Dismissal upheld for time fraud exposed by burn-outs in company vehicle

The Fair Work Commission has upheld the dismissal of an animal management officer after her prolonged and “extensive” time fraud was exposed, following the complaints of her neighbour that someone had been “hooning” (i.e. doing burn-outs) in the Council vehicle supplied to the employee, in their shared driveway during the early hours of a morning in August 2019.

Although no finding was made that the animal management officer (AMO) was ‘hooning’ in the vehicle at that time, the employer became aware after accessing and interpreting the GPS data log from the employee’s vehicle, that the AMO appeared to have been using the vehicle extensively for private usage in contravention of the employer’s motor vehicle policy. The employer claimed it was also apparent from viewing the GPS data that the AMO would frequently not leave her home until significantly later (often 2 hours) than her contracted start time at 8:30 am. As a result of this discovery, the employer sought to investigate the matter further.

The employer’s General Manager tasked the Development and Environmental Services Manager with investigating the initial concerns raised by the GPS data. The preliminary findings of the Development and Environmental Services Manager were outlined as follows:

“3.9 … My review of the GPS data demonstrated that the [AMO] had been dishonest with me on a number of occasions about her whereabouts during work hours and the tasks she was purporting to do as a part of her employment during those hours.

3.10 As part of the preliminary assessment as to whether a workplace investigation was warranted, I commenced an analysis of the GPS data and compared it with five (5) fortnightly timesheets prepared and signed by the [AMO] over a 12-month period (that is 1 September 2018 to 31 September 2019). I randomly selected the pay periods. The completed timesheets are used as the basis for employee fortnightly pay. The comparison clearly demonstrated that the [AMO] had claimed a full-time equivalent work load despite the vehicle being located at her private residence, travelling to and from her private residence, travelling to and from her partner’s residence or travelling to and from areas outside the [Council] municipality. Any of these occasions would ordinarily warrant approval by me as the [AMO’s] direct Manager through a request from an employee (i.e. the AMO). This did not occur.

3.11 The analysis of the GPS data also showed the vehicle had been used on numerous and regular occasions outside of the [AMO’s] work hours. Many of these trips were to Sorell which is not a town located in the [Council] municipality or located en-route between the [AMO’s] residence and the Council Offices at Oatlands and Kempton. Again the frequent usage of the vehicle for private purposes and extensive travel would ordinarily warrant my approval. There were no such approvals given.”

The investigation uncovered that: the AMO would spend as much as 34 hours of a 75-hour fortnight “absent from work duties and attending to matters unrelated to her employment”; on 21 November 2018, the AMO was found to be absent for 5.5 hours of her shift with the Development and Environmental Services Manager observing this to be a “generous estimate”; in the period of September 2018 to September 2019, the AMO had visited her partner’s residence – which was as much as 22 kilometres from one of the Council’s offices – 90 times during working hours though the AMO never sought “any leave or consent/approval (from management) to be driving to, driving from or visiting her partner on a regular and extensive basis during work hours”.

Following the investigation, allegations were put to the AMO that she had engaged in ‘time fraud’ and used the employer’s vehicle for private use, in contravention of the employer’s motor vehicle policy. Ultimately the employer found the allegations to be substantiated and the AMO was summarily dismissed as a result of the claimed misconduct.

In upholding the decision to terminate, Commissioner Lee rejected the AMO’s claims that her role did not require specific office time and instead consisted of dealing with compliance issues in the field with follow up administration work. The Commissioner heard evidence from the AMO’s son that his mother was typically working of a morning, that she “would deal with a lot of people, drive a lot to different locations, receive a lot of phone calls of any issues” but he determined this claim was “not supported by any of the other evidence”. In addition, Commissioner Lee noted that the AMO “was at no stage given permission by the [employer] to work from home”.

Despite being satisfied the dismissal was not harsh, unjust or unreasonable, Commissioner Lee had some criticism for the employer and, in particular, the AMO’s direct manager, saying:

“The fact that the [employer] did not notice what the [AMO] was doing, despite the data being right there in front of them, reflects poorly on the management of the [employer]. [The Development and Environmental Services Manager] was the direct manager of the [AMO]. The fact that the [AMO] was able to get away with her errant behaviour for such a long period of time suggests that [the Development and Environmental Services Manager] was “asleep at the wheel” when it came to managing the [AMO]”.

Overlooking the shortcomings of management, Commissioner Lee commented that her employer not having previously raised the concerns with the AMO did not excuse her engaging in the behaviour adding, “I do not consider that the [employer’s] failure to properly manage the [AMO] had the effect of condoning [her] behaviour”.

Commissioner Lee accepted the AMO had engaged in “time fraud” and breaching the council’s motor vehicle policy, noting her actions were “deliberate and wilful” and that she had “misrepresented her activities over a long period of time to her employer and deceived her employer”.

Bryant v Southern Midlands Council T/A Southern Midlands Council [2020] FWC 4738 (5 October 2020)