DeCandia v Hallmark Cards Australia Limited [2004] QIRC 73 (2004) 175 QGIG 1376

1376 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 April, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Len DeCandia AND Hallmark Cards Australia Limited (No. B1288 of 2003) VICE PRESIDENT LINNANE 16 April 2004 Unfair dismissal application – Applicant dismissed for inappropriate claiming of funds he was not entitled to – Applicant not given a reasonable opportunity and sufficient time to answer the allegations and respond – Failure of Respondent to establish that it conducted a reasonably full and extensive investigation into all of the relevant matters surrounding the alleged misconduct – Dismissal found to be harsh, unjust or unreasonable – No evidence adduced by Respondent on impracticability of reinstatement or re-employment – Opportunity given to Respondent to adduce such evidence provided it pays any additional cost incurred by Applicant in a further hearing – Decision on remedy reserved awaiting advice from Respondent on whether it wishes to adduce such evidence – Industrial Relations Act 1999 ss. 73, 74, 77, 78 and 79. -- 1 of 8 -- 30 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1377 DECISION [1] This is an application by Len DeCandia (Applicant) pursuant to s. 74 of the Industrial Relations Act 1999 seeking reinstatement to his former position as account manager with Hallmark Cards Australia Limited (Respondent). The Applicant commenced employment with the Respondent on 29 May 1999 and his employment was terminated on 24 July 2003 i.e. 4 years and 2 months duration. [2] In the position of account manager the Applicant was responsible for the customer stores area between Kingscliffe and Coomera. In that capacity he was required to order products for the customer stores, update the stores with new products, create new business and expand the Respondent’s product base. In the period of his employment with the Respondent his customer store base grew from approximately 88 stores to approximately 120 stores with his annual budget growing from $1.9 million to $3.4 million. [3] With the increase in customer store base came an increase in workload which, according to the evidence of the Applicant, meant him working approximately 60 hours per week. [4] It was the Applicant’s evidence that, in or about March 2003, Phillip Johnston, the Respondent’s Queensland Sales Manager, provided the Applicant with a written warning in relation to his work performance. According to the Applicant this warning related to his inability to service his growing territory. The Applicant said that he sought assistance from Mr Johnston to service his customer store base, having earlier sought such assistance from the previous Queensland Sales Manager. Mr Johnston in evidence admitted that the Applicant had one of the largest customer bases in Queensland. [5] Mr Johnston however denied any written warning in or about March 2003. His evidence was that he held a performance interview with the Applicant on 30 May 2003. According to Mr Johnston, the purpose of this interview was to discuss several performance issues arising from feedback received from the Applicant’s team of merchandisers and customers. Some of the issues discussed included failure by the Applicant to regularly meet with customers, failure to follow up leads and opportunities that were pointed out to the Applicant by his team of merchandisers, failure to meet projected budgets, actual expenses exceeding his budgeted expenses and promising employees terms and conditions of employment without authority. Mr Johnston said that he issued the Applicant with an official warning at the end of the Performance Interview. [6] There was obviously only the one such warning at or about this time. I am of the view that the Applicant got the timing incorrect whereas Mr Johnston had documentation to support his evidence. The meeting to which the Applicant referred obviously occurred on 30 May 2003. There is no evidence of any other conduct issues concerning the Applicant prior to this time. [7] It is also of note that Mr Johnston gave evidence of a new business model being developed to manage the Queensland customer base and how this process, together with a restructure of merchandiser support, was being applied to all territories in June/July 2003. There is also the evidence of Kellie Hess, an Account Manager with the Respondent at the time of the Applicant’s dismissal, that she was made redundant at the end of August 2003. This supports the evidence that the Respondent was restructuring aspects of its enterprise in Queensland at least during the period June 2003 to August 2003. [8] On or about 20 June 2003 the Applicant again met with Mr Johnston and the two were able to devise a call schedule which covered the entire customer stores required to be serviced by the Applicant. The call schedule was set over a period of 12-13 weeks. [9] Mr Johnston also gave evidence of a discussion he had had with Kerry King, a senior merchandiser who reported to the Applicant. Ms King had apparently asked Mr Johnston whether he was meeting with the Applicant on 30 June 2003. The evidence of both the Applicant and Mr Johnston was that there was no meeting between them on 30 June 2003 in Brisbane. Mr Johnston said that on 3 July 2003 when he asked the Applicant where he was on 30 June 2003, the Applicant responded that he visited Banora Point News, Helensvale Plaza News, met up with the new owners of Tweed City News and met with one of his merchandisers, Anne Rummens. All of these were on the Gold Coast. The Applicant denied telling Ms King that he had a meeting with Mr Johnston on 30 June 2003. As Ms King did not give evidence I accept the evidence of the Applicant in this regard. The Applicant said that he may have told Ms King that he had to go to Brisbane on 30 June 2003 and Ms King may have assumed that he was going to see Mr Johnston. The Applicant’s evidence is that he had no intention of seeing Mr Johnston on 30 June 2003. [10] It eventuated that the Applicant was in Brisbane on 30 June 2003. He met with Ms Hess that afternoon and went over the 2004 Valentine’s Day orders which are planned some eight to twelve months prior to the occasion. Ms Hess agreed that she met with the Applicant on that date however she and the Applicant differed on where they met on this afternoon. I do not place any great weight on the fact that, in their statements of evidence, the Applicant and Ms Hess differed on the location of the meeting as apparently they did meet in Brisbane on a number of occasions. [11] On 15 July 2003 Mr Johnston again met with the Applicant to attend Coolangatta News, one of the Applicant’s customers who had complained about the Applicant supplying stock to a store directly across the road from Coolangatta News. It was Mr Johnston’s evidence that he told the Applicant that had he visited this customer regularly he would have known that the customer was upset. Mr Johnston said that during this meeting he again requested that the Applicant publish his call schedule so that his team members knew where he was at any given time. It was the Applicant’s evidence that Twin Towns News & Casket had approached him to set up their store and supply them with the Respondent’s product. The Applicant said that he was not aware of any policy of the Respondent that would prevent him from supplying product to Twin Towns News & Casket – a competitor of Coolangatta News. It was also the Applicant’s evidence that he visited Coolangatta News on a six week turnaround and in his view the store did not warrant any additional visits. [12] On 17 July 2003 Mr Johnston said that he received the Applicant’s expense claim which included toll receipts. He noticed two toll receipts for 30 June 2003 over the Gateway Bridge in Brisbane. This was the day that the Applicant had advised him on 3 July 2003 of the customers he had visited on the Gold Coast on 30 June 2003. The Applicant had not mentioned at that time any visit to Brisbane. As a result Mr Johnston then commenced to investigate the Applicant’s expense claim. [13] On 20 July 2003, whilst the Applicant was working in the Hervey Bay and Bundaberg area, he received a telephone call from Mr Johnston requiring him to attend an official performance interview on 24 July 2003. He was advised by Mr Johnston that the matter was serious. Mr Johnston told the Applicant to bring his diary to the interview but otherwise did not tell the Applicant what the meeting was about even though the Applicant inquired the reason for the interview. Mr Johnston also advised the Applicant to have someone present with him at the interview. [14] On the return drive from Bundaberg the Applicant again questioned Mr Johnston about the reason for the interview. Mr Johnston again refused to tell the Applicant the reason for the interview. -- 2 of 8 -- 1378 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 April, 2004 [15] On 24 July 2003 the Applicant attended at the interview. Also in attendance were Ms Hess, Julie Chippendale, the Respondent’s Field Sales Manager at the time, and Mr Johnston. The Applicant taped the interview with the consent of Mr Johnston (Exhibit 3). The transcript of the tape recording is an attachment to Exhibit 4. [16] Early in the interview Mr Johnston referred to the Applicant’s expense claim dated 17 July 2003 and in particular a claim for tolls for crossing bridges and for travelling on roads in Brisbane. The toll receipts in question were twenty-three (23) in number and were for dates between 11 April 2003 and 30 June 2003. It was Mr Johnston’s evidence that he could not find a reason for the Applicant being in Brisbane on the particular dates to which the receipts related. Early in the interview Mr Johnston asked the Applicant did he bring his diary and the Applicant responded that he had. Mr Johnston then asked the Applicant to explain why he was in Brisbane on the particular dates. [17] The Applicant’s immediate response was to advise Mr Johnston of the place where he puts his receipts at home and how his wife, Veronica Boulton, “picks up the odd receipt for a toll bridge” when she comes to Brisbane and puts those receipts in the same place. The Applicant explained that he often does not pick up receipts for dinners, tolls and car parking – all legitimate claims against the Respondent. The Applicant explained that when he does get around to making an expense claim he just picks up the receipts in the area and writes them up. When asked by Mr Johnston “[s]o are you saying that none of these receipts are yours?”, the Applicant answered “[t]hat is correct, not the ones that you cannot verify but I don’t go through them because they are so minimal that I don’t worry about getting the odd receipt at like a toll bridge or when I come out of a car park”. During the course of the interview the Applicant referred Mr Johnston to a number of occasions where he had expended monies in the presence of Mr Johnston and had not claimed those monies. [18] When Mr Johnston asked the Applicant to go through the claims and to work out which were legitimate claims the Applicant immediately said to Mr Johnston to take all the claims out for the days that Mr Johnston could not verify that the Applicant was in Brisbane. Mr Johnston then responded by saying “[s]o are you suggesting that none of them are yours?” to which the Applicant said “[n]o, I’m not suggesting that at all”. [19] Mr Johnston then asked the Applicant where he was on 30 June 2003. It was at this time that the Applicant explained that he had a financial year diary i.e. one that recorded matters from 1 July 2003 only. All of the dates referenced in the receipts for claims made were dates in the earlier financial year for which the Applicant did not have any diary with him at the interview. The Applicant responded by saying that he could not recall where he was on 30 June 2003 i.e. some three weeks prior to the interview. There was apparently two toll bridge receipts for 30 June 2003. When asked by Mr Johnston “[s]o are you telling me that you were not in Brisbane that day” the Applicant responded “[t]hat is correct”. The Applicant further stated that “[i]f I was down on the Gold Coast doing those stores that I mentioned to you on that day, that is probably right and one of the receipts that are in there indicating that I might have crossed that bridge will probably be something that Veronica has put in there”. The Applicant was then asked about 23 June and 14 June. The Applicant responded ‘[t]he answer is going to be the same”. [20] It is apparent from the transcript of interview that this meeting was not a performance interview as Mr Johnston had informed the Applicant. Rather it was a disciplinary interview. [21] Mr Johnston then put an end to the interview saying that he needed “to have some time to consider your response”. He asked for fifteen (15) minutes. During this time Mr Johnston consulted with Anthony Mills, the Respondent’s Human Resource Manager, on the telephone. It was Mr Mills’ advice to terminate the Applicant. It was Mr Johnston’s evidence that the reason for deciding to terminate the Applicant’s employment was the “inappropriate claiming of funds” from the Respondent that the Applicant “was not entitled to”. [22] Mr Mills’ evidence is that he was telephoned on 24 July 2003 and advised by Mr Johnston that the Applicant had admitted to knowingly submitting false expense claims associated with toll costs incurred when crossing the Gateway Bridge. According to Mr Mills he was informed that the Applicant had said at the interview that “because he did not always claim expenses that were incurred as part of his job, he would submit his wife’s toll-way expenses as a way of making up for those expenses that he missed out on”. Mr Mills also understood that the Applicant had admitted that he knew he was supposed to submit expense claims and that they should only be work related expenses. On the basis of that information Mr Mills advised Mr Johnston to terminate the Applicant’s employment. [23] The meeting with the Applicant and Ms Hess was then reconvened with Mr Johnston attempting to summarise what the Applicant had said in the earlier meeting. The Applicant did not agree with Mr Johnston’s summary. The Applicant was asked was there anything else he wanted to add to his earlier response, did he want to change anything that Mr Johnston had said. Ms Hess then asked whether the matter had to be “finalised now” or could he “think about it” to word it better. Mr Johnston said that he was going to finalise it now. Mr Johnston then said: “Well Len, based on your replies you have admitted to me that the expenses you have claimed are not expenses incurred by you in your work with Hallmark. Is that correct? You had inappropriately claimed funds from Hallmark that are not Hallmark work expenses and therefore you leave me no option but to terminate your employment with Hallmark, effective immediately. We will pay 4 weeks in lieu of notice plus any entitlements. That is my decision. Did you want to respond at all?”. [24] The Applicant responded by saying “[w]ill it matter”? Mr Johnston replied that his “decision has been made but you have the opportunity to respond”. I don’t know what the Applicant was expected to respond to after the decision to terminate had been conveyed to him. [25] On 30 July 2003 Ms Chippendale attended the Applicant’s home to collect the company vehicle from the Applicant. She attended with Robyn Steel and Bernadette Andrews. The Applicant was taken by them to lunch. During the lunch the Applicant was able to verify with Ms Chippendale the following occasions that he visited the Respondent’s Stafford office and which would have incurred toll expenditure: • to collect Easter stock (Ms Hess was also at the Stafford office during this visit); • two separate visits to collect Mother’s Day stock; • two separate visits to collect discounted stationery; • one visit to pick up everyday gift bags, cello, tissue and wrap for car stock; • one visit to pick up six concept ‘roll wrap’ baskets for Target Runaway Bay; • one visit to pick up one carton of everyday counter cards; • one visit to pick up ten concept spinner ‘hooks’; • one meeting for lunch with other Account Managers; and • possibly two further meetings during the period 1 April 2003 to 30 June 2003. [26] The Applicant had made no claim for this toll expenditure. -- 3 of 8 -- 30 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1379 [27] This involved twenty (20) to twenty-four (24) bridge crossings during the relevant period. At $2.20 per crossing the amount of tolls incurred during the relevant period would thus be $44.00 to $52.80. The amount that Mr Johnston had deducted from the Applicant’s expense worksheet for the period 1 April 2003 to 30 June 2003 was $43.60. [28] In a letter received by the Respondent on 6 August 2003 the Applicant sought further reimbursement of expenses incurred during the course of his employment with the Respondent including claims in respect of bridge crossings and tolls for which he had no receipts. These were all legitimate claims and were paid by the Respondent even though the Applicant was unable to produce receipts. Included in this claim was a receipt for $92.00 for dinner for four in Bundaberg. The Applicant had managed to obtain a receipt from the restaurant following the termination of his employment. The Applicant explained in the letter that he originally had no intention of claiming the monies but due to the circumstances of his dismissal he decided to claim it. The $92 was paid to the Applicant. [29] I accept that the Applicant often incurred expenditure for which he was entitled to be reimbursed by the Respondent but that he did not seek such reimbursement because he couldn’t be bothered obtaining the necessary receipts. [30] Ms Boulton admitted that “on the odd occasion” she collected toll receipts and placed them in with her husband’s receipts. She did this on her own volition according to her evidence. Mrs Boulton said that she was aware that the Applicant did not obtain receipts, and therefore did not claim reimbursement of all expenses incurred by him in the course of his employment with the Respondent (e.g. dinners, breakfasts, coffees, tolls and car parking fees) and that is why she occasionally put such receipts with her husband’s receipts. Respondent’s Relevant Polices and Procedures [31] The Respondent’s Travel and Business Expense Policy was in evidence. Paragraph 7 of that document relevantly provides as follows: “7.1 REIMBURSEMENT Hallmark will reimburse employees only for authorised actual business expenses. Expenses that are incurred in place of authorised business expenses will not be reimbursed, e.g. an employee may not forgo meals or lodging expenses and request these unused costs be applied toward reimbursement of unauthorised personal expenses. This no substitution policy applies even if the expected personal expense is less costly than the authorised business expense. 7.2 METHOD Hallmark Cards Australia does not provide a corporate credit card to its employees. All business related expenditure should be paid for using the following. • Personal credit card • Cash • Personal cheque.”. [32] It was the evidence of Mr Mills that he relied upon the Respondent’s Discipline procedure in terminating the Applicant’s employment. This procedure is outlined in the Human Resources Policies & Guidelines. Unfortunately the Discipline procedure in evidence is the procedure as at August 2003 which is at a date after the termination of the Applicant’s employment. In any event that Discipline procedure records that: “Action should be taken by Managers to correct and eliminate any violations of rules and regulations immediately they become aware of them. Remedial action should always be directed by a strong sense of fairness, objectivity and equity.”. [33] On the procedure itself it records that: “Most rule violations will be minor and often inadvertent; in 90% of such cases immediate discussion between the manager and employee should be sufficient to remedy the situation. In the event of more serious offences or repeated minor infractions, the manager should submit a report on the corrective or counselling interview. Disciplinary action may range from a reprimand, notice of termination or immediate dismissal depending on the seriousness of the offence. If anything more than a reprimand is involved, the case should be discussed with HR as soon as possible and preferably before the event (see Section 2.4 – Termination of Employment). It is not possible to spell out all types of situations in which serious disciplinary action may be called for, but it would certainly need to be considered in the event of employees: • making inaccurate or untruthful statements on official documents and records …”. [34] The Termination of Employment provision in the Human Resources Policies & Guidelines document relevantly provides as follows: “Background Termination of employment initiated by Hallmark – i.e. dismissal – usually implies a failure of one or more areas of our personnel procedures either in initial selection, induction, training or subsequent management. At best it represents a loss of time and money for Hallmark. At worst, a traumatic incident in an individual’s working life. In every case it affects the harmony of the work environment in a department and must therefore be an area where justice must not only be done but clearly be seen to be done. Quite apart from moral obligations, an employer has a number of legal constraints in this area. -- 4 of 8 -- 1380 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 April, 2004 Policy For all of the above reasons, the termination of an employee must be regarded as a serious step, taken only when all reasonable alternatives have been tried, but failed. Procedure Dismissal situations can be divided into three categories: a) Those which warrant instant dismissal on the first occasion: The emphasis here is that action must be taken to establish the severity of the offence. Any delay in investigation could be interpreted as condoning or over-looking the matter and prejudice an employer’s right to take action. In these circumstances a Manager may be called upon to make a rapid decision in what is sometimes a complex legal situation. Some circumstances will be clear cut – violence, wilful disobedience, proven theft. Others may not be so black and white. In all cases, immediately contact HR who will take responsibility for any necessary action. In many cases, the employee should be sent home to report the next day. This allows for a reasonable time to establish the facts and fairness of potential dismissal (natural justice must be seen to be done!) b) Those that are caused by persistent rule breaking or inability to cope with the job: Rule breaking or ineffective performance should be brought to an employee’s attention as soon as a manager detects a problem. i) Initial discussion At this stage, a brief informal chat will usually be sufficient to clear up the matter. The manager should make a diary note on what transpired at the discussion and what performance expectations were agreed to. A copy of this note should be forwarded to HR to place in the employee’s personnel record. ii) Formal Warning Should the situation persist, a formal written communication should be developed in consultation with HR and issued to the employee. The communication should specify clearly what performance expectations are acceptable and failure to achieve agreed standards will result in a further discussion. The re-appraisal period should not exceed two months. A copy of discussion should be sent to HR to place in employee’s personnel file. iii) Final Warning At the end of the prescribed period, the employee and manager should meet once again and review the situation. If satisfactory improvement has taken place, the incident can be regarded as resolved. If encouraging progress, but not complete, has been made, further (but final) review period may be granted. If no solution to the problem seems in sight, the employee should at that time be given notice in the presence of HR. It is up to the discretion of the manager, advised by HR, to determine the period of notice and whether it is in Hallmark’s interests that the notice be worked as outlined in the “Employment Contract”. No employee (including all sales personnel) is to be terminated without first consulting HR in the interest of ensuring all bases are covered from an Industrial Relations and legal position. Whatever the decision, full details are to be recorded in the employee’s personnel file. …”. Legislative Provisions [35] Section 73 of the Industrial Relations Act 1999 (Act) provides that a dismissal is unfair if it is harsh, unjust or unreasonable. Section 77 of the Act provides that in deciding whether a dismissal is harsh, unjust or unreasonable, the Commission must consider: (a) whether the employee was notified of the reason for the dismissal; and (b) whether the dismissal related to the operational requirements of the employer or the employee’s conduct, capacity or performance; and (c) if the dismissal relates to the employee’s conduct, capacity or performance, whether the employee had been warned about these matters or given an opportunity to respond to allegations about the conduct, capacity or performance; and (d) any other matters the Commission considers relevant. [36] Bougoure C in Mr R v Department of Education (1994) 147 QGIG 503 at 504 in considering whether a dismissal was unfair commented: “The general unfairness of a dismissal may arise in 2 ways. Firstly, the unfairness of a particular dismissal may be in the merits of the case in that the employee’s conduct, performance or capacity did not deserve dismissal or secondly, the unfairness may arise in the methods used by the employer in arriving at the decision to dismiss and the manner in which the dismissal is carried out. In the latter regard, it may arise that the employer has failed to carry out a proper investigation of the relevant circumstances before dismissing. The former is normally described as substantive unfairness and the latter as procedural unfairness.”. [37] As Asbury C in Chris MacKenzie v Wangetti Education Centre (2001) 166 QGIG 202 at 204 commented: “Under s. 73(1) of the Act, the requirement for the Commission to consider both substantive and procedural fairness arises through the use of the expression ‘harsh, unjust or unreasonable’ to define a dismissal that is unfair. Guidance as to the meaning of the expression ‘harsh, unjust or unreasonable’ can be found in the decision of Sheldon K in Re: Loty (1971 AR 95) where phrases such as ‘whether the employee has received less than a fair deal’; ‘industrial justice’ and a ‘fair go all around’ are used.”. -- 5 of 8 -- 30 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1381 [38] In Bi-Lo Pty Ltd v Hooper (1994) 53 IR 229 a Full Bench of the Industrial Commission of South Australia said that: “In a case such as the present one where the employee is dismissed for misconduct in respect of dishonest dealing with the employer’s property we do not believe it is a correct test to state … that the employer must prove, on the balance of probabilities, on the evidence submitted to the Commission, that the employee actually stole the goods, before it will escape a finding that a dismissal based upon such an alleged theft is to be treated as harsh, unjust or unreasonable. There can be no doubt that in line with decided authority the ultimate task pursuant to s. 31 is for the Commission to determine whether when viewed objectively the dismissal may be properly adjudged to fall within the statutory criteria of harsh, unjust or unreasonable. An employee is entitled to both substantive and procedural fairness in respect of a dismissal. Substantive fairness will be satisfied if the grounds upon which dismissal occurs are fair grounds. Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just. Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable. … The Commission is required to objectively assess the subjective actions and beliefs of the employer as at the time of dismissal and not at some subsequent time:”. [39] This statement has been applied in Sangwin v Imogen Pty Ltd (unreported SA95/116IR) which was in turn relied upon by Hall CC (as he then was) in Jorden William Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108. See also Jocleyn Margaret Howell v John Bennell’s Discount Fuel (2001) 167 QGIG 53 per Blades C. Did the Respondent comply with its own policies and procedures? [40] On the Travel and Business Expense Policy there was no evidence of the Applicant having seen such a policy. Mr Johnston attached to his Affidavit (Exhibit 10) a blank copy of the “Policy Agreement Statement” which is supposed to be signed and dated by the employee when they have read the Travel and Business Expense Policy. The Applicant denied having seen such a policy. In the absence of the Respondent having a copy of the Policy Agreement Statement signed by the Applicant I can only conclude that the Applicant has not seen this policy. [41] Failure to have provided the Applicant with the Travel and Business Expense Policy is not critical to the Respondent’s case. Any employee would know that they should not claim from their employer reimbursement of expenses not incurred. [42] The Applicant was not summarily dismissed. He was paid four (4) weeks in lieu of notice. In so far as the Termination of Employment provision in the Human Resources Policies and Guidelines the procedure for a situation warranting summary dismissal is that “[i]n many cases, the employee should be sent home to report the next day. This allows for a reasonable time to establish the facts and fairness of potential dismissal (natural justice must be seen to be done)”. The Applicant certainly was not sent home to consider his response even though his “misconduct” was not seen by the Respondent to be conduct warranting summary dismissal. The Applicant was not informed prior to the meeting on 24 July 2003 of the reason for the so-called “performance interview”. All he was told was that it was serious and that to bring his diary. He was confronted for the first time with the detail of the allegations at the performance interview. He did as he was told and brought his diary with him to the interview. Unfortunately the diary was of no assistance as it related to a period after the period to which the allegations related. [43] Prior to being told that he was being dismissed, Ms Hess said “[d]oes this all have to be finalised now or can he think about it and try and word it better”. Mr Johnston’s response was “[n]o, I am going to finalise it now”. This response does not accord with the Respondent’s policy where the conduct warrants instant dismissal let alone a situation seen to be less serious and warranting dismissal with notice. [44] What about the Respondent’s policy where the situation does not warrant instant dismissal? The policy talks about bringing the conduct to the employee’s attention as soon as a manager detects a problem. The policy then refers to an initial discussion, a formal warning and then a final warning. The Applicant had never been warned about the issue of the “inappropriate claiming of funds” that he “was not entitled to”. [45] It seems to me that the Respondent did not comply with either the letter, or the intent, of its policy on Termination of Employment. [46] What then about the Respondent’s Discipline procedure? That procedure provides that any “[r]emedial action should always be directed by a strong sense of fairness, objectivity and equity”. The policy goes on to provide that in the “event of more serious offences or repeated minor infractions, the manager should submit a report on the corrective or counselling interview”. There was no corrective or counselling interview conducted with the Applicant. [47] The one example of the type of situation in which serious disciplinary action may be called for was “making inaccurate or untruthful statements on official documents and records”. The evidence reveals that the Applicant did not claim for anything that he was not entitled to. When given an opportunity to consider his work commitments he was able to justify an equivalent number of occasions for which he incurred toll expenditure. He was able to do this at least by 30 July 2003 when he met with Ms Chippendale. Before me the Respondent was unable to show that the Applicant had made any fraudulent claim for reimbursement of monies not expended in the course of his employment. What is in evidence is an admission by the Applicant that occasionally his wife put her toll receipts in an area where he collected receipts and that he used those receipts to claim toll reimbursement. Was the dismissal unfair? [48] As Mr Johnston stated, the Applicant was dismissed for the “inappropriate claiming of funds” that the Applicant “was not entitled to” from the Respondent. That was not the evidence in this hearing. The Applicant was entitled to reimbursement of the funds albeit not necessarily for the dates indicated on the receipts supplied. -- 6 of 8 -- 1382 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 April, 2004 [49] It was the Applicant’s evidence that had he been given a proper opportunity to respond to the particular toll receipts i.e. provided with the details of each toll receipt and been given sufficient time to recall where he was on particular days and what he was doing he would have been able to provide a proper explanation. At the interview on 24 July 2004 it was impossible for him to recall the dates. He needed time to speak with other workmates to reconstruct his work commitments during the relevant period. [50] During the course of the performance interview the Applicant was particularly confronted with what occurred on 30 June 2003. Mr Johnston referred the Applicant back to a discussion he had with the Applicant on 3 July 2003 concerning a conversation between Ms King and the Applicant. The Applicant indicated during the course of the interview that it could have been an occasion where he had not been in Brisbane and the receipts were those of his wife. The evidence before me is that the Applicant was in Brisbane working on that day and that he used the Gateway Bridge. [51] Clearly the Applicant did engage in a practice whereby he used receipts obtained by his wife. The evidence however does not reveal that this was done to produce any gain for the Applicant. The evidence is that he did not claim many legitimate expenses. The Applicant should have obtained receipts for all legitimate expenses and then claimed those expenses. One cannot condone the use of receipts obtained by others in order to reclaim some legitimate expenditure. [52] As Blades C said in Jocleyn Margaret Howell v John Bennell’s Discount Fuel: “An employer does not have to conduct an investigation like the Criminal Justice Commission or the Police. But the investigation that is conducted must address the issues and be fair.”. [53] In all the circumstances of this case I am of the view that the investigation undertaken by the Respondent was not fair. The Applicant was not given a reasonable opportunity and sufficient time to answer the allegations and respond to them. The Applicant did admit that occasionally his wife put her receipts with his and that some of the receipts may have been for trips undertaken by his wife. The problem is that he was not given a reasonable opportunity to see whether the receipts, the subject of the allegations, were for legitimate claims or otherwise. Further the Applicant’s immediate response was to remove any such claims. [54] Ultimately the Applicant was able to support toll expenditure at least to the value that was raised by Mr Johnston at the performance interview. The Respondent subsequently paid out for toll expenditure incurred by the Applicant even though he did not have receipts for such expenditure. The Applicant did however explain the circumstances of the expenditure. This had not occurred in the claim made on 17 July 2003. [55] There is no evidence that the Respondent took into account that the Applicant had a good conduct record. There certainly had been a warning about performance which was related to the Applicant’s large customer base and the introduction of a new business model being developed by the Respondent to manage the Queensland customer base. There was no evidence of any earlier misconduct issues. The Applicant had thus been employed for over four years and had a good work record – a record which does not appear to have been considered before the decision to terminate was taken. [56] What was considered by Mr Mills was the Respondent’s Discipline procedure. In my view the Respondent did not comply with any relevant policy or procedure prior to terminating the Applicant’s employment. [57] One must also remember that the Applicant was an account manager. He travelled almost on a daily basis. He did not have a routine day. It was days of visiting different customers and obviously days when together with visiting customers he was required to visit the Respondent’s office at Stafford. In the absence of a diary or other records one can understand why the Applicant, on 24 July 2004, was unable to recall whether he was in Brisbane on a particular date. [58] There is no evidence before me of the Applicant making a false claim against the Respondent. I found the Applicant to be an honest witness. He admitted early in the interview with Mr Johnston on 24 July 2004 that he sometimes used his wife’s receipts to claim reimbursement of toll expenses. There was no intent on the part of the Applicant to defraud the Respondent. [59] It is thus highly likely that, had the Respondent conducted a reasonable “full and extensive investigation into” the matter, the Respondent would have been satisfied that the Applicant did not make any false claim for reimbursement of monies. The Respondent did not consult with other employees who may have been able to confirm that the Applicant was in Brisbane on certain dates. Further had the Respondent given the Applicant “every reasonable opportunity and sufficient time to answer all allegations and respond thereto” it is likely that it would have been satisfied that the Applicant did not engage in any wrongdoing warranting dismissal. [60] What the Applicant did, in relying upon receipts collected by his wife, certainly warranted a caution and/or a warning to refrain from such conduct in the future. In my view however it did not warrant dismissal. [61] The failure to establish that it conducted a reasonably “full and extensive investigation into all of the relevant matters surrounding the alleged misconduct” and that it gave the Applicant “every reasonable opportunity and sufficient time to answer all allegations and respond thereto” has rendered this dismissal harsh, unjust or unreasonable and therefore unfair. Remedy [62] Section 78 of the Act provides that the primary remedy is reinstatement. It is only when reinstatement is found to be impracticable that one then looks at re-employment. Section 79 provides that “[i]f, and only if, the commission considers reinstatement or re-employment would be impracticable, can it then make any order of compensation”. [63] In this case the Respondent did not address the impracticability of reinstatement or re-employment. I am thus faced with a dilemma. Mr Shepley, Counsel for the Applicant, correctly submitted that there had been “no evidence at all in these proceedings that reinstatement and compensation for lost wages in that time period is impractical, none. Not argued, not argued at all”. [64] It does not seem fair to have the Applicant incur the costs associated with a further hearing of the matter to enable the Respondent to adduce evidence on the impracticability or otherwise of reinstatement and/or re-employment when that evidence should have been adduced at the hearing. I am however prepared to relist the matter to enable the Respondent to adduce evidence on that issue should the Respondent so desire. I am however only prepared to give the Respondent a further opportunity to adduce such evidence if they are prepared to pay the Applicant’s costs incurred in the preparation and the further hearing. -- 7 of 8 -- 30 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1383 [65] I should perhaps indicate at this time my position on compensation, should the Respondent convince me of the impracticability of reinstatement and re-employment [66] The Applicant had been employed with the Respondent for over 4 years as an account manager.. He received four weeks’ pay in lieu of notice on termination. At the time of hearing of this application the Applicant was still unemployed with no suggestion of employment on the horizon. He has thus been unemployed for five months at the time of hearing. I assess that he would have been unemployed for at least a period of six months given the evidence before me. In determining the level of compensation, the factors the Commission will usually consider are well established with the practice being to award a global sum relying on the principles in Chenery v Klenzig (1988) 55 SAIR 545. One relevant factor to be considered is an estimate by the Commission on how long an employee would have remained in employment with the employer. There was no indication in the evidence before me to suggest that the Applicant’s employment with the Respondent would have been terminated within 6 months of 24 July 2003 but for the decision taken on that date. [67] In the circumstances I reserve my decision on remedy. The Respondent is directed to advise the Registry within seven (7) days of release of this decision if it wishes to avail itself of the opportunity to adduce further evidence on the single issue of whether, in the circumstances, reinstatement and/or re-employment is impracticable. If the Respondent advises that it wishes to adduce further evidence then I will have a further mention of the matter shortly thereafter. If the Respondent does not wish to avail themselves of the opportunity (including the payment of the Applicant’s costs of any further hearing) then I will determine the issue of remedy after the expiration of the seven (7) day period. D.M. LINNANE, Vice President. Hearing Details: 2003 8, 9 December Appearances: Mr J. Shepley, instructed by Primrose Couper Cronin Rudkin Lawyers, for the Applicant. Ms L. Vanderstoep of Australian Industry Group, Industrial Organisation of Employers (Queensland), for the Respondent. -- 8 of 8 --