An abortion clinic was found to have unfairly dismissed two of its employees, a mother and daughter duo, after failing to properly investigate allegations of fraudulent recording of time worked and bullying.
In Mrs Nicole Webb v The Trustee for SWC Unit Trust T/A Salisbury Day Surgery  FWC 2573 (26 May 2017) and Ms Lauren Webb v The Trustee for SWC Unit Trust T/A Salisbury Day Surgery  FWC 2572 (26 May 2017), the Fair Work Commission noted that the clinic could not justify accusations of bullying and fraud by the practice manager and receptionist.
The clinic’s director accused the practice manager of having threatened the dismissal of two nurses for having let patients unattended, some of which were unconscious. He also accused the duo of having taken excessive cigarette breaks and long lunch breaks which were not accurately reflected in their time sheets.
Commissioner Spencer stated in the decision that the clinic director failed to properly investigate the allegations as well as endeavour to resolve the situation before the dismissals were effected.
With regard to the allegations of fraud, the clinic director alleged that fraud was committed where the employees stated they did not take lunch breaks but were actually seen eating lunch and chatting for periods “well in excess of 30 minutes”. Allegations by other employees accused the applicant of leaving the clinic to go shopping, while the time sheets reflected that she was in the office at the time.
Finally, the clinic director alleged that the duo took excessive cigarette breaks, justifying it by stating that he had counted 18 cigarette butts in the bin a day after he had emptied it, and with an average of 10 minutes per cigarette, the two employees spent 180 minutes or three hours smoking in one day
Commissioner Spencer stated that it is the responsibility of the employer to ensure time sheets and records were accurate, citing Sections 535 and 536 of the Act that “employers have certain obligations with respect to time and wages record keeping”. Hence, by the clinic failing to audit the timesheets over a long period of time, Commissioner Spencer noted that the failure “seems to be an admission of culpability by the [clinic].”
With regard to the bullying charges, the Commission noted that the employees were not given ample time and opportunity to face the allegations. They were informed of the charge one day, and three days later were told to hand in their keys to the clinic. The clinic director, faced with the investigation with Fair Work Australia lodged by the nurses, was quoted to have said that “he cannot afford to have himself or his business go down this track”.
Ruling on the allegations, Commissioner Spencer noted that the inaccuracies of the timesheets were in fact a valid reason for dismissal of the employees. However, the “significant procedural
deficiencies” on the part of the clinic undermined the ground for dismissal and resulted in unfair dismissal.
Also, the fact that the clinic director failed to present full records in support of the reasons for dismissal to the employees took away the employees’ opportunity to have support persons present and affording them a “reasonable period to respond to the full documentation and to consider the allegations in a proximate way to the dates of alleged conduct”.
The Commission ordered compensation of $4,500 to one employee equivalent to four weeks’ worth of wages, but didn’t order the same for the other employee as she was able to secure alternative employment immediately.
Lessons for Employees
It is important to note here that the Commission noted there were valid grounds for dismissal. The inaccuracies in the timesheets were indeed enough for the clinic to terminate the employment. Always be accurate when you log in and log out of work with your records and timesheets. On that basis alone, the employment could have been terminated, if not for the procedural technicalities that the clinic director failed to abide with, again clearly needing better unfair dismissal lawyers, in Perth, Western Australia.