh the gravity of the misconduct and other factors. This consideration involves:

"weighing in favour of the dismissal not being harsh, unjust or unreasonable against the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct."[29]

[213] In the present case, Mr Andrews submitted the dismissal is unjust, in that the evidence shows that he did not engage in the alleged serious misconduct. It is unreasonable, as the Respondent failed to fully investigate the matter and therefore, could not have reasonably concluded that he was guilty of the serious misconduct. Even in the presence of a valid reason, Mr Andrews contended that the decision to dismiss him summarily was harsh.

• [214] Mr Andrews referred to Annetta v Ansett Australia Ltd,[30] where it was said:

"Take a case where an employee is guilty of conduct which does not amount to misconduct justifying summary termination. If the employer terminates the employment on notice there would be a valid reason for doing so. If the employer terminates the employment summarily there would not be a valid reason for doing so."

[215] Even if it was proven that Mr Andrews' timesheets were inaccurate or unclear in part, he submitted that that alone did not amount to serious misconduct and the Respondent's decision to summarily dismiss him without notice was a disproportionate response. Mr Andrews argued that the evidence shows that the invoice discrepancies were explainable by him with reference to his timesheets and other material or were not caused due to any conduct or fault of him.

[216] The Respondent's submissions are largely found above in the evidence of Ms Barreto de Mattos on account of how the Respondent prepared its material. They are summarised below.

[217] The Respondent submitted that Mr Andrews engaged in fraudulent time keeping which constitutes serious misconduct. It was submitted that it was deliberate and on multiple occasions.

Section 387(b) Whether the person was notified of that reason

[218] The Respondent argued that Mr Andrews was notified of the dismissal. Mr Andrews was given a termination letter on 13 September 2022, which stated and notified him of the instant dismissal due to fraudulent behaviour.

Section 387(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[219] The Respondent submitted that it had conducted a full extensive investigation into all relevant matters as was reasonable in the circumstances. After comparing Mr Andrews handwritten timesheets with that of the Cardax report, it was clear to the Respondent that the hours claimed did not match what was recorded on site. The Respondent advised that it had happened multiple times, which proved to the Respondent that it was not an error on Mr Andrews side, but a deliberate fraudulent activity.

Section 387(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[220] The Respondent submitted that at no time was a support person refused. In line with the employment contract and employee handbook, Mr Andrews was terminated effective immediately after it was discovered that Mr Andrews had engaged in fraudulent behaviour. The Respondent contended that this was a very clear outcome in both documents which Mr Andrews agreed to upon taking the position with the Respondent.

Section 387(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[221] In the months leading up to Mr Andrews dismissal, the Respondent claimed that Mr Andrews had also received two verbal warnings and a third final written warning regarding his conduct.

[222] The Respondent argued that these three warnings contributed to the summary dismissal which took effect in the morning of 13 September 2022. It was deemed by management that after three previous misconduct warnings, this final wilful breach of contract and law constituted an instant dismissal. Mr Andrews' actions, according to the Respondent, constituted a widespread of breaches of the company policies and procedures. This was not only to protect the Respondent from further loss but also to salvage the Respondent's reputation and avoid further action from customers being accused of ripping them off through Mr Andrews' actions.

Section 387(f) and (g) The size of the Respondent and dedicated human resource management specialists or expertise

[223] The Respondent submitted that it is, along with GSM, both small companies in their own rights with a fluctuating seasonal work force between 10-20 employees. There is no, nor has there ever been, any trained human resource staff to handle these situations. The Respondent however advised that the Respondent and GSM has always followed directions stipulated in the Act.

[224] The Respondent advised that in the absence of a trained Human Resource member of staff, the decision was made to 'stand Mr Andrews down for serious misconduct'. This is of course, not correct. The Respondent submitted that such decision was done in line with the Act, the Employment Contract signed by Mr Andrews and the Company Handbook.

Section 387(h) Any other matters the Commission considers relevant

[225] The Respondent again referred to what it considers to have been verbal warnings given to Mr Andrews in the months leading up to his dismissal.

[226] In oral closing submissions during the determinative conference, the following was put:

• (a) "The reason why we decided to instantly dismiss Mr Andrews is because - although I understand now that there was mistakes made on our side - we do believe that there was fraud committed and because, especially on that following weekend, that day, we were doing - we do most of our work on site - we felt that we could not send him on site with the information and the stuff that we have found."[31]

• (b) "The reason why Mr Andrews was given a raise is because he threatened to leave the company for another job and we were in desperate need for workforce as it's very difficult to find a workforce in Gladstone, and that's why Mr Payne had decided to give him a one dollar raise so he could keep him working. So, that shows as well that we were completely unaware of any of these discrepancies or any of these issues at that point (audio malfunction)."[32]

[227] With respect to whether the Commission should award an order of compensation and have it payable in instalments, the Respondent requested that I should exercise such discretion.

[228] A dismissal may be unfair, when examining if it is 'harsh, unjust or unreasonable' by

having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[33]

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

• [229] I am duty-bound to consider each of the criterial set out in s.387 of the Act in determining this matter.[34] I will address each of the criteria set out in s.387 of the Act separately.

s.387(a) - whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

[230] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

"In its context in s.170DE(1), the adjective 'valid' should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.'"

• [231] 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.[35]

[232] As I have stated in [36] above, in consideration of whether there was a valid reason for the dismissal, the matters are not limited to those within the Respondent's knowledge at the time of the dismissal. Accordingly, I am required to determine whether the dates in question, including those 'discovered' post-termination constitute a valid reason for the dismissal.

[233] I have dealt with the evidence above in respect of each of the dates in question. I will make findings below having regard to the evidence before the Commission.

[234] I am satisfied that Mr Andrews attended for work at or around 6:00am at the workshop. It took him approximately 20 minutes to travel to site. On his arrival at site, he couldn't find his visor for his helmet, nor his swipe card. He immediately alerted Mr Cutuli of Cutuli Electrical of this fact. Mr Cutuli responded immediately by text, "OK mate".

[235] These events sometimes occur. Mr Andrews alerted the paying customer at 6:20am and no issue was taken with it. Mr Andrews' evidence is that after returning to the workshop, he attempted to go back to site but was ultimately not permitted on site due to either a permit issue or a 'blow off'. He was not challenged on his evidence.

[236] Mr Andrews was not required at the site by Cutuli Electrical until 11:00am when Mr Cutuli sought for Mr Andrews to return. By this time, Mr Andrews was working on another job.

[237] It is curious that at no time has the Respondent addressed the issue of travel time and to which job number travel is to be charged to. I did not hear any evidence that travel has its own job code. If it did, would it be at the Respondent's expense or the customer's expense? The Respondent never said.

[238] Clearly, Mr Andrews spent approximately 80 minutes in travel time that morning; leaving the workshop to site, site to workshop, and repeat. There is no evidence that I have before me that Mr Andrews was shirking for the remainder of the time. His timesheet declares that he started working on another job at 9:00am. His timesheet was approved by his manager at the time. Mr Andrews has given evidence before the Commission, which I accept as his true and honest belief, that he was entitled to claim on his timesheet site rates if it was related to a job for which he was to attend site and the associated travel with it.

[239] On the material before me, I am not satisfied that Mr Andrews engaged in misconduct of any sort by declaring that he worked between 6:00am and 9:00am for Cutuli Electrical and claimed the onsite rate.

[240] While Mr Andrews was paid for 8.5 hours' work on 28 January 2023, yet performed only approximately 5.5 hours of work onsite, at least some part of the additional hours is explainable by travel time to and from the workshop.

[241] Mr Andrews gave evidence that he recalls having to collect material for the job on the way back to the workshop. He was not challenged on that evidence. The Respondent did not provide any reply evidence to Mr Andrews' evidence on this matter.

[242] On the material before me, I am not satisfied that Mr Andrews engaged in misconduct of any sort by declaring that he worked between 6:30am and 3:36pm for Cutuli Electrical and claimed the onsite rate.

[243] The Respondent's concern in respect of 31 January 2022 is that it charged Cutuli Electrical 36 minutes in respect of Mr Andrews when his card data demonstrated that he was not onsite on 31 January 2022.

[244] Mr Andrews would not have had any knowledge that his card had expired near midnight on 30 January 2022. When he attempted to enter site at approximately 11:00am on 31 January 2022, he could not do so.

[245] His detailed text correspondence with Mr Cutuli on 31 January 2022 demonstrates that he was trying to remedy the situation by providing his personal data, including his drivers licence to have his card restored. It is not at all surprising that he had to account to the Respondent for his time on this day, noting it was out of the workshop. In my view, it is surprising that the charge to Cutuli Electrical was only 36 minutes. While it is true that Mr Andrews didn't enter the site on account of the card not working, I am not satisfied that Mr Andrews engaged in misconduct of any sort by declaring 36 minutes of work on account of his interaction with Mr Cutuli of Cutuli Electrical.

[246] In oral evidence given during the determinative conference, it is clear Mr Andrews does not have a committed memory of his comings and goings on 4 February 2022. He recorded three hours on account of Cutuli Electrical for work between 9:00am and 12:00pm. He was on site for only one hour between approximately 11:05am and 12:05pm.

[247] The Respondent's accounts with United Fasteners do not accord with Mr Andrews having made a purchase that day. Mr Andrews does recall, however, visiting a steel supplier following leaving site, yet he recorded having lunch between 12:00pm and 12:30pm, which is not accurate.

[248] I am satisfied that on 4 April 2022, Mr Andrews packed the vehicle with the supplies he required and travelled to site. Before doing so, he is likely to have had 'smoko' which accounts for approximately 20 minutes. Approximately 40 minutes of paid time remains unaccounted. Mr Andrews was incorrect to claim unpaid lunch between 12:00pm and 12:30pm that day, as he was onsite until at least 12:05pm, and on his evidence, travelled to a steel supplier's premises.

[249] Mr Andrews recalls picking up fixings for the job that day, but cannot exactly recall when and from which supplier.

[250] It appears to me that Mr Andrews gave approximations on his timesheet on 4 April 2022, and it does not reflect his true comings and goings. Where it is possible he may have been shirking some responsibility for approximately 40 minutes sometime between 10:00am and 11:00am, he has left site and then worked through his unpaid lunch break, incorrectly declared by him to have taken place between 12:00pm and 12:30pm.

[251] I consider that Mr Andrews engaged in poor timekeeping on this day, rounding to complete hours. I am not satisfied, on the evidence before me that he benefited in time from doing so on account of potentially having an extended break before he went to site, while working through a declared lunch break following his work performed onsite and departing at 12:05pm. Each one effectively cancels the other out.

[252] Understandably, Cutuli Electrical might hold concerns that it was charged for three hours when only one hour was performed by Mr Andrews onsite. I am satisfied, however, that Mr Andrews was performing associated work to the job on account of the evidence he gave that he had to pick up material following the onsite work, and this took longer than expected. On the balance of probabilities, I find that Mr Andrews rounded the work performed for the relevant job up to three hours, and didn't clearly particularise the exact times he was working and travelling for the job. I am therefore not satisfied that Mr Andrews engaged in misconduct in respect of his conduct and timekeeping on 4 April 2022. I consider his timekeeping was sloppy and not a true reflection of his activities on the day.

[253] I am satisfied that Mr Andrews attended the QAL site on 9 February 2022 to participate in induction. Mr Andrews wrote on his timesheet that he attended the induction between 4:00pm and 6:00pm and attributed the client to "Cutuli/Monos".

[254] Mr Andrews was not the person to charge Cutuli Electrical on account of his timesheet; this was done by somebody in payroll or management. Mr Andrews' card was amended to reflect that he performed work for Cutuli Electrical in the company data field on the card.

[255] The Respondent did not provide any further information in respect of its initial concern regarding the two hours charged to Cutuli Electrical. If it charged Mr Andrews to Cutuli Electrical for the induction, that was its decision to make.

[256] On the material before me, I am not satisfied that Mr Andrews engaged in misconduct of any sort by declaring that he did two hours of induction at QAL, noting 'Cutuli/Monos'.

[257] Mr Andrews was onsite participating in induction on 15 February 2022. He recorded as much on his timesheet, noting it as 'QAL Monos/Cutuli Inductions for site access'. If the Respondent charged Cutuli Electrical for his attendance on this date, that is the Respondent's business. I have already noted that it appears that the Respondent charged Cutuli Electrical 5.5 hours at normal time and 2.4 hours at time-and-a-half. Mr Andrews is not responsible for the Respondent's invoicing of Cutuli Electrical.

[258] On the material before me, I am not satisfied that Mr Andrews engaged in misconduct of any sort by declaring that he did 5.5 hours of induction at QAL, noting 'QAL Monos/Cutuli'.

[259] On 17 February 2022, Mr Andrews recorded that he did work for Frost, not Cutuli Electrical. If the Respondent charged Cutuli Electrical for the work performed by Mr Andrews that day, that is its error.

[260] On the material before me, I am not satisfied that Mr Andrews engaged in misconduct of any sort by declaring that he performed work for Frost on 17 February 2022.

[261] I am satisfied that Mr Andrews performed the two hours of work he claimed to have worked for Cutuli Electrical on 18 March 2022. Mr Andrews performed this work in the workshop and did not claim a site allowance.

[262] Mr Andrews' evidence accounts for his whereabouts on 19 March 2022, including his coming and going from site, attributing to 10 hours of work for the day. His evidence in respect of liaising with Mr Darryl Burr and having to return to the workshop to fabricate flashings was unchallenged and is accepted. There can be no consternation with Mr Andrews having left site between 10:30am and 11:35am on this day; he was entitled to grab 'smoko' or have an early lunch on account of him working through onsite until 1:42pm.

[263] I accept Mr Andrews' evidence that he held a true and honest belief that he was entitled to claim on his timesheet site rates if it was related to a job for which he was to attend site and the associated travel with it.

[264] On the material before me, I am not satisfied that Mr Andrews engaged in misconduct of any sort by declaring that he performed 10 hours of work for Cutuli Electrical and claimed site rate for the day's work. I note that Mr Andrews spent some of his leisure time that evening informing Mr Kent of the mess made in the vehicle on account of the punctured spray foam cylinder.

[265] Mr Andrews was not at work on 29 April 2022. Regrettably he was initially accused of time fraud in respect of 8.4 hours charged by the Respondent to Cutuli Electrical. In oral evidence given during the determinative conference, it appears that the charge should have been made by the Respondent to Cutuli Electrical on account of work performed by Mr Kent, and not Mr Andrews.

[266] Mr Andrews claimed site rates for Cutuli Electrical work on 30 April 2022 for work between 6:00am and 4:30pm. Mr Andrews did not complete the timesheet at all for 30 April 2022, as it was not in his handwriting and his name is spelt incorrectly. Presumably Mr Kent completed the timesheet on Mr Andrews' behalf.

[267] Mr Andrews had been liaising with Mr Cutuli the day before, on a day Mr Andrews was not at work and not paid. Yet, Mr Andrews was doing his best on his unpaid day to ensure the Respondent's vehicle would be permitted on site the following day. It turns out that the vehicle was not permitted, and Mr Andrews had to regularly swap vehicles on that day, as he could only use the Cutuli Electrical vehicles onsite. Some time was inadvertently wasted on this day.

[268] I accept Mr Andrews' evidence that between 9:48am and 10:35am he left site to get a 'smoko' and that it took longer on account of the swapping of vehicles. I also accept his evidence that in the afternoon he left site for a short time to obtain supplies delivered by Mr Burr, who attended site after playing golf. This had been coordinated by Mr Andrews to ensure he could undertake productive work for the day.

[269] I accept Mr Andrews' evidence that while he signed out of site close to 4:00pm and claimed payment up until 4:30pm, he did so on account of having to swap the vehicle and then return to the workshop at the end of the day.

[270] On the material before me, I am not satisfied that Mr Andrews engaged in misconduct of any sort by declaring that he worked between 6:00am and 4:30pm on 30 April 2022 and was entitled to site rates.

[271] Mr Andrews was onsite between 1:23pm and 3:53pm and claimed to have been onsite between 1:00pm and 4:00pm. Mr Andrews had to travel to site which the Respondent appears not to have any regard for. Clearly it takes Mr Andrews more than three minutes to leave site and return to the workshop which again, the Respondent has not had any regard for. Mr Andrews must have worked beyond 4:00pm as recorded by him in his timesheet.

[272] On the material before me, I am not satisfied that Mr Andrews engaged in misconduct of any sort by declaring that he worked between 1:00pm and 4:00pm on 19 May 2022 and was entitled to site rates.

Conclusion on whether there was a valid reason for the dismissal

[273] Mr Kent was the Workshop Manager at the time of the events complained of by the Respondent. At all times Mr Kent approved the timesheets, and on some occasions completed them on Mr Andrews' behalf. Oher personnel appeared to complete job numbers, including for Cutuli Electrical.

[274] Mr Kent would have known that Mr Andrews was travelling, at times, and claiming site rates on account of the work being associated with site work. No challenge was ever made to Mr Andrews and there is no evidence before the Commission that this was not permitted by the Respondent. Mr Andrews' evidence is that Mr Murray never addressed this issue with him when he commenced in June 2022. Accordingly, I can be satisfied that this was approved by the two direct managers Mr Andrews had during his employment with the Respondent on account of his timesheets being approved. There was no clandestine activity; it has been a daily transparent activity upon completion of a daily timesheet.

[275] Having satisfied myself that Mr Andrews did not engage in any misconduct at all, or that his conduct was in any way inappropriate, I am not satisfied that there was a valid reason for the dismissal.

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

[276] Mr Andrews was informed that the reason for the dismissal was regarding fraudulent time keeping. I am satisfied that he was notified of the reason for the dismissal.

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

[277] The Respondent has in place an extraordinarily well-written Employee Handbook which contains a very comprehensive Performance Management Procedure. The Procedure outlines the conduct required of the Respondent in putting allegations to employees. Regrettably, the Respondent did none of the things the Procedure requires.

[278] Even without the Employee Handbook being operational, the Act requires a consideration as to whether there was an opportunity for the employee to respond to any reason related to the capacity or conduct of the person. There was no opportunity at all for Mr Andrews to respond to the Respondent as he was never informed, prior to dismissal, what the accusations were.

[279] He was callously dismissed and had to later request information as to exactly why. The Respondent did not afford him any relevant information pertaining to what it is he was said to have done. The termination letter, informing Mr Andrews that an investigation had occurred and documents analysed 'proving' that the hours he had submitted were false and deceptive is plainly not true. If it had been true, it would have discovered that, for example, he was not at work on 29 April 2022, a date of concern raised by Cutuli Electrical.

[280] At no time were the specific dates and times he was alleged to have engaged in timesheet fraud put to him for him to respond. Further, when he asked for information, he was informed by Mr Murray that he could not speak to anyone in person and could, post-dismissal, email Mr Murray or Mr Payne for more information. The failure of the Respondent to afford Mr Andrews a basic right of knowing the allegations of fraudulent timekeeping he was alleged to have been guilty of is offensive given the decades of experience Mr Murray and Mr Payne say that they have in employment, many years of that in management.

s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal

[281] 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.

[282] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:

"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."

[283] Mr Andrews did not ask for a support person to be in attendance and accordingly there was no refusal by Mr Murray.

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

[284] Mr Murray claims to have provided verbal warnings to Mr Andrews since Mr Murray commenced work in June 2022. Mr Murray did not record any notes that he had given Mr Andrews any warnings, despite the Performance Management Procedure requiring the manager to make diary notes of such matters and informing the employee that the matter has been recorded in a diary note.

[285] I am satisfied that Mr Andrews was addressed on two occasions by Mr Murray in respect of his punctuality, but that these discussions did not constitute a verbal warning. I prefer Mr Andrews' evidence over Mr Murray's evidence, and I am not satisfied that Mr Murray informed Mr Andrews, in accordance with the policy that further instances would result in disciplinary action being taken.

[286] It should be noted that at this approximate point in time, Mr Andrews negotiated with Mr Payne a $1 per hour wage increase. While it was put that it was given on account of not wanting Mr Andrews to leave the employment, it is unusual that a supposedly poorly performing employee is granted a pay increase at the employer's discretion.

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

[287] The Respondent does not have a dedicated human resource management specialist, and I am satisfied this did impact on the procedures followed by the Respondent. No procedural fairness was afforded to Mr Andrews at all. Ms Barreto de Mattos and Mr Murray demonstrated no experience at all in how to conduct a workplace investigation.

[288] Mr Payne's evidence is that he held a five-minute discussion with Ms Barreto de Mattos and Mr Murray in respect of the five dates addressed by Cutuli Electrical. Mr Payne clearly does not know how to conduct a workplace investigation and it appears to me that he doesn't wish to. His evidence and submissions before the Commission is essentially that the employee has to disprove the allegation. For all of his decades of experience it is perplexing that Mr Payne did not review the Employee Handbook and follow it or direct Ms Barreto de Mattos and Mr Murray to follow it.

[289] In consideration of whether the dismissal was harsh, unjust or unreasonable, I am of the view that the Respondent did not take into consideration the reputational damage that could be afforded to Mr Andrews in a regional area. Ms Barreto de Mattos was very swift to inform Cutuli Electrical that Mr Andrews had been dismissed, that being the same day as the dismissal, resulting in Cutuli Electrical requiring an audit in the event that Mr Andrews had gone 'rogue'. The Respondent was not interested in conducting a fair workplace investigation and Mr Andrews was grossly mischaracterised as a fraudster.

[290] I am of the view that Mr Andrews demonstrated integrity to the Respondent when he informed Ms Barreto de Mattos in July 2022 that his tool debt was more than double what she was claiming it to be. Ms Barreto de Mattos was new to the Respondent, and Mr Andrews corrected her, knowing his debt to be greater than the $600 she was presenting it to be. Having demonstrated integrity in the workplace over moneys owed by him, it was spiteful that he could not be afforded fairness when an inquiry arose in respect of his timesheet entries and whether they matched the client's records. Mr Andrews demonstrated honour; regrettably the Respondent did not.

[291] I have determined that there was no valid reason for the dismissal.

[292] I consider that the Respondent informed Mr Andrews of the reason for the dismissal.

[293] I have determined that Mr Andrews was not given an opportunity to respond to the reasons for the dismissal that were put to him.

[294] There was no unreasonable refusal by the Respondent to allow Mr Andrews a support person.

[295] Mr Andrews was not issued any warnings of unsatisfactory work performance before the dismissal. I accept there were two discussions regarding punctuality, but these discussions did not constitute as warnings to Mr Andrews.

[296] The size of the Respondent's enterprise is larger than the Respondent alone, on account of the associated entity. I accept that there was an absence of a dedicated human resource specialist which did impact on the procedures followed.

[297] I determine that Mr Andrews' dismissal was harsh, unjust and unreasonable.

[298] Section 390 of the Act reads as follows:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies."

[299] Mr Andrews is a person protected from unfair dismissal for the Act's purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.

[300] Mr Andrews has found other suitable employment and has no desire to be reinstated. I am satisfied it is inappropriate to order reinstatement.

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

• [302] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul's Licensed Festival Supermarket.[36] That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;[37] Jetstar Airways Pty Ltd v Neeteson-Lemkes[38] and McCulloch v Calvary Health Care (McCulloch).[39]

[303] I have had regard to the above authorities.

The effect of the order on the viability of the Respondent

[304] The Respondent did not submit that an order of compensation would affect the viability of the Respondent.

[305] Mr Andrews was employed for a period of approximately 14 months. This is not a long period of time.

The remuneration that Mr Andrews would have received, or would have been likely to receive, if he had not been dismissed

[306] I consider that Mr Andrews would have remained employed for at least a period of another seven weeks. Mr Andrews seeks only to be compensated for the period between when he was dismissed on 12 September 2022 and when he found new employment on 1 November 2022. I have no hesitation in finding that Mr Andrews would have been employed by the Respondent for this period of time but for being unfairly dismissed.

[307] Mr Andrew's pay rate was $35.00 per hour.

[308] I consider that Mr Andrews would have received remuneration of seven weeks at the rate of $35 per hour multiplied by 38 hours per week. This is a total of $9,310.

The efforts of Mr Andrews (if any) to mitigate the loss suffered because of the dismissal

[309] I am satisfied that Mr Andrews made every effort to mitigate his loss by applying for appropriate roles suitable to the geographical area and the skills and experience he possesses. I note that he secured suitable alternative employment seven weeks later.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[310] This is a not a relevant consideration given that Mr Andrews did not earn any remuneration in the period of seven weeks he was unemployed.

The amount of any income reasonably likely to be so earned by Mr Andrews during the period between the making of the order for compensation and the actual compensation

[312] I do not consider there are other relevant matters affecting the amount of compensation to be awarded.

[313] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

• [314] The section requires that consideration be given by the Commission, amongst other things, as to whether a person's misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person's dismissal. However, if there was no valid reason for the dismissal, that may be relevant to the Commission's decision as to the appropriate amount by which the amount of compensation should be reduced.[40]

[315] I am not satisfied that Mr Andrews engaged in any misconduct. Accordingly, I cannot be satisfied a reduction should be made.

[316] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Andrews by the manner of the dismissal.

[317] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[318] The high income threshold immediately prior to the dismissal was $162,000, and the amount for 26 weeks was $81,000. The amount of compensation the Commission will order does not exceed the compensation cap nor the amount that Mr Andrews was entitled to during the 26 weeks immediately before the dismissal.

[319] I am mindful that the sum to be ordered may not be readily available to the Respondent within 14 days, which is my usual period of time to allow for payment when ordering compensation. Accordingly, I will order the compensation to be made in two payments as specified in the order, to be paid over a period of four weeks from the date of the first instalment.

[320] I have determined that the Respondent is to pay to Mr Andrews the amount of $9,310 gross, less tax as required by law.

[321] In addition, the Respondent is to pay superannuation at the rate of 10.5%, being an amount of $977.55 into Mr Andrews' superannuation fund.

[322] The above amounts are to be paid as follows:

(b) $4,655 gross, less taxation by 18 April 2023;

(c) $977.55 superannuation into Mr Andrews' superannuation account by 2 May 2023.

[323] An Order of compensation [PR760444] will be issued concurrently with this decision.

[1] Fair Work Act 2009 (Cth) s.23(1).

[2] Ibid ss.23(2) and (4).

[3] Ibid ss.23(3).

[4] Corporations Act 2001 (Cth) s.64A.

[21] [2020] FWCFB 1373, [26].

[22] Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [24].

[23] Appeal by Jetstar Airways Pty Limited [2013] FWCFB 9075, [61].

[24] Wadey v Y.M.C.A. Canberra [1996] IRCA 568.

[25] [2002] HCA 11, [40].

[26] See Naoum v ISS Security Pty Ltd ABN: 14 001 375 186 [2019] FWC 6421.

[27] See Odgers v Central Queensland Services Pty Ltd [2019] FWC 7150.

[29] Appeal by B, C and D [2013] FWCFB 6191, [58].

[30] Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000), [10]. (2000) 98 IR 233.

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

[35] Walton v Mermaid Dry Cleaners Pty Ltd(1996) [1996] IRCA 267; 142 ALR 681, 685.

[36] [1998] AIRC 989; (1998) 88 IR 21.

[37] [2013] FWCFB 431.

[38] [2014] FWCFB 8683.

[39] [2015] FWCFB 2267.

[40] Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] - [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].

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