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Vodo v SCA Hygiene Australasia Pty Ltd [2012] FJET 20; ERT Grievance 26.2012 (7 December 2012)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL

ERT Grievance No 26 of 2012

BETWEEN:

PENI VODO
Worker

AND:

SCA HYGIENE AUSTRALASIA PTY LTD
Employer

Counsel: Mr D Nair, for the Worker
Mr J Udit; Mr A Singh and
Ms A Nabalarua, Howards Lawyers for the Employer

Date of Hearing: Wednesday 28 November 2012
Friday 30 November 2012

Date of Judgment: Friday 7 December 2012

DECISION

TERMINATION OF EMPLOYMENT – Section 194(5) Employment Relations Promulgation 2007; DISMISSAL FOR MISCONDUCT – Section 33 Employment Relations Promulgation 2007

Background

1. This is a matter that has been referred to the Tribunal in accordance with Section 194(5) of the Employment Relations Promulgation 2007, being a grievance that has failed to resolve at mediation.
   
2. The Worker was an engineering worker, who commenced working with the predecessor company Carter Holt Harvey (Fiji) Limited, some time on or around June 2001.[1] It is understood, that the former company was taken over by the present Employer in 2004.[2]
   
3. The grievance relates to the summary dismissal of the Worker from his employment with the Employer on 14 November 2011.
   
4. Within the termination letter provided to the Worker on that day, the reasons for decision are set out. They relate to an incident on 9 October 2011 pertaining to a breach of 'house rule', regarding the "falsifying time sheets or clocking another employee's timecard" and are described as:
   

..wilful or deliberate behaviour by (the Worker) that is inconsistent with the continuation of (his employment) with (the Employer); and

..conduct in the course of (the Worker's) employment engaging in intent to commit theft.

5. The justification for the Employer's conduct, is further set out within the Termination Letter where it states,
   

Having investigated all of the facts and circumstances of this incident and following an interview with you at which time you were given a full opportunity to explain your actions and also taking into account your work history with us[3] we are of the view that your actions constitute serious misconduct warranting summary dismissal.

6. The Worker disputes the termination on the grounds that he considers it to be "baseless, misleading, unfair, unlawful and harsh".
   

The Case of the Employer

7. The case for the Employer was initially summarised in the evidence of chief of Mr Ajnesh Chandra, who according to his evidence, is the HR & Support Service Manager for the Pacific Islands region. The chronology of key issues adduced from the evidence of Mr Chandra and the documents of the Employer is as follows:
   
   • The Employer had in place certain 'House Rules' that served as a formal guide to employees, regarding the matters that constituted 'serious misconduct' and 'misconduct', some of which would render the employees "liable for summary dismissal".[4]
     
   • Under the heading 'Serious Misconduct', Rule 14 of the House Rules provided,
     

Falsifying time sheets or clocking another employee's time card

• The conduct of the Worker was brought to the attention of the General Manager Pacific Islands, Mr Eldon Eastgate by a report contained within an email communication from a 'concerned employee', received on 16 October 2011.[5]
  
• Within that three page undated and unsigned report, the 'concerned employee' identified five areas of complaint levelled against the Worker. These were described as:-
  
  • Falsifying timecard;
  • Abusing of Company Property;
  • Misusing company time for personal commitments;
  • Favouritism (taking advantage of his various voluntary leadership roles); and
  • Not following Supervisors Orders.
    
• The commencement of that report to the General Manager read in part:
  

I have encountered several issues in the past which I have reported to your manager but nothing has happened and we always get to see a biased decision from our manager therefore I had to consult you for justice.[6]

• In response the General Manager asked Mr Chandra to investigate the issues on his own first, with the instructions,
  

"When you have as much of the facts without interviewing anyone come and see me so we can decide next steps!".

• This happened quickly, as Exhibit 16, 'Peni Vodo's Investigation Report' reveals:
  

On Monday 17th of October 2011, an investigation team was formed to establish facts of the case to conduct interviews with workers who were present on that particular shift/day of duty. The investigation team consist(ed) of the Production Manager – Mr Ernest Powell, Production Supervisor- Mr Henry Fong, Maintenance Supervisor- Mr Miguel Sernande and Support Services Officer – Mr Ajinesh (sic) Chandra.

• The following day a meeting was held in the Talanoa Room of the Employer's offices, in which those complaints were put to Mr Vodo, by Mr Ernest Powell, Production Manager.[7]
  
• At the conclusion of that half hour meeting, the Worker was suspended in his employment without pay, by letter in writing from Mr Powell. [7]
  
• Included within that suspension letter was the following:
  

This letter confirms suspension without pay following a complaint from one of the staff on, abuse of position...

Count 1

Statement of Offence:

Failure to follow House Rules number 14 under Serious Misconduct

Particulars of Offence:

On Sunday 9th of October 2011 our security guard house record shows that you reported to work at 7.55am but your timecard shows 7.26am. Falsification of timecards is regarded as stealing from the company and in this instance upon preliminary investigation it has been established that you have falsified your timecard.

Count 2

Statement of Offence:

Failure to fill the vehicle log sheets.

Particulars of Offence:

On Sunday, 9th of October 2011 our security guard house records shows that you had used company vehicle without filling in the vehicle log sheet. Upon preliminary investigation it has been established that you did not fill in the vehicle log sheets on 9th October 2011 and 10th October 2011 and drove the vehicle for 148kms mileage unaccounted for personal reasons.

The above are extremely serious cases of abuse of position of leading hand which constitute serious and gross misconduct on your part.

Due to the serious nature of the offences you are hereby suspended without pay effective from the date of this letter until further notice, to allow for investigations to be completed without hindrance.

• During the ensuing period, the investigation team commenced its task of
  

"collecting raw data through Peni's timecard for 9th October 2011, guardhouse attendance sheet for 9th October 2011, vehicle log sheets for 9th October 2011 and 10th of October 2011 and staff interviews with formal written statements who were at work on 9th October 2011"[8]

• The Worker in turn provided a response to the allegations by letter dated 20 October 2011. (See Exhibit E10).
  
• In response to that correspondence and more than likely in response to the ongoing investigations being conducted, on 2 November 2011, the Employer again wrote to the worker.[9]
  
• On this occasion, the Employer reinstated the Worker's pay[10], continued his suspension and added an additional two complaints, referred to as Counts 3 and 4. (See Exhibit E9)
  
• Count 3 – related to the claim of "abuse of position of the leading hand". The particulars being that the Worker abused his position by requesting that he be picked up in a company vehicle to attend a call in. Count 4 – was described as "misleading the team for personal gains". The allegation being that the Worker deliberately returned to work at around 8.00pm on the Sunday evening and finished work at 10.27pm, without completing the task. Yet returning to work the following day for only one hour. The consequence being that he and those who attended work reaped the benefit of the minimum 4 hours over time provision for that later period.
  
• Further on that same day, the Worker received an additional letter from the Employer requesting his attendance before a Disciplinary Hearing on 4 November 2011. [11]
  
• In the interim and in response to these further allegations, the Worker responded by letter dated 3 November 2011.(See Exhibit E11) Within that communication the Worker denied any manipulation of the on call arrangements and squarely placed the responsibility for the work prioritisation both on 9 October and 10 October, with Mr Sernande, the Maintenance Supervisor.
  
• The Disciplinary Meeting on 4 November 2011 did not proceed. [12]
  
• Instead it would appear that the Investigation Report that had been prepared for or on behalf of the Employer[13], ultimately supported the Worker's summary termination. [14]
  
• By letter dated 14 November 2011, the Worker was summarily terminated in his employment.[15] To restate, the letter read inter alia,
  

On 9th of October 2011, you were observed to have instructed an employee named Vereniki Nailolo to falsify your time card. Falsification of timecards is regarded as stealing from the company and in this instance upon preliminary investigation it has been established that you have falsified your timecard. Having investigated all of the facts and circumstances of this incident and following an interview with you at which time you were given a full opportunity to explain your actions and also taking into account your work history with us we are of the view that your actions constitute serious misconduct warranting summary dismissal.

Summary Dismissal under the Employment Relations Promulgation

8. The Employer's submissions focus on two aspects. Firstly that the summary dismissal was misconduct for the purposes of Section 33(1) of the Promulgation and secondly that there was justification in the decision.
   
9. In my view the implied statutory obligation that is contained within the language of Section 230(2) of the Promulgation requires that the termination be both justified and fair. That is, a remedy would be available if the Tribunal found that the Worker was either unjustifiably or unfairly dismissed.
   
10. This requires two considerations. In Nale v Carpenters Fiji Ltd,[16] I indicated that for a decision to be justified, it would need to be capable of demonstration that it was just, right or valid; capable of being defended with good reasoning. For a decision to be fair, it could neither be harsh, unjust, nor unreasonable.
    
11. In Selvachandran v Peron Plastics Ltd[17] Northrop J of the Federal Court of Australia, set out the general principles that should be adopted for the purposes of giving meaning to the term "valid reason" for dismissal in employment. These are also instructive considerations when considering whether a decision was justified
    
12. His Honour stated:
    

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

13. As to fairness and whether or not a Worker has been unfairly dismissed, a useful analysis of the relevant issues that warrant consideration, can be found in Byrne and Frew v Australian Airlines Ltd [18], where McHugh and Gummow JJ stated:
    

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

The Reason for Termination: Falsifying a Time Card

The House Rules

14. The Worker has been terminated in his employment, on the basis it is said that he has falsified his time card. (See Time card at Exhibit E7). This according to the Employer, is in breach of the House Rule 14 (Exhibit E2), that speaks of
    

Falsifying time sheets or punching another employee's timecard

15. This issue requires more analysis. Firstly the House Rules in their present apparent form, appear to have been issued on 17 November 2010. The Worker in his evidence has suggested that they are only a work in progress and had not been formalized as per the Master Employment Agreement between the Employer and the National Union of Factory & Commercial Workers (NUFCW) dated 28 February 2011.[19]
    
16. In this regard Mr Nair, referred the Tribunal to Clause 26 of that Agreement, that provides:
    

House Rules

The parties shall continue negotiations with an intention to finalise company's house rules, which shall coincide with disciplinary process.

17. Mr Chandra, as a witness for the Employer on the other hand, gave evidence that these rules were well published within the premises of the Employer. That they were the rules in place at the relevant time.
    
18. In the context of the Master Agreement, I would find it fairly hard to comprehend that the union of workers would allow for the posting of new House Rules, in the case where they had not been finalized in the context of Clause 26 of the Agreement. For that reason, I am satisfied that the House Rules were in place at the appropriate time in accordance with the understanding of the parties.
    
19. Without making too fine a point of the issue, the language of the House Rule requires closer analysis.
    
20. It speaks of "falsifying time sheets" and "punching another employee's time card". In the case of the Worker, there appears no time sheet. There is a time card as evidenced by Exhibit E7. The thin rectangular shaped card is titled "SCA Hygiene Australasia Time Card". It provides for the name, employee number, department of the employee and to identify the week ending. The card provides for a week of clocking time entries, apparently catering for only two entries per day. Coinciding with each space available for a daily entry, is a space for code (presumably job or account code that pays for the wages cost) and then where manually it can be entered as to whether the time worked during the day, was either normal time (represented by NT), paid at time and a half for penalty work (T1/2) or double time (DT).
    
21. In relation to the day in question when the said incident took place. The time card of the Worker shows for the relevant Sunday period:
    

'11 Oct 9 AM 7:26

'11 Oct 9 PM 4.23

22. On the reverse of that card, presumably because there was no other space available, further entries from the time clock are shown:
    

'11 Oct 9 PM 8.00

'11 Oct 9 PM 10.27

23. The time card is signed as authorized. According to the Worker, the signature is that of the Maintenance Engineering Supervisor, Mr Sernande.
    
24. It appears from the number 12 handwritten into the DT Column, that the worker was paid 12 hours double time, on the Sunday in question. That payment is consistent with Clause 6 (c) of the Agreement. Insofar as, ostensibly the Worker worked an 8 hour Sunday shift being entitled to double time and then returned later in that evening, where he was entitled to receive a 4 hour minimum payment.
    

The Falsifying Event and the Machine Breakdown

25. The case of the Employer is that on 9 October 2011, the Employer had scheduled a planned maintenance activity. It was not a scheduled production day. Some time in the early morning around 5.00am, there was a fault reported on the CW109 machine. The leading hand working during that evening shift was Mr Vatemosi Basaga. Mr Basaga contacted the Production Supervisor, Mr Henry Fong at approximately 5.00am on Sunday[20] and sought advice as to what to do. According to the statement provided by Mr Fong on 2 November 2011,[21] he advised Mr Basaga to contact the Worker, Mr Vodo.
    
26. In Mr Basaga's statement dated 20 October 2011 and in his evidence as a witness before the Tribunal, he freely admits that Mr Vodo had asked him to pick him up. Unfortunately it would seem for the Worker, Mr Basaga did not leave the Employer's premise to do so, until 7.15am.[22]The case of the Employer is that Mr Vodo was being deceitful, that he was late for work and had asked another worker to 'punch him in' on that basis.
    
27. The Employer through the strong arguments advanced by all three Counsel, stated that the there was a company procedure providing for the steps to be followed in the case of workers called back to duty. (See Exhibit E3). It was argued that the Engineering Supervisor, not the Leading Hand was the person to determine whether a "call in" arrangement was to take place. The argument for the Employer, being that Mr Vodo had no authorization to make that decision in the first instance and secondly, that given the Sunday work was for planned maintenance, there was no urgency requiring Mr Vodo to attend work, as if it was an emergency call-in.
    
28. As the evidence before the Tribunal continued, it became clear through the documentation tendered as Employer Exhibits, that the issue of whether or not Mr Vodo was in fact, called back in for duty, was secondary to the fact that he had asked someone to 'punch him in'. Though it would seem that for the Employer to concede that the Worker had in fact been participating in a call in arrangement, would soften the blow to some extent, in relation to why the Worker had in fact insisted that the time clock record him as coming in at 7.30am, as opposed to when he did in fact actually arrive.[23]
    
29. And this appears to be the main case of the Employer, that the Worker had deliberately sought to be dishonest and falsify his employment records.
    

Analysing the Claim of Falsification

30. It should be firstly noted that Exhibit E7, identified that the Worker was to be paid 12 hours at double time for working on the Sunday. Eight hours for the day work and 4 hours, based on the additional call back work that he and others were asked to complete later that night.[24] There are two issues that need to be assessed. The first relates to whether or not Mr Vodo was actually called back in to work.
    

The Call –In Procedure

31. Mr Vodo in his evidence, claimed that the Call In Procedure that had been developed by the Company as shown in Exhibit E3, was still only a proposal and had not been sanctioned by the Union.[25] He claims that the current protocol was that, in cases of breakdown he would have had discretion and in the absence of any other person, he would be able to treat the breakdown as a call-in.
    
32. Interestingly, it should be noted that the Clause 6(g) of the Master Agreement between the Union and the Employer does have a provision within the Agreement that reads as follows:
    

If the employer shall consider it necessary to collect the employee from his (and presumably her) home in transport arranged by the employer in order to perform emergency overtime work, the employee shall be paid in accordance with the provisions of sub-section (e) of this section, from the time he is collected to the time he is transported back to his home .........

33. The evidence of Mr Basaga, was that he was asked to collect the Worker from his premises by Mr Fong. Mr Fong in his evidence before the tribunal denies that fact. Mr Vodo, has indicated that he himself asked Mr Basaga to collect him. Mr Fong says he was first contacted after 5.00am and if the problem persisted, to contact Mr Vodo. Mr Vodo's evidence was that he was contacted some time between 6.00am and 7.00am. His evidence was the pick-up was late.
    
34. The pick up was late. Mr Basaga told the Employer in his declaration on 20 October 2011, that he had left to collect Mr Vodo at 7.15am. Mr Vodo had been waiting to be collected. How could he have possibly arrived at work on time, when he was going to be collected at that time. It was understandable he was going to be late.
    
35. Of course, this does not address whether Mr Vodo was authorized to demand that he be picked up at that time. Clearly the case of the Employer is, that he is not. That it is not in conformity with the Call In Procedure. Yet, I have already canvassed the counter position in that regard. The fact that the Employer provides as evidence a document that has on its footer the words, 'proposal', does nothing for its case. Though it is not determinative of that much in my view.
    
36. The fact that Mr Vodo could be collected by the vehicle, even if it was at his own behest, is not that extraordinary in the circumstances. This is a company that appears to have allowed him to take the vehicle home during a break from work. Drop off work colleagues and even go to a church service, before returning with it to the company premises.[26] So, if Mr Vodo was to have his time sheet endorsed from the collection time being 7.30am, so that there was no dispute that he was now to be paid in accordance with Clause 6(g) of the Master Agreement, I do not find such a proposition, that far-fetched in the circumstances. It may not be consistent with the Employer's intention of how the time recording process should be undertaken, but that is a different issue.
    
37. The case of the Employer is that by Mr Vodo, doing what he did, meant he was dishonest and wanting to defraud the company of money that he was not owed. Let us consider this further.
    

The Actual Time Defrauded

38. This issue should not go unnoticed. Not because of the actual time involved, as I accept the submissions of Counsel for the Employer that the conduct of fraud is the principal consideration, not the quantum involved.
    
39. But so that there is no misunderstanding. The quantum involved is calculated by my reckoning at either $1.32 or $2.34. That is the amount of time (and wages) that is the subject of the complaint. I would do no side justice to leave the matter there. According to Mr Chandra, he claims that the issue of fraud was confirmed, when he undertook a comparison of the times recorded by the Security Officer (Simione G) on the Daily Attendance Register, against those of the timecard that had been clocked in, on behalf of the Worker.
    
40. The Daily Attendance Register was tendered and marked as Exhibit E6 to proceedings. Interestingly, in relation to the entry recorded for Mr Vodo at the relevant time. It had been entered as 7.55am, not 7.26am as shown on the Time Card. But there are a couple of further things that need to be said. Firstly, the Daily Attendance Register appears to have been corrected by someone. The time recorded against the name of Mr Vodo was initially 7.50am and changed to 7.55am. I find this more than a little curious, particularly given the evidence of Mr Chandra, that the names are recorded as the worker passes security and an entry recorded against the name of the worker for that time.
    
41. From the Exhibit E6, it can be shown that it was recorded indicatively as:
    

42. Mr Vodo's entry was subsequently changed to 07.55. I am very suspicious of that alteration, which Mr Chandra claimed, came about because the Security Guard had made a mistake.[27] It is more than a little coincidental I would think, particularly if one looks at Exhibit E5, that the altered time coincides with when the 'concerned employee' claimed that Mr Vodo had come to work that day. That is, at 07.55.
    
43. To me, the alteration is highly suspect and appears to have been done to achieve consistency with the allegation of the concerned employee. I would be far more concerned of that conduct as an Employer, all other things being equal, particularly when Mr Basaga in his own Statement, suggested the arrival time was more likely 8.05am. That seems in my view to be a strong prima facie case of someone (whether alone or in concert with others) falsifying time records.
    
44. Further, based on the evidence before me, any reliance on the matching of the Daily Attendance Register and the Employee Time Card appears fraught with error. One only needs to examine and compare the following morning's results on 10 October 2011, to reach the conclusion that the times are not strictly aligned.
    

45. That of itself is not a reliable system of anything. In the context of my suspicions regarding the altered times of the attendance register, it is even the more so.
    

The Act of Asking One to Punch In On Your Behalf

46. The Employer is completely correct, that there is no place for individuals not observing this basic house rule. A company cannot operate effectively, if it is not guaranteed that workers are attending to work punctually, recording their time worked honestly and being paid appropriately as a result.
    
47. It is the case though, that the Timecards do not automatically translate time recorded into actual wages earned. From the exhibit provided, it would appear some human intervention is involved, in not only classifying the various types of entitlements, including penalty payments and the like, but thereafter totalling those up for the assumed purposes of calculating the weekly take home pay.
    
48. It would be incredible to believe, if there were not some unusual circumstances that may necessitate some exceptions to the general house rule. An employee may for example, be required to attend work at another location for the morning.[28] In that case some manual intervention to the time recording may be useful. In that case, a pay officer for example, could be given the authority to clock the worker in, so that there was an agreed (and authorized) commencement time, for when pays were being prepared later on in the week. That sort of scenario, would not be that strange. In fact, I am sure it is likely to have happened many times in many workplaces throughout the world. A situation like that, wouldn't in my view be so wrong, nor compromise the integrity of the time recording system. Though the Employer is quite entitled to determine how, or what protocol it wants to put into place, in this regard. I have no quarrel with that position at all.
    
49. Having said that, one only needs to look at Exhibit E7 to see how imperfect the system of bundy clocking really can be. On the final day of that week's entries, it would appear that the Worker failed to punch out. It would also seem, that some other person hand wrote on the time card the record "12pm". This in my view is analogous to having someone 'punch you out'.
    

Was the Decision Justified or Fair in the Circumstances?

50. The short answer to this question is no. Of course an employer would ordinarily be entitled to summarily terminate a worker for fraudulent conduct. Though, terminating an employee for such conduct warrants a good deal of attention to detail. The Employer needs to ensure that the investigation is undertaken fairly; that all issues were appropriately considered; that the worker was given a suitable opportunity to respond and be heard[29] and that the decision was proportionate to the conduct.
    
51. In Digitaki v Mobil Oil Australia Ltd[30], the Court of Appeal recognised the need to lift the evidentiary bar in matters of this type, when it restated the long established principle set out by Dixon J in Brigginshaw v Brigginshaw [31]
    
52. In that case his Honour stated at p.362:
    

"But 'reasonable satisfaction' is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

53. To my mind the Employer's case is flawed. I do not regard Mr Powell, the Production Manager to have been a truthful and reliable witness. He claims not to have known the identity of the employee who initiated the complaint to the General Manager, though after much effort on the Tribunal's part, conceded that he did have a discussion with the General Manager in relation to the complaint and admitted having received a copy of the complaint.
    
54. The identity of the worker would have been known to Mr Powell, given that person admits within the opening paragraph of the complaint, as having raised these issues with him previously. The employee also seemed to have known the time that the Security personnel recorded Mr Vodo as having attended work on the relevant day. Similarly Mr Chandra claims not to have known who this person was. If that is true, from an organizational point of view, I would find it an interesting state of affairs.[32] Though, I also am aware of the need to control against reprisal conduct, in the case of employees who wish to 'whistle blow'.
    
55. The fact that Mr Powell, was a member of the Investigation Team, is also extraordinary. Particularly given that he himself was accused by the 'concerned employee' of complicit conduct. Mr Powell was under the management spotlight as a result. Any person with a basic knowledge of management behavior would have recognized that fact. He was incapable of acting impartially in the conduct of Mr Vodo's investigation.
    
56. He needed to vindicate his own conduct. The best way to do that, was to assist in the findings made against Mr Vodo. Findings which in my mind were calculated and founded on processes and investigation techniques that were highly biased and designed to yield specific results.[33]
    
57. The fact that Mr Sernande was not called as a central witness for the Employer again is intriguing. Mr Sernande was according to Mr Vodo, the person who approved the use of the motor vehicle. He approved the extra call back work, later in the evening of 9 October. He allowed Mr Vodo to take the car home, to drop off workers, to attend church and then return in order to be paid four hours overtime. This was all apparently sanctioned conduct.
    
58. I am sure that Mr Sernande was made aware of the events that gave rise to the breakdown in Machine 109. In Mr Vodo's evidence he recalled the discussions that took place with Mr Sernande in reviewing and prioritizing the works. The Employer could have sought to dispute that evidence, it chose not to call Mr Sernande. In my view Mr Sernande approved the time card of Mr Vodo, as representing a true and accurate record of his hours worked.
    
59. Mr Vodo was contacted some time between 6.00am and 7.00am in relation to this work issue. In such a situation, he would appear to have been 'on call', if not being 'called in', in any event. At the relevant time, Mr Vodo was in receipt of an annual salary of approximately $13,018.00.
    
60. To expect to be paid for being contacted at 6 óclock on Sunday morning, for example, to attend to a work problem, is not such an unreasonable proposition. Mr Vodo had expected to be collected earlier. The pick up was late. He claims to have been observing the terms of Clause 6(g) of the Master Agreement. For that to have taken place, would have required an authorized person to have allowed Mr Vodo to have been picked up. Based on Mr Sernande's apparent approach to the use of the company vehicle, in order to assist workers in such cases and to return home and back to work once more, it is a possibility that he would have sanctioned Mr Basaga to have collected Mr Vodo, in any event.
    
61. While it would be wrong to suggest that Mr Sernande would have or did give approval for the collection of Mr Vodo, that does not seem to have been an issue for the Employer at the end of the day. What was, was the fact that Mr Vodo had another employee 'punch him in'.
    
62. When questioned by the Tribunal, the Worker was unable to give a logical reason for why he did not just attend work and then punch in and argue his case for some time correction at a later point. Not that the Employer assisted by providing any examples of where deviations from the policy might need to occur.
    
63. Mr Vodo had so little to gain by doing what he did. I have already calculated the likely quantification from a monetary point of view. I am inclined in the circumstances to find, that on balance, the decision to terminate was harsh. It was not justified in the circumstances. The decision was not proportionate to the conduct in this particular factual scenario. A more appropriate outcome would have been a strong warning and explanation, that there are no circumstances that would allow for an employee to make that request to another, nor fulfil the act of punching the card of another.
    
64. In this respect, I sympathise with the apparent fate of Mr Nailolo, who also seems to have suffered too high a price on this occasion.[34]
    

Other Issues

65. I sense that the Employer's witnesses found Mr Vodo a difficult person to manage. He perhaps was. Even if that was the case, the Employer should have put into place an effective performance management regime, articulating the expectations, performance measures and processes for review and then applying them appropriately. The answer to addressing a long term employee, who appears to have had no other significant conduct issues in the company was not to terminate him, for a pattern of conduct that appears to have been largely sanctioned by those who supervised him.
    
66. Based on this factual backdrop, I therefore find the dismissal unfair. I find the Investigation Report showing processes that were highly flawed and disingenuous. Keep in mind, the Employer ultimately did not carry through with its desire of conducting a Disciplinary Hearing, it clearly did not see the need. There is also no evidence of the General Manager meeting with Mr Vodo as he had requested "before the final sitting."[35] This to me, seemed an appropriate request for a long standing employee to make, so that he could plead his case.
    

Remedies

67. Counsel for the Employer argue that reinstatement is not an appropriate remedy. I sense the employment relationship will never be a good one after this. While my inclination is that justice would dictate that the worker be returned to his workplace and resume his livelihood, I expect that this will not be a positive outcome in the long term. The Worker's Counsel has indicated that he is now working only on a casual basis. The Worker regards himself as unemployed. I believe that the Worker has been deprived his livelihood and all that goes with it. He has a family to support as well, that makes the decision to terminate, all the more impacting. The Worker should be reimbursed for the lost earnings and the ongoing expectations arising under the contract. There is an aspect of pain, hurt and suffering, I am convinced would exist as well. The Worker now has to find a new job and learn from this unfortunate situation. There is no evidence before me of how difficult it is for a person with the Worker's skills to find work at this time. My inclination would be, reasonably difficult, particularly during the Christmas/school holiday season.
    
68. I award the Worker the total sum of $27,500.00[36] being total compensation for the loss of earnings and opportunity arising from the decision to terminate his employment. It has been over 12 months since that decision was taken. Having regard to my earlier comments in relation to performance management, there is no reason to have assumed that the Worker would not have remained with the Employer for a considerable period of time. He has been denied that opportunity and in my view, quite unfairly. The Company is also ordered to pays Advocate's costs in the amount of $750.00.
    

Decision

(i) That the Employer pay the Worker the amount of $27,500.00, within 28 days, as compensation in lieu of reinstatement.

(ii) That the Employer pay the Worker the Advocate's costs of $750.00, within 28 days.

The Tribunal orders accordingly.

Mr Andrew J See
Resident Magistrate

^[1] Evidence of Mr Peni Vodo.

^[2] Evidence of Mr Chandra, Human Resource Officer.

^[3] Outside of one workplace accident, there is no evidence at all of any adverse employment history

^[4] Date of issue 17 November 2010. (See Exhibit E 2)

^[5] See Exhibit E 5.

^[6] This is an important allegation that as the evidence transpires was levelled against the Production Manager; who interestingly was a member of the Investigation Team that looked into these allegations and who signed the termination letter.

[7] I will comment more about this issue later, but is seems more than ironic that the person himself a central figure in the allegations raised by the ‘concerned employee’ was given the task of co-ordinating this meeting.

^[7] See Exhibit E15

^[8] See Para 3.3 to the undated Investigation Report that is Exhibit E16. Note also, that Mr Sernande who as the evidence reveals, was himself in attendance at work on that day, did not submit his statement until 2 November 2011. (See Para 4.21 of the Investigation Report).

^[9] See Exhibit E9

^[10] Presumably in response to representations made by the Union General Secretary Mr Mudaliar, following his meeting with the Employer’s representatives on 1 November 2011. (See Para 4.18 of the Investigation Report)

^[11] See Exhibit E13. (I note Paragraphs 4.23 and 4.24 of the Investigation Report). It should be noted that no direct evidence was led by the Employer in this regard.)

^[12] I was not provided with any adequate reason by Counsel as to why this was the case.

^[13] It is disappointing that Counsel did not identify the identity of the author of this document.

^[14] See Para 13.1 of the Investigation Report.

^[15] See Exhibit E12.

^[16] [2012]FJET 3 at [61]

^[17] Dec 329/95; VI 1322R/94,

^[18] (1995) 185 CLR 410 at 465

^[19] See Exhibit E4

^[20] Evidence of Mr Fong as contained within a very brief Statement provided to the Employer.

^[21] I am intrigued why the Employer took such a long time to take this vital statement, given that it had taken most others on 20 October 2011.

^[22] See Statement of Mr Basaga at Line 17.

^[23] I say soften the blow only insofar as, it provides some level of plausibility to the argument that the Worker would have otherwise been entitled to have claimed for the commencement of call in, at that time that he was collected from his home.

^[24] This is the undisputed evidence of Mr Vodo that he was asked by Mr Sernande, the Maintenance Supervisor, to return later that evening. He was given permission to leave work with the company vehicle, to drop some workers home on the way; to attend church service and then to return later that evening.

^[25] It should be noted that Exhibit E3, is marked as “Proposal 2. F Jackson 16 September 09”.

^[26] Undisputed evidence of Mr Vodo, that Mr Sernande allowed him to do this, on this occasion. This appears to have also been the reason why those particular allegations against Mr Vodo were dropped by the Employer.

^[27] If that was the case, why was Lilesh’s time unaltered?

^[28] Say for an example an employee required to attend offsite training or who was being asked to collect some spare parts from a supplier.

^[29] That is,to be genuinely listened to in that response and not for an Employer to ‘go through the motions’ in order to secure the result of termination.

^[30] [2008] FJCA 109

^[31] [1938] HCA 34; (1938) 60 CLR 336

^[32] Even from a purely technical point of view.

^[33] Consider for example the way in which the statements from workers were undertaken.

^[34] There would be logical consequences that would flow to all parties in order to reconcile that position as well.

^[35] I presume he means here, before the final meeting to decide the fate of the Worker was held.

^[36] Equating to approximately two years in lost earnings, with some small allowance for interest.