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Falsifying overtime records justified dismissal

Dismissed because he deliberately falsified his overtime records.
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Falsifying overtime records justified dismissal

Falsifying overtime records justified dismissal

23 June 2020

By Mike Toten

A long-serving supervisor was validly dismissed because he deliberately falsified his overtime records by regularly rounding them up.

The Fair Work Commission found his conduct to be fraudulent, a fundamental breach of the relationship of trust with his employer, and suggested that if the employer had condoned it he could be likely to breach other employment policies and rules as well. It rejected his claim of unfair dismissal and said that an employer must be able to trust a senior employee to comply with all its employment policies.


'Balancing out hours'

The employee was a supervisor at a mine. He had 15 years’ service and was the most senior employee working underground in his work section. His role as undermanager meant that he was responsible for the operation and safety of the coal-cutting process.

The employer compared his overtime records with that of an electronic attendance monitoring system (using swipe card access) that it had introduced for safety reasons. His normal working hours comprised four 10-hour weekday shifts per week. He also regularly did 13-hour shifts at weekends as an undermanager or deputy. The employer’s policy was that overtime was unpaid for the first four hours, then paid up to a maximum of 10 hours per week.

When he worked weekend overtime, he claimed payment for the first 10 hours, but then added the extra three hours onto another (shorter) overtime shift and claimed payment for that as well. He claimed that this was “custom and practice” for undermanagers and deputies at the mine.

He further claimed that it was a “give and take” system and he was just balancing out his hours so that the overtime payments matched his actual overtime worked. He believed the employer’s overtime payment policy was unfair.

The FWC found that other employees had done similar things, but on a one-off basis, so they only received warnings. Even though his employment record was otherwise unblemished, this employee had done it for more than a year, while knowing it was wrong to do so.

The employee also claimed that the practice of claiming payment for a full shift even if the job finished early and employees went home before the due finish time was still common practice, but the FWC found that it had ceased after the electronic attendance recording system commenced and a previous manager had issued a directive not to do it. Employees were now generally aware that it was “the wrong thing to do”.


Decision

The FWC upheld the dismissal. It found that the breach of trust, given the employee’s seniority, was sufficiently great to support a finding of serious misconduct. Deliberately breaching a policy simply because the employee thought the policy was unfair could not be justified.

The bottom line: The key factor in this decision was the breach of trust by the employee rather than the nature or cost to the employer of the misconduct itself. The seniority of the employee made the breach more serious.

The gravity of the misconduct and the employee’s awareness of it overrode his claim that he did not receive a warning or an opportunity to correct his behaviour.


Read the judgment

Westlake v Illawarra Coal Holdings Pty Ltd, [2020] FWC 2504, 16 June 2020

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