Fair Work Commission: time fraud/theft constitutes serious misconduct

27 August 2020

By Luisa Gonzaga (Partner) and Caitlin Dagher (Law Student)

On 16 July 2020, the Fair Work Commission (FWC) dismissed an application made by a cleaner employed by Melbourne Health (Applicant) on the grounds that his dismissal was unfair due to him taking long unauthorised breaks when such practice had been long standing amongst the cleaners.  Therefore, the Applicant argued his conduct did not amount to misconduct rather a performance issue.

The Applicant was 1 of the 11 employees dismissed by Melbourne Health in September 2019 for serious misconduct. The dismissal of the 11 employees occurred following the discovery made by Melbourne Health that several of its cleaning employees were spending significant periods of time in the tearoom during working hours, rather than performing their required duties.

The Applicant was found to have spent 11.5 hours in the tearoom over a 5-shift period, excluding allowable breaks. These hours were not authorised.

Melbourne Health subsequently dismissed the Applicant for serious misconduct, stating his actions amounted to “time fraud/theft (in that the employee was paid for time worked when he had removed himself from duties without authorisation)”.

Unsatisfactory performance vs serious misconduct

The Applicant submitted that his dismissal was based on unsatisfactory performance rather than serious misconduct therefore he was required to have been warned about his conduct prior to his dismissal.

The Applicant further submitted that he was simply following “the practice of waiting in the tearoom while awaiting the allocation of…further ad hoc tasks” and he was available to work if paged; a practice that was “longstanding, followed by the employees on the night shift for many years”. The Applicant contended that he was not aware this practice was unacceptable by Melbourne Health and coupled with his limited English, he relied heavily on these practices of his fellow employees to guide his behaviour.

Commissioner Wilson disagreed with the Applicant and found that there was no evidence to suggest that the Applicant was dismissed for any reason other than the one presented by Melbourne Health.

In confirming this, Commissioner Wilson stated, “without hesitation…since the [Applicant] committed the misconduct…he was not performing his job in a satisfactory manner”. Hence, making clear the unsatisfactory performance was a by-product of the misconduct rather than the reason for dismissal.

Commissioner Wilson held that time fraud of this nature amounts to serious misconduct, rather than merely unsatisfactory performance.

Was the Applicant’s dismissal harsh, unjust or unreasonable?

Commissioner Wilson dismissed the Applicant’s application and accepted that the Applicant may have had “general reasons” to be in the tearoom for an extended period of time, however, found it “simply implausible” that he needed to spend 1 in 3 paid hours each shift in the tea room.

Further, Commissioner Wilson found it implausible that:

  • the Applicant’s  “extensive list of duties” could be performed in only 2 of every 3 of his paid hours;
  • the Applicant’s English language skills were at a level that was so limited he had to rely on his colleagues’ actions and behaviours to determine standards and expectations of employment; and
  • not working while waiting for a page was ever an authorised or acceptable practice.

To read the full decision, click here.