Mr Krstic
38. It is, of course, now clear that a so-called practice of "job and finish" was continued even after the presentation by Ms Kapsalis on 2 November 2012. In the circumstances, the only inference which can appropriately be drawn is that there was a collective decision among all relevant employees, including Mr Krstic, not to follow the direction that had been given by Ms Kapsalis. That state of affairs may well have been encouraged or promoted by Mr Borg. However, each and every staff member, including Mr Krstic, must share complicity in what then occurred.
39. Indeed, Mr Krstic's responsibility, as a senior Ganger, was substantially greater than that of most other Civil Works employees. This is because he not only held a leadership position, but was also the senior Ganger who completed many greensheets. This was an instrumental step in the whole process.
40. In Mr Krstic's case, it is apparent that he claimed 8 hours of overtime on a range of days despite being part of a road crew performing road slab replacement work that performed less than 8 hours of overtime work (ie finished prior to 2:00 pm, even assuming no lunch break was taken).Those days include the following:
(a) Sunday, 10 February 2013: on this day, Mr Zreika's mobile phone was used to make a call at 1:57 pm in the Chester Hill vicinity. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika had done a full day's overtime work. Mr Krstic conceded that his signature was on that greensheet, and that the hours recorded on it were in his handwriting. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day.
(b) Sunday, 17 March 2013: on this day, Mr Zreika's mobile phone was used to make a call at 12:50 pm in the Villawood vicinity. In a letter dated 18 February 2015, Mr Zreika stated that "Work was completed for this day worked to job and finish". In cross-examination, Mr Zreika conceded that he probably left work at about 12:30 pm that day. He said he could not remember the day, but thought that the work had been completed by the time he left. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika had done a full day's overtime work. Mr Krstic conceded that his signature was on that greensheet, and that the hours recorded on it were in his handwriting. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day.
(c) Sunday, 24 March 2013: on this day, Mr Slaveski's mobile phone was used to make a call at 1:42 pm in the Hurstville vicinity. In cross-examination, Mr Krstic said he could not remember the day, but did not suggest that Mr Slaveski had left earlier than the rest of the crew. However, Mr Krstic still signed a greensheet claiming that both he and Mr Slaveski (recorded as "Louie", as well as the rest of the crew, had done a full day's overtime work. It is also apparent that both Mr Krstic and Mr Slaveski then claimed for 8 hours of overtime for the day.
(d) Sunday, 28 September 2014: on this day, Mr Zreika's mobile phone was used to make a call at 11:04 am in the Bass Hill vicinity with a further call at 11:45 am in the Villawood vicinity. Ms Keenan's evidence is that Mr Zreika stated to her that he had left work about 10:00 am to 10:30 am that day. In a letter dated 15 December 2014, Mr Zreika stated that he worked to "Job and finish". In cross-examination, he claimed he probably left after 10:30 am. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika, as well as the other members of the crew, had done a full day's overtime work. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day.
(e) Saturday, 15 November 2014: on this day, the evidence of Mr Mathieson is that he went to the site at 1:30 pm but could not see any member of the Civil Works crew. He says he then returned to the depot around 1:40 pm to 1:45 pm, and saw that the trucks had returned but could not see any of the crew. Ms Keenan's evidence is that Mr Zreika stated that he, and the other crew members, had left site before 1:30 pm. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika, as well as the other members of the crew, had done a full day's overtime work. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day.
(f) Sunday 16 November 2014: on this day, the evidence of Mr Mathieson is that he went to the site at 10:15 am but could only see about 5 of the 10 Civil Works crew. He says he then returned to the site at about 11:00 am and could not see any of the crew. Ms Keenan's evidence is that Mr Zreika stated that he, and the other crew members, had left work by 11:00 am. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika, as well as the other members of the crew, had done a full day's overtime work. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day.
(g) Saturday, 29 November 2014: on this day, the evidence of Mr Mathieson is that he went to the site at 1:22 pm but could not see any of the crew. He says he then returned to the depot by about 1:30 pm and saw that the trucks had returned but could not see any member of the crew. However, Mr Krstic still signed a greensheet claiming that he, as well as the other members of the crew, had done a full day's overtime work. It is also apparent that Mr Krstic then claimed for 8 hours of overtime for the day.
41. On some of these days, it is apparent that the overtime work was completed in far less time than the 8 hours claimed.
42. For instance, on 17 March 2013, the overtime work must have been completed inside 5.5 hours (even assuming that no break was taken). Nevertheless, Mr Krstic signed a greensheet stating that 8 crew members had each worked a full day. In effect, this resulted in a claim for 64 man-hours of overtime for the day (at double time), when only about 44 man-hours of work had actually been performed.
43. Similarly, on 28 September 2014, the overtime work must have been completed inside 4 to 4.5 hours (even assuming that no break was taken). Nevertheless, Mr Krstic signed a greensheet stating that 8 crew members had each worked 8 hours. In effect, this resulted in a claim for 64 man-hours of overtime for the day (at double time), when only about 32 to 36 man-hours of work had actually been performed.
44. These actions resulted in Council paying thousands of dollars in overtime (at double time rates) for work which simply had not been performed. Put simply, no reasonable person could seriously have thought that Council had authorised such arrangements. Indeed, the arrangements implemented following 2 November 2012 went well beyond any practice which can be established, by evidence, to have occurred under the tenure of Mr Stephens. This must have been known to Mr Krstic.
Further actions inconsistent with so-called "job and finish"
45. In any event, it is also clear that, following 2 November 2012, Mr Krstic engaged in a range of other actions entirely inconsistent with even his own stated understanding of the so-called "job and finish" system as had previously been applied. These included:
(a) signing a personal overtime form claiming for 8.5 hours overtime when he not done more than 8 hours of overtime;
(b) signing greensheets stating that Mr Zreika and Mr Slaveski had worked a "full day" of 8 hours of overtime (the same as the rest of the crew) when Mr Zreika and Mr Slaveski had started after 6:00 am (ie at a later time than the other crew members);
(c) signing a greensheet stating that Mr Slaveski had worked more than 8 hours of overtime from 6:00 am to 3:00 pm (the same as the rest of the crew) when Mr Slaveski had actually started after 6:00 am (ie at a later time than the other crew members);
(d) signing a greensheet stating that Mr Zreika had worked 9 hours of overtime (the same as the rest of the crew) when, in fact, Mr Zreika had ceased work and left site even at a time when the other crew members were still working; and
(e) signing greensheets stating that Mr Zreika had worked a "full day" of 8 hours of overtime (the same as the rest of the crew) when, in fact, Mr Zreika had ceased work and left site even at a time when the other crew members were still working.
3 November 2012
46. On Saturday, 3 November 2012, Mr Krstic performed overtime work related to concreting on Illawarra Road. This was the day after the presentation by Ms Kapsalis. Mr Krstic was the senior Ganger that day, and was responsible for signing the greensheet for that work.
47. In cross-examination, Mr Krstic agreed that, on 3 November 2012, he and the other members of the concreting crew did 8 hours of work and then finished.
48. Mr Krstic then signed a greensheet for the day (which is at pages 1-2 to Tab 5 of EK-2). This greensheet recorded "8.00" hours of work against the name "Zoran" (although a separate notation of "8 1/2" has also been recorded).
49. Mr Krstic agreed that the signature on the greensheet was his, although he claimed that claimed that none of the other handwriting had been included by him.
50. Mr Krstic did, however, agree that he signed the greensheet on 6 November 2012 (being the following Tuesday). This, in itself, seems somewhat unusual, given that Mr Krstic also gave evidence that he generally signed greensheets at the end of work on the relevant weekend day, rather than in the following week.
51. It remains unclear whether Mr Krstic signed the greensheet for 3 November 2012 at a time when it included the notation "8 1/2" against his name.
52. However, what is clear is that an overtime form was then prepared for Mr Krstic which claimed for "8.5" hours of overtime on Saturday, 3 November 2012. This was a "new" version of the overtime claim form, which specifically included claimed start and finish times as well as the number of hours of overtime claimed for the day: see page 1 of Tab 3 of EK-2.
53. Mr Krstic agreed that he signed the relevant overtime form claiming 8.5 hours of overtime for Saturday, 3 November 2012. His signature is undated. However, the Supervisor's signature is dated "7/11/15" [sic]. As a result, it must be inferred that Mr Krstic signed the overtime form on 6 November 2012 or 7 November 2012.
54. At the time he signed, Mr Krstic must have known that he had only done 8 hours of overtime work on Saturday, 3 November 2012. He must also have known that he was not entitled to the greater amount of overtime claimed.
55. In cross-examination, Mr Krstic claimed that he did not see anything on the overtime sheet as the details would have been "obscured' by Mr Borg's folder. However, he failed to give any adequate explanation as to how the details on the time sheet were said to have been "obscured'. Indeed, he even went so far as to make the quite extraordinary denial of even having seen the words "I certify that the details claimed for time and work performed are correct", despite his signature appearing only a few millimetres above that notation.
56. These denials are simply not believable. It is almost inconceivable that Mr Krstic signed the relevant overtime sheet without looking at it especially given:
(a) that, only a few days earlier, Ms Kapsalis had given a presentation about the new overtime forms, and the need for them to be completed accurately;
(b) that, despite his denials, he must have seen the words " I certify that the details claimed for time and work performed are correct" ;
(c) that he signed the overtime form either on the day he signed the greensheet, or on the day after he signed the greensheet; and
(d) his own assertion that he had recently spoken to Mr Borg about weekend overtime issues.
57. Mr Krstic's conduct in claiming for 8.5 hours overtime for Saturday, 3 November 2012, when only 8 hours had actually been worked, cannot possibly be justified by reference to the so-called "job and finish" system. After all, even on his version of events, such a system only ever permitted an employee to claim for more than 8 hours of overtime work if more than 8 hours had actually been done.
24 November 2012
58. On Saturday, 24 November 2012, Mr Krstic performed overtime work related to lllawarra Road. He agreed that Mr Zreika worked with him that day.
59. The evidence establishes that Mr Zreika's phone was used on 24 November 2012 to make a series of calls in the vicinity of the Marrickville Local Government Area between 8:50 am and 3:30 pm, before then being used to make a call at 4:11 pm in the Bass Hill vicinity.
60. In the circumstances, the only possible inference is that Mr Zreika had left work by about 3:45 pm on 24 November 2012. Indeed, Mr Zreika seemed to concede that this was possible and had most likely occurred. Certainly, he did not dispute the proposition when put to him.
61. Mr Krstic then signed a greensheet for the day (which is at pages 8-9 to Tab 5 of EK-2). This greensheet recorded a finish time of "5:00pm" against all employees, including "Sam" (being Mr Zreika). This notation was made in the column under "Hours". The greensheet also recorded clock times of " 6am - 5pm = 10.5 hrs".
62. Mr Krstic claimed that claimed that none of the handwriting on the greensheet had been included by him. However, he agreed that he had signed it as being a true account of the daily activities. He also agreed he did not sign blank greensheets.
63. An inspection of all other greensheets in Tab 5 of EK-2 signed by Mr Krstic also shows that, almost without exception, a notation has been made under the "Hours" column. In the circumstances, the clear inference is that the time of "5.00 pm" must have been inserted against all names, including that of Mr Zreika, by the time Mr Krstic came to sign the greensheet.
64. It is clear, however, that Mr Zreika did not work 10.5 hours of overtime on that day. Instead, he could only possibly have worked about 9.75 hours of overtime even assuming that he started at 6:00 am and worked without any break to 3:45 pm.
65. In cross-examination, Mr Krstic maintained that the remainder of the crew continued working after 3:45 pm.
66. In his evidence, Mr Zreika claimed that he did not recall whether he had left earlier than the remainder of the crew, but thought that the crew would have left altogether. This evidence was contrary to that Mr Krstic. However, the inference that the remainder of the crew continued working past 3:45 pm is also supported by the telephone records for Mr Slaveski's mobile phone which show that it was used at 4:32pm on 24 November 2012 in the Sydenham vicinity.
67. In the circumstances, only two possibilities are open:
(a) first, that Mr Zreika left at or about 3:45 pm (prior to the rest of the crew and after only having performed 9.75 hours of overtime) but that Mr Krstic still signed a greensheet recording Mr Zreika as having worked until 5:00 pm; or
(b) secondly, that the entire crew left at or about 3:45 pm (after having only performed 9.75 hours of overtime) but that Mr Krstic signed a greensheet recording all crew members as having worked until 5:00 pm (and also signed an overtime form personally claiming 10.5 hours of overtime up to 5:00 pm when he had not done that work).
68. Either way, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system.
8 December 2012
69. On Saturday, 8 December 2012, Mr Krstic performed overtime work related to Illawarra Road. He signed a greensheet for the day (which is at pages 17-18 to Tab 5 of EK-2). This greensheet recorded clock times of "6.00am & 3.00pm".
70. Mr Krstic agreed, in cross-examination, that he had written the notation "6.00 am & 3.00pm". He also expressly agreed that he had recorded all the employees on the greensheet, including Mr Slaveski, as having started at 6:00am that day.
71. However, the evidence establishes that Mr Slaveski's mobile phone was used at 5:57 am on 8 December 2012 to make a call in the Hurstville vicinity (where Mr Slaveski's home is located) before being used to make a series of calls between 8: 34am and 11:50 am in the vicinity of the Marrickville Local Government Area.
72. In the circumstances, the only possible conclusion is that Mr Slaveski arrived at work later than 6:00 am (most likely at some time on or after 6:20 am or 6:30 am), but that Mr Krstic still signed a greensheet:
(a) recording Mr Slaveski as having performed overtime from 6:00 am (along with the rest of the crew) when this was not, in fact, the case; and
(b) recording Mr Slaveski, along with the rest of the crew, as having performed more than 8 hours of overtime (when, in fact, Mr Slaveski had performed less overtime than the rest of the crew).
73. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system.
10 March 2013
74. On Sunday, 10 March 2013, Mr Krstic performed overtime work related to Fitzroy Street. He signed a greensheet for the day (which is at pages 32-33 to Tab 5 of EK-2). This greensheet recorded "8.44" hours for each employee, including "Sam" (being Mr Zreika).
75. Mr Krstic agreed, in cross-examination, that he had written the notation "8.44" under the column "Hours". He also expressly agreed that this was a way of recording a "standard day''. In his own timesheet, Mr Krstic also claimed for 8 hours work on 10 March 2013 between the hours 6:00am to 2:30 pm.
76. However, the evidence establishes that Mr Zreika's mobile phone was used at 6:05am on 10 March 2013 to make a call in the Regents Park vicinity (near where Mr Zreika's home is located) before being used to make a series of calls between 6:57 am and 10:56 am in the vicinity of the Marrickville Local Government Area.
77. In his evidence, Mr Zreika conceded that he was in the Regents Park vicinity at 6:05 am on 10 March 2013. He then sought to justify the situation by making the (rather implausible) claim that, on Sundays, work did not start until 6:30am or 6:40 am. He then went even further and claimed that 6:30 am or 6:40 am starts also applied for Saturday overtime work, before then back-tracking and asserting that he was usually in the yard for weekend overtime at 6:00am or 6:05 am.
78. This evidence simply was not credible. There is no other suggestion in the evidence that the normal start time for weekend road slab overtime was anything other than 6:00 am when performed under Mr Zreika or Mr Krstic as senior Ganger. Indeed, were it otherwise, the only conclusion is that, on many other days, the employees would have worked a great deal less than the amount of overtime claimed (and, in fact, on some days, would have worked less than 8 hours of overtime despite claiming for additional hours).
79. In the circumstances, the only credible conclusion is that Mr Zreika arrived at work later than the rest of the road crew (most likely at some time on or after 6:20 am or 6:30am), but that Mr Krstic still signed a greensheet recording Mr Zreika as having performed a full day's overtime (along with the rest of the crew) when this was not, in fact, the case.
80. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system.
7 April 2013
81. On Sunday, 7 April 2013, Mr Krstic performed overtime work related to Fitzroy Street. He signed a greensheet for the day (which is at pages 46-47 to Tab 5 of EK-2). This greensheet recorded "9.00" hours for each employee, including "Sam" (being Mr Zreika) and "Louis Slavski" (being Mr Slaveski).
82. In cross-examination, Mr Krstic agreed that he had written in each of the names and had also written the "9.00" for each employee under the column "Hours". He also expressly agreed that he was certifying that each of the named employees, including Mr Zreika, had done nine hours of overtime work on that day.
83. However, the evidence establishes that Mr Zreika's mobile phone was used to make the following calls on 7 April 2013:
(a) a series of phone calls in the vicinity of the Marrickville Local Government Area between 8:03am and 10:08 am;
(b) a call at 10:48 am in the Hurlstone Park vicinity;
(c) two calls at 11:36 am and 11:37 am in the Greenacre vicinity; and
(d) a call in the Chester Hill vicinity at 1:32 pm; and
(e) a call in the Bass Hill vicinity at 1:33 pm.
84. Before the Commission, Mr Zreika conceded that it was "possible" that he had left the site by about 11:00 am after performing no more than 5 hours of overtime. However, both Mr Krstic and Mr Zreika have, over time, given substantially conflicting explanations as to events on 7 April 2014.
85. By letter dated 18 February 2015, the USU, on behalf of Mr Zreika, made the following assertion:
"Poured concrete - left, came back later that day to open up the job up, other workers stayed on the job.
"I left work early and the boys had stayed back on the job. I had returned to work later that night to open the road, did road slabs."
86. By letter dated 18 February 2015, the USU, on behalf of Mr Krstic, asserted that "We stayed on the job. Sam left and came back later to open up the road."
87. However, in his statement filed on 22 May 2015, Mr Zreika changed his story to claim (at paragraph 80):
"My recollection, based upon the Green Sheet, is that I worked as part of the crew that day and that the work required 9 hours of work on that day. I do not recall leaving the site prior to completion of the work on the day. I also stated to the Council that I had no specific recollection of the day..".
88. In his statement filed on 22 May 2015, Mr Krstic gave an alternative version. He claimed (at paragraphs 64-65):
"My recollection is that Sam Zreika left the job, instructing me to complete the work and then to finish up and that he would then come back later and open up the road. I was then left to complete the Green Sheet.
"I marked down Mr Zreika's hours consistent with those that had been worked by the rest of the crew. I did so as Mr Zreika to my knowledge was the only employee who was going to return after the concrete had set to open up the road which involves the removal of barricades and the restoration of normal traffic movement [underlining inserted].
89. In his Statement in Reply, Mr Zreika maintained that he had not, in fact, left work prior to other crew members, stating (at paragraph 74):
"Sunday 7 April 2013 was a concrete pour at Fitzroy Street Marrickville in which the volume of concrete poured and finished was 35.2m3 ... The work on that day was done on a "job and finish" basis under the then practice."
90. However, in his Statement in Reply, Mr Zreika also separately claimed (at paragraph 55 and contrary to his statement at paragraph 74):
"In relation to the particular day and the site I have no specific recollection of what may have been done but it could include the cutting of expansion joints, the sealing of the joints and the collection of Council's equipment together with the clearing of any obstructions prior to the re-opening of the road [underlining inserted]."
91. Separately, in his Statement in Reply, Mr Krstic gave another explanation. He noted (at paragraph 41) that the traffic control invoice at Annexure DM-9 to the Statement of David Mathieson indicated that external traffic controllers were still on site at 12:30 am on Monday, 8 April 2013. Mr Krstic then claimed:
"The fact that Contract traffic controllers were still in place at 12:30am on Monday morning would indicate to me that there may have been some problem on the worksite."
92. However, Mr Krstic also went on in his Statement in Reply to admit that he had "no current recollection of what occurred on this job ...".
93. In cross-examination, it was put to Mr Krstic that Mr Zreika had left site by no later than about 11:00 am. Mr Krstic responded that he could not remember. He was then specifically asked:
Q: Do you have any memory of the day?
A: No. No, I can't remember, I am sorry.
94. Mr Krstic was then taken to the previous assertions made in his earlier statements. However, he again asserted that he could not remember whether Mr Zreika had left site on 7 April 2013, and could not remember what Mr Zreika might have said to him. However, he further admitted that:
(a) he had never personally come back to re-open a road; and
(b) he had never put any Council staff down on a greensheet for additional overtime for coming back to re-open a road (and that whatever someone got for re-opening a road was between them and Mr Borg).
95. Ultimately, Mr Krstic made the following admission:
Q: You filled out 9 hours for this day when he left at about 11am, didn't he?
A: Yes, I did.
96. However, Mr Krstic remained entirely unable to explain why he had signed the green sheet recording Mr Zreika as having performed "9.00" hours of overtime for the day.
97. Before the Commission, Mr Zreika kept changing his story. He first claimed that he "would have come back later on to do the saw cutting, do the joint sealing and also to open the road up". However, he then admitted that he did not know whether or not he did, or did not, return to work on the day (although continuing to assert that "…I could have, it is possible ...)".
98. Put bluntly, Mr Zreika's current assertion that he may have returned to do the sawcutting of expansion joints is highly implausible. It smacks greatly of a recent invention designed to try to escape from a hole. Importantly, any saw-cutting of expansion joints requires the involvement of two employees. As a result, if Mr Zreika performed such work on 7 April 2013, then it would be expected that additional overtime would also have been claimed by another Civil Works employee.
99. The evidence, however, is as follows:
(a) Mr Krstic's overtime form for the week ending 12 April 2013 does not show any additional overtime on 7 April 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic;
(b) Mr Slaveski's overtime form for the week ending 12 April 2013 does not show any additional overtime on 7 April 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic;
(c) the overtime sheets for the other employees listed on the greensheet signed by Mr Krstic do not show any additional overtime on 7 April 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic;
(d) the overtime sheets for Peter Fairburn, Garry Strickland and lan Parker do not show any overtime worked on 7 April 2013 (although showing overtime claimed for the previous day);
(e) Ms Kapsalis deposed that, for the week ending 12 April 2013, her inspections had located overtime claims forms for Col Evans, Robert Gallardo, David Watson, and "Young" Col Evans which showed that they had performed night work during the week, but had not performed any overtime on 7 April 2013; and
(f) Ms Kapsalis further deposed that she had been unable to locate any overtime forms covering the week ending 12 April 2013 for any of the remaining Civil Works employees and, based on her searches, did not believe that any relevant overtime claim forms existed for those employees being Darryl Bartlett, George Busuttil, Barry McCormick, Darren Bradstock, and Gordon Sharp.
100. It is, therefore, clear that no other Civil Works employee claimed any overtime for any supposed saw-cutting of expansion joints on 7 April 2013.
101. As a result, it can be very safely concluded:
(a) that Mr Zreika left work at no later than about 11:00 am on 7 April 2013 (and at a time prior to other members of the road crew ceasing work);
(b) that Mr Zreika did not return to the site after 11:00 am on 7 April 2013; and
(c) that Mr Krstic nevertheless falsely completed and signed a greensheet for 7 April 2013 stating that Mr Zreika had performed "9.00" hours of overtime despite knowing that Mr Zreika had, in fact, left work by no later than about 11:00 am while the remainder of the crew continued to perform work.
102. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system.
103. Indeed, Mr Zreika's actions in leaving work prior to the rest of the crew resulted in a "double whammy" for Council. This was because his absence meant that the work which would otherwise have been done by him needed to be performed by the remaining crew members. In effect, Mr Zreika's absence resulted in Council paying a greater amount to the remaining employees, while also having Mr Zreika claim for 9 hours overtime, despite only having performed about 5 hours of work.
104. It is to be noted that, even if Mr Zreika were to have returned to perform some sort of additional saw-cutting work, there would still have been no basis for Mr Krstic to have completed the greensheet in the manner in which he did.
105. After all, Mr Krstic has separately admitted that the saw-cutting of expansion joints:
"... was not done as part of the work allocated to the concrete road crew but was arranged separately by Mr Borg. I was not required to make any notation concerning this work on the 'green sheets' that I was required to fill out. Nor was I responsible for the work."
106. Indeed, an inspection of the greensheets signed by Mr Krstic reveals no other occasion on which he ever recorded any other employee has having performed any additional hours associated with any return to site to perform work associated with the saw-cutting of expansion joints.
107. Finally, it is also to be noted that the evidence establishes that, on 7 April 2013, Mr Slaveski's mobile phone was used to make three calls between 3:13 pm and 3:27 pm in the Hurstville vicinity (after having earlier been used to make a call at 7:23 am in the Marrickville vicinity).
108. In these circumstances, the clear conclusion is that Mr Slaveski must have also left work by no later than about 2:50 pm to 2:55pm on 12 April 2013. It is not known whether Mr Slaveski left prior to the rest of the crew, or whether the rest of the crew also ceased work shortly prior to 3:00 pm. Nevertheless, it is also clear that Mr Krstic completed and signed a greensheet recording Mr Slaveski as having performed "9.00" hours of work for the day when this was not the case.
25 August 2013
109. On Sunday, 25 August 2013, Mr Krstic performed overtime work related to Edinburgh Road.
110. Mr Krstic signed a greensheet for the day (which is at pages 75-76 to Tab 5 of EK-2). This greensheet recorded "8.00" hours for each employee, including "Sam" (being Mr Zreika). In cross-examination, Mr Krstic agreed that he had written in each of the names and had also written the "8.00" for each employee under the column "Hours".
111. However, the evidence establishes that Mr Zreika's mobile phone was used on 25 August 2013 to make the following calls:
(a) call at 9:42 am in the Villawood vicinity; and
(b) a call at 2:38 pm in the Villawood vicinity.
112. By letter dated 18 February 2015, the USU, on behalf of Mr Zreika, made the following assertion:
"I had informed the other ganger that I had to leave for an emergency. The other ganger informed our supervisor. I came back."
113. Similarly, by letter dated 18 February 2015, the USU, on behalf of Mr Krstic, asserted that "Something urgent came up and Sam went home and came back to the job as it was a large job."
114. In cross-examination, Mr Krstic stated that it was possible that Mr Zreika left during the day, and that he could not remember whether Mr Zreika returned to work. He also stated that he could not remember any other instances in which he might have put any other employee down on a greensheet as having performed the same amount of overtime as the rest of the crew despite that other employee having left the work site for an extended period while others remained at work.
115. Before the Commission, Mr Zreika admitted that he had left work at about 9:00 am on 25 August 2013, and did not return to work until around 11:00 am. He also maintained that he had informed Mr Krstic that he was leaving site before actually doing so.
116. In the circumstances, it is clear that:
(a) Mr Zreika left work at no later than about 9:00am on 25 August 2013;
(b) Mr Zreika did not return to the site until at least 11:00 am on 7 April 2013;and
(c) Mr Krstic nevertheless falsely completed and signed a greensheet for 7 April 2013 stating that Mr Zreika had performed "8.00" hours of overtime despite knowing that Mr Zreika had, in fact, left work for at least two hours while the remainder of the crew continued to perform work.
117. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system.
27 October 2013
118. On Sunday, 27 October 2013, Mr Krstic performed overtime work related to Edinburgh Road. He signed a greensheet for the day (which is at pages 87-88 to Tab 5 of EK-2). This greensheet recorded "8.00" hours for each employee, including "Sam" (being Mr Zreika). In cross-examination, Mr Krstic also agreed that he had written in each of the names and had also written the "8.00" for each employee under the column "Hours".
119. However, the evidence establishes that Mr Zreika's mobile phone was used to make a call in the Villawood vicinity at 12:16 pm on 27 October 2013.
120. By letter dated 18 February 2015, the USU, on behalf of Mr Zreika, made the following assertion:
"Edinburgh Road - poured concrete, left early, the rest of the crew stayed. I came back later to open up the road for road traffic control."
121. Similarly, by letter dated 18 February 2015, the USU, on behalf of Mr Krstic, asserted that "Sam left and came back to open up the road."
122. In his Statement in Reply, Mr Zreika changed his story. He stated, at paragraph 77, that the work on Sunday, 27 October 2013, was "done on a Job and finish' basis under the then practice."
123. Mr Krstic, in his statements, did not give any evidence as to events on 27 October 2013. Before the Commission, however, Mr Krstic asserted that he could no longer remember what Mr Zreika did on the day.
124. In contrast, Mr Zreika conceded that he probably left a bit after 11:45 am possibly as late as around 12 noon on the day. He also admitted that it was more than likely he left work before the job had finished. He was not able to say why he might have left while other crew members remained at work.
125. Mr Zreika further admitted that he did not actually remember the day. Nevertheless, despite this lack of memory, he asserted that he "probably'' came back to do some other task after the other crew members had left before then downgrading this to an assertion that he "possibly'' came back even although he could not remember.
126. Mr Zreika then suggested (for the first time) that he may have returned to do sawcutting of expansion joints. It was then put to him that the phone records for his mobile phone showed that it had been used to make a call at 5:23 pm in the Lidcombe vicinity. Mr Zreika was then unable to specify the time at which he might have come back to do any claimed saw-cutting of expansion joints. In fact, it is highly unlikely that any saw-cutting could have been done after 5:30 pm on 27 October 2013 given that the contract traffic control were only on site for 12 hours that day (meaning that, assuming they started at 6:00am, they would have ceased by 6:00 pm).
127. Mr Zreika's new assertions that he "could" have returned to do the saw-cutting of expansion joints is highly implausible. It falls far short of an assertion that he actually did so, and smacks greatly of a recent invention designed to try to escape from a hole.
128. Again, any saw-cutting of expansion joints requires the involvement of two employees. As a result, if Mr Zreika performed such work on 27 October 2013, then it would be expected that additional overtime would also have been claimed by another Civil Works employee.
129. The evidence, however, is as follows:
(a) Mr Krstic's overtime form for the week ending 1 November 2013 does not show any additional overtime on 27 October 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic;
(b) the overtime sheets for Quoc Cao, Lawrence Murray, Ljube Petkovski, and Darren Bradstock (being employees listed on the greensheet signed by Mr Krstic for 27 October 2013) do not show any additional overtime on 27 October 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic;
(c) the overtime sheets for Gordon Sharp, Garry Strickland, Wayne Zaia, Peter Sterjovski and George Busuttil do not show any overtime worked on 27 October 2013 (although showing overtime claimed for the previous day); and
(d) Ms Kapsalis further deposed that she had been unable to locate any overtime forms covering the week ending 1 November 2013 for any of Hassan Iskandar, Quang Le, Col Evans, Darryl Bartlett, Robert Gallardo, David Watson, or "Young" Col Evans).
130. As a result, while not absolutely definitive, it appears unlikely that any other Civil Works employee claimed any overtime for any supposed saw-cutting of expansion joints on 27 October 2013.
131. As a result, it can be concluded with a high degree of confidence that:
(a) that Mr Zreika left work at no later than about 11:45 am to 12 noon am on 27 October 2013 (and at a time prior to other members of the road crew ceasing work);
(b) that Mr Zreika did not return to the site after leaving on 27 October 2013; and
(c) that Mr Krstic nevertheless falsely completed and signed a greensheet for 27 October 2013 stating that Mr Zreika had performed "8.00" hours of overtime despite knowing that Mr Zreika had, in fact, left work by no later than about 11:40 am to 12 noon and while the remainder of the crew continued to perform work.
132. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system.
9 February 2014
133. On Sunday, 9 February 2014, Mr Krstic performed overtime work related to Enmore Road. He signed a greensheet for the day (which is at page 102 to Tab 5 of EK-2).
134. In cross-examination, Mr Krstic also agreed that he had written in each of the names, including that of "Sam" for Mr Zreika. He could not explain why no hours had been recorded against the names (this apparently being the only greensheet signed by Mr Krstic which did not record hours). He said he may have "forgot [sic] to log it in".
135. Mr Krstic subsequently signed an overtime claim form for the week ending 15 February 2014 in which he claimed 8 hours of overtime for 9 February 2014 starting at 6:00am and concluding at 2:30 pm (with a claimed half hour break). So, too, did Mr Zreika.
136. However, the evidence establishes that Mr Zreika's mobile phone:
(a) was used to make four calls in the Chester Hill vicinity at 5:48 am, 5:50 am, 5:51 am and 5:52am on 9 February 2014; and
(b) was used to access two mobile WAP/internet sessions in the Chester Hill vicinity at 5:49am and 6:18am.
137. In cross-examination, Mr Zreika agreed that it was more than likely that he did not get into work on the day until about 6:20 am to 6:30 am. He claimed that it was "dark" on the day (even although it was clearly summer). He then asserted that "these overtime forms, the times that predict the 6am and 2:30pm, they mean nothing. They're just a bit of ink on a bit of paper ...".
138. Again, this evidence simply was not credible. There is no other suggestion in the evidence that the normal start time for weekend road slab overtime was anything other than 6:00 am when performed under Mr Zreika or Mr Krstic as senior Ganger. Indeed, were it otherwise, the only conclusion is that, on many days, the employees would have worked a great deal less than the amount of overtime claimed.
139. Mr Krstic claimed that he could not remember that day. However, he certainly did not suggest that he, or other crew members, only started later than 6:00 am. He also stated that he could not remember making any effort to tell anyone that Mr Zreika had been late that day.
140. In the circumstances, although Mr Krstic did not record any times in the greensheet, it is apparent that he made no effort to record that Mr Zreika had arrived late or to inform any person of this fact.
141. Again, the inevitable conclusion is that Mr Krstic's actions (or, in this case, potential inaction) went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system.
12 October 2014
142. On Sunday, 12 October 2014, Mr Krstic performed overtime work related to Trafalgar. He signed a greensheet for the day (which is at pages 180-181 to Tab 5 of EK-2).
143. This greensheet recorded "8.00" hours for each employee, including "Sam" (being Mr Zreika). In cross-examination, Mr Krstic also agreed that he had written in each of the names and had also written the "8.00" for each employee under the column "Hours".
144. Mr Krstic subsequently signed an overtime claim form for the week ending 17 October 2014 in which he claimed 8 hours of overtime for 12 October 2014 starting at 6:00 am and concluding at 2:30 pm (with a claimed half hour break). So, too, did Mr Zreika.
145. However, the evidence establishes that Mr Zreika's mobile phone:
(a) was used to make a call in the Petersham vicinity at 6:52 am on 12 October 2014; and
(b) accessed the internet in the Chester Hill vicinity at 8:09 am on 12 October 2014;
(c) was used to make a call in the Sydenham vicinity at 10:35 am on 12 October 2014;
(d) was used to make a call in the Villawood vicinity at 11:32 am on 12 October 2014; and
(e) was used to make a call in the Chester Hill vicinity at 1:39 pm on 12 October 2014.
146. By letter dated 15 December 2014, the USU, on behalf of Mr Zreika asserted that, on this day, Mr Zreika "left site at 11am. - Job and finish". However, this statement appears to have been made before the apparent internet access at 8:09 am had been brought to Mr Zreika's attention.
147. In cross-examination, Mr Zreika said he did not actually remember what happened on 12 October 2014 and did not have a clear memory of the day. He said he could not recall whether he was in Villawood at 11:42 am on the day, and could not recall what time the road crew had finished work that day. However, despite his assertion that he could not recall the events of the day, he nevertheless denied that he had left the worksite and was not present at the worksite at 8:09 am. No explanation was provided, other than an assertion that the telephone records were "not accurate" as he "would not have been around my area at that time of day". This was notwithstanding that, on at least one other occasion (25 August 2013), Mr Zreika conceded he did leave site and return home relatively early in the day.
148. In the circumstances, the Commission is entitled to conclude that Mr Zreika was, in fact, in the Chester Hill vicinity at 8:09 am on 12 October 2014. There is no other rational explanation for the relevant telephone records.
149. It follows that Mr Zreika must have left the worksite, before returning again by no later than 10:35 am. However, no record of this absence was made by Mr Krstic. Instead, Mr Krstic inserted "8.00" hours against Mr Zreika's name on the greensheet (being the same as for other members of the road crew).
150. Again, it follows that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system.
151. Even regardless of whether Mr Zreika was still at the worksite at 8:09 am on 12 October 2014, it remains abundantly clear that he was in the Villawood vicinity by about 11:32 am. In the circumstances, it can be safely concluded that Mr Zreika had left the worksite by not later than about 11:10 am or 11:15 am (and, perhaps, earlier).
152. It is now entirely unclear whether the remainder of the road crew also ceased work about 11:00 am (or shortly afterwards) or whether Mr Zreika might have ceased work for the day prior to the rest of the road crew. Mr Krstic claims that he can no longer remember whether Mr Zreika left at the same time as the rest of the road crew or at an earlier time. Even Mr Zreika maintained that he could no longer recall whether the rest of the road crew finished work by a bit after 11:00 am.
153. Either way (and even leaving aside the earlier absence), it is clear that Mr Krstic's actions in relation to the day were inconsistent with anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system:
(a) To the extent the Commission might conclude that Mr Zreika had ceased work by about 11:00 am, at a time earlier than the rest of the road crew, Mr Krstic's actions in recording Mr Zreika as having performed "8.00" hours of overtime for the day (as with the rest of the crew) were entirely improper;
(b) To the extent the Commission might conclude that the whole road crew ceased work by about 11:00 am, along with Mr Zreika, Mr Krstic's actions in recording the entire 9 person crew as having worked "8.00" hours of overtime went well beyond what any reasonable person could seriously have believed to have been authorised Council had authorised. After all, on this scenario, only about 5 hours of work could have actually been performed by each crew member (even assuming a 6:00 am start). In effect, therefore, the claim for "8.00" hours of overtime for each crew member resulted in Council making payment for a total of some 27 hours of overtime (at double time) which had not actually been worked. This came at a cost to Council of well over a thousand dollars. The result went well beyond any practice which can be established, by evidence, to have occurred under the tenure of Mr Stephens.
Conclusion
154. Mr Krstic's actions amounted to serious and substantial misconduct. His conduct provided a valid reason for dismissal. The dismissal was not otherwise, harsh, unjust, or unreasonable. According, Council respectfully submits that the application should be dismissed.
155. In the alternative, Council submits that, even if the Commission were to find the dismissal to have been harsh, unjust, or unreasonable, it can nevertheless be concluded that reinstatement or re-employment is not practicable.
156. First, the gravity of Mr Krstic's misconduct was serious and substantial. It directly contributed to Council outlaying many thousands of dollars for overtime which simply was not worked. Mr Krstic must bear substantial responsibility for this outcome. He, along with Mr Zreika, were the senior Gangers who signed the vast majority of all greensheets. In addition, it is clear he also acted on various occasions to effectively "bundy on" or "bundy off' other employees, particularly Mr Zreika, in circumstances which Mr Krstic must have known to be inconsistent with any previous practice of so-called "job and finish".
157. Secondly, in his position as a Grade 7 Ganger, Mr Krstic was responsible for, among other things, "completing all necessary records relating to the works, including timesheets, resource day sheets, and invoices". His own evidence was that he had responsibilities for coordinating and liaising with suppliers. It is also clear that he also had responsibility for checking off concrete and other supplier deliveries, and making sure that they were correct. However, quite frankly, Council can have no trust or confidence in Mr Krstic's ability or preparedness to ensure that important documentation is accurate and correct.
158. Thirdly, it is also apparent that Mr Krstic has shown no remorse or contrition for any of his actions.