Fair Work Act 2009

s.394 - Unfair dismissal

• [1] Mr. Jaskaran Singh Basanti had been employed at Linfox for at least 10 years.[1]

• [2] At the time of his termination, Mr. Basanti was employed at Melbourne Fresh Distribution Centre (MFDC) in Truganina. He described his "day to day work" at the MFDC as "delivering fresh produce to Woolworths supermarkets" and working as a "yardie" which involved arranging for trailers to be removed from docks or placed on docks.

• [3] Mr. Basanti had been a Transport Workers' Union (TWU) delegate at Linfox since mid-2016 and, at the time of his termination, was a senior delegate for TWU members employed at MFDC and at the Melbourne Liquor Distribution Centre at Laverton.

• [4] Following a disciplinary procedure on 3 October 2024, Mr. Basanti's employment was terminated without notice for serious misconduct related to "worksheet falsification and dishonesty".

• [5] On 22 October 2024, Mr. Jaskaran Singh Basanti made an application under s 394 alleging he had been unfairly dismissed from his employment with Linfox Australia Pty Ltd (Linfox).

• [6] The matter was first heard on 18 February 2025. Mr. Basanti gave evidence and was represented by Mr. Santino Raftellis of the TWU. Mr. Blake Byrne, Workplace Relations Manager, appeared for Linfox. Two employees of Linfox, Mr. Ralph Vitug, a Site Manager, and Mr. Matthew Sheridan, an Executive General Manager, gave evidence for it at the hearing.

• [7] The day before the hearing, the TWU filed three witness statements of Mr. Basanti's coworkers. At the end of the hearing, I issued directions listing the matter for a second day on 14 March 2025 and for Linfox to file material in reply, which was received on 4 March 2025.

• [8] The matter was further heard on 14 March 2025. Mr. Gurvinder Singh, Mr. Amanvir Singh and Mr. Ljupco Ristanovski attended and gave evidence.

• [9] For the reasons I set out below, I am satisfied:
  • The dismissal of Mr. Basanti was harsh, unjust or unreasonable within the meaning of s 385 of the Act.
  • A remedy of compensation in the sum of gross $23,889 subject to the payment of tax in favour of Mr. Basanti, along with the payment of superannuation on that amount, is appropriate in all the circumstances of the case.

When can the Commission order a remedy for unfair dismissal?

• [10] Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

• [11] Both limbs of this section must be satisfied. I am therefore required to consider whether Mr. Basanti was protected and whether he has been unfairly dismissed.

• [12] It was not contested Mr. Basanti was a person entitled to protection from unfair dismissal.

• [13] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.

• [14] The matters referred to at points (a), (c) and (d) are not in issue. The contest in this proceeding is whether Mr. Basanti's dismissal was harsh, unjust or unreasonable within the meaning of s 385. Before turning to consider that question, it is convenient to set out some of the factual background relevant to the proceedings.

• [15] Mr. Basanti worked for Linfox for over ten years until the termination on 3 October 2024. At all relevant times, Mr. Basanti's employment was regulated by the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2023 (the Agreement).

DRIVER'S DAILY WORK SHEETS AND THE KRONOS SYSTEM

• [16] Linfox drivers are required to complete daily worksheets. They are issued and completed by drivers for every shift they work. At the top right hand corner of every worksheet there is a text which reads "This run sheet is a legal document. All data keyed must be accurate and true".[2]

• [17] Linfox also employs a biometric device aptly named "Kronos"[3] whereby workers entering or exiting the site, place their fingerprint on it and it records the time of entry or exit. In his Statement, Mr. Sheridan, who was at all material times the Executive General Manager of the Woolworths' contract for Linfox, states in his witness statement "Employees use Kronos time and attendance machine to clock in and out each day. This data is cross referenced with the worksheet to capture any anomalies which cannot be managed by Kronos (i.e. delays)".[4]

Linfox policies relevant to work hours and work sheets in the Red Book

• [18] The policies and procedures for Linfox employees are contained in a book of policies known as the Red Book. The Red Book contains policies which are relevant to hours of work and their recording which appear in a page headed "employee commitments to Linfox".[5]

You must clock on or sign the register when you arrive for work and clock off (or sign out) when you leave. This ensures you will be paid for the time you work. Worksheets/Trip sheets must be completed with all relevant details.

6.4 Sign on/sign off (clockcards/records of attendance)

• It is your sole responsibility to ensure you sign on and sign off.

• Clocking in or out for another employee is strictly forbidden and may be subject to disciplinary action up to and including summary dismissal.

• Deliberate inaccurate completion of worksheets is fraudulent and may

• Record your time on the worksheet to the nearest five minutes.

• All activities, including breaks or stoppages, must be recorded.

• Worksheets must be completed daily and accurately.

You are required to be punctual for work. If you are absent or will be late for any reason, you must notify your immediate manager as soon as possible. In most circumstances, your absence should be notified well in advance of your scheduled start time.

• [19] Mr. Sheridan gave evidence that Linfox "reinforces" the requirement of adherence and compliance with the Red Book.[6] All drivers complete a Red Book induction when they commence working at Linfox and are provided with a copy of it.[7] Drivers also undergo periodical refresher training on the Red Book.[8] The method of that training is a multiple choice test on a computer.[9] It was the evidence of Mr. Sheridan that Mr. Basanti had undertaken this refresher training on 6 December 2017, 17 September 2019, 30 October 2020, 16 February 2023 and most recently on 21 May 2024 and had been issued a "Certificate of Completion" for "Linfox Red Book induction".[10]

• [20] On 9 July 2014, Mr. Basanti was issued and signed a First and Final Warning letter for failing to "accurately" complete pre trip inspection documentation. Mr. Basanti checked off that the tyres on the vehicle he was driving were in a good condition where it subsequently transpired one of the tyres were bald.[11]

• [21] In August 2022, Linfox completed a "compliance audit" on entry and exit times of the site turnstiles and break times, against data on worksheets. On the basis of this audit it commenced an investigation into the drivers who had been identified as having discrepancies in their worksheets, including Mr. Basanti.[12]

• [22] On 18 August 2022, Mr. Basanti and his support person, Mr. Anthony Goddard from the TWU attended a record of interview. Mr. Basanti "agreed there were discrepancies between his arrival times and the times declared on his worksheet". A record of interview was subsequently prepared, and Mr. Basanti and his support person refused to sign it.[13]

• [23] On 19 September 2022, Linfox after completing the investigation concluded Mr. Basanti had "falsified" his worksheet and issued Mr. Basanti a letter entitled "Investigation Outcome".[14] That letter relevant stated:

You were shown a summary of the discrepancies of your security turnstile entry and exit times for the month of July of which there were 15, totalling 4 hours and 5 minutes. You were asked whether you claimed monies that you were not entitled to, you stated: "When I am not on site, I am taking handovers, pay inquiries, roster change. On site, in the carpark, in the gantry if they are smoking." At the conclusion of the ROI you remained suspended with pay until the conclusion of the investigation.

Linfox has completed its investigation and has concluded that you have been fraudulent when completing your worksheets, as you have claimed to have been working when in fact you were not onsite at during these occasions identified in the table. Furthermore, no approvals were provided to you to record a start time of 2:00am even though you were not on site, as you had claimed. Worksheet falsification is in breach of company policy, specifically, "The Red Book Induction" section.

5. Employee Commitments to Linfox, subsection 5.15 Work Sheets, which states:

• Deliberate inaccurate completion of Work Sheets is fraudulent and may lead to instant dismissal.
• Work Sheets must be completed daily and accurately...
• Worksheets are legal documents

You were shown a summary of the discrepancies of your security e provided to you

• [24] The 19 September letter went on to state "Linfox had reached a preliminary view" that "there is a basis for the termination of your employment for serious misconduct for worksheet falsification and dishonesty" and gave Mr. Basanti an "opportunity to explain why your employment should not be terminated".

• [25] On 21 September 2022, Mr. Basanti was issued a "final written warning" which rehearsed the disciplinary process that had been undertaken, the conclusion Linfox had reached in the investigation and restated the "Worksheet Policy" for the Red Book. The letter concluded (the emphasis is in the original):

Linfox has reviewed all the evidence and has concluded that there is a basis for termination of your employment due to serious misconduct for dishonest or theft as well as worksheet falsification in accordance with clause 71 Counselling and Discipline of the Linfox and Transport Workers Union Road and Distribution Centres Agreement 2021 which states:

71.2 Serious misconduct includes but is not limited to:

However, on this occasion, Linfox has decided to issue you with a Final Written Warning and provide you with one final opportunity to remain with the company. You should be aware that any future misconduct, regardless of the type is likely to result in the termination of your employment.

• [26] Mr. Basanti and his support person refused to sign the final warning. In his oral evidence, Mr. Basanti explained why. It was related to his understanding that he could perform delegate duties which sometimes delayed his ability to fill in his worksheet:[15]

BASANTI: So two years ago, I received a warning. According to my understanding and the arrangement I had with the previous site manager at that time was to perform my delegate roles. At that time, we had a lot of issues regarding roster changes and timings, which were not getting sorted, so a lot of drivers were upset, and before I start work, the pm boys who were leaving the site, they can hold me at the car park before the turnstile, and same thing happens when I'm finishing my shift. The guys who are coming - - -

COMMISSIONER: So you were consulting members on their afternoon shift?‑‑‑

BASANTI: So they maybe hold me up there for five/10 minutes while I'm on site doing the delegate role, just for the company benefit, to get these things sorted, and at that time, due to COVID, we were not using the electronic system (indistinct), so my timesheets come up say five/10 minutes, the round-up figures, which I got alleged on at that time.

RAFTELLIS: Thank you, Mr. Basanti. Did you sign that warning when you received it from the company?‑‑‑

COMMISSIONER: Hang on a minute. I'm not sure I understand. So you were out there doing the - what was the discrepancy in the timesheet as a result of you going and consulting the members?

BASANTI: So like I come in at 2 o'clock and I got held up by the drivers for 10 minutes, and while I'm filling out my run sheet - because I had the arrangement with the site manager that he told me that it's fine, 'as long as you're on the site', so I put the time as 2 o'clock.

• [27] On 4 August 2024, Linfox received a complaint against Mr. Basanti from Mr. Mark Trioralas by e-mail to Mr. Sheridan.[16] That e-mail relevantly stated:

"...I believe there is fraudulent activity occurring where Jaskaren might be falsifying his runsheets as he has not arrived on time at work in the past six months. His start time is 2am but is late every morning, sometimes up to two hours, with no repercussions. Also about 1 month ago, he left the site about 7.30 and did not return until after 9PM to run his own errand (taking his car for a service. He did not clock off during his absence or adjust his run sheet to reflect his absence."

• [28] As a result of this complaint, Mr. Sheridan directed the Linfox Workplace Relations Team to investigate the complaint.

28 August 2024 interview in relation to work sheet discrepancies

• [29] On 28 August 2024, Mr. Basanti and his support person, Mr. Goddard attended an interview with Mr. Thai Trinh, Mr. Caldern and Mr McNicol, Workplace Relations Officer. During the interview, three allegations related to discrepancies on his time sheets were put to Mr. Basanti.

• [30] The 19 May 2024 allegation: On 19 May 2024 - he left the site mid shift at 10:18 AM and re-entered the site at 11:14 AM, a total of 56 minutes. Workers are entitled to a 30-minute paid meal break. According to the record of interview, in answer to this allegation he said (amongst other things):

• "I just went for my lunch break from 10.30 until 11. I put "180" for all my lunch break."
• He "did not recall' why he took longer 26 minutes longer than the prescribed 30 minute lunch break.
• He went to an "Indian Restaurant to get food".
• "We don't clock off for lunch breaks. There is no expectation to clock off during our lunch breaks."

• [31] The 2 July 2024 allegation: On 2 July 2024 - he entered the site at 4:51 AM but recorded a commencement time of 3:55 AM and a finish time of 2:55 PM. The discrepancy meant that Mr. Basanti was paid for 11 hours when Kronos recorded a period of 10 hours 2 minutes between clock on and clock off. This meant an increased payment of overtime. In relation to this allegation, he said (amongst other things):

"That is accidental to write 3.55. I clocked on at 4.55 and logged off. I used Kronos and we are paid through Kronos. When in the tug I get my run sheet printed when I finish my shift. They print the run sheet for me. Maybe on the day I started late and wrote the wrong time on my run sheet accidentally."

• [32] The 10 July 2024 allegation: 10 July 2024 leaving the site at 6:52 AM and re-entering at 8:14 AM. Mr. Basanti was off site for 1 hour and 23 minute during his lunch break, which is limited to 30 minutes. In response to this allegation, he said

"My car was booked in for recall and I forgot it was that day. I sent an alarm for 6 o'clock and it remind me of the recall. The supervisor has called in sick. I called Ralph Vitug and explained that I need to take my car in for a recall and I would be back in half an hour. On the way back I grabbed food for everyone and got stuck in the traffic due to the explosion and chemical factory fire on Swan Drive. I called the office, and no one answered. I called Ralph after this. Thai called me back and I explained that to him."

• [33] Mr. Basanti was suspended on full pay while the investigation took place.

• [34] On 25 September 2024, Mr. Ralph Vitug, the site manager at the Woolworth's MFDC, sent a letter to Mr. Basanti entitled "Investigation Outcome".[17] It set out the process of the 28 August interview, the three allegations and Mr. Basanti's responses to them. It went on:

Linfox has completed its investigation and has concluded that you have been fraudulent when completing your worksheets as you have claimed to be working when in fact you were not on site. Furthermore, Linfox considers your interview responses to be both lacking in honesty and credibility.

• [35] Linfox explained it had formed a "preliminary view that there is a basis for the termination of your employment for serious misconduct for worksheet falsification and dishonesty. This view has been formed based on your most recent conduct in combination with the 2022 Final Written Warning". It also gave Mr. Basanti an opportunity to "respond and explain any circumstances which might mitigate or explain the conduct". It notified him of a further meeting on 26 September 2024.

• [36] Just prior to the Show Cause meeting, Mr. Basanti prepared a written response to the preliminary view expressed by Linfox in relation to the three allegations:[18]

We are not instructed to clock off during our lunch breaks. I took my lunch break and

unfortunately took longer than the allocated 30 minutes. The remaining 26 minutes may have been explained by delays at the restaurant I attended to pick up food for me and my colleagues. It is common practice for a nominated person to collect food for their coworkers as it facilitates a quick lunch break for all employees and prevents delays to everyone's lunch breaks if there is traffic, delays or an incident. I accept that I was delayed getting back to site but I believe it is relevant to consider the context of collecting lunch for numerous other people and ensuring that they remain able to perform their duties on site and take an expeditious 30 minute break.

I believe that I made a simple mistake on my timesheet. I clocked on at 4:55am and accidentally wrote 3:55am. Kronos reflects the accurate clock on time for my shift and it is my understanding that it is through Kronos that our hours and pay are determined.

On this date, I had authorisation from my manager Ralph Vitug to use my lunch break to finalise my car service. As mentioned above, we are not instructed to clock off during our lunch breaks. Because I was off site, I was asked to collect lunch for my colleagues - this is standard practice for which there are numerous witnesses. Unfortunately, there were significant traffic and delays that may be explained by the local chemical factory fire which diverted traffic. I called the office to flag my delay but no one answered. I then subsequently called my manager Ralph Vitug to explain the delays who was very understanding and gave me no reason to be concerned or alarmed. I called him one additional time to communicate my delay, and again he was

I believe that all of the allegations upon which the company is seeking to rely to terminate my employment can be explained by the circumstances and context I have outlined above."

Show Cause meeting on 3 October 2024 and termination

• [37] The Show Cause meeting was held on 3 October 2024 and was conducted by Mr. Vitug and Mr. Calderon. Mr. Basanti attended with Mr. Raftellis (who appeared in the proceeding). Linfox, Mr. Basanti and his representative went through the Show Cause letter and Mr. Basanti's written response amongst other things.

• [38] Mr. Sheridan (who could not attend the show cause meeting) "after considering all the information presented" to him did not "think" that the exculpatory material presented by Mr. Basanti "justified or excused his actions and decided Mr. Basanti's employment should be terminated.[19] Mr. Sheridan requested Mr. Vitug and Mr. Calderon to prepare a termination letter for Mr. Basanti.[20]

• [39] A letter of termination was prepared and a letter dated 3 October 2024 was hand delivered to Mr. Basanti.[21] The letter, after laying out the circumstances that lead to the 2022 final written warning, the written interview on 28 August, the 25 September Investigation Outcome letter and excerpts from the Red Book went on:

Today, 3 October 2024, you attended a meeting to discuss the company's preliminary decision to terminate your employment, due to serious misconduct for worksheet falsification and dishonest. No mitigating circumstances were provided by you that alter the company's decision...

As such Linfox has decided to terminate your employment immediately, without notice,

• [40] In his witness statement Mr. Basanti said the following about the 19 May allegation:[22]

"At 10:18am, I departed the MFDC site to collect lunch for myself and many of my colleagues. This is common practice because Linfox does not offer any food or beverage services on the site that I worked.

It is common practice for a nominated person, on rotation, to collect lunch for a workgroup oftentimes using the Linfox vehicle available for staff. This prevents a mass exodus of workers leaving site and causing issues for Linfox by arriving back at site late if individual food orders are delayed.

I would collect food for the others in my workgroup and local management approximately four or so times a week. Over a year that is over 150-200 trips.

We are not instructed to clock off during our lunch breaks. We are told to only use Kronos at the start and end of our shift. It was common practice to put the standard half an hour for lunch on the timesheet. Managers were understanding that a group order can take some time and there might be delays. As such we were never instructed to put more time than half an hour. We were asked to call one of our managers if we were delayed.

Most of the restaurants frequented by drivers are approximately a ten-fifteen-minute drive. This is more difficult on Sundays as almost all the local cafés are closed and so the drive is often further.

On Sunday, 19 May 2024 I left site to pick up a group lunch order for employees including the allocators and supervisor Jagdeep Chahal Singh. Unfortunately, it took longer than the allocated 30 minutes. The remaining 26 minutes may have been explained by delays at the restaurant I attended to pick up food for me and my colleagues.

As noted above, it is common practice for a nominated person to collect food for their coworkers as it facilitates a quick lunch break for all employees and prevents delays to everyone's lunch breaks if there is traffic, delays or an incident. I accept that I was delayed getting back to site, but I believe it is relevant to consider the context of collecting lunch for numerous other people and ensuring that they remain able to perform their duties on site and take an expeditious 30-minute break.

I cannot definitively recall if I contacted my supervisor that day, Jagdeep Singh Chahal, but I believe that I did as I would do so any time that I was delayed. Nonetheless, no members of management, including Jagdeep, raised any concerns or issues with me when I arrived back to site late.

A member of local management is required to sign our time sheets before it is processed by Linfox Accounts Team. A member of management would have signed my time sheet to approve it."

• [41] In his examination in chief in answer to the question whether or not he had informed management of his late return, Mr. Basanti said:[23]

"Yes, always with any delays. Since my last warning, I learned my lesson, I mend my ways and always, whenever I get delayed, inform the first point of contact, which is the supervisor. If he's not available, one higher up, ops manager or the site manager."

• [42] Mr. Basanti and his representative went on:[24]

RAFTELLIS: At paragraph 25, you speak about your supervisor being Jasmeet Johal Singh; is that correct, Mr. Basanti?

RAFTELLIS: You said you called this individual?

RAFTELLIS: Or you believe you may have, sorry. My apologies, Commissioner.

• [43] The question of whether or not Mr. Basanti could recall ringing his supervisor Jagdeep Singh was the subject of cross examination:[25]

BYRNE: The question I have for you, Mr. Basanti, in your witness statement dated 6 January and what you've said today, there is an inconsistency. Did you or didn't you?‑‑‑

BASANTI: I did because I confirmed with him, double-checked with him that he was working that day, and he confirmed looking at his diary that he was working. And then he remembered that I ring him that day.

BYRNE: You had an opportunity to put a reply statement in?

BASANTI: But we did in the other statement that we did.

BYRNE: Can you take me to that statement where you've confirmed what you've just said today?‑‑‑

BASANTI: I can't find. But (indistinct) confirms and he agreed that was the scenario.

BYRNE: You've got no evidence of that, do you?‑‑‑

• [44] Mr. Basanti gave some explanation of the inaccuracies on his time sheet in cross examination:

BYRNE: I took you to that and you agreed with me on that. That's what it said. So do you agree with me that you left the site at 10.18 on that day?‑‑‑

BYRNE: Why did you write down 10.30 and not 10.20, which is the nearest five minutes to your exit time?‑

BASANTI: Because I fill out the run sheet at the end of the day. Every other example which we discussed previously that those run sheets while driving were the light run sheets. I had run sheet with me all the time. When doing (indistinct) activities I received the run sheet after doing my 12-hour shift.

Evidence on the "lunch practice" from other workers

• [45] The hearing was adjourned after the first day to allow the TWU and Mr. Basanti to file evidence in relation to the lunch practice at MFDC. One person would leave the worksite to obtain lunch for their fellow workers. Three witness statements were prepared that were received into evidence. The witness statements were from Mr. Amanvir Singh, Mr. Gurvinder Singh and Mr. Ljupco Ristanovski. Their witness statements were received into evidence as A3, A4 and A5 respectively.

• [46] In most circumstances the statements use precisely the same words. All three statements contain the following identical text:

"• It is common practice to leave site during the designated break time in order to purchase meals.

• To minimise disruption to the business each day we try and nominate a single employee on a rotating basis to purchase food on behalf of the rest of the work team.
• If there are any delays to our lunch break, it is standard practice to notify a member of management of our delay.
• I have bought lunch for my colleagues and for supervisors and allocators previously.
• It can take longer than half an hour to pick up lunch. Sometimes nearby shops are closed and so you have to drive a bit further, or restaurants take longer than you expect, especially on a group order."

• [47] Mr. Ristanovski and Mr. Amanvir Singh both precisely state: "It is not standard practice, nor are we instructed, to put down a time in excess of 30 minutes for a lunch break if it takes longer than 30 minutes to collect food."

• [48] Mr. Gurvinder Singh says "I have never been told to put down a time in excess of 30 minutes for a lunch break if it takes longer than 30 minutes to collect food on our lunch break."

• [49] They all give evidence in relation to the practice of marking down delays for lunch breaks:

• Amanvir Singh: "When I have run late for my lunch break [and I have rung a member of management about my delay], I notify the office and I don't mark it down on my worksheet because they don't ask me."
• Gurvinder Singh: "When I am running late, which is rare, I will call up my supervisor and let them know but I don't mark it on my worksheet."
• Ljupco Ristanovksi: "I have seen people arriving back at Melbourne Fresh after their half an hour lunch break has finished multiple times. I understand that they do not alter their time sheet to reflect the longer than half an hour if management are aware of that delay."

• [50] In his oral evidence Mr. Ristanovksi explained the group lunch practice in this way:[26]

"...We dedicate one yard driver to step out and get lunch for everyone, including management, because we don't have any facilities on site, and this is the normal practice. So we've been doing it for many years, since I've been there, roughly, you know, 2021, and with the management we have an agreement if we get held up at any stage or any reason, whether traffic or at the restaurant, just to give the site manager a call and let them know that we're held up for 10 minutes or so, or 15. It happens rarely, but when it does this is what we do, or what we have been doing, and as far as we all are aware, and I'm aware, that we don't need to note this down on our run sheet, because we yardies we don't carry the run sheets with us like drivers do; we collect it at the dead end of our shift, and then we put in our 30‑minute lunch break, as discussed with the managers on site."

• [51] Mr. Ristanovski recalled that he had been late coming back from getting lunch once: "...I can't recall the exact date, but I'd say last year in June/July it did happen once, and I notified the supervisor at the time..."[27]

• [52] Mr. Amanvir Singh also described the lunch practice as follows:[28]

RAFTELLIS: Mr Singh, you had, like, one or two times, did you put that on your worksheet?‑

AVANVIR SINGH: As long as we notify, like, any delays we notify the supervisor who is on that shift. Nobody told us to put that delay in the run sheet as long, like, (indistinct) got the run sheet in the morning, when they start the shift, we (indistinct) the run sheet when we finish the shift. That's it.

• [53] Mr. Amanvir Singh in his oral evidence said that he was late coming back from getting lunch for the group 'one or two times",[29] that it happened "rarely"[30] and when it did happen, "we notify the supervisor".

• [54] Gurvinder Singh in his oral evidence described the lunch practice as:[31]

"Yeah, because we don't have any sort of a canteen or anything in the yard, so usually we go for the food outside, normally a café or restaurant, whatever. So we ask all the yardies and for the supervisor as well, so we go out and grab the food, all of them once - one go."

• [55] He also described what occurred on the occasion when he was going to return beyond his 30-minute lunch break:[32]

"Yeah, because last year there was - I don't know what the date, but last year there was - I just call my supervisor, 'Guys, I'm going to be five, seven minutes late.' I just remember that, but after that I - yes, (indistinct) these things didn't happen so we are no more - I am no more going outside to get the foods."

• [56] When asked what he marked on his time sheet on the occasion he was late, he stated "just [marked] the normal break, like half an hour break we allowed to, so (indistinct) half an hour break".[33]

• [57] In his witness statement, Mr. Ralph Vitug, who is the site manager at MFDC, also gave evidence on the lunch practice as follows:[34]

• Employees are free to use their 30-minute meal breaks how they see fit. Linfox does not endorse or allow employees to take longer than 30 minutes for a meal break because they are collecting food for other employees.
• ... employees have been approved to use the site Ute for a variety of purposes. On these occasions the ute is driven out of the truck exit and returns through the truck entry. Employees do not leave or return through the site turnstiles.
• Employees are not instructed to clock on and off for their meal breaks as they are afforded 30 minutes each and every day. I reject any assertion that managers allow a grace period when employees are collecting food for other staff members.
• Linfox has facilities for employees to store food in a fridge or heat food they can bring from home. Employees do not need to purchase food from a café or store. This is a choice made by employees.

• [58] Mr. Vitug was cross examined about his statement about how Linfox does not "endorse" lunch breaks over 30 minutes:[35]

RAFTELLIS: I asked you before if you would consider management and yourself as employees and you said that is the case. I mean you're welcome to clarify your statement, but what I understand is that it's your view that Linfox does not endorse or allow employees, that is, anyone who is employed by the business, to take longer than 30 minutes for a meal break; is that correct?‑‑‑

VITUG: It depends on the - so if it's a driving crew, they're obviously on a weekly - weekly basis. Monthlies, no.

RAFTELLIS: What do you mean by that, sorry, weekly, monthly basis?‑‑‑

VITUG: So drivers are weekly and white collar staff are in the salaried staff.

COMMISSIONER: So what you mean by 'employees' is not white collar staff; is that right?‑‑‑

RAFTELLIS: Well, you made a qualification before when you said, 'Has happened, seldom happens' as far as the agreement‑covered staff?‑‑‑So for blue collar?

RAFTELLIS: So when you say it seldom happens, you meant - - -?‑‑‑A

RAFTELLIS: Your reference to 'employees' here, you're meaning blue collar, are you?‑‑‑

VITUG: For this particular statement, yeah, it's blue collar.

RAFTELLIS: So you're kind of carving out the managers? They can take longer, if necessary?‑‑‑

VITUG: Monthly salaried staff, not managers strictly.

RAFTELLIS: What do you mean by that distinction? ‑‑‑

VITUG: So allocators, supervisors, they're all monthly salaried staff.

RAFTELLIS: So the half an hour break doesn't apply to them?‑‑‑

VITUG: No, it doesn't because they don't - they don't have a designated break time.

RAFTELLIS What might be an example of, or who might be an example of a manager who's paid on a weekly basis that would be restricted to the half an hour?‑‑‑

RAFTELLIS: So they're just drivers that are mentioned in the enterprise agreement?‑‑‑

• [59] Mr. Basanti in his reply statement took issue with Mr. Vitug's claim that Linfox does not "endorse" a longer than 30 minute meal break by attaching a sample of the MFDC ute logbook (which is often used for the group lunch practice) which shows some employees have taken longer than thirty minute for lunch. He states:[36]

I reject the assertion that Linfox does not endorse employees or allow employees to take longer than 30 minutes for a meal break. The attached sample pages of the Linfox ute logbooks demonstrate that employees take longer than 30 minutes on their lunch breaks. As many of these individuals are managers, I believe this demonstrates that the standards set by Linfox are that it is acceptable to take longer than 30 minutes on a lunch break ...It is my view that they may have financially benefitted from the lunch breaks that they took in the same manner.

• [60] Mr. Basanti was cross examined on the contents of the log excerpts. The log contains entries in relation to "Food", "Lunch Run" or "Lunch", and the employees who used the ute include management and salaried staff (who are not paid on an hourly rate and therefore don't get paid meal breaks) and drivers who are paid the 30-minute meal break and are covered by the Agreement.

• [61] The cross examination established that employees who were drivers in the log, namely Govinda, Sahab, Jugrat, Amanvir (and some others), all returned within the 30-minute meal break.[37] There are two entries for the driver "Jatton": the first entry he returned within the 30 minutes, the second entry on 21 December was for a period of 50 minutes.

• [62] In his 6 January Witness Statement, Mr. Basanti states:[38]

"On 2 July 2024 I entered at 4:51am and clocked out at 2:57pm. On my worksheet I accidentally wrote 3:55am instead of 4:55am. I believe that I made a simple and regrettable mistake on my timesheet.

Kronos reflects the accurate clock on time for my shift and it is my understanding that it

is through Kronos that our hours and pay are determined.

...others had made similar mistakes such as this and were not subjected to disciplinary processes or outcomes."

Sheridan statement on disciplinary action taken against workers for worksheet inaccuracies

• [63] In paragraph 48 of his Statement, Mr. Sheridan lists eight employees between 21 September 2022 to 14 September 2024 who were disciplined for "falsified" worksheets. Two received final warning letters and six had their employment terminated.[39]

Basanti reply statement on 2 July 2024 allegation

• [64] In his reply statement dated 11 February 2024, Mr. Basanti expanded on his explanation:

My usual start time is 2:00am and I had slept in as I was unwell. I intended to take the day off to recover, but when I called Jasmeet Singh, Office Clerk, told me that three other employees had called in sick and that they were quite understaffed. As such, I attended work but later than my usual start time.

When I completed my worksheet at the end of the day, I accidentally wrote down the

wrong start time. Once I wrote it down wrong once at the top of the worksheet, I continued to make the same error as I worked down the sheet.

I am upset and disappointed that this error has been used as grounds to terminate me considering I did not intend to come into work as I was unwell, but did so in order to help the company. I worked 72 hours over 6 days every week starting at 2am every single day. I would work every public holiday and rarely call in sick. I have been a committed employee of the company for years and have been treated like I am disposable for making one mistake on 2 July.

• [65] In his examination in chief, Mr. Basanti said:[40]

"So 2 July, I wasn't feeling well that day, I slept in, and when I wake up around quarter past 3, I ring the site and say, 'I'm not feeling well, I slept in. Can I take a day off today?' And the person at that time was Jess Mead, who's the office clerk. He advised me that Mark Disolas(?) - he's another truck driver who used to start with me - that he already called in sick, and Jasmeet, who's the supervisor, he's not there yet, and they had one other employee, which I forget the name, that he's not there, so we short‑staffed, 'If you can please come in, it will be really appreciated.' So I straight away jump in the shower and get to work.

Then I accidentally put wrong time because of - we get the run sheets end of the shift. We start early in the morning and finish it on 2 pm/2.30, and after working 12 hours, we given the run sheet to fill in. So at that time, I just accidentally put the wrong time."

• [66] Mr. Byrne cross examined Mr. Basanti about the elaborated explanation in his reply statement as well as whether Jasmeet, the person he contacted, was a supervisor:[41]

BYRNE: So again, I put it to you that Jasmeet is not a boss, not a senior manager on site, not someone that runs the site, is he?

BASANTI: He was the only person available at the site. As I said, the supervisor was running late. He wasn't there when I ring. I ring the landline phone for the supervisor extensions.

BYRNE: Mr. Basanti, in your record of interview on 28 August 2024, can you show me in there where you advised that you were unwell, and that contributed to the conduct engaged by you on 2 July?

BASANTI: I can't recall at that time, the ROI. It was just presented to me, so I can't recall straightaway. After that, I had done my investigation that - who was working, I consult with those people, and then I remembered and confirmed that that was the actual day on that day.

BYRNE: There's nothing in that witness statement that says you were unwell and that contributed to it. There's nothing in there, is there?‑‑‑

BASANTI But I don't work there anymore. I have to find people, make calls, and remember those, days, scenarios, bring them - picture them in front, that - what was the date. And they have to go back, check that - who was working that day. And after doing all that, I gathered the information that happened.

BYRNE: Well, you worked at Linfox on 28 August. These people were all available to you on 28 August, but you didn't remember it then, and you couldn't put it in that document there?

BASANTI: I wasn't given the opportunity to go talk to people. I was in the room, and that sheet comes in front, all of a sudden, after two months.

BYRNE: Well, you signed that record of interview, didn't you.

• [67] Mr. Basanti's witness statement as it was made on 6 January 2024 stated:[42]

At 6:17am I called Site Manager Ralph Vitug and advised that I needed to use my lunch break to finalise my personal car service. Ralph approved me doing so and asked me to pick up pork rolls for lunch for management (including Ralph himself), Operations Manager Thai Trinh, Country Clerk Tim, and Supervisor Jagdeep Singh Chahal back in the office while I was out

I left the site at 6:52am. As mentioned above, we are not instructed to clock off during our lunch breaks.

Unfortunately, there were significant traffic and delays that may be explained by the local chemical factory fire which diverted traffic. As noted in my Record of Interview ...I recall that Swan Drive was blocked off and traffic was being directed elsewhere. Traffic may have been directed elsewhere due to the chemical spill which preceded the fire - it is unclear to me why the road was blocked off.

I called the office to notify them of my delay, but no one answered. I then subsequently called Ralph Vitug at 7:52am to notify him that I had picked up lunch and explain the significant delay He was very understanding and gave me no reason to be concerned or alarmed.

I had a genuinely held belief that because I was collecting lunch for management, at their request, and that I had notified Ralph of my delay that I did not need to alter my time sheet to reflect a longer lunch break.

When I got back to site, I distributed out lunch and spoke with Ralph. Ralph did not express any issues or concerns about my time, nor did he ask me to put down an altered time on my timesheet or write any notes.

A member of local management is required to sign our time sheets before it is processed by Linfox Accounts Team. A member of management would have signed my time sheet to approve it. It is likely that one of the four members of management who was aware of my delay because they got lunch from me that day, signed off on my timesheet because managers often sign our timesheets at the end of our shift.

• [68] Relevantly, Mr. Basanti attached a screenshot from his phone to corroborate the discussion he had with Mr. Vitug on 10 July. It records that Mr. Basanti rang Mr. Vitug at 6:17 AM and that phone call lasted 46 seconds and again at 7:52 AM and that lasted 37 seconds.[43]

• [69] Before this statement was received into evidence at the hearing, Mr. Basanti made a correction to his first statement that was also made in his reply statement under the heading "Response to Ralph Vitug Statement":[44]

I want to correct that Thai, the operations manager, he asked about the pork rolls and when I was taking permission from Ralph I offered that I'm getting pork roll for other staff, "would you like One? And he said "yes".[45]

• [70] Mr. Vitug stated the following in relation to this allegation:[46]

• On 10 July 2024 I received a phone call from Mr. Basanti at 6:17am advising me that he needed to take his car for a recall service and would be doing this in his lunch break, I was at home when I received the phone call. I advised Mr. Basanti that he should have told me the day before so we could have planned for it; I advised Mr. Basanti that he was free to do this in his lunch break, however, I did not approve or endorse for him to take longer than his allotted 30-minute break time. Mr. Basanti did not inform me that he was taking his lunch break at that time. I reject the allegation that I asked him to buy me lunch or collect my lunch.
• Mr. Basanti called me at 7:52am and advised me that he was on his way back to the site but not that he had experienced significant delays.
• The management team review the information recorded on the worksheet prior to signing off the worksheet. Mr. Basanti recorded no information related to his absence from work 6:52am to 8:14am. Had he done this, the management team would have brought this to my attention, and I would have acted upon it. The expectation is that all drivers are to note on their worksheets any delays.

• [71] Mr. Basanti replied to this statement in a reply statement in which he stated:[47]

• I informed Mr. Vitug that I had been asked by Linfox Manager Thai Trinh to collect lunch for members of management and my colleagues. I offered to purchase him food, and he asked what I was getting and I advised it was pork rolls, and he asked me to get him one. Please see attached bank transaction indicating the value of my purchase. [Attached to his Statement was a receipt from "Bahn Mi Viet St Albans" in the sum of $50.14.]
• I reject the assertion that I did not inform Mr. Vitug of my delay. That was the express purpose of my call.
• The supervisor who signed off on the sheet, Vakeel Singh, was aware that I was late from my lunch break as I had notified him and told him that I had reported this to Mr. Vitug.

• [72] Mr. Sheridan in his statement sought to interrogate Mr. Basanti's claim that his delay on 10 July 2024 was due to "Traffic may have been directed elsewhere due to the chemical spill which preceded the fire" as follows:[48]

• Mr. Basanti departed the MFDC at 6:52am and returned at 8:15am on 10 July 2024;
• Upon review of the media report issued by Fire Rescue Victoria, emergency services arrived at the scene of the factory fire at 11:20 AM;
• Mr. Basanti returned to the MFDC 3 hours prior to emergency services attending the factory fire
• Mr. Basanti did not record this delay on his worksheet.

• [73] In his oral evidence, Mr. Basanti stated:[49]

BASANTI: So on 10 July, my car was booked in for recall, but instead of putting the alarm a day prior, I put the alarm at 6 o'clock for the same day, and when the alarm ring, I ring Ralph straight away that I forget my car supposed to go for recall, 'Can I do this in my lunch break?' And he gives me okay to do that.

RAFTELLIS: Who did you buy lunch for that day, Mr. Basanti?

BASANTI: So before leaving site, I ask Thai, as usual, I ask everyone, all my truck drivers and the other staff that is needing food, and Thai insist me to get pork rolls on the way back, and when I ring Ralph, I offered him as well that, 'I'm getting pork rolls for everyone, would you like one?' and he said, 'Of course', and I went, done my car and bought food.

BASANTI: So I called him twice on that day, firstly, to take permission that if I can go swap my car in my lunch break, and second time I ring him to notify the delay. I ring the office phone. They didn't answer, so I ring Ralph Vitug again that I got held up due to traffic. I don't know what the reason was there, but I had a detour. I was at standstill for three to four minutes, so I had to take detour, which took me longer than expected, and because I ring the office, then Thai ring me back. I explained him the whole situation there as well. So I informed two people.

BASANTI: Yes, they had photos from the turnstile of me holding two bags full of food.

• [74] In cross examination he was asked questions about his telephone calls with Mr. Vitug:[50]

BYRNE: When you called Mr. Vitug he was at home? ‑‑‑

BASANTI: You told him that you would use your 30-minute lunch break to do your car service. That's what you told Mr. Vitug? -

BYRNE: You never told Mr. Vitug that you needed to take longer?‑‑‑

BASANTI: I was only swapping the car with my wife so she can take to the shop because I forget.

BYRNE: So when you called Mr. Vitug you never made any comment to him that you were going to take longer than 30 minutes?‑‑‑

BYRNE: That's 35 minutes after making the phone call to Ralph?‑‑‑

• [75] Mr. Byrne then asked Mr. Basanti questions concerning the "chemical spill" which Mr. Basanti speculated may have led to the delays he experienced. Mr. Byrne took Mr. Basanti to a news report which was an attachment to the Sheridan statement. In that statement it stated "Crews arrived at Swan Drive scene at 11:20AM."[51]

BYRNE: Fire Rescue Victoria outline that crews arrived at 11.20 am, however you arrived back to the site at 8.15 am?

BYRNE: Emergency services arrived to the factory fire two hours and 55 minutes after you returned to the site. How is it possible that this incident caused you any delays when emergency services arrived at the scene two hours and 55 minutes after you returned to the site?‑‑‑

BASANTI: If you go back to page 129, twice there I told: It could have been due to chemical factory fire, accident. Not sure, but it was blocked. So in my ROI I told that three times, that if I'm looking one month after, that's the only incident I can find over the website. There was a fire on that day that was on the news.

BYRNE: You say ...., 'There was significant traffic delays', and that Swan Drive was blocked off and traffic being directed elsewhere?

BYRNE: So you think that wasn't in connection with the factory fire, it was something else?‑‑‑

BASANTI: As I said, it could be due to chemical factory or accident, not sure.

BYRNE: Why didn't you record it on your worksheet on 10 July?

BYRNE: But you'd recorded on numerous other occasions, Mr. Basanti, delays or activity that had been approved by your manager that they knew what you were doing and you wrote that down on the worksheet. But on this particular day you told management and management were aware of it, that's what you say, and you didn't write it down in your worksheet?‑‑‑

BASANTI: All those 150 examples we got here is my working.

BYRNE: There is not a single one regarding my lunch break or anyone's lunch break.

BYRNE: No, but it's activity. It's delays incurred during your day?‑‑‑

BASANTI: Yes. There could be other incidents where things get done on the phone call as well which I haven't recorded. But the majority of the time I record, but not regarding the lunch delays. If it happens, I inform two people: my ops manager and my site manager.

• [76] In cross examination Mr. Vitug gave evidence of recording delays returning from breaks.[52] His evidence was the following:

• He confirmed it was the "unform policy" that drivers who take longer than a 30 minute meal break must record it on their worksheet and that is made "very clear" to the drivers. He gave the example, that if they took "five minutes extra" before a fatigue break. After a review, the drivers are told "this must be noted down on the run sheet."
• If there is a discrepancy between the time they put down in their worksheet and the actual amount of time taken that is raised with the driver "if its noted on the worksheet".
• If supervisors are aware that someone has taken in excess of their break, they've been informed, and they see them enter the site half an hour or an hour longer than they ought to raise it with the driver. The expectation is that the supervisors "advise the drivers to put down everything on the run sheet".
• He was also asked about Kronos and the worksheets. Mr. Vitug said that Kronos and the worksheets work "hand in hand". The drivers scan in and that time they scan is what they put on the run sheet. There should not be any discrepancies.
• He conceded the point that the "ideal outcome" is the workers fill out their worksheets correctly but if someone takes longer on their meal breaks he would "typically" try to have a conversation with the driver and rectify them.

• [77] Mr. Vitug was then cross examined about the conversation he had with Mr. Basanti on 10 July. In that exchange he gave evidence of what occurred in the 6:17 AM phone call:[53]

• Mr. Basanti mentioned he needed to service his car and that he'd do it on his break.
• He mentioned he was also "grabbing lunch on his break".
• He did not mention to Mr. Vitug that Thai Tren had asked him to get lunch.
• He could not recall if Mr. Basanti asked him if he wanted lunch as well.
• He could recall Mr. Basanti had said he was buying lunch for other workers.

• [78] He also confirmed that at the 7:52 AM call:[54]

• Mr. Basanti rang to let him know that he was on his way back.
• Mr. Basanti did not explain the fact that he had been delayed "because Mr. Vitug did not know what time he left".
• They discussed that Mr. Basanti had got the food he was on his way back and "that was it" ..." nothing else".
• Confirmed the 7.52 AM phone call went for 37 seconds. The following was discussed "he was letting me know that he's gotten everything, the food, and was on the way back" Mr. Raftellis sought to test him on whether that conversation would take 37 seconds and put to him that it would take "10 seconds". In response Mr. Vitug "I mean we can talk" and what they talked about was that Mr. Basanti was "on the way back and he's letting me know". Mr. Vitug responded Mr. Basanti with "Yeah that's fine, is the site still covered?" He was "okay with the fact that he was on his way back to the site "because he wasn't aware of what time he left".
• When Mr. Basanti returned back to the site and talked to Mr. Vitug, he was unaware he had taken longer than 30 minutes. Mr. Vitug had not seen Mr. Basanti discuss with other members of management, nor had anyone discussed with him that Mr. Basanti was late.

EVIDENCE OF MR. BASANTI'S WORKSHEETS UNRELATED TO THE ALLEGATIONS

• [79] The Sheridan Statement included evidence of other time sheets Mr. Basanti had completed which were part of the investigation into the allegations.[55] They included:

• • Twelve worksheets from the period 25 May 2023 to 28 June 2024 where he was performing duties as a yardie;[56] and
• • Thirteen worksheets from the period 23 January 2023 to 28 July 2024 where he was making deliveries as a driver".[57]

• [80] Mr. Sheridan explained the entries on these worksheets "demonstrated to me that Mr. Basanti would regularly record information related to delays or approved activity from his management team".[58]

• [81] Mr. Byrne cross examined Mr. Basanti extensively on most, if not all, the worksheets.[59] The cross examination revolved around the fact that Mr. Basanti had placed text in the part of the form entitled "comment section - please explain any issues or delays". I assume this is to make the argument that he did not fill out this section for the delays and errors in the time sheets which were the subject of the allegations.

• [82] As an illustration of the form of cross examination on this topic, I will give two examples of the line of questioning:

• • 15 November 2023 time sheet: Mr. Basanti was asked questions relating to the worksheet for 15 November 2023:[60] He confirmed it was his worksheet and he had recorded "[Code] 100, meeting with HR Cameron "in the comments/notice section.

He confirmed management had approved that activity and he recorded it because he was "not working from 9am to 10.45am". He agreed that he had complied with the Red Book on 15 November 2023.

• • 12 January 2023: time sheet:[61] He confirmed it was his worksheet that he had completed, and he had placed in text in the comments/notice section. On dock delays. Waiting for the storm until 9.45am to make room for the Lineage twice. Not taking deliveries before 12PM. Wait 30 minutes for the storm. Mr. Basanti agreed that he had "complied with the Red Book by reporting all activity".

• [83] After my summary of the evidence, I will now examine whether the decision to dismissal Mr. Basanti was harsh, unjust or unreasonable.

SECTION 387(a): WAS THERE A VALID REASON FOR DISMISSAL RELATED TO MR. BASANTI's CONDUCT?

• [84] The decision to terminate Mr. Basanti occurred in a context that he was the subject to the 21 September 2022 final written warning for "worksheet falsification" because of discrepancies in his worksheets, noting that he refused to sign it because he says he had permission to undertake union duties when he arrived at work in the written warning, Linfox:

• Referenced the Red Book Policy 5.15 in relation to worksheets. This is to the effect that "deliberate falsification of worksheets is fraudulent and can lead to instant dismissal, worksheets must be completed daily and accurately, and worksheets are legal documents".
• Reached the conclusion that there was a basis for terminating his contract for "serious misconduct" because "dishonesty or theft" and "falsification of worksheets" is serious misconduct under the Agreement.
• Decided not to terminate his employment but warned him that he "should be aware that future misconduct, regardless of the type is likely to result in the termination of your employment."

• [85] Mr. Basanti argues this warning is "diminished" because of the length of time between the warning and the termination of his employment. It is also argued that "unlike the circumstances of the warning with the discrepancies that lead to the termination Mr. Basanti had "engaged with managers on his delays, followed direction and engaged in standard practice".

2024 termination letter and the reasons for termination

• [86] The termination letter referred to the 19 May, 2 July and 10 July allegations as follows:

• When asked to explain the turnstile entries recording you leave the site mid-shift on Sunday 19 May 2024 at 10:18:23AM and re-entering the site at 11:14:10AM, a total of 56 minutes, you stated: "I just went for my lunch break from 10:30-11:00. I put 180 for all of my lunch breaks". You provided no reason why you were absent from site for 56 minutes and only recorded a lunch break for 30 minutes on your Worksheet.
• On Tuesday 2 July 2024, the site turnstile recorded you entering the site at the commencement of your shift at 4:51:39AM, however you recorded on your Daily Worksheet a commencement time of 3:55AM and a finish time at 2:55PM. You agreed that you were paid for 11 hours when you were only on site for a total of 10 hours. You stated: "I accidentally wrote the wrong time. I wasn't deliberately stealing money."
• On Wednesday 10 July 2024, the site turnstiles recorded you leaving the site during your shift at 6:52:31AM and re-entering at 8:14:58AM. You explained that you left the site for 1 hour and 23minutes because you had to take your car for a service. When asked to explain your absence from site for 1 hour and 23 minutes, you stated: "I was on my lunch break then I was stuck in the traffic due to the factory fire or accident, not sure but fire was on the news."

• [87] Linfox had "finalised its investigation and concluded that you had falsified your worksheets as you claimed monies you were not entitled to; and that your interview responses lacked honesty and credibility" and then noted the worksheet policy in the Red Book which stated: "Deliberate inaccurate completion of worksheets is fraudulent and may lead to instant dismissal, Record your time on the worksheet to the nearest five minutes, All activities, including breaks or stoppages, must be recorded, Worksheets must be completed daily and accurately, Worksheets are legal documents."

• [88] The termination letter went on to state that the 3 October show cause meeting was arranged to "to discuss the company's preliminary decision to terminate your employment, due to serious misconduct for worksheet falsification and dishonesty. No mitigating circumstances were provided by you to alter the company's decision with respect to this matter."

• [89] Linfox decided to terminate his employment immediately, without notice, "pursuant to

the Linfox Driver Behaviour Policy, and clause 71. Counselling and Discipline in the agreement for serious misconduct", which included "dishonesty or theft and falsification of worksheets".

• [90] Was he guilty of "dishonesty or theft and falsification of worksheets?" I will examine the facts on each of the three allegations.

• [91] It is not contested Mr. Basanti was absent from the site for a period of 56 minutes where the paid lunch break period is 30 minutes. It is also not contested that the delay was not recorded on his worksheet.

• [92] Mr. Basanti relies on the lunch practice to explain the reason why his worksheet was not accurate. He says "it was common practice to put the standard half an hour for lunch on the worksheet" and he was "never instructed to put more than half an hour" and "we are asked to call one of our managers if we were delayed."

• [93] He relies on the evidence of Mr. Amanvir Singh, Mr. Gurvinder Singh and Mr. Ljupco Ristanovski who explain lunch practice in precisely the same terms, with the same words in their witness statements. They all gave evidence to the effect if they are late to return from obtaining a group lunch order they do not mark it on their worksheets but they do contact their supervisor.

• [94] In their oral evidence, they all said they had only returned late "once or twice". Gurvinder Singh explained in his case his delay was "five to seven minutes". This evidence seems to confirm yard workers generally conform to the 30 minute lunch break even when they are getting everyone lunch.

• [95] Mr. Vitug's written statement and his oral evidence denies that Linfox allows employees to take longer than 30 minutes for a meal break because they are collecting food and also confirmed it was a "uniform policy" that "drivers must record when they take longer than 30 minutes on their lunch break". In his oral evidence, he said it was made very clear to drivers to "if they take five minutes extra", that must be recorded on the time sheet and that "there should be no discrepancies".

• [96] The practice as described by the yard workers is predicated on a supervisor approving or at least being made aware of the delay. Mr. Basanti's evidence on this aspect of the practice is not clear:

• In his written response to the show cause, he describes the lunch practice but did not identify the supervisor he rang to give notice of the delay.
• In his primary witness statement, Mr. Basanti complains he did not have access to the phone logs to see "if I called Ralph Vitug or Jagdeep Singh Chahal". He goes on: "I believe I did as I would do so any time that I was delayed".
• In his evidence in chief, he gave evidence that he "spoke to Jasmeet Jahal Singh".
• In cross examination, Mr. Basanti was asked whether he contacted Jagdeep Singh. Mr. Basanti replied "I did, I confirmed with him that he was working that day, and he confirmed looking at his diary that he was working. And then he remembers that I did ring him that day."

• [97] Even if I accept the lunch practice, the inconsistency in this evidence is not a firm footing on which to find Mr. Basanti rang his supervisor to inform him of the delay. Mr. Basanti was represented by his union throughout the disciplinary process and the hearing. In the absence of corroborative material to confirm he did inform Mr. Jagdeep Singh, I cannot find that Mr. Basanti rang Mr. Jagdeep Singh.

• [98] The evidence of the lunch practice is limited. We have the evidence of Mr. Basanti himself and the three witnesses who just so happened to have witness statements with either precisely the same or similar text. The evidence in relation to the practice of not recording the delay on the time sheet is not conclusive. There is an assertion that it is "not standard practice" to record the delay. The oral evidence of the three witnesses is they have rarely been late in returning from an expedition to get lunch for the co-workers. The only evidence of the length of the delays is from Mr. Gurvinder Singh who was "five to seven minutes late." The delay in issue here is 26 minutes.

• [99] Even if there was a practice where delays in returning from getting lunch were not recorded, it does not exculpate Mr. Basanti from his obligation to accurately complete the time sheets and to record reasons for delays in the "comments/notes" section:

• He was on a final written warning which included breach of a policy that required worksheets to be "completed daily and accurately", and "Worksheets are legal documents".
• The worksheets themselves explained in text "This run sheet is a legal document" and "All data keyed must be accurate and true."
• The Red Book was not an obscure document which remained untouched in a hard drive or on a shelf. Mr. Basanti was trained on it regularly including some self-directed training which led to him receiving a "certificate of completion" of Red Book Induction training on 21 May 2024. Together with the final warning, this training means Mr. Basanti was on high alert to the requirement that worksheets were required to be accurate.
• The existence of Kronos, which records point of entry and point of exit, does not absolve Mr. Basanti of his obligation to comply with the Red Book in relation to worksheets.

• • Mr. Basanti was a long-time senior delegate that had been a support person in disciplinary meetings relating to members who had allegedly not complied with the Red Book.[62]

• In his position of delegate, he knew or ought to have known the rights and obligations of workers at the MFDC in relation to breaks under the Agreement and the incorporated Awards.

• [100] The ute logs confirm drivers using the MFDC ute for getting food conform to the 30 minute break, with one exception: on 21 December 2024, the "Jatton" entry extends beyond 30 minutes. Linfox makes the valid point that we have no idea what that driver recorded on his worksheet. In so far as the ute log contains entries from management and salaried staff, they are not paid by the hour and therefore delays of those workers in returning from lunch cannot be regarded as equivalent. If anything, the ute log supports an inference that drivers rarely took longer than 30 minute meal breaks.

• [101] I will deal with the question of whether this conduct amounted to "worksheet falsification" and "dishonesty" later in my reasons.

• [102] It is not contested Mr. Basanti entered the site on this day at 4:51 AM but recorded a commencement time of 3:55 AM and a finish time of 2:55 PM. It is also not contested that this inaccuracy meant that Mr. Basanti was paid for 11 hours when he had in fact worked 10 hours and two minutes.

• [103] In his record of interview, Mr. Basanti put this discrepancy down to accident. He "used Kronos and we are paid through Kronos" and the fact that when he works on the tug be completes the run sheet at the end of the shift.

• [104] In his first statement, Mr. Basanti restates these reasons for the inaccuracy of his worksheet and adds "others had made similar mistakes and were not subjected to disciplinary processes or outcomes".[63] In his reply statement[64] and his oral evidence, Mr. Basanti elaborates on his reason for the delay: His usual start time was 2:00 AM. He slept in and was unwell. Mr. Jasmeet Singh, the Office Clerk told him that three employees were called in sick and they were understaffed. As a result, he attended work but "later than his usual start time". He went on "when he completed the worksheet at the end of the day" he "accidentally wrote down the wrong time".

• [105] Mr. Byrne cross examined Mr. Basanti on the late development of his evidence. He said "I don't work there anymore, I have to find people, make calls and remember those days and they have to go back check that - who was working that day. After that I gathered information that happened."

• [106] The late evidence in a reply statement elaborating on the circumstances does not enhance Mr. Basanti's credibility. He was represented by a union throughout the process that lead to his dismissal and also in this proceeding. I accept that in the initial record of interview he may not have remembered the details of that particular date, however:

• Between the 25 August and the Show Cause letter of 25 September, Mr. Basanti and his union had the ability to investigate the circumstances of that day.
• He had an opportunity to reflect and give a fuller account of what transpired at the show cause meeting on 3 October.
• There were three months between the date of his termination and the signing of his initial witness statement on 6 January in which he could have reflected and perhaps sought to examine phone records that may have jogged his memory.
• It was not until 11 February he recalled that he was urged to attend work when he was not well.

The practice of filling in a worksheet at the end of shift

• [107] Even if I accept that he was not well that day. I am not sure how that lead to a failure to record the correct time when he started work. It may be better explained by the practice of completing his worksheet after twelve hours at the end of a shift.

• [108] Mr. Basanti was on a final warning for failing to accurately record hours. The practice of completing the worksheet at the end of the day was cavalier for a worker who was in the "last chance hotel". It may have been the practice of yard workers, but Mr. Basanti was a yard worker on a final warning. To continue a method of completing the worksheet which was prone to errors and inaccuracies was reckless.

• [109] Mr. Basanti claims that others had made similar mistakes and were not disciplined. I accept the evidence of Mr. Sheridan that over the period from 21 September 2022 to 14 September 2024, eight employees had been disciplined for "time fraud": two were given final warnings and the remaining six had their employment terminated.[65]

• [110] It is not disputed that on 10 July 2024 Mr. Basanti left the site at 6:52 AM and returned from his lunch break at 8:14 AM. He was off site for 1 hour and 22 minutes. No comments or reasons for the delay were given on his time sheet.

• [111] The gravamen of Mr. Basanti's explanation for this inaccuracy is that he had called the site manager, Mr. Vitug, that he needed to use his lunch break for a car service. Mr Thai Trinh asked him to pick up some pork rolls for the management staff. He left the site at 6:52 AM. There were significant traffic delays that "may have been explained by a local chemical factory fire which diverted traffic".

• [112] Mr. Basanti called the office to notify of the delay but no one answered. He rang Mr. Vitug at 7:52 AM to notify him that he picked the food up and of the "significant delay". Mr. Basanti attached a phone log which indicated the date and length the phone calls to Mr. Vitug. In his reply statement, he states the supervisor "who signed off on the sheet", Mr. Vakeel Singh, was aware he was late from his lunch break: "I had notified him and told him I had reported it to Mr. Vitug".

• [113] In his oral and written evidence Mr. Vitug confirms Mr. Basanti had rung him at 6:17 AM and mentioned he'd do it on his break and that he was "grabbing lunch on his break". In relation to the 7:52 AM conversation, he confirmed that Mr. Basanti had rang him to let him know he was on his way back. He denied that Mr. Basanti explained to him the fact that he was delayed because "he did not know what time he left". Mr. Basanti had told him he had got food and was on the way back and nothing else.

• [114] There is a direct conflict on the evidence as to whether Mr. Vitug was informed of and accepted Mr. Basanti's reasons for delay. On my observation of both witnesses, I prefer the evidence of Mr. Vitug. He seemed to have a firmer memory of the conversations, and his version of events did not deviate during cross examination.

• [115] Mr. Raftellis in cross examination sought to make a point that the 37 second length of the 7:52 AM conversation was more consistent with the giving of an explanation for the delay. The length of the conversation is not evidence of the substance of it.

• [116] The fact Mr. Trinh had requested Mr. Basanti to get lunch for the managers, or that Mr. Vakeel Singh had signed off on the worksheets does not absolve Mr. Basanti of his duty to record his time accurately. The length of the 56 minute delay required Mr. Basanti to explain it on his worksheet.

• [117] For the reasons I have articulated earlier, Mr. Basanti cannot rely on the lunch "standard practice" because he was on a final written warning in relation to accuracy. Similar to the situation in the 19 May 2024 allegation, the evidence does not establish that he informed his manager of the reason for the delay.

Are these discrepancies "worksheet falsification and dishonesty"?

• [118] The reasons given for Mr. Basanti's termination were serious misconduct for worksheet falsification and dishonesty.

• [119] Linfox elaborates on this in their outline of submissions where they say Mr. Basanti was terminated for falsifying his worksheets and claiming payment for periods he was not working. Linfox determined his interview responses lacked honesty and credibility. In particular, Mr. Basanti had:

• On May 2024 declared 30 minute break however was off the site for 56 minutes;
• On July 2024 declared commencement time of 3:55 AM however he didn't enter the

• On July 2024 declared 30 minute break however was off the site for 1 hour 22

• [120] The plain meaning of "dishonesty" is "a lack of honesty, fraudulent or deceitful". Worksheet falsification means "the act of deliberately misrepresenting information or manipulating data to make to make it appear different from the truth". This meaning of worksheet falsification is reinforced by the Worksheet policy in the Red Book that relevantly states "deliberate inaccurate completion of worksheets is fraudulent and may lead to dismissal."

• [121] Both the expressed reasons for dismissal contain an element of intention. In order to be satisfied that his conduct amounted to serious misconduct, I must be satisfied Mr. Basanti consciously sought to deceive Linfox in: failing to record the delay on 19 May; failing to record the correct start time on 2 July; and failing to record his delay in returning from work on 10 July.

• [122] Mr. Sheridan gave evidence that he formed the view that Mr. Basanti should show cause why he was dismissed because: he had been trained in the Red Book; had previously recorded information related to delays or time "off task" in the past; and he had been issued a final warning for worksheet falsification if he did not record times and activity accurately. He went on to say that his interview responses "lacked honesty and credibility".

• [123] None of those elements establish direct evidence of an intention to deceive when he filled out each of the worksheets that are the subject of the allegations.

• [124] At best, the fact that he knew the Red Book, had been punctilious in recording of time "off task" both as a driver and in the yard, and was the subject of a final warning infer that at the time he filled out the three worksheets he did so dishonestly and fraudulently. His lack of candour in the interview might support this inference but it cannot provide direct evidence of his intention at the time he filled out the worksheets.

• [125] There was no direct evidence before me to establish the failure to record accurately in each case was wilful, deliberate or intended. Is an inference based on knowledge of the Red Book, a history of recording breaks and time "off task" and a final written warning sufficient to prove "dishonesty" and "falsification"?

• [126] The gravity of the consequences of a finding of serious misconduct requires a higher quality of proof for the balance of probabilities to be made out.[66] Given the nature of the allegations here and their consequences, more convincing evidence is required to establish the allegations on the balance of probabilities.[67] The test for the quality of evidence in these circumstances is laid out by Dixon J in his famous dictum in Briginshaw:[68]

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations which may affect the answer...in such cases reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences."

• [127] The fact there are inaccuracies in the three worksheets do not of themselves establish Mr. Basanti had a deceitful and dishonest intention at the time he filled them out.

• [128] In so far as Linfox relies on knowledge of the Red Book, Mr. Basanti's accurate recording of breaks and "off task" periods on other worksheets, his final warning, and his conduct in the interview, it cannot reach the quality of proof required. All those facts are "indirect inferences" to support an allegation of intention. This is precisely the form of evidence Dixon J cautions against in Briginshaw.

• [129] I find therefore the inferential evidence of intention for the allegations of dishonesty and worksheet falsification are not a sufficient quality of proof to satisfy me on a balance of probabilities that Mr. Basanti intended to deceive in filling out the worksheets in issue.[6]

Was there a valid reason to dismiss Mr. Basanti under s 387(a)?

• [130] This is not to say, however, Linfox did not have a valid reason to dismiss Mr. Basanti. An employer has a valid reason to dismiss an employee if they have a reason that is sound, defensible and well founded,[69] that is not capricious, fanciful, spiteful and prejudiced,[70] and is defensible, or justifiable on an objective analysis of the fact.[71]

• [131] There is a long line of authority that a continued failure to follow an employer's policies may in some circumstances found a valid reason for dismissal,[72] particularly when there are repeated failures to comply

• [132] On 21 September 2022, Mr. Basanti received a final written warning which quoted Red Book policy on worksheets. The policy included that "a work sheet must be completed daily and accurately" and that "worksheets are legal documents". Linfox had concluded there was a basis for termination "for serious misconduct for theft and dishonesty as well as worksheet falsification." In the result, Linfox decided not to terminate his employment. The letter ended with this warning: 'You should be aware that any future misconduct, regardless of the type is likely to result in the termination of your employment".[73]

• [133] I do not consider the age of this final written warning affects its potency. Two years might be close to the "use by date" of a warning, but not over it. The existence of the warning is near enough in time to be remembered and in the mind of both the employee and management.

• [134] It was made clear in the 2022 final warning that Linfox considered there was a basis to dismiss Mr. Basanti as a result of the inaccurate recording of time on worksheets. Mr. Basanti was back from the brink. Mr. Basanti knew or ought to have known that any irregularity or inaccuracy on his time sheets from then on would be the subject of scrutiny and could lead to his dismissal.

• [135] There are other contextual factors that infer Mr. Basanti knew or ought to have known about the requirements of the Red Book concerning accuracy of worksheets and which required him to take particular care when he filled them out:

• The worksheets themselves explained in text "This run sheet is a legal document" and "All data keyed must be accurate and true."
• Mr. Basanti was trained on the Red Book regularly. According to the statement of Mr. Sheridan, he was trained on the contents of the Red Book five times since December 2017, including some self-directed training which led to him receiving a "certificate of completion" of Red Book Induction training on 21 May 2024. This training, together with the final warning, should have meant Mr. Basanti was on high alert to the requirement that worksheets were required to be accurate.

• • Mr. Basanti was a long-time senior delegate that had been a support person in disciplinary meetings relating to members who had allegedly not complied with the Red Book.[74]

• In his position of delegate, he knew or ought to have known the rights and obligations of workers at the MFDC with respect to breaks under the Agreement.

• [136] After the final warning and, in the context of these other factors, it was incumbent on Mr. Basanti to take active steps to ensure that he accurately recorded his time on the work sheets, to minimise discrepancies, and to make notes in the comments section if he was subject to unavoidable delays in returning from breaks.

• [137] In relation to his 26 minute delay in returning from his meal break in the 19 May allegation and the 53 minute delay in the 10 July allegation, I am not satisfied on the evidence Mr. Basanti did contact a management employee to inform them of the delay.

• [138] The evidence in relation to the "standard practice" is fairly limited. All three yard workers corroborate that when they were late, they informed their manager and did not record the delay on the worksheets. My impression from the evidence was that delays happened rarely (once or twice for each worker) and the delays were not of a long duration - "five or seven minutes".

• [139] Even if I assume the "lunch practice" was in place (which is contested) Mr. Basanti, unlike his coworkers, was on a final warning for inaccurate recording on his worksheets. It was at best negligent and at worst foolhardy to adopt a practice that:

• Led to inaccurate recording of time on worksheets;
• Did not record "all activities, including breaks or stoppages"; and
• Did not ensure worksheets were "completed... accurately" as the policy required.

• [140] Mr. Basanti's error in recording his start time on 10 July where he put down 3:55 AM instead of 4:41 AM cannot be explained by the fact that he was compelled to come in sick as a result of being short staffed.[75]

• [141] The more likely explanation is a consequence of the worksheet being filled in at the end of the shift. If this was the practice of yard workers, it is not a practice that Mr. Basanti should have continued. He was on a final written warning for inaccurate worksheets. Given his employer had already concluded he had engaged in conduct that justified termination and then decided to put him on a final warning instead, he should have taken steps and adopted habits that gave him the best possible chance of accuracy.

• [142] I have found Mr. Basanti did not complete the three work sheets with an intention to deceive. However, his reckless or negligent conduct in not recording delays in returning from lunch breaks and in completing worksheets at the end of shift amounted to misconduct. He was on a final written warning, and he should have taken all steps to ensure accuracy.

• [143] I therefore consider there was a valid reason for his dismissal under s 387(a) revolving around his failure to comply with the worksheet policy in the Red Book. Without strong evidence of an intention to deceive, this conduct does not amount to serious misconduct and therefore a decision to dismiss Mr. Basanti without notice can be regarded as harsh.

SECTION 387(b): WHETHER MR. BASANTI WAS NOTIFIED OF THE REASONS

• [144] On 28 August 2024, Mr. Basanti and his support person attended an interview, and a record of that interview was subsequently provided in writing.

• [145] On 25 September 2024, Mr. Basanti was notified of the reasons and given an opportunity to show cause why he should not be dismissed. Mr. Basanti and his Union composed a written response.

• [146] At the show cause meeting on 3 October 2024, Mr. Basanti and his union representative, Mr. Raftellis were given an opportunity to rebut the reasons orally.

• [147] Following the show cause meeting on 3 October 2024, Mr. Basanti was given a termination of employment letter which set out the reasons for the dismissal.

• [148] I am therefore satisfied that Mr. Basanti was notified of the reasons for his dismissal.

SECTION 387(c): WAS MR. BASANTI GIVEN AN OPPORTUNITY TO DISCUSS ANY REASON RELATED TO CONDUCT?

• [149] The process adopted leading up to the dismissal was comprehensive and involved many opportunities for Mr. Basanti to discuss reasons related to conduct:

• 28 August 2024: An interview was conducted where Mr. Basanti and his support person, Mr. Goddard, a TWU official, could discuss the allegations put against him.
• 25 September 2024: A show cause letter was sent articulating the position of Linfox, and the reason why they had reached a preliminary view that Mr. Basanti's employment was terminated. It invited a response which Mr. Basanti and his Union provided in writing.
• 3 October 2024: A show cause meeting took place attended by Mr. Basanti and Mr. Raftellis, the TWU industrial officer. They went through the written response and made oral responses.

• [150] I am satisfied Mr. Basanti had an opportunity to discuss the reasons related to his conduct.

SECTION 387(d): WAS THERE AN UNREASONABLE REFUSAL BY LINFOX TO ALLOW MR. BASANTI TO HAVE A SUPPORT PERSON?

• [151] There was no unreasonable refusal. Mr. Basanti had a support person attend with him both during the initial interview and at the show cause meeting.

SECTION 387(e): WARNING IN A DISMISSAL ABOUT UNSATISFACTORY PERFORMANCE

SECTION 387(f): SIZE OF LINFOX AND ITS IMPACT ON THE DISMISSAL PROCEDURE

• [153] The procedure adopted for this dismissal is consistent with what is expected of an enterprise the size of Linfox.

SECTION 387(g): ABSENCE OF HUMAN RESOURCE FUNCTION

• [154] Linfox has a well-resourced human resource function. This criterion is not relevant.

SECTION 387(h): ANY OTHER MATTERS THE FWC CONSIDERS RELEVANT

• [155] Linfox[76] and Mr. Basanti[77] both made submissions on a range of matters I should take into account under s 387. I do take into account:
  • Mr. Singh's length of service for a least ten years.
  • The financial impact on Mr. Basanti as the primary breadwinner of the family.

• [156] There was a valid reason for the decision to dismiss Mr. Basanti, but the conduct of Mr. Basanti did not amount to serious misconduct.

• [157] The decision to dismiss Mr. Basanti without notice was harsh. A finding of harshness is reinforced by the lengthy service Mr. Basanti had at Linfox and the financial impact the decision to dismiss without notice had on him as the primary bread winner.

• [158] Therefore, taking into account all the factors under s 387 I find Mr. Basanti's dismissal on 3 October 2024 was harsh, unjust or unreasonable. I will now consider the question of remedy

• [159] Mr. Basanti argues reinstatement is an appropriate remedy because:[78]

• Mr. Basanti was a longstanding employee of Linfox who worked with Linfox for over a decade, including as a TWU delegate. He has an "extremely positive relationship" with his colleagues and his superiors.
• Linfox is a substantial employer, well able to accommodate reinstatement of Mr. Basanti.
• There is "no sensible suggestion" the relationship of trust and confidence between Mr. Basanti and Linfox has broken down such that the employment relationship cannot be re-established.

"Mr. Basanti's managers have lost confidence in his readiness to comply with the Company's policies and procedures, namely his failure to record data on his Worksheets. Given the attitude of Mr. Basanti to conceal his conduct rather than disclose the Commission can be satisfied that issues of the kind that occurred Mr. Basanti's would recur if he were to be reinstated.[79]"

• [161] I am not satisfied the inaccuracies in Mr. Basanti's worksheets were made with an intention to deceive. Nonetheless, his failure to ensure he adopted practices that minimised the risk of error when he was on a final written warning is concerning. I can therefore accept Linfox's loss of confidence in Mr. Basanti's readiness to comply with Linfox's worksheet policies. It has been made plain by Linfox that compliance by drivers with that policy is important. I therefore accept Linfox has lost trust and confidence in Mr. Basanti.

• [162] On that basis I am satisfied reinstatement is not an appropriate remedy and that an order of payment of compensation is appropriate as required under s 390(3).

• [163] Section 392(2) requires that in assessing the amount of compensation in lieu of reinstatement regard must be had to "all the circumstances of the case". It then sets out a list of circumstances I am required to take into account.

• [164] What follows is my assessment of the amount of compensation against each of the factors prescribed by s 392 applying the methodology for the assessment of compensation in Sprigg, which involves five steps:[80]

STEP ONE: Estimate the remuneration Mr. Basanti would have received, or would have been likely to receive, if Linfox had not terminated his employment.

STEP TWO: Deduct monies Mr. Basanti had earned since termination.

STEP THREE: The remaining amount of compensation is discounted for contingencies.

STEP FOUR: The impact of taxation is calculated to ensure that Mr. Basanti receives the actual amount he or she would have received if they had continued in employment.

STEP FIVE: The legislative cap on compensation is applied.

Remuneration that Mr. Basanti would have received or would been likely to receive, if not dismissed [s 329(2)(c)]

• [165] This requires an estimation of Mr. Basanti's anticipated period of employment.[81] That is, how long Mr. Basanti would have remained employed but for the dismissal, and the remuneration he would have received, or would likely have received during this period.[82] There is an element of speculation in this exercise because it involves an assessment of what was likely to have happened in the future if Mr. Basanti had not been dismissed.

• [166] Mr. Basanti was on a final written warning related to inaccuracies in his worksheets. The text of the final warning letter informed him that Linfox found they had grounds to dismiss him but gave him a final warning instead. This reprieve should have meant that he took deliberate steps to ensure, or at least to minimise, the risk of completing inaccurate worksheets. The evidence shows he continued to engage in practices which were, at best, careless, or at worst indifferent to the accurate completion of the worksheets.

• [167] He continued to fill in the worksheets in a manner consistent with the "lunch practice." This meant he did not record delays in returning lunch breaks in the comments section which ensured those time sheets were not accurate. The other reckless practice he continued was to complete his worksheets at the end of a twelve hour yard duty shift, an activity fraught with risk.

• [168] To persist in these practices in circumstances of a final warning was not a recipe for longevity. It was only a matter of time until an audit discovered further discrepancies. I therefore estimate that he would only have lasted a few months before more inaccuracies would have been discovered and he was terminated for misconduct. In circumstances where he was expressly warned any further misconduct was likely to lead to dismissal, I estimate his employment would have continued for no longer than three months.

• [169] Despite a request for submissions on a compensation remedy at the first day of hearing, I was not provided with a pay slip in relation to Mr. Basanti's wages at Linfox. Mr. Raftellis stated from the bar table that "The number that's been supplied to me and, as I said, we'll kind of discuss the nuances of it, but it's $3,460 gross, is what was put to me by the applicant when he looked at his timesheets.[83]" When I asked Mr. Byrne to comment on this figure, he said "It wouldn't be far off". I therefore base the calculation of the wages Mr. Basanti would have received on that figure.

REMUNERATION THAT WOULD HAVE BEEN RECEIVED: [$3460 ÷ 7 days x 365 days ÷ 4 (3 months) = $45,104

Remuneration earned [s 392(2)(e)] and income reasonably likely to be earned

• [170] Mr. Raftellis made some submissions around the remuneration Mr. Basanti has earned since his dismissal:

"So he's managed to find a labour hire job at - servicing FedEx, where he commenced on 7 November, is my understanding. It was just on a trial at the beginning. He only worked a couple of days, but then since that time he's worked some weeks more, some weeks less. It's not the same, and what we say is that the average weekly earnings at FedEx have been 1,775.50 gross."[84]

• [171] Mr. Raftellis also tendered a pay slip for the firm "Logical staffing solutions"[85] (the labour hire company to which Mr. Raftellis referred) which shows that in the week ending 16 January 2025 Mr. Basanti earned $2,726.49 gross.

• [172] I have found Mr. Basanti would have worked for another three months at Linfox. That would have taken his employment up to 3 February 2025. I calculate there are twelve weeks from 7 November 2024 until 3 February 2025. I accept he only worked a "couple of days" when he first started. I will therefore deduct two weeks from the calculation of the remuneration he earned at the labour hire company and deduct ten weeks for the remuneration earned.

REMUNERATION EARNED [$1775.50 x 10 weeks] = $17,755

Mr. Basanti's length of service with the Linfox [s392(2)(b)] and other matters [392(2)(g)]

• [173] There is some dispute as to Mr. Basanti's length of service at Linfox. Mr. Basanti gives evidence that he commenced work in 2011 as an "agency driver".[86] Mr. Sheridan gives evidence that he "commenced employment with Linfox on 30 April 2014 and attaches a contract of employment signed by Mr. Basanti".[87] In any event, Mr. Basanti was employed by Linfox for over ten years.

• [174] It is appropriate to take this matter into account in the manner discussed in the full Bench decision in A1 Distributors v. Alan Humphries.[88] In that case the Full Bench considered Mr. Humphries was denied a notice payment because he was dismissed for serious misconduct. The Full Bench was of the view the length of service under s392(2)(b) is relevant to the calculation of the notice period and the lack of notice payments was an "other matter" which the Commission can take into account under s392(2)(g).

• [175] Under the incorporated Awards in the Agreement and the NES, Mr. Basanti was entitled to four weeks' notice. I consider that any compensation should include an amount for the failure to pay in lieu of notice.

ADDITION FOR NOTICE PERIOD: [$3460 x 4] = $13,840

Effect of an order on the viability of Linfox [s 392(2)(a)]

• [176] Given the size of Linfox. I am not concerned that any compensation order I make will affect its viability.

Mr. Basanti's efforts to mitigate his loss [s 392(2)(d)]

• [177] By obtaining a less well-paying job with the labour hire company, Logical Staffing Solutions from 7 November 2024, Mr. Basanti has made commendable efforts to mitigate his loss. No adjustment to the compensation is needed.

• [178] I have found the quality of evidence was inadequate to find on a balance of probabilities Mr. Basanti was dishonest or that he intended to deceive Linfox when he completed his worksheets. In the circumstances, particularly of the final written warning, he should have been well aware that any failure to comply with the worksheets policy was likely to lead to dismissal.

• [179] His adoption of the lunch practice where delays in returning from lunch break were not recorded on the worksheets[89] and his completion of worksheets at the end of shift[90] were below the standard expected of a worker in Mr. Basanti's circumstances.

• [180] He knew or ought to have known the importance of the worksheet policy at Linfox. He was a senior delegate who had participated in disciplinary meetings for other workers accused of not following the Red Book. He was regularly trained on its contents. He was on a final written warning where he was warned that "any further misconduct, regardless of the type is likely to result in the termination of his employment". I have found this amounted to a valid reason for his dismissal.

• [181] In the context of the final written warning, this conduct fell short of the expectation of accuracy and amounted to misconduct. Given his continued failure to take steps to ensure his worksheets were compliant, his dismissal was the inevitable result of the final written warning. It is appropriate that a deduction is made for this misconduct. I have decided to deduct five weeks' pay from the calculation.

REDUCTION FOR MISCONDUCT: [$3460 x 5 weeks] = $17,300

• [182] No submission was made that any amount of compensation should be paid by instalments.

• [183] No provision will be made for shock, distress or humiliation in any compensation order I make.

• [184] I have now considered all criteria in s 392(2) and applied the method of calculation in Sprigg. The amount of compensation I have arrived at is represented in the following table:

• [185] The compensation cap for a dismissal that occurred after 1 July 2024 is $81,500. The compensation I propose is well below that amount.

Application of Step 4 of Sprigg with respect to tax

• [186] I have considered the impact of taxation but have elected to settle upon a gross amount of $23,889. I leave taxation for determination in accordance with the applicable taxation legislation.

Assessment of compensation amount in all the circumstances

• [187] I have considered the circumstances prescribed in s 392(2) and applied the Sprigg formula. I am also required to ensure the level of compensation is an amount that is appropriate having regard to all the circumstances of the case.[91] On the basis of the analysis provided above, I am satisfied the level of compensation is appropriate having regard to all the circumstances as required by s 392(2).

• [188] I have found the dismissal of Mr. Basanti was harsh, unjust or unreasonable and that compensation is an appropriate remedy. I am satisfied the compensation figure I have arrived at is not clearly excessive or inadequate.

• [189] I am also satisfied the remedy of compensation in the sum of $23,889 gross subject to the payment of tax in favour of Mr. Basanti, along with 11.5% superannuation,[92] which is $2,747. An order[93] to that effect will issue with this decision.

[1] There is a conflict in the evidence about his starting date. Mr. Basanti says he commenced employment with Linfox as an agency driver in "2011" (see page 34 of the Digital Court Book from hereon "DCB"). Mr. Sheridan says he commenced employment with Linfox under a contract of employment on 30 April 2014 (DCB at 169).

[3] After the Titan of time in Greek mythology.

[4] DCB at 177: His witness statement was received into evidence as R1. This statement is at paragraph 51. At the time of giving oral evidence, Mr. Sheridan was President of the Bevchain Business Unit of Linfox.

[5] DCB at 377. The entire Red Book at 264 to 401 of the DCB.

[6] DCB at 168 to 178: His witness statement was received into evidence as R1. At the time of giving oral evidence Mr. Sheridan was President of the Bevchain Business Unit of Linfox.

[7] DCB at 169 Sheridan witness statement

[9] PN344 from the Cross Examination of Mr. Basanti.

[12] DCB at 170 from the Statement of Matthew Sheridan at paragraphs 18 and 19.

[13] DCB at 408 to 416. The record of interview is an attachment to the Sheridan statement.

[19] DCB at 176 - Sheridan Statement paragraph 45.

[55] DCB at 172-174: the Sheridan Statement at paragraphs 31 to 35.

[66] The recent Full Bench in Illawara Coal Holdings Pty Ltd t/a South32 v. Mr Joe Sleiman [2024] FWCFB 365 at [49].

[67] High Court in Neat Holdings Pty. Ltd v. Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 2.

[68] [1938] HCA 34; (1938) 60 CLR 336 at 361-362.

[69] Selvachandran [1995] IRCA 333; (1995) 62 IR 371 at 373.

[70] Rode v. Burwood Mitsubishi Print R4471 at paragraph 19.

[71] RMIT v. Asher [2010] FWAFB at [26].

[72] See for example two Full Bench decisions B,C and D v. Australian Postal Corporation [2013] FWCFB 6191, and Woolworths v. Brown (PR963023).

[75] This is an explanation first given by Mr. Basanti in a reply statement which invites some scepticism as to its credibility.

[80] Sprigg v Paul Licensed Festival (1988) 88 IR 21.

[81] Ellawala v Australian Postal Corporation Print S5109 at [34].

[82] He v Lewin [2004] FCAFC 161 at [58].

[88] [2016] FWCFB 7206 at [34].

[89] Which ensured they were inaccurate.

[90] Which was fraught with the risk of error.

[91] Smith v. Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446 at [32].

[92] The superannuation entitlement guarantee percentage at the time of dismissal.

[93] PR790968.

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