Note: An appeal pursuant to s.604 (C2012/2972) was lodged against this decision - refer to Full Bench decision dated 17 May 2012 [[2012] FWAFB 3995] for result of appeal.
[2012] FWA 1262 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ropafadzo Tokoda
v
Westpac Banking Corporation
(U2011/12938)
COMMISSIONER DEEGAN |
CANBERRA, 14 FEBRUARY 2012 |
Termination of employment - whether harsh, unjust or unreasonable - banking employee - falsified medical certificate - allegations of bullying - high standards of integrity necessary - application dismissed.
[1] This is an application for a remedy pursuant to s394 of the Fair Work Act 2009 (the Act) for an alleged unfair dismissal of Ms Ropafadzo Tokoda (the Applicant) by her employer Westpac Banking Corporation (the Respondent). The termination of employment took effect on 26 September 2011. The application was lodged on 26 October 2011. The application was made out of time but no objection was taken to the extension of time for lodgement as the Applicant was covered by a medical certificate for the period 25 September 2011 until 25 October 2011. An unsuccessful conciliation conference took place on 15 November 2011.
[2] The Applicant is a person protected from unfair dismissal as she has served the necessary qualifying period of employment, this is not a case of genuine redundancy and this is not an application to which the Small Business Code applies.
[3] No other jurisdictional objection to the application has been raised.
Background
[4] The Applicant was employed by the Respondent from 2 August 2010 until 26 September 201and performed the duties of a Customer Service Officer at the Respondent’s Woden branch.
[5] On Monday 12 September 2011 the Applicant informed her Assistant Branch Manager (ABM), Ms Mouat-Markham, that she was unwell and unable to attend work that day. The next day the Applicant informed her ABM by text message that she was still sick and was unlikely to return to work until the Thursday. On 14 September the Applicant delivered to the bank premises a document purporting to be a medical certificate dated 12 September 2011 indicating that she would be unfit for work for the week 12 September 2011 to 16 September 2011.
[6] As the document provided by the Applicant did not have the doctor’s Provider Number on it, the ABM checked with the doctor’s surgery to ensure that it was a valid certificate. The doctor named on the medical certificate then provided the ABM with a document stating that the medical certificate had not been provided by him and that he had not seen the Applicant at his surgery since 2009.
[7] After an investigation the Applicant’s employment was terminated with effect from 26 September 2011.
The Evidence
[8] At the hearing evidence was given by the Applicant in support of her case. Two witness statements were filed by the Applicant 1. Evidence was given by two witnesses in support of the Respondent’s position. Both witnesses for the Respondent also filed affidavits of their evidence2 prior to the hearing.
[9] It was the Applicant’s evidence that she had falsified the medical certificate that she provided to her employer. She claimed that she was forced into a position where she had to do so as she was unwell but unable to afford to visit a doctor. She also claimed that she had been bullied at work by her ABM and her Branch Manager and that this had made it impossible to explain her position to either of them. It was her evidence that she had contacted the human resources area of her employer (known as People Express) on 24 August 2011 to complain about the treatment she had been receiving.
[10] According to the Applicant she did not deny providing a false medical certificate when initially interviewed about the allegation by her ABM on 16 September 2011. She claimed that she had advised that she would respond to the allegation on 19 September 2011.
[11] Ms Emily Mouat-Markham (the ABM) gave evidence about the messages she received from the Applicant concerning her absence from work during the week 12 to 16 September 2011. She stated that she had been suspicious about the authenticity of the medical certificate and contacted the doctor’s surgery after checking with the employer’s HR area. It was the witness’s evidence that she had intended to speak to the Applicant about the matter on her return to work on 19 September. When she contacted the Applicant to arrange the meeting for the 19th the Applicant insisted on the meeting going ahead on 16 September. The meeting took place that day and was attended by Ms Mouat-Markham and Ms Popovich for the employer and the Applicant with a work colleague as a support person.
[12] According to Ms Mouat-Markham when the allegation was put to the Applicant that she had falsified the medical certificate the Applicant denied this. Ms Mouat-Markham claimed that the Applicant had stated that the certificate was valid and she advised that Ms Mouat-Markham she would contact the doctor’s surgery and provide the ABM with proof of its validity on the following Monday.
[13] The Applicant provided a response in writing on 19 September 2011 admitting that she had provided the false certificate. The response also raised allegations of bullying. Ms Mouat-Markham referred the response to the employer’s HR area.
[14] Mr Matthew Mitchell, Area Manager of the Respondent’s Retail Branch Network, filed an affidavit 3 and was cross-examined on his evidence. Mr Mitchell conducted the investigation into the Applicant’s bullying claims and was involved in the decision to terminate the Applicant’s employment. It was his evidence that the Applicant claimed that she had been unfairly treated by her ABM and Branch Manager as;
[15] Mr Mitchell interviewed the Applicant, the ABM and the Branch Manager about the Applicant’s bullying and unfair treatment claims and determined that they were unsubstantiated. He informed the Applicant of his conclusions. In doing so he noted that the documentation concerning the $40 withdrawal indicated that the processing error had been the ABM’s mistake.
[16] After he completed the investigation into the Applicant’s claims Mr Mitchell gave consideration to the matter of the falsified medical certificate. He concluded that the Applicant’s conduct had been dishonest and fraudulent and breached the bank’s standards as set out in its Code of Conduct 5. Mr Mitchell was particularly concerned that the Applicant denied providing a false certificate at the meeting on 16 September 2011. He concluded that he had “no trust and confidence in Ms Tokoda and had real concerns about her honesty”6
[17] Mr Mitchell discussed the matter with the Respondent’s HR Consultant and a decision was taken to terminate the Applicant’s employment for serious misconduct. Mr Mitchell tried to contact the Applicant by telephone on 26 September 2011 to advise her of the decision but she did not return his calls. He then posted the letter terminating her employment with effect from 26 September. The Applicant came to his office the next morning to provide a medical certificate for the ensuing month. Mr Mitchell then advised her that her employment had been terminated and gave her a copy of the termination letter.
Submissions
[18] It was the Respondent’s case that there was a valid reason for the termination and that the Applicant had been afforded procedural fairness. It was put for the Respondent case that the Applicant’s employment was terminated because she provided to the Respondent a fraudulent medical certificate and as a result the Respondent had lost the trust in the Applicant necessary for her continued employment in the banking industry.
[19] In essence, the Applicant’s case was that the termination of her employment was unfair as she had provided the falsified medical certificate to her employer because she had no choice, as she had been bullied by the two managers in her branch and did not feel able to approach them to explain her predicament. She claimed that the investigation into her bullying complaint had been deficient, and that she had been terminated despite having provided a medical certificate dated 25 September 2011 indicating that she was unfit for work until 25 October 2011. She reiterated that at the meeting on 16 September 2011 she had not denied that she had falsified the certificate but merely advised that she would respond on the following Monday.
Consideration
[20] In determining whether the dismissal of the Applicant was unfair I must take account of those matters set out in s.387 of the Act.
[21] Having considered all the evidence I have reached the view that there was a valid reason for the termination of the Applicant’s employment. The Applicant has admitted falsifying a medical certificate that she provided to the Respondent. I do not accept the Applicant’s evidence that this was an act of desperation or that she was forced to falsify the certificate because she was being treated unfairly by her ABM and her Branch Manager
[22] I did not find the Applicant’s evidence concerning the alleged bullying convincing. I have no doubt that the Applicant believed that, at times, she was being treated unfairly. Despite this the only complaint she had made prior to her provision of the falsified medical certificate was contained in a call to the HR area. On that occasion she complained that she had been required to take a shorter morning break because she had arrived late to work. She stated that others in a similar position had not been instructed to take a shorter break.
[23] Her other bullying complaints appear to have been raised as a response to the investigation into the provision of the falsified medical certificate and, in my view, were not supported by the objective evidence. I accept the evidence of Mr Mitchell that he investigated the Applicant’s complaints and found them unsubstantiated.
[24] I did not find the Applicant’s evidence persuasive in relation to her reasons for falsifying the medical certificate. Her evidence was contradictory and her story changed whenever she was shown that her version was not supported by the evidence.
[25] Overall I found the evidence given by the Applicant was not credible. I accept the evidence given by Ms Mouat-Markham that at the 16 September meeting the Applicant had claimed that the medical certificate was valid. The notes of the meeting 7 support the version of events given by Ms Mouat-Markham. I find that the Applicant’s oral evidence about this meeting was not truthful. I accept the evidence of Ms Mouat-Markham as to the effect of the discussion with the Applicant on 16 September. Where her version of that discussion and that of the Applicant differs I prefer the evidence of the witness for the Respondent. I am satisfied that the Applicant claimed that the medical certificate was valid when she was challenged on 16 September and stated that she would provide evidence to that effect on the following Monday.
[26] On the evidence before me I am satisfied that the Applicant was notified of the reason for the termination. In reaching this view I accept the evidence of Ms Mouat-Markham as to the meeting held on 16 September 2011, and the evidence of Mr Mitchell concerning his discussion with the Applicant when he handed to the Applicant a copy of her termination letter on 27 September 2011, having posted the original the previous day.
[27] Clearly the Applicant was given an opportunity to respond to the reason for the termination. A copy of the letter setting out the allegation against her was read to her on 16 September. She was also given a copy to take with her after the 16 September meeting and provided her response in writing on 19 December. In her written response the Applicant admitted that she had falsified the medical certificate and stated that she had not seen a doctor during the week 12-16 September as she was unable to afford to do so. It should be noted that during her oral evidence she claimed that this statement was incorrect and that she had seen a doctor. She was unable to produce any evidence to substantiate the latter claim.
[28] The Applicant was allowed the presence of a support person at all discussions relating to the termination.
[29] The dismissal in this case was not related to the unsatisfactory performance of the Applicant. I accept the evidence of Mr Mitchell that the dismissal related solely to the Applicant’s falsification of the medical certificate concerning her sick leave from 12 to 16 September inclusive, and the concomitant destruction of trust between the employer and the Applicant.
[30] I am satisfied that the size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal in any adverse manner. The Respondent is a large company with appropriate policies and procedures. There was no suggestion that the procedures adopted in effecting the dismissal were in any way deficient.
[31] The Respondent has access to dedicated human resources expertise and the evidence was that this expertise was utilised in effecting the dismissal.
[32] In determining this matter I have had regard to the fact that the Applicant was employed in a bank, a position requiring the highest standards of honesty and integrity. I am satisfied that the Respondent had no option but to terminate the Applicant’s employment in light of her dishonest conduct in falsifying the certificate and then denying that she had done so when challenged on 16 September. She then continued to be dishonest, either in her written response to the Respondent on 19 September in stating that she had not visited a doctor in the relevant week or in her evidence at the hearing that she had done so. Finally, she was not truthful in her oral evidence concerning her statements at the meeting on 16 September. Both the notes of that meeting and the Applicant’s own written response of 19 September support Ms Mouat-Markham’s evidence concerning the Applicant’s statements during that meeting, statements which, at the hearing, the Applicant denied making.
Conclusion
[33] In light of all those matters set out above and the Applicant’s continued lack of regard for the truth, I am satisfied that the dismissal of the Applicant by the Respondent was not harsh, unjust or unreasonable. The termination of the Applicant’s employment was fair.
[34] The application is dismissed.
COMMISSIONER
Appearances:
Applicant in person
A Gray of Mallesons Stephen Jaques, for the Respondent
Hearing details:
2012.
Canberra:
30 January.
1 Exhibit T1 and Exhibit T2
2 Exhibit G2 and Exhibit G5
3 Exhibit G5
4 Ibid at paragraph 24
5 Ibid at paragraph 36
6 Ibid at paragraph 37
7 Exhibit G4 at Annexures “E” and “F”
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