FWC says time fraud justifies dismissal
The Fair Work Commission (‘FWC’) has upheld the dismissal of an employee who engaged in time fraud including associated private use of a work vehicle.
In the decision of Ms Helen Bryant v Southern Midlands Council T/A Southern Midlands Council  FWC 4738 the FWC upheld the decision of Southern Midlands Council (‘Council’) to dismiss an Animal Management/Compliance Officer (‘Officer’) for committing time fraud including private use of a Council vehicle in contravention of its Council Motor Vehicle Policy (‘Vehicle Policy’).
The matter arose on or around August 2019 when a neighbour of the Officer made a complaint to the Council that someone in the Council Officer’s vehicle had been doing burnouts in their shared driveway during the early hours of the morning.
As a result of this complaint the Council analysed the GPS record of the Council Officer’s vehicle. While no finding was made in relation to the burnouts, the GPS data log showed the Officer had extensively used the Council vehicle for private use in breach of the Vehicle Policy and the Officer would frequently not leave home until significantly later (often two hours) than her commencement time of 8.30am.
The Council compared the GPS data with a sample of the Officer’s time sheets from 1 September 2018 to 31 September 2019. The analysis found the Officer claimed a full-time equivalent work load despite the Council vehicle being located at her private residence, travelling to and from her private residence, travelling to and from her partner’s residence and travelling to and from areas outside the Council area. It was revealed the Officer spent up 34 hours each fortnight absent from work duties and attending to matters unrelated to her employment. The analysis also showed the Council vehicle being used on numerous and regular occasions outside of the Officer’s work hours. No prior approval had been given for use of the Council vehicle in this manner.
Ultimately, the Council investigation concluded the Officer had engaged in time fraud and had used her Council vehicle in contravention of the Vehicle Policy. While the Council determined that summary dismissal was warranted, it still paid three weeks pay in lieu of notice based on her approximate 3 years of service. The Officer then lodged an application for unfair dismissal.
After examining all the evidence, the FWC found there was a valid reason for dismissal. There was sufficient evidence to prove the Officer had engaged in time fraud from September 2018 to September 2019 by spending significant amounts of time not working when she was supposed to be working.
There was also sufficient evidence to prove the Officer had extensively used the Council vehicle for private use in contravention of the Vehicle Policy. The FWC found the Officer had misrepresented her activities over a long period of time, had deceived the Council and that her actions were deliberate and willful.
The FWC was satisfied that the procedural requirements for dismissal were satisfied and dismissed the application.
Take home points
Recent legislation declaring non-payment of wages to be a criminal offence and classed as ‘wage theft’ has resulted in many employers giving greater attention to employees engaging in time fraud. This decision shows the FWC will take these matters very seriously and where there is sufficient evidence of intent, will support an employer’s decision to summarily dismiss.