[2012] FWAFB 3995 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.604—Appeal of decision Ropafadzo Tokoda v Westpac Banking Corporation T/A Westpac (C2012/2972) JUSTICE ROSS, PRESIDENT SENIOR DEPUTY PRESIDENT HAMBERGER COMMISSIONER JONES MELBOURNE, 17 MAY 2012 Appeal against decision [2012] FWA 1262 dismissing an application for an unfair dismissal remedy - appeal filed out of time - appeal devoid of merit - no public interest such as to support permission to appeal - no significant errors of fact - decision plainly correct - application to extend time dismissed. [1] The appellant, Ropafadzo Tokoda, was dismissed from her employment as a customer service officer in the respondent’s Woden Branch on 26 September 2011, for serious misconduct. The relevant conduct was that Ms Tokoda provided her employer with a fraudulent medical certificate. Ms Tokoda subsequently filed an application for an unfair dismissal remedy. On 14 February 2012 Commissioner Deegan concluded that the termination of Ms Tokoda’s employment was not harsh, unjust or unreasonable and dismissed the application. Ms Tokoda has appealed that decision and that is the matter before us. [2] The appeal was filed on 8 March 2012, some two days out of time. Ms Tokoda lodged an application for an extension of time on 19 March 2012. Rule 12 of the Fair Work Australia Rules 2010 deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. Rule 12.3(b) confers a discretion on the Tribunal to extend the time within which the appeal is to be lodged. [3] Time limits of the kind in Rule 12 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities 1 indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 12.3(b): whether there is a satisfactory reason for the delay; the length of the delay; the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and any prejudice to the respondent if time were extended. [4] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal. [5] In this case the extent of the delay is short, two days, and the respondent does not contend that it would be prejudiced by the grant of an extension of time. We also accept that the appellant has advanced a satisfactory explanation for the delay. The appellant is a litigant in person and at the relevant time was in full time employment and nearing the end of her pregnancy. We are prepared to accept that such a combination of circumstances provides a satisfactory explanation for the relatively short delay in this case. [6] The real issue in determining the application to extend time is whether there is any merit in the appeal. For the reasons which follow we have formed the view that the appeal is devoid of merit and have decided to refuse to extend the time for the filing of the appeal. [7] An appeal under s 604 of the Fair Work Act 2009 (the Act) is an appeal by way of rehearing and the Tribunal’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal, rather an appeal may only be made with the permission of the tribunal. [8] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the Act. Section 400 (1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3.2 unless the Tribunal considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally (compare s 604(2) and s 400). [9] Before turning to the grounds advanced in support of Ms Tokoda’s appeal we propose to deal with the relevant facts and the Commissioner’s decision. [10] At the outset it is important to appreciate that the most significant fact in this case - Ms Tokoda’s creation and presentation of a fraudulent medical certificate - is uncontested. The relevant facts may be briefly stated. [11] On 12 September 2011 Ms Tokoda did not attend work and telephoned Ms Mouat-Markham, the Assistant Manager of the Woden Branch, to inform her that she would not be attending work because she was ill. The following day Ms Tokoda did not attend work and sent a text message to Ms Mouat-Markham to advise her that she would not be attending work all week. Ms Mouat-Markham advised Ms Tokoda that she would need to provide a medical certificate when she returned to work in accordance with Westpac’s personal/carer leave policy. [12] On 14 September 2011 Ms Tokoda provided a document which purported to be a medical certificate issued by Dr Lai of the Curtin Medical Centre covering her absence from work from 12 September 2011 until 16 September 2011. A copy of the certificate provided is set out below: [13] In her evidence Ms Mouat-Markham said that when she received the medical certificate provided by Ms Tokoda: “I noticed it did not have an official seal and did not have a doctors practicing number on it. It did not look like other medical certificates I had seen in the past.” 3 [14] Ms Mouat-Markham decided to investigate the matter further and rang the Curtin Medical Centre to ascertain whether the medical certificate was genuine. [15] On 15 September 2011 Ms Mouat-Markham received a facsimile confirming that Ms Tokoda had not attended the Curtin Medical Practice since 30 September 2009. A copy of that facsimile is set out at Annexure C to Ms Mouat-Markham’s affidavit and is reproduced below 4 : [16] A meeting took place on 16 September 2011 to discuss Ms Tokoda’s alleged misconduct, namely the provision of a fraudulent medical certificate. Ms Tokoda attended, with a support person, and the bank was represented by Ms Mouat-Markham and Ms Popovich (the Branch Manager of the Woden Branch). At the start of the meeting Ms Mouat-Markham handed Ms Tokoda a letter setting out the allegations the bank had regarding her conduct. 5 The allegation put was in the following terms: “Allegation It is alleged that you have provided Westpac with a fraudulent Medical Certificate dated 12 September 2011. On 15 September 2011 we received confirmation in writing from Dr. C. W. Lai that the certificate was not issued by him and that he has not record of you having attended the practice since 30 September 2009. The allegation made against you, if substantiated, would appear to involve serious breaches of the Westpac Code of Conduct and Living the Values Model.” [17] The letter went on to state: “Opportunity to respond At this stage, it would be appreciated if you could provide your detailed response to the above allegations. I would also be happy to consider any further information you wish to provide in response to this matter. Please note that the investigation into this matter is confidential and I ask that you do not discuss this issue with any other person in the workplace, unless that person is acting as a support person during this process. If you breach this confidentiality requirement, disciplinary action may be taken against you. Seriousness of Allegations Westpac considers these matters and your repeated pattern of behaviour very seriously and if found to be proven, may lead to disciplinary action being taken against you, including termination of your employment. Please provide your written response to me by 9:30am Monday 19th September 2011. Please note that if you are able to provide your response prior to this date, this matter will be addressed sooner.” [18] Ms Tokoda provided a written response to the allegation which said, among other things: “ The week starting 12/09/2011 I was sick and stayed at home and I did not go to the doctors because I could not afford to hence why I didn’t have a doctors certificate. I would have said something but I did not have a point of contact in my workplace that I could tell this. I was being bullied and treated unfairly a my work place and I have tried to find out how I could get that sorted but when I called the no. that I got from people express I was told I had to tell my assistant manager or the branch manager of which those were the people that were bullying and treating me unfairly at work and because of that I had no support or anyone that could help me with any situation that I got myself in.” (emphasis added) [19] Ms Tokoda’s allegation that she had been bullied and unfairly treated by Branch Management was investigated by Mr Matthew Mitchell, the Area Manager of the Retail Branch Network. On 23 September 2011 Mr Mitchell met with Ms Tokoda and advised her that he had conducted an investigation into her allegations and had found no evidence that she had been bullied or treated unfairly. [20] On 26 September 2011, Ms Tokoda’s employment was terminated on the basis that she had provided a fraudulent medical certificate. [21] In the decision subject to appeal the Commissioner made three principal factual findings. First, the Commissioner found that Ms Tokoda falsified the medical certificate that she provided to Westpac (at [21] of the decision). Ms Tokoda admitted to this fraud and does not challenge this finding on appeal. Second, the Commissioner found that Ms Tokoda’s deception was “not an act of desperation or that she was forced to falsify the certificate because she was being treated unfairly by her ABM (Assistant Branch Manager) or Branch Manager” (at [21] - [22] of the decision). Third, the Commissioner found that, at a meeting between Ms Tokoda and Ms Mouat-Markham (the Assistant Branch Manager at Westpac’s Woden Branch) on 16 September 2011, Ms Tokoda continued to perpetuate the deception that the medical certificate was valid (which Ms Tokoda denied) (at [25] of the decision). [22] The second and third factual findings were based on the Commissioner’s assessment of the credit of the witnesses. In relation to Ms Tokoda’s allegation that she was coerced into falsifying the medical certificate, the Commissioner made her findings on the basis that Ms Tokoda’s evidence concerning the alleged bullying was not “convincing” (at [22] of the decision), that her evidence in relation to her reasons for falsifying the medical certificate was not “persuasive” (at [24] of the decision) and that her overall evidence was “not credible” (at [25] of the decision). In relation to Ms Tokoda’s claim that she had volunteered that the medical certificate was false during her meeting with Ms Mouat-Markham on 16 September 2011, the Commissioner found that her “oral evidence about this was not truthful” and, where the evidence conflicted, she preferred the evidence of Ms Mouat-Markham over the evidence of Ms Tokoda (at [25] of the decision). [23] The Commissioner also made a general finding that Ms Tokoda’s evidence ‘was not credible’ (at [25] of the decision) and concluded her consideration of the matter in the following terms: “ [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. [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.” [24] Against that background we now turn to the grounds of appeal. [25] The arguments advanced in support of the appeal may be summarised in four broad points: 1. The Commissioner failed to have regard to the reason advanced by the appellant for providing the fraudulent medical certificate, namely that she had been coerced and bullied to the point where she felt she had no choice. Part of the bullying behaviour is referred to in appeal ground 4: ‘I was overworked and not allowed to take breaks while pregnant.’ 2. The Commissioner erred in rejecting the appellant’s evidence, in particular the Commissioners findings in paragraphs [22] and [26] of the decision subject to appeal were wrong and the Commissioner should have accepted the appellant’s evidence in respect of these matters. The relevant findings are: “ [22] I did not find the Applicants 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 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.” 3. It is alleged that Mr Mitchell “lied in the hearing and gave false evidence” in respect of his interaction with Ms Tokoda on 26 and 27 September 2011. 4. At paragraph [11] of the decision the Commissioner says “Ms Emily Mouat-Markham (the Assistant Branch Manager) gave evidence about the messages she received from the Applicant concerning her absence from work during the week 12 to 16 September 2011.” The Appellant’s complaint about this passage is put in the following terms at appeal ground 3: “I was the one who first gave evidence of these messages and was not mentioned in the decision it says otherwise.” [26] Ms Tokoda concludes her grounds of appeal by advancing a general submission in the following terms: “I’m appealing the decision because Westpac Banking Association is a large organisation and what they did should not be acceptable but frowned upon the society, I almost died not once but twice because of the treatment I was receiving and now because I spoke up and reported the bullying I lost my job and now I’m facing homelessness in a few weeks and I’m due to have a baby as well, this is the ripple effect of a situation that somebody else chose to put me in by bullying and coerced me into and FWA should consider that because the next person that they do that to might not be lucky enough to survive. I believe everyone should be given a fair go because it what Australians believe in and everyone deserves to be working in an environment that is safe, healthy and fair.” [27] In addition to these points Ms Tokoda submitted that there were three significant errors of fact in the decision subject to appeal: (i) “In the decision point 8 says that ‘two witness statements were filed by the applicant,’ but I didn’t file two witness statements therefore there is an error in the decision. (ii) In the hearing Mr Mitchell admitted that he chose not to use any other evidence besides stories and gossip he got from Emily and from Susan which were the two people that I had reported to have been bullying me. (iii) It is not fair that I got my employment terminated because of a fraudulent document when Westpac Banking Association used a fraudulent document in the hearing against me. Exhibit G1 Document dated 24/8/2011 titled CSO Discrepancy Check List that was provided and used against me at the hearing was a fraudulent document.” [28] It is convenient to first deal with the alleged ‘significant errors of fact.’ As to the first matter, contrary to the Appellant’s contention she did in fact file two witness statements, one dated 22 December 2011 and the other filed on 27 January 2012 in response to the documents filed by Westpac. Ms Tokoda confirmed both statements in the course of her evidence. 6 [29] As to the second matter the characterisation of Mr Mitchell’s evidence is not accurate. Mr Mitchell was specifically asked about this matter during re-examination: “MR GRAY: Point 5 on the third page, there’s a comment in there by Ms Tokoda saying, “You choose to believe gossip between Emily and Kaya and use that information as evidence,” document attached. Do you know what that is a reference to? Ms Tokoda is saying you have done but does that mean anything to you at all?---I don’t think it does. So any conversation that Emily and Kaya may have had and has been recorded didn’t play any significant role in your decision to terminate Ms Tokoda’s employment?---I don’t recall gossip or a particular aspect of information between Emily and Kaya playing any part, no.” [30] The third alleged significant error of fact relates to Exhibit G1. Ms Tokoda says that this document is ‘fraudulent’ on the basis that the handwritten notations were not on the document when she signed it. There is no substance to this point. In her evidence, Ms Moatu-Markham provided an explanation for the handwritten notations 7 and in any event, this document played no part in the termination of Ms Tokoda’s employment. 8 [31] We now turn to the arguments advanced by Ms Tokoda in support of the appeal. In our view these submissions are devoid of merit. [32] As to point 1 set out in paragraph 25 above, the Commissioner plainly had regard to the reason advanced by Ms Tokoda for providing the fraudulent medical certificate, but did not find her evidence regarding the alleged bullying ‘convincing’ and did not accept her evidence that the provision of the fraudulent medical certificate was an act of desperation or that she was forced to falsify the certificate because she was being treated unfairly by her Assistant Branch Manager and her Branch Manager. (see paragraph [21] and [22] of the decision). In our view the Commissioner’s findings in respect of these matters were clearly open on the evidence. [33] Ms Tokoda’s evidence regarding the alleged bullying lacked particularity 9 and her evidence regarding Ms Mout-Markham’s rude and abrupt manner was unconvincing. 10 [34] The Commissioner’s conclusions regarding the veracity of Ms Tokoda’s evidence must also be seen in the context of a number of unsatisfactory aspects of that evidence. It was clearly open to the Commissioner to find that Ms Tokoda’s evidence was not credible. Indeed in our view that finding was plainly correct. In that context the following points are particularly relevant: Ms Tokoda changed her evidence under oath and that evidence was inconsistent with her previous statement to her employer. In a number of material respects Ms Tokoda’s evidence was inconsistent with the evidence of the respondent’s witnesses and the documentary evidence regarding the meeting held on 16 September 2011. Ms Tokoda’s evidence that the fraudulent medical certificate was based on an original document and that she only changed the dates, is highly improbable. [35] Ms Tokoda changed her evidence under oath, initially stating that she had attended a doctor’s surgery in Belconnen on Wednesday 14 September 2011 or Thursday 15 September 2011. 11 Indeed Ms Tokoda’s evidence was she usually paid her medical bills electronically through her bank account 12 but when the bank account statement was produced it did not show any payment to the Belconnen Medical Centre in the relevant period. 13 Ms Tokoda then withdrew that evidence when it was not supported by her financial records. Ms Tokoda later continued to assert that she had attended the Belconnen Medical Centre in the week commencing 12 September 2011 but was unable to provide any documentary evidence in support of that proposition. [36] It is also odd that in her written response to the bank’s allegation letter Ms Tokoda made no mention of attending the Belconnen Medical Centre the week before. 14 In fact, Ms Tokoda’s evidence about attending the Belconnen Medical Centre is inconsistent with the written response she provided to the bank. Ms Tokoda’s evidence was that what she had told the bank in her written response of 19 September 2011 was not true: “MR GRAY: In your written response you provided on the 19th, do you have a copy of that there?---Yes THE COMMISSIONER: Attachment I, I think to Mr Mitchell’s statement. MR GRAY: Thank you, Commissioner. You say in that, “The week starting 12 September I was sick and stayed at home,” and the start of the second paragraph, “and I did not go to the doctors because I could not afford to, hence why I didn’t have a doctor’s certificate.”?---Yes. But you just told the Commissioner that you did attend the Belconnen doctors practice that week?---Yes, I did So is what you said there untrue or is what you just said now untrue? When I say “there” I mean in the letter?---No. THE COMMISSIONER: Which one, Ms Tokoda?---What I wrote in the letter. What you wrote in the letter was what?---Not true.” [37] Ms Tokoda’s evidence was that the fraudulent medical certificate was an original document and all she did was to change the dates relating to the period of her inability to attend work. 15 According to Ms Tokoda, she had scanned a hard copy of the original certificate and then altered the dates. 16 This explanation is highly improbable, for these reasons: According to Dr Lai, Ms Tokoda had not attended his practice since 30 September 2009. It is unlikely that Ms Tokoda had retained possession of a medical certificate for a period of about 2 years. Ms Tokoda was unable to recall the dates covered in the original certificate 17 The fraudulent medical certificate does not contain any details of Dr Lai’s surgery on it or his provider number. In this respect the fraudulent medical certificate differs from the facsimile sent by Dr Lai to Westpac. (Compare the documents set out at paragraphs [13] and [15] above.) The signature on the fraudulent medical certificate, said to be Dr Lai’s, is markedly different to the signature on the facsimile sent by Dr Lai to Westpac. In her evidence Ms Tokoda acknowledged that the signatures did not look the same 18 but was unable to provide any explanation for the difference. 19 [38] In our view there was no error in the Commissioner’s rejection of Ms Tokoda’s evidence. There is no substance in the first and second points advanced in support of the appeal. [39] As to point 3, the conflict in the evidence of Ms Tokoda and Mr Mitchell was put to Mr Mitchell in the course of his cross examination and his evidence was unshaken. 20 Further the Commissioner made no finding of fact in respect of this evidentiary conflict and it was not a material consideration in her decision. [40] Ground 4 also concerns evidence in respect of which no finding was made and which was not relevant to the determination of the application. [41] We have considered all of the arguments advanced by Ms Tokoda in support of the appeal and have concluded that the appeal is devoid of merit. [42] This was a clear case of serious misconduct. On her own evidence Ms Tokoda provided her employer with a fraudulent medical certificate and when confronted with the allegation provided a response which contained statements which were untrue. The nature of her employment required that she conduct herself honestly. 21 While Ms Tokoda said that she understood that working in a bank required certain standards of honesty and integrity and that she had not done the right thing, 22 her later evidence revealed a lack of insight into the gravity of her misconduct: “MR GRAY: When you changed - so you scanned the document in, you put it on Word and you changed the dates, you knew that was wrong?---I did. What did you think Westpac would think about it if they found out that’s what you had done?---To be honest I did not think that it was such a big thing, because signing when you’re not the person happened a lot in the branch, like I stated in--- MR GRAY: But you didn’t say in that document, did you, that you’ve seen people - you’ve seen Ms Markham signing other forms all the time?---No. Are you just making up reasons as we go along as to why you may have filled out this form?---No. At that time I was going through a lot of mental stress as well. Did you tell anyone at Westpac that, either on the meeting on the 16th or in your letter on the 19th?---No.” [43] In our view the decision subject to appeal does not disclose error, indeed it is plainly correct. There is no public interest such as to support a grant of permission to appeal and the Commissioner made no significant errors of fact. Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly we dismiss Ms Tokoda’s application to extend time to file the appeal. PRESIDENT Appearances : Ms R Tokoda Mr M Seck and Ms S McGuigan on behalf of Westpac Banking Corporation Hearing details: Canberra. 2012. 10 May. 1 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C ; Dundovich v P&O Ports, Print PR923358 , 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338 2 This is so because on appeal FWA has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ 3 Ms Mouat-markham’s witness statement, Exhibit G3 at paragraph [13] 4 The document reproduced has been redacted to remove the Appellant’s personal details 5 See Annexure D to Ms Mouat-Markham’s witness statement, Exhibit G3 6 Transcript 30 January 2012 at paragraphs [25] and [29] - [30] 7 Ibid at paragraphs [430] - [432] 8 Ibid at paragraphs [422] - [425] and [428 - [434] 9 Ibid at paragraphs [122] - [137] 10 Ibid paragraphs [142] and [323] - [326] 11 Ibid paragraph [77] 12 Ibid at paragraphs [241] - [243] 13 Ibid at paragraphs [620] - [628] 14 Ibid at paragraphs [94] - [96] 15 Ibid at paragraph [54] 16 Ibid at paragraph [292] 17 Ibid at paragraph [53] 18 Ibid at paragraphs [63] and [289] 19 Ibid at paragraphs [64] and [290] 20 Ibid at paragraphs [598] - [601] 21 See Hussein v Westpac Banking Corporate (1995) 59 IR 103 at 107 22 Transcript 30 January 2012 at paragraphs [106] - [109] Printed by authority of the Commonwealth Government Printer <Price code C, PR523591>