Industrial Relations Commission New South Wales Medium Neutral Citation: Chowdhury v Industrial Relations Secretary on behalf of Department of Communities and Justice [2021] NSWIRComm 1092 Hearing dates: 7 and 8 October 2021 Date of orders: 6 December 2021 Decision date: 06 December 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – Client Services Officer – sustained allegations of falsifying Client Service Visit checklists – no procedural or substantive unfairness in dismissal Legislation Cited: Industrial Relations Act 1996 Residential Tenancies Act 2010 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Rayhan Chowdhury (Applicant) Industrial Relations Secretary on behalf of Department of Communities and Justice (Respondent) Representation: Applicant was self-represented Counsel: Mr K Brotherson (Respondent) File Number(s): 2021/00215078 Publication restriction: See [2]-[3] decision 1. The applicant, Rayhan Chowdhury, was formerly employed as a temporary Client Services Officer (CSO) on a number of temporary employment contracts in Parramatta Housing Services (PHS) within the Department of Communities and Justice (Department). His employment commenced on 18 May 2020 and was due to cease on 31 July 2021. However, the applicant's employment was terminated with effect from 23 July 2021 on the basis of sustained allegations of misconduct by him. On 27 July 2021, the applicant filed in the Office of the Industrial Registrar an Application for Relief in relation to Unfair Dismissal (Application). This decision determines the Application. 2. On the first day of the hearing, at the request of the respondent, the Industrial Relations Secretary on behalf of the Department, I made the following non-publication orders pursuant to s 164A of the Industrial Relations Act 1996 (Act): 1. Tenants of public housing pursuant to the Residential Tenancies Act 2010 are to be identified in transcript and in any published decision of the Commission by their initials, and their address only by suburb. 2. Any document that includes the name of a public housing tenant or their address that is tendered in evidence shall be a confidential exhibit. 3. Except in so far as it is necessary to do so for the proper conduct of the proceedings, no person shall disclose the name, address, picture or any other material that identifies, or may lead to the identification of any public housing tenant or their address. 4. Except in so far as it is necessary to do so for the proper conduct of the proceedings, no person shall do any thing that identifies, or may lead to the identification of any public housing tenant or their address. 1. Unfortunately, when the transcript of the proceedings was produced it did contain the names of some public housing tenants. As a consequence, I have vacated order 1 set out above and, in its place, have made the following orders: 1. Tenants of public housing pursuant to the Residential Tenancies Act 2010 are to be identified in any published decision of the Commission by their initials, and their address only by suburb. 1A. The transcript of the proceedings will be kept confidential and not released to any person except on the express order of the Commission. Misconduct allegations 1. A letter addressed to the applicant dated 21 June 2021 from Lisa Charet, the Department's Executive District Director, Western Sydney and Nepean Blue Mountains (WSNBM) District, contained the following: Allegations 1. It is alleged that the data results recorded by you into HOMES in relation to Client Service Visit (CSV) HCSD21/42298, first address, Parramatta, on 5 May 2021 detailed the "property care satisfactory" were fraudulently entered. The basis of this allegation is supported by the fact that the Annual Compliance Assessment was to be conducted on 14 May 2021 however access could not be gained. A subsequent CSV was undertaken by the SCSO on 24 May 2021 and found significant neglect to the property with clear evidence of hoarding and squalor. It is alleged that your conduct is in breach of the Code of Ethical Conduct, Record Keeping. 2. It is alleged that the data results recorded by you into HOMES in relation to Client Service Visit (CSV) HCSD21/42642, second address, Parramatta, on 5 May 2021 were fraudulently entered. It is alleged that you could not have conducted this CVS as the Department has been made aware that the tenant had entered an aged care facility receiving full time, permanent care several months prior to the CSV. It is alleged that your conduct is in breach of the Code of Ethical Conduct, Record Keeping. 1. The applicant responded to the allegations by letter dated 28 June 2021. In that response the applicant claimed that, on 5 May 2021 he "sincerely and truly conducted every single visit during the day". He stated that it was one of those days when he was feeling "tired and stressed" and that he "must have mistaken unintentionally with the unit number and mixed up successful and unsuccessful visits in the end". 2. The applicant further stated: After few days of my CSV while I am preparing and rebooking my CSV for next week, I suddenly remembered one of the visits at first address Parramatta (don't remember unit number now) no one answered the door and was unsuccessful and I added a note in TRIM right away as "done in error". But I never remembered the other one at second address parramatta, which stays as unintentional mistake. But, I am taking responsibility now to put the same remarks "done in error" as soon as I am back to work. I would like to assure you that I never intended to do such mistake and whatever happened on that day is absolutely unintentional. We have new Team Leader (Paul Bowen) now who instructed us to rebook all unsuccessful visits on the spot in IVY, which I have been practicing every week and found as an excellent way to eradicate this type of error permanently. 1. By letter dated 9 July 2021, Ms Charet advised the applicant of her decision to terminate his temporary employment contract with effect from 16 July 2021, after giving him an opportunity to resign. After receiving further representations from the applicant, Ms Charet confirmed her decision to terminate the applicant's temporary contract of employment but with effect from 23 July 2021. Case for the applicant 1. On 16 August 2021, the applicant filed with the Commission a document which contained the following: I worked as a CSO (under section 27) for DCJ Housing Parramatta since 25 May 2020 and firmly believe that I always adhered the Code of Ethical Conduct of DCJ Housing since commencement of my employment. I also consistently maintained high standard of integrity and honesty and performed my duties effectively and efficiently. On Wednesday, 5 May 2021 I have conducted client service visit at Parramatta area. To the best of my knowledge, I sincerely and truly conducted every single visit during the day. I must have mistaken unintentionally with unit number and mixed up successful and unsuccessful visits in the end. After few days of my CSV while I was rebooking visits for next week, I suddenly remembered one of the visits at first address Parramatta, no one answered the door and was unsuccessful. I discussed this with my supervisor Alex Tamrazians, who advised me to add a remark in note section as "done in error", I added the note on the spot. But I never remembered the other property at second address , parramatta. FYI, it was Ramadan 2021. Especially, in the odd nights of the last 10 days, I consistently strived to catch up a lot of night prayer as it is extremely virtuous, according to my faith. So, I ended up sleeping just for 3 hours on the night of 4 May 2021 and fasted (no food and drink) during the day on 5 May 2021. I was not 100% and felt really tired and exhausted on 5 May 2021 during client service visits, which certainly contributed in making such errors. On 25.6.2021 Lisa Charet, Executive Director issued a letter via Rocco, Director stating that it was on purpose and got suspended for uncertain time. I had an interview with Rocco and explained everything face-to-face, how and why mistakes were happened. I had to leave the building right away at 4pm. As requested, I provided a statement to Lisa on 28 June 2021. On 12 July 2021 I received an outcome letter from Lisa stating that I will be dismissed on 16 July 2021. I believed that the decision was unfair. So, I requested a face-to-face appointment with Lisa. I had an interview with Lisa and Christine Hiebler, Senior HR advisor on 15 July 2021 and explained everything along with seeking a sincerely apology. Lisa concluded the interview mentioning "she will rethink and will reconsider the matter and will get back to me soon". On 23 July 2021 at 10:30 am I emailed Lisa seeking the final outcome as it has been very distressful for me and my family and affecting my physical and mental wellbeing. Just after 55 minutes I received the Final Outcome Letter stating that even after receiving additional information Lisa is still proceeding to terminate my employment effecting on the same day on 23 July 2021, unjustly without any notice. Frayne Mackey, a CSO from my same team also made the same mistake 3-4 weeks before me at one of the properties at Constitution Hill. Alex Tamrazians, Supervisor had a conversation with her in front me and Melissa Sheridan (another CSO from my team). But it did not go any further. No disciplinary action was taken against her. Frayne has been continuing her employment happily with the department. In this situation, it would be fair to say my termination was unfair and unjust as they displayed double standard. I had an issue with my Friday prayer time with new Team Leader Paul Bowen, who joined on 17 May 2021. I provided my unavailability with reason, between 1-2pm (lunch time) only on Friday. Paul was very angry about it and said I have to manage my own, he can't guarantee. Just for your information, I only pray on my lunch break and never abused work time. Since then, my work life became difficult, I was consistently bullied verbally and psychologically, instructed to do extra work, treated differently than others etc. So, I believe I was targeted by Paul along with Luke Spires, Specialist and Alex Tamrazians, Supervisor, who ganged up in order to get rid of me as they considered my Friday prayer was an issue to manage teams' day to day operation. I believe this nature as a clear discrimination. Few examples are given below to get a better understanding regarding their unacceptable abusive behaviour towards me: A. On 21 May 2021, I work flowed a Transfer application to Paul for approval. It was a ministerial case. Paul rudely said in front of Luke that if all the questioned are not answered it will be thrown at me. B. On 27 May 2021, requested Paul to approve a counter cheque to a client, who was disadvantaged and put on hardship because of our mistake that we overcharged her rent twice. Paul arrogantly said he simply does not want to issue one. I explained this to Michele Parkinson, supervisor who agreed with me and went to Paul and made it approved. C. On 2 June 2021, I needed a car in order to conduct client service visit. System failed to generate availability as someone from management took my car. I approached Paul, who was very angry in front of everyone, his hands were shaking and his complexion got changed. His instruction was he does not care, unable to help and I have to go to visit without delay. D. Luke Spires, Specialist who works very closely with Paul and in charge of client service visits and rostering, told me on 17 May 2021 in a disrespecting way that he will issue me a letter that I will realise soon. Luke also made a comment on 22 May 2021 in front of Tanya Taupau, Supervisor-Team 2 that Rayhan feels it how Paul has been keeping him super busy with works. While I questioned Luke what do you mean? Luke showed me his middle finger. My contract ended on 30 June 2021, which meant to be extended till 30 June 2022 (as it was done for Bilal Chahal, a CSO from my team who also Joined DCJ with me on 25 May 2021). I received a letter issued on 24 June 2021, a day before I received the letter on 25 June 2021. The letter states strangely that my contract will be renewed from 16 June 2021 to 30 July 2021, which does not make any sense. In conclusion, I sate that those mistakes were absolutely unintentional, honest human error, which could have been addressed and rectified and appealing to establish justice and reinstate my role as a Client Service Officer at DCJ. I also strongly believe that the termination was illegal, purposeful and discriminatory. Case for the Department Lisa Charet 1. Ms Charet's witness statement contained the following: 4. I know the applicant, Mr Rayhan Chowdhury, through his employment as a temporary Client Service Officer (CSO) at the Housing Services Parramatta (PHS). The PHS is part of my WSNBM District. 5. Mr Chowdhury had been engaged on consecutive temporary contracts with the first contract commencing on l8 May 2020 and the latest contract with an end date of 31 July 2021. 6. I was the decision maker in Mr Chowdhury's Professional Standards matter resulting in Mr Chowdhury's termination of the employment. 7. I had particular regard to the Code of Ethical Conduct (the Code) in assessing Mr Chowdhury's conduct and determining to terminate his employment... Mr Chowdhury's Professional Standards matter 8. In May 2021, I was advised by Mr Rocco Esposito, the Director Housing for the WSNBM District that there had been some significant concerns raised regarding Mr Chowdhury's conduct and in particular that he had been falsely completing records of client service visits (CSV Inspection Reports). I directed that this be referred to the Professional Conduct Unit (PCU) to assess and provide feedback. 9. I was provided advice from our Professional Conduct Unit, the client service team which suggested Mr Chowdhury had engaged in that clearly flouted policy, procedure, and guidelines... 10. On 25 June 2021 I sent Mr Chowdhury a letter setting out two (2) allegations of misconduct against him and advising him that he would be on paid special leave pending completion of the consideration of those allegations. It was alleged that Mr Chowdhury had fraudulently recorded information relating to client service visits into HOMES system, the NSW Housing Tenant Management system… 11. This letter also advised Mr Chowdhury that I was considering termination, and that he had seven (7) days to provide me with written submissions in relation to the allegations, and why his employment should not be terminated. 12. On 28 June 2021 Mr Chowdhury provided his written submission to me… … 15. By letter dated 9 July 2021, I advised Mr Chowdhury that despite his submissions I had decided to terminate his temporary employment contract effective from 16 July 2021, after giving him an opportunity to resign… 16. On 15 July 2021, myself and Ms Christine Hiebler, Senior HR Business Partner met with Mr Chowdhury to provide him a further opportunity to explain his conduct and why his employment should not be terminated. 17. It is my recollection that during this meeting Mr Chowdhury advised he had made "a simple mistake, as he wrote up his notes in the car". I asked why he would be doing this in the car as we have a very clear policy that inspection documentation needs to be completed during the visit and in the home to which, he stated that he was only human, had been impacted by COVID and had been fasting due to Ramadan. Mr Chowdhury further advised that another employee had done the same thing and had only gotten a warning. 18. We have been unable to identify who he was referring to or another similar situation 19. To allow time to consider the matters discussed at this meeting, I deferred the earlier decision regarding termination of employment being effective on 16 July 2021, pending my further consideration. 20. On 23 July 2021, I notified Mr Chowdhury by letter that having considered all the information available to me, I had determined that the outcome of the disciplinary process was termination of employment after giving an opportunity to resign, and allowing him until close of business 23 July 2021 to provide such resignation… 21. On 23 July 2021, at 12.42pm I received an email from Mr Chowdhury stating that my decision was unfair and that he would not be resigning. He stated that he intended taking the matter to the Industrial Relations Commission and the media… 22. Mr Chowdhury failed to resign by 23 July 2021, and as such his employment ended that day. Approach 23. The effectiveness, fairness, and transparency in the handling of professional standards matters is a high priority for the Department and me. As the decision maker in matters such as this in the WSNBM District, I am required to consider the risk that an employee poses, the interests of the public, the Department and the public service. 24. My approach to decision making in all professional standards matters is to consider each case on its individual merits and to consider all of the circumstances and arguments put to me from the sources available. 25. As the decision maker in all professional standards matters, I am mindful of my obligation to provide procedural fairness and natural justice to all employees, as well as my obligations to the government, the public sector, the Department's clients and the community of New South Wales. I do not take any disciplinary decision lightly. 26. In arriving at the decision to offer Mr Chowdhury the opportunity to resign before termination of employment, I considered all of the materials placed before me, and the discussions I had with Mr Chowdhury. 27. The material I considered included advice from our Professional Conduct unit, audits conducted by the client service team, the submissions which had been made by Mr Chowdhury, associated documentation and relevant departmental policies and procedures. … 31. I was also aware in making my decision of Mr Chowdhury's position as a temporary employee and short length of service, but they were not particular factors in my decision. 32. Ultimately, I did not believe Mr Chowdhury's explanations and claims that he had not falsified records. The evidence all satisfied me he had falsified the CSV Inspection Reports which was behaviour that clearly flouted policy, procedure, and guidelines. I was troubled that Mr Chowdhury wouldn't acknowledge what to me presented as quite clear. 33. I considered Mr Chowdhury 's conduct was so serious that his employment could not continue. The issues of falsifying departmental records are always a very serious matter for me. In the case of visiting tenants in public housing, it represents a failure of the Department's responsibilities not just for the maintenance of the property but the well-being of tenants. 34. I considered on the information available to me and my discussion with Mr Chowdhury that his actions were quite a deliberate course of conduct, contrary to policy and procedure. Those actions destroyed my trust in his holding a position of responsibility. Customer Service Officers operate quite independently to perform an important public service for often vulnerable tenants. It is essential that they can be trusted to do the right thing. As a result of his actions, Mr Chowdhury could not in my assessment continue to be employed by the Department. 35. Mr Chowdhury did not raise anything related to discrimination, nor do I consider him raising it later relevant or credible. He was almost dismissive of the issues in my meeting with him and said it was a simple mix up as he was filling in the paperwork in the car. When I pointed out there was a policy regarding needing to fill these out in person in the home, he agreed but was not able to offer any reason for not following policy. Rocco Esposito 1. Rocco Esposito is the Director Housing Services, WSNBM District of the Department. Mr Esposito gave the following evidence: Mr Chowdhury 15. Mr Chowdhury was one of the eight employees who participated in the pilot training for CSOs that commenced in May 2020. The training program was structured and ran in a controlled environment for 8 weeks. The training involved participants undertaking assessment of client applications and processing transfer applications, subsidy applications, signing up etc. They also attended with experienced CSO in the field, doing voids and client services visits. They were also trained how to use the systems relevant to the business needs including the DCJ Housing Operating systems HOMES, TRIM, and I Visit You (IVY). 16. At satisfactory completion of the pilot training, Mr Chowdhury was placed in the Parramatta Access and Demand Team for up to 1 month, and then placed in the Tenancy Team 804 in August 2020. 17. In early 2021, WSNBM Housing Business Stream reviewed the Client Service Visit (CSV) Checklist report. Following that review, the report was re-named "Enhanced CSV" and which now has the capacity to identify all successfully completed CSVs for the previous week, as well as to highlight properties which had a negative result in that week, and which could potentially place the client at risk. For example, if the smoke alarm at a property is not working or does not display a green light, this is considered a negative result. 18. Individual CSOs are required to complete a CSV Checklist for each property they have successfully inspected. That is done by filling out a template form on an iPad provided by the Department. CSOs are trained, and efficiently do complete the checklist on the iPad as they are inspecting the property. 19. That data from the reports of the individual CSOs is now consolidated in the weekly Enhanced CSV. If for some reason a property cannot be inspected (e.g. where the tenant is not at home) a CSV Checklist is not completed, and the CSO separately records the inability to have undertaken the inspection. 20. The WSNBM Housing Reporting and Governance Team generates the Enhanced CSV report every Monday, and issues the report to all the Tenancy Team Leaders. From this report, any high-risk incidents and/or clients are identified. Team Leaders then use this report to conduct audits and follow up with the Senior CSO and the relevant CSO regarding those tenancies which have been identified as at risk. 21. I understand that the Team Leader within Tenancy Team 804 became aware of Mr Chowdhury's likely misconduct in the stated matters in or about late May 2021. I was advised of this on 27 Mary 2021 when I was asked to approve the matter to be investigated by the Conduct and Professional Standards unit which occurred on 27 May 2021. I am aware that investigation found that Mr Chowdhury had falsely completed CSV Checklists on 5 May 2021 for properties he had not inspected. 22. Since in or about late May 2021, the Team Leader of Tenancy Team 804 has been Mr Paul Bown. Mr Bown is a very experienced Team Leader who has been with the Department for over 20 years. I have great confidence in Mr Bown as a Team Leader, and his commitment to adhering to requirements, including the Code and the Housing Practice Standards. 23. On 25 June 2025 I met with Mr Chowdhury at the Parramatta Housing Office at Level 2, 93 George Street, Parramatta. During the meeting I advised him that an investigation had been undertaken of his CSVs Checklist reports, and that arising from that, certain allegations of misconduct had been made against him. I handed Mr Chowdhury a letter from Ms Charet which contained those allegations and the process that would be involved from there. I asked him to review the letter and respond to the allegations put to him by 2 July 2021… 24. At the meeting on 25 June 2021, I also advised Mr Chowdhury that he would be placed on special leave until 2 July 2021, but that could be extended depending on the progress of the disciplinary process. 25. I am aware that Mr Chowdhury responded to the allegations put to him on 28 June 2021… 26. I was asked to consider Mr Chowdhury's response to the allegations. As part of that, on 29 June 2021 I sent an email to Cathy Croker, Manager Business Partnering People Directorate, detailing reasons why Mr Chowdhury's explanation should not be accepted. In respect of both the allegations, there was no indication that the two CSV Checklists in question which he had completed dated 5 May 2021, were completed in error. The tenants' names were in two locations, and as he hadn't seen those tenants, this seemed a quite deliberate step. Further, and as stated above, the process where an inspection cannot be undertaken, a CSV checklist must not be completed, but a different record is made. Importantly, records of inspections (successful and where they cannot be completed at all) are completed as the CSO goes along, not at a later point such as when back in their car. That is the benefit of the technology available to the CSOs. 27. I also considered that where Mr Chowdhury had subsequently recorded against one of the checklists that it had been entered in error as a cover up by him. When he made that entry, it was by that time known that there was a particular issue with the property. For the reasons above, if checklists are properly completed at the time of inspection it really is not possible for such a mistake to be made. In all the circumstances I was of the view that Mr Chowdhury had falsely completed the two CSV Checklists on 5 May 2021 and was now lying about it… 28. Integrity and accountability are essential in every aspect of the work undertaken, and honesty and trust are critical in the role. I do not believe that Mr Chowdhury demonstrates these qualities. 29. WSNBM Housing Services is committed to workforce diversity and inclusion, and employs people with diverse backgrounds and experiences. Our clients, particularly those in Parramatta also come from diverse backgrounds, having migrated from across the world, whose first language is not English and who have different religious beliefs etc. I believe that our diverse workforce is equipped to provide creative and innovative solutions that we need to serve our clients. 30. The workforce of WSNBM Housing Services consists of people from all manner of ethnicities and religions. At the time Mr Chowdhury was employed, there were 3 employees of the Muslim faith in Tenancy Team 804. 31. WSNBM Housing Services supports and allocates time to staff to attend and participate in cultural and religious events which are important to them. Further, our flexible rostering system enables this to occur in most circumstances. 32. Mr Chowdhury's claims that his workplace is disrespectful, and that different treatment is given to staff based on gender and/or nationality is not something that I have observed and is rejected by me. I know Mr Bown, Mr Tamrazians, Senior CSO and Mr Spires, Senior CSO Specialist in Tenancy Team 804, and the suggestion that they may have targeted Mr Chowdhury at all, let alone because of his religion, is not something that I can accept. Niven Morcos 1. Niven Morcos is the Manager, PHS, within the WSNBM District of the Department. Ms Morcos prepared a witness statement in which she outlined the makeup and functions of Parramatta Housing Tenancy Team 804, of which the applicant was a member. Ms Morcos stated as follows: 8. To enable a CSV to occur, a Business Actions (BA) is created in the HOMES system. Creating a BA for a CSV in the system triggers an automatic letter to be sent to the respective tenant advising them of the scheduled CSV. A rule for 14 days' notice is built in the system to meet statutory requirement, and is populated in the letter to the tenant. 9. Each CSO has access to reports (available every Monday) that identifies which tenants are due for visits. From this report they have the autonomy to schedule a CSV. CSOs are encouraged to plan and schedule visits for a whole month's worth. 10. CSOs are required to complete a CSV checklist electronically using the App called "I Visit You", short-titled IVY on each scheduled visit to the tenant at their premises. A CSV involves having physical access to the property, talking to the tenant about any issues they may be having, referring them to support services, if they are in arrears talking to them about arrears repayments, checking that smoke alarms are working, talking to the tenant about any maintenance issues, taking photos of areas of concern, etc. All the actions described in this paragraph are part of what we determine as a successful visit and is recorded accordingly in IVY. This is then automatically uploaded in TRIM and the CSV. The BAs are then closed on the customers records and also in HOMES. 11. I am aware that on 5 May 2021, Mr Chowdhary had not undertaken a CSV at 2 properties namely, second address, Parramatta and first address, Parramatta. l am aware that for these properties, Mr Chowdhury recorded that he had successfully inspected them by noting as "successfully visited" in the systems HOMES and TRIM. 12. l am aware that on 27 May 2021, Team Leader Paul Bown noted that the above-named properties were in fact not visited by Mr Chowdhury. I am aware that Mr Bown then logged an incident to the Department's Conduct and Professional Standards (CAPS) Unit, stating that Mr Chowdhury had not complied with the CSV process. Mr Bown sent me the confirmation email that this was reported via the CAPS Unit's online portal. 13. On I June 2021, in my capacity as a Manager, I commenced quality assurance enquiries in addition to the incidents of 5 May 2021. I wanted to ascertain whether the 2 incidents were anomalies or a pattern of behaviour. 14. As part of my enquiries I made telephone contact with 3 other tenants on whose properties Mr Chowdhary claimed he had visited on 12 May 2021, completed a CSV checklist and noted "successfully visited" in HOMES and TRIM. All the 3 tenants advised me that Mr Chowdhary either did not visit them at all on the day (tenant H was not at home and tenant S advised that no one visited that day), or that they (tenant B) had refused Mr Chowdhury's entry into her property due to non-compliance of the 14-day notice period required for inspection. I then lodged these additional 3 incidents via the PCU portal and notified my Director of my findings. 15. On 4 August 2021 the Conduct and Professional Services (CAPS) Unit asked for further verification of the additional 3 incidents that I had identified. I responded to CAPS via email that these 3 incidents were incorrectly recorded by Mr Chowdhary as successfully completed CSVs... 16. On the 4 August, I undertook a further spot check of Mr Chowdhary's work schedule by reviewing his "Fieldwork Movement Sheet" (FMS) of 12 May 2021. A FMS is completed by CSOs for the purposes of inspections and other visitations. The FMS records the name of the CSO and their mobile number, the registration number of the vehicle used to undertake inspections, the expected time of return of the CSO, names of clients to be visited and for what purposes. Mr Chowdhury's FMS of 12 May shows names of 21 tenants who were listed for CSV. Nine of the tenants listed on the FMS could not have been visited because a BA had not been created for them (and therefore a letter had not been sent to these tenants with 14 days' notice advising them of the visit). I was not clear on what basis he could have scheduled these visits. Based on the reporting arrangements described in paragraph 9 of this statement, the BAs for 7 of the 9 tenants mentioned in this paragraph would not have been generated until 27 May 2021 and 23 June 2021 respectively, with BAs not yet commenced for a further 2 tenants. 16. On the basis of my investigation of Mr Chowdhury's FMS of 12 May 2021 as outlined above, I am of the opinion that Mr Chowdhary falsified his FMS of 12 May 2021 by making up a list of CSVs to show that he had planned visits on that day to make himself look busy. I question how Mr Chowdhury spent the remaining day on the basis of inadequate workload and the amount of time spent on each visit (only a few minutes were noted for each visit). I am aware that it takes a bit of time to complete a CSV checklist and undertake the necessary property inspection. I also note that Mr Chowdhury's FMS for 5 May and 12 May 2021 have some names repeated on them which should not be the case. It would appear that Mr Chowdhury had been recycling names on his FMS to make himself look busy... Paul Bown 1. Paul Bown is a Team Leader at PHS within the WSNBM District of the Department. Mr Bown stated in evidence as follows: 4. I know the applicant, Mr Rayhan Chowdhury, through his employment as a temporary Client Service Officer (CSO) at the PHS. Mr Chowdhury was in my tenancy team, known as Tenancy Team 804. 5. I became aware that there were some issues with Mr Chowdhury's conduct being reviewed when I first started in the role of Team Leader at PHS. It was explained to me that Mr Chowdhury may have been fraudulently completing certain Client Service Visit (CSV) Checklists where evidence showed that he had not entered the property concerned. 6. I generated a Professional Conduct Request Form in the Employee Self Service portal for two (2) incidents of concern with CSV Checklists completed by Mr Chowdhury on 27 May 2021… 7. One of the incidents related to the reported CSV of first address Parramatta NSW 2150. Mr Chowdhury reported on his CSV Checklist that the visit was successfully completed… 8. However, a subsequent visit to that property by another employee for another reason on 14 May 2021 revealed evidence of long-term hoarding by the tenant. This type of property issue cannot manifest within the time period between the first and second inspection. News of the condition of this property became a talking point in the team… 9. Mr Chowdhury had on the afternoon of 20 May 2021 separately entered into TRIM a note that his CSV "was done in error". I have never seen such an entry before. Given the process for actually undertaking inspections, and its difference to the procedure when no-one is home or entry otherwise not possible, I fail to see how this arose. My conclusion is that by that date Mr Chowdhury knew that his false report would be apparent, and he was taking steps to try and cover that up… 10. Falsely reporting that a CSV has been completed is a very serious issue. It can result in clients who have serious health or safety issues such as hoarding and squalor being missed and this could impact on their quality of life, safety and pose a liability for Housing if a client was injured or passed away. Staff are also required to check that smoke alarms are working and report any issues and failure to do this is a risk to the client. 11. The second incident was the CSV reported by Mr Chowdhury on 5 May 2021 for second address, Parramatta NSW 2150. Mr Chowdhury reported on his CSV Checklist that the visit was successfully completed… 12. It also presented as improbable that Mr Chowdhury was able to enter this second property on 5 May 2020 (sic 2021) as there had been issues with entry onto this property in the past which were not known to have been resolved. … 15. The process for a CSO is that if no one is home you fill out a Call Note from a carbon copy book, attach it to the front door of the residence and take a picture of it to upload to TRIM, the Department's records management system. To the best of my knowledge all CSO's, including Mr Chowdhury are well aware of this procedure. It is an everyday occurrence… … 18. I have read Mr Chowdhury's document dated 16 August 2021 filed in these proceedings. In this document, Mr Chowdhury makes a number of claims regarding my alleged treatment of him. 19. I am very disappointed in the allegations Mr Chowdhury has made against me personally in his response especially the allegation that I have discriminated against him in any way or targeted him. I do recall Mr Chowdhury approaching me in a demanding manner when I started in the Parramatta Office regarding his prayer time and advised that I would do what I could to accommodate his requested prayer time as I have done for staff in previous offices. I deny stating that I would throw a transfer back at Mr Chowdhury if the questions were not answered. I also deny stating that I simply did not want to issue a counter cheque to a client and will always approve these if the refund is based on an error by the Department and it is presented to me as such. I do recall that Mr Chowdhury had not booked a vehicle for client service visits on at least one occasion which was very frustrating as this should be done at the time of booking them to avoid not being able to attend to clients as promised and I advised that he needed to sort this out himself and complete the visits. 20. Our team has a number of employees who are of the Muslim faith. I have never prevented those employees, including Mr Chowdhury when he was employed, from undertaking their religious duties. I am, and throughout my employment have always been respectful of this. In fact, I would say that I went out of my way to accommodate Mr Chowdhury's needs when he was employed. For examples: a) I ensured that, as requested by Mr Chowdhury, he was never placed on a Friday afternoon shift on the Roster. Mr Chowdary had asked that he not be rostered on during this period so that he could attend the Mosque for Prayers… The Roster indicates that Mr Chowdhury had been changed from a PM roster to AM roster, and this was directly in response to his request to go and pray in the afternoon. … b) I also had accommodated the Muslim EID Holiday for the three (3) employees in the team who are Muslim, including Mr Chowdhury, by granting them leave/flex time for 19 and 20 July 2021. Mr Chowdhury had however been dismissed by that time, but his request for time off had been granted… In this instance I approved the leave and that of two other CSO's of the same religion due to it being a day of importance for them. This was though it would have left the team short of staff and the workload more difficult to manage. I even recall needing to ask an employee who was not of the Muslim faith to swap their leave days around to accommodate the three (3) employees At the time the three (3) employees concerned (all CSO's), including Mr Chowdhury, seemed to me very appreciative that I had granted them the requested time off. Luke Spires 1. Luke Spires is a Senior CSO Specialist in Tenancy Team 804. He gave the following evidence: 2. I worked with Mr Rayhan Chowdhury when he was employed by the Department by as a Client Service Officer (CSO). 3. I have read Mr Chowdhury's document dated 16 August 2021 filed in these proceedings. 4. In response to Mr Chowdhury's document, I reject the claim of Mr Chowdhury that Mr Paul Bown, Mr Alex Tamrazians and l "targeted" and "ganged up" on Mr Chowdhury. That did not occur at all. 5. The claim by Mr Chowdhury that it occurred because we considered his Friday prayer time was an issue not only did not occur, but I find that claim offensive. There are people of different religions within our team, and our workplace is respectful of that. Mr Chowdhury was not the only Muslim in our team and needs for prayer times are in my experience respected, and as far as possible accommodated within working requirements. 6. I also did not see anything to support Mr Chowdhury"s claim that he was required to do more work than anyone else or was treated differently to anyone else. 7. I reject the claim of speaking to Mr Chowdhury in a disrespecting way and would issue a letter that he "will realise soon"'. I also reject his claim that I ever showed Mr Chowdhury my middle finger. Alex Tamrazians 1. Alex Tamrazians is employed as a Supervisor in Tenancy Team 804. His witness statement contained the following: 3. I worked with Mr Rayhan Chowdhury when he was employed by the Department by as a Client Services Officer (CSO}. 4. I have read Mr Chowdhury's document dated 16 August 2021 filed in these proceedings. 5. In response to Mr Chowdhury's document, Mr Chowdhury claim that Mr Paul Bown, Mr Luke Spiers and I "targeted'' and "ganged up" on Mr Chowdhury is not true, and it did not happen. This is to me a completely left field claim by Mr Chowdhury. 6. I also regard it as offensive for Mr Chowdhury to say that such "targeting" occurred because we considered his Friday prayer time was an issue. Our team, as does the Department generally, consists of people of different religions. I am, and see my colleagues as respectful of that. Our team consists of a number people who are Muslim. Mr Chowdhury was not alone in that. Needs for prayer times are understood and accommodated within working requirements. The Team Leader and members of the tenancy team did everything possible to support Mr Chowdury's Friday pray time. 7. It is wrong of Mr Chowdhury to claim that he was instructed to do more work than anyone else or was treated differently. That just didn't happen. 8. The comments by Mr Chowdury about Frayne Mackey are also completely untrue. Ms Mackey has never falsified attending client service visits and I have never spoken to her about such an issue. Hulya Turan 1. Hulya Turan is employed as a CSO in the WSNBM Mobile Housing Outreach Team at the Parramatta Branch. Ms Turan gave the following evidence: 2. I worked with Mr Rayhan Chowdhury when he was employed by the Department by as a CSO at Parramatta. I first met Mr Chowdary when he was newly recruited as a temporary CSO in or around July 2020. 3. It was around the 5th of July 2020 that I had been asked by my Team Leader to allow Mr Chowdhury and a number of other new CSOs to shadow me on a number of routine Client Service Visits (CSV) for the period of 13th July to 21st July 2020. 4. It is my understanding that Mr Chowdhury has alleged that during these CSVs I had advised him not to complete the CSV checklist during the visit but to wait until he was back in the car or later in the day. 5. In response to Mr Chowdhury's allegations I decline what has been said as ALL client service visits must be done while in clients home as we have to confirm the information we have on the tenants file against the information on IVY and also need to take pictures if any hoarding issues or any alterations are done to our properties as we then use those photos when sending out letters to tenants with time frames for them to clean up or bring back the property to the original state. 6. I again would like to state that I do not accept Mr Chowdhury's allegations as a client service visit is not just a tick and flick and we cannot in any circumstances do this at the car. We need to complete this while in the tenant's property as we have to confirm information we get from the tenant against our information and add any additional occupants or get them to sign forms that are on IVY if applicable. Also, Mr Chowdhury is not the only CSO I was asked to train infact it was the whole team which included 5 CSO's including him. 1. None of the Department's witnesses were required for cross-examination by the applicant. 2. In addition, the Department relied upon the following outline of submissions (footnotes omitted): 1. The employment of the Applicant (Rayhan Chowdhury) as a Client Service Officer (CSO) with the Department of Communities and Justice (Respondent) was terminated for misconduct effective as of 23 July 2021. The Applicant worked in Tenancy Team 804 at Parramatta Housing Services (PHS). 2. The Applicant's misconduct involved breaches of the Respondent's policies and processes, including in particular the Record Keeping requirements of the Respondent's Code of Ethical Conduct (Code). Specifically, in discharging the requirements of his role, the Applicant had falsely completed a Client Service Visit Checklist (CSV Checklist) for certain premises on 5 May 2021 which he had not in fact attended. 3. The Respondent relies on the evidence of Ms Lisa Charet, Executive District Director of the Department's Western Suburbs, Nepean Blue Mountains (WSNBM) District, Mr Rocco Esposito, Director Housing Services WSNBM, Ms Nevin Marcos, Manager PHS, Mr Paul Bown, Team Leader, Mr Luke Spires, Senior CSO Specialist, and Mr Alex Tamrazians, Supervisor. 4. Where there is any contest over facts, or issues of credibility arise, the Commission will prefer the evidence of the Respondent's witnesses. 5. The Applicant's claim for unfair dismissal pursuant to Chapter 2 Part 6 of the Industrial Relations Act 1996 (IR Act) is misconceived and should be rejected by the Commission. However, in the event that the Applicant's dismissal is found in some way to be unfair (which it should not be), the Respondent's position is that reinstatement is not an appropriate remedy. Background 6. The Applicant had been employed by the Respondent as a temporary employee pursuant to the Government Sector Employment Act 2013 in the role of a CSO from 25 May 2020. 7. The Applicant was employed pursuant to a series of temporary employment contracts, including a contract dated 12 March 2021 which expired on 30 June 2021, and a final contract dated 16 June 2021 due to expire on 30 July 2021. It was a term of each contract that: Your employment will be reviewed during this period and your continued employment will depend upon your satisfactory conduct and work performance and on the availability of work. If your temporary employment is to be terminated earlier, you will be given one (1) week's notice. Please note that your temporary employment does not guarantee ongoing employment to this role. 8. The Applicant was working as a CSO in Tenancy Team 804 at PHS, working 35 hours per week, Monday to Friday. The Applicant could work those daily hours flexibly between 7am-7pm, subject to being available for core hours of 9.30am-3.30pm. 9. The Applicant was classified Level 2/4 with a salary based on $68,749.00 p.a. 10. Tenancy Team 804 consisted of approximately 12 employees, plus a Team leader. The 12 employees team consisted of 8 CSO's, 2 Senior CSO's, a Specialist Senior CSO's and a Business Services Officer (BSO). The BSO's role is essentially a clerical role, whereas the CSO's are client focussed. The Respondent's clients are people residing in premises under a public housing tenancy. 11. The Applicant is a Muslim, as were 2 other members of Tenancy Team 804 during the Applicant's employment. 12. At the time of the Applicant's dismissal, Mr Bown was the Team Leader of Tenancy Team 804, and Mr Spires and Mr Tamrazians were also in that team. 13. As a CSO, the Appellant was responsible for a portfolio of approximately 300 properties, including responsibilities to ensure that rents are paid as due, the properties are maintained to an appropriate standard and that tenant behaviour is appropriate. It is expected that a CSO will typically spend at least 2 days per week in the field, undertaking inspections, discussing issues with tenants and undertaking drive-by checks. 14. Prior to undertaking field work on any day, CSO's are required to prepare a plan of their activities, known as a Fieldwork Movement Sheet. This is both to promote productivity but also a safety precaution, allowing the Respondent to, if necessary, identify the intended movements of the CSO. 15. A property inspection is referred to as a Client Service Visit (CSV). In undertaking a CSV, CSO's are required to complete a CSV Checklist. The CSV Checklist is a template form of questions and/or space for comment to be completed by the CSO during the course of a property inspection. The CSV Checklist is accessed and completed on an iPad provided to CSO's by the Respondent for the purpose of them performing their role. It is only when the template has been completed that the CSV Checklist is uploaded onto the Respondent's relevant system (HOMES) and shown as a successful visit. 16. In the event that a CSV is unable to proceed (e.g. due to the tenant not being at home), the requirement is that the CSO will complete an unsuccessful visit form, place it on the door of the premises and take a photo of that against the door of the premises. That photograph is then uploaded onto the Respondent's system. 17. The Applicant had received training in all of the requirements of the role, including the Code and the Respondent's Housing Practice Standards. The Applicant was well familiar with the Respondent's required processes and procedures. 18. The Code promotes the public sector core values of Integrity, Trust, Service and Accountability, providing principles to guide their implementation. In particular, s. 7, Mandatory Conduct (as does the Code generally) emphasises the need for employees to, consistently with core values, act honestly. 19. Of particular relevance to the present matter, s. 8.11, Record Keeping of the Code provides that: In the performance of duties, employees must: • create and maintain full, accurate, up to date and honest records of their work activities, timesheets, attendance, leave, and other business transactions. 20. The Code makes clear that a breach of its terms may result in disciplinary action, which could include termination of employment. Disciplinary Process and dismissal 21. On 25 June 2021 the Respondent initiated a disciplinary process against the Applicant on the basis that he had acted in contravention on the Record Keeping requirements of the Code, and that this involved 2 specific allegations relating to CSV's, presented to him as: 1. It is alleged that the data results recorded by you into HOMES in relation to Client Service Visit (CSV) HCSD21/42298, first address, Parramatta, on 5 May 2021 detailed the "property care satisfactory" were fraudulently entered. The basis of this allegation is supported by the fact that the Annual Compliance Assessment was to be conducted on 14 May 2021 however access could not be gained. A subsequent CSV was undertaken by the SCSO on 24 May 2021 and found significant neglect to the property with clear evidence of hoarding and squalor. 2. It is alleged that the data results recorded by you into HOMES in relation to Client Service Visit (CSV) HCSD21/42642, second address, Parramatta, on 5 May 2021 were fraudulently entered. It is alleged that you could not have conducted this CVS as the Department has been made aware that the tenant had entered an aged care facility receiving full time, permanent care several months prior to the CSV. (Allegations) 22. The Applicant was provided 7 days to provide a response to the Allegations, and placed on special leave pending the outcome of the disciplinary process. 23. On 28 June 2022, the Applicant provided his written response to the Allegations, and claimed that the errors were mistakes and unintentional. The Applicant claimed he had on 5 May 2021 been "feeling tired and stressed", and that: On the day few unsuccessful visits I updated in the car while I finished CSV in first address and second address Parramatta in order to create a production line with successful visits. I must have mistaken (sic) unintentionally with unit number and mixed up successful and unsuccessful visits in the end. 24. The Applicant further claimed that: After few days of my CSV while I am preparing and rebooking my CSV for next week, I suddenly remembered one of the visits at first address Parramatta (don't remember unit number now) no one answered the door and was unsuccessful and I added a note in TRIM right away as "done in error". 25. The Respondent did not accept the Applicant's explanation, and found the Allegations substantiated. The reasons for this include: a. All 12 CSV's undertaken by the Applicant on 5 May 2021 were recorded by the Applicant as successful. It was therefore not readily apparent how there was a mix up of successful and unsuccessful visits; b. As described above, CSV's Checklists are completed during the inspection, they are not completed in the car afterwards. Further, the process for an "unsuccessful" inspection is different. It does not involve completing a CSV Checklist and does not form part of a "production line"; c. In the above context, the Applicant's attempted explanation of "suddenly remember[ing]" that the inspection on 5 May 2021 of first address, Parramatta had in fact been unsuccessful and adding a note in HOMES, was seen as disingenuous and perpetuating the Applicant's dishonest conduct. In this respect, it would not be accepted as coincidence, that the Applicant added the note in HOMES on Thursday 20 May 2021at 2.23pm: i. being over 2 weeks after the CSV Checklist had been completed on Wednesday 5 May 2021at 10.10am; and ii. almost one week after the property was found on Friday 14 May 2021 in the course of another routine safety inspection to be in very poor condition due to long-term hoarding, necessitating a forced entry to the premises and which was later undertaken on 24 May 2021. The condition of first address, Parramatta became known and a subject of discussion within Tenancy Team 804 after Friday 14 May 2021. 26. On 9 July 2021, Ms Charet for the Respondent advised the Applicant that having considered the Applicant's response and available information, she had made a decision pursuant to s. 47(2) of the Government Sector Employment Act 2013 to terminate his temporary employment effective as of 16 July 2021, after giving him an opportunity to resign. 27. At the Applicant's request, he met with Ms Charet and Ms Christine Hiebler, a Senior HR Performance Partner, on 15 July 2021. The termination of the Applicant's employment was deferred pending Ms Charet giving consideration to the matters that had been discussed at the meeting. 28. In reviewing the matter Ms Charet remained satisfied that the Applicant had falsely recorded the CSV's described in the Allegations, and that his actions constituted misconduct. Ms Charet did not accept the Applicant's version of events, and was also disturbed that the Applicant was unwilling to admit what he had done. 29. On 23 July 2021, the Respondent notified the Appellant by letter of its decision, and that it had determined that the outcome of the disciplinary process was termination of employment after giving an opportunity to resign. The Applicant was provided until close of business that day to provide such resignation. 30. The Applicant advised Ms Charet by email at 12.29pm 23 July 2021 that he would not be resigning. The Applicant alleged that the Respondent's decision was unfair, and that he had been "simply expecting a warning letter, nothing more than that''. 31. Absent the Applicant exercising the opportunity to resign, his employment was terminated effective as of close of business 23 July 2021. The Respondent's Decision 32. The evidence available to the Respondent supported that on the balance of probabilities the Allegations were substantiated. 33. ln all of the circumstances, the Respondent's decision to terminate the Appellant's employment was well informed and well considered, having progressed through the required procedural steps. The procedural steps on and from 25 June 2021 were in accordance with the requirements of Part 8 – Misconduct - Procedural Requirements of the Government Sector Employment (General) Rules 2014 (GSE Rules). 34. Honesty is a critical element of any employment relationship. The role of CSO involves considerable discretion in when and how work is undertaken, and it is essential that proper and accurate records are made to ensure the required services are provided to tenants of public housing, often being particularly vulnerable members of the community. 35. Ms Charet's conclusion following the meeting of 16 July 2021 was that she simply did not believe the Applicant's attempts to explain and/or justify his conduct as a mistake. That view is shared by Mr Esposito, Ms Marcos and Mr Down. 36. The evidence of Ms Marcos in particular is that subsequent investigations show that Mr Chowdhury's misconduct was also not limited to the 2 instances upon which his dismissal was based but extended to 3 other properties on 5 May 2021 and was replicated on 12 May 2021. The only reasonably available conclusion is that the Applicant was engaging in a pattern of behaviour seeking to make himself out to be busier than he was, but in doing so being dishonest to the Respondent and failing to provide service to the Respondent's clients. 37. In the Applicant's submissions filed in these proceedings, he persists with the claim that the CSV Checklists the subject of the Allegations, were completed in error. The Applicant claims that due to the circumstances of Ramadan he "was not 100% and felt really tired and exhausted on 5 May 2021 during client service visits, which certainly contributed in making such errors". In relation to this claim: a. This had not been raised by the Applicant until this submission in these proceedings; and b. Relevantly, the CSV Checklist records that the inspection for first address Parramatta was completed by the Applicant at 10.10am on 5 May 2021. Sunrise and the start of fasting that day was 6.33am. 38. The Applicant's submissions also for the first time squarely identify an allegation by the Applicant that he was discriminated against because he is Muslim. In particular, the Applicant claims he was "targeted" by Mr Bown, who together with Mr Spires and Mr Alex Tamrazians, "ganged up in order to get rid of me as they considered my Friday prayer was an issue to manage teams' day to day operation". 39. The Applicant's claim of discrimination is rejected by the Respondent. It is, with respect, a baseless, desperate attempt by the Applicant to divert attention from his own serious misconduct. Relevantly: a. The conduct is categorically denied by Mr Bown, Mr Spires and MrTamrazians; b. Mr Esposito says that he does not accept that any of Mr Bown, Mr Spires or Mr Tamrazians would engage in discriminatory conduct; c. The Respondent's workforce is diverse in terms of race, gender and religion, as are the Respondent's clients. The Applicant was one of 3 Muslims in Tenancy Team 804; and d. The evidence demonstrates Mr Bown going out of his way to accommodate the requirements of the Applicant and his Muslim colleagues. 40. To the extent the Applicant claims that another employee, Ms Frayne Mackey, had 3-4 weeks earlier made the same mistake as he did on 5 May 2021, the Respondent has no record of that. To the extent Mr Tamrazians is alleged to have been involved in a discussion about that, it is denied by him. More particularly, the Respondent's evidence is that doing a CSV Checklist properly does not allow for such an error, and they have not previously seen a notation such as the Applicant added for first address, Parramatta on 20 May 2021. 41. The Appellant's conduct, does not by any objective standard satisfy the requirements of the Public Sector Core Values, the Code or the Housing Practice Standards. The Appellant's conduct was dishonest, it was not trivial in the circumstances of the employment, and went to the essence of the employment. 42. It is well established that acts of dishonesty which are destructive of mutual trust form part of the class of conduct which can justify summary dismissal. In Shakir v Department of Family and Community Services 270 IR 155, Newall C conveniently set out at [65]: Whether the action of an employee amounts to misconduct will generally depend on whether the act strikes at the heart of the employment relationship: Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR 371. The ordinary relationship of employer and employee is one importing implied duties of honesty and trust: Concut Pty Ltd v Worrell (2000) 103 IR 160, so this act did strike at the heart of the employment relationship. That is why deceit by an employee of an employer is a serious matter, whether or not it is associated with fraud, and will generally disincline the Commission to intervene in a dismissal: Re Tooth & Co re Walker and Moar [1972] AR 130 at 142. And as the Commission observed in Electricity Commission of NSW t/as Pacific Power v Nieass (1995) 81 IR 46, albeit in consideration of the need for warnings, no employee of ordinary understanding needs to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told they should be careful in crossing the street. 43. The substantiated Allegations constituted misconduct by the Applicant and misconduct sufficient to warrant the summary termination of the Applicant's employment. The Applicant's dismissal was otherwise procedurally fair, being in accordance with the GSE Rules. No remedy for the Applicant 44. In all of the circumstances this application should be dismissed with no remedy to the Applicant. 45. However, in the unlikely event that the Commission finds some unfairness in the dismissal of the Applicant, reinstatement is not appropriate for reasons including the Respondent's justified loss of trust and confidence in the Applicant, which is re-affirmed by the further instances of false recording that have now become evident to the Respondent. 46. Any remedy to the Applicant should therefore be limited to monetary compensation, which in the circumstances should be minimal if anything. Those circumstances include that the Applicant was a temporary employee of short service, and with no assurance of on-going employment beyond 30 July 2021. That date should be accepted as the natural limit of any compensation to the Applicant. 47. Otherwise in respect to the issue of compensation: a. There would relevantly need to be a discount for the Applicant's misconduct and contingencies; b. The Applicant was afforded the opportunity to resign; c. There is no evidence from the Applicant that he has been actively seeking alternative employment, or if he has gained alternative work, his earnings from such work. The right of the Respondent to further address this issue is reserved. Conclusion 53. The termination of the Applicant's employment was not harsh unjust or unreasonable. Accordingly, the application should be dismissed. Applicant in reply 1. The applicant filed three statements in reply to the Department's evidence. 2. The first of the applicant's reply statements contained the following: In response to Mr Alex Tamrazians, Supervisor -Team 4 Parramatta and Mr Luke Spires, CSO Specialist are absolutely not true as they failed to acknowledge anything, and have been very defensive as did not want to put themselves into trouble. In my previous statement, I clearly mentioned person's name, who was present during some incident. Mr Tamrazians also denied the truth that he definitely had a conversation about Frayne Mackey's regarding same mistake made as mine, it was just in front of me. I am unable to provide evidence now as my access to system was revoked on the spot, on 24 June 2021 and was advised not to discuss the matter with one and not to victimise any other staff (Allegation Letter). But I am sure Commissions has power to prove this matter through further investigation, which the Department cannot prevent. Mr Alex Tamrazians also failed to acknowledge that as soon I remember the error, I went up to him, explained everything and did seek his advice regarding the matter. Mr Tamarians advised me that whatever happened we can't reverse it now, but go ahead and put a remark in note section as "done in error". I added the note as per my supervisor's instruction. What else should I have done? Mr Alex Tamrazians and Mr Luke Spires stated that: "I also regard it as offensive for Mr Chowdhury to say that such "targeting" occurred because we considered his Friday prayer time was an issue. Our team, as does the Department generally, consists of people of different religions. I am, and see my colleagues as respectful of that. Our team consists of a number people who are Muslim. Mr Chowdhury was not alone in that. Needs for prayer times are understood and accommodated within working requirements. The Team Leader and members of the tenancy team did everything possible to support Mr Chowdhury's Friday pray time." I believe that Mr Tamrazians and Mr Spires are not telling the truth. Most times, I had to struggle and organise someone from the team to cover my lunch break (Friday prayer time) as I used to get PM phone shift or PM booth shift on Friday. Also regarding 2 other Muslim colleagues, Bilal Chahal, CSO – is a Void Officer, who spent most of his day at field and manage time to pray while outside. and Noor Houque, new CSO (joined on 17 May 2021) - I have never seen him praying on Friday as he was not a practicing Muslim. So, though it did not cause any issue to them but it certainly did to me. While I tried to establish my right, I was simply abused and psychologically bullied. (Details are available in my previous submissions.) In response to submissions (36), Ms Niven Morcos statement: "Misconduct was also not limited to the 2 instances upon which his dismissal was based but extended to 3 other properties on 5 May 2021 and was replicated on 12 May 2021. The only reasonably available conclusion is that the Applicant was engaging in a pattern of behaviour seeking to make himself out to be busier than he was, but in doing so being dishonest." I totally reject this claim as if it is a pattern of my behaviours, why these have never been raised before by Ms Morcos (Housing Manager), previous Team Leader Mr Ben Croan or recent Team Leader Mr Paul Bowen, or any Supervisors in over the past 9 months. To the best of my knowledge, I had never ever intentionally practiced such action and it is not true. I consider this as abusive allegation against me saying something like this without any evidence. Under Freedom of Information (FOI), I request Commission to collect list of client service visits on behalf of me in order to clear up above allegation on the Hearing on 07 & 8 October 2021. In response to respondent submission (37a) I must confirm that while I received the allegation letter on 25 June 2021, all I wanted is to submit my statement in 2 days' time in the morning on Monday 28 June 2021 (attached). So, I rushed to complete and submitted and did not remember that it was Ramadan time on 5 May 2021. But I certainly mentioned that during my interview with Ms. Lisa Charet, Executive Director and Ms. Christine Hiebler, Senior HR advisor on 15 July 2021. My contract ended on 30 June 2021, which meant to be extended till 30 June 2022 (as it was done for Bilal Chahal, a CSO from my team who also Joined DCJ with me on 25 May 2021). I received a letter issued on 24 June 2021, a day before I received the letter on 25 June 2021(Allegation letter). The letter states strangely that my contract will be renewed from 16 June 2021 to 30 July 2021. There is a clear discrepancy with the date that Management went back 2 weeks and started my contract from 16 June 2021 rather than 01 July 2021 to 30 July 2021. Is there any such thing extending contract just for 4 weeks? Is this legal? What was the motive behind it? And eventually Ms Lisa terminated my employment instantly and arrogantly without any notice, 7 days prior my contract end date. I strongly state that respondent is simply trying to establish this matter as an allegation in such an unacceptable way including: fraudulently entered data, falsify customer service visits information, wrong record keeping, breach of policy and process etc. All the above terms are used in wrong manner and totally irrelevant to what has happened. In reality, it is easy to happen as in IVY (iPad System) there are only 2 options: successful and unsuccessful. The mistakes occur while I somehow mixed-up unit number and went ahead put property as successful - completed the process instead of unsuccessful. It was just a single occasion in 14 months of my employment with DCJ and was not done intentionally to gain any benefit or cause any loss of revenue or any other harm to the Department, which could have been addressed and rectified. In Conclusion, I firmly believe that the termination of my employment by the Department of Communities and Justice was unfair, illegal and discriminatory. I would also appeal to Commissioner to please look into the matter and kindly establish a fair judgement by reinstating my position as a CSO in any other DCJ office except Western Sydney District and also kindly consider that the termination has caused me and family into a distressful situation and hardship, created mental anxiety, and affected my confidence and self-esteem. 1. The second of the applicant's reply statements contained the following: Mr Paul Bown lied and is dishonest and defensive regarding every incident I pointed out in my previous submissions including how Mr Bown has bullied me verbally and psychologically and treated me differently than other team members. With Friday prayer, Mr Bown tried to prove that he has done everything to the best of ability to accommodate, is also a false statement. The roster that Mr Bown added (Friday, 11/6/2021) was the only occasion I had been looked after as I spoke to Luke about it over phone from my home (I was working from home) and mentioned that I will be taking this matter to Ms Niven Morcos, Housing Manager if they keep giving me afternoon shift and make it difficult and challenging for me to go to pray on Friday. I have worked exactly 5 weeks with Mr Bown as a CSO. Why Mr Bown has presented only 1 week roster to the Commission? Mr Bown has mentioned about 2 days flex leave for my EID festival. It is irrelevant as I never complaint about that matter rather I persistently said Mr Bown definitely had issue with my Friday prayer and that is why most weeks I had to run around and look for someone from team to cover me to go to lunch and go to prayer on Friday. … Mr Bown also mentioned in his statement point 19: "I do recall that Mr Chowdhury had not booked a vehicle for client service visits on at least one occasion which was very frustrating as this should be done at the time of booking them to avoid not being able to attend to clients as promised and I advised that he needed to sort this out himself and complete the visits." Mr Bown provided a false statement above as I booked the car 100% previous day (Can be easily proven from Booking Intelligence System) for CSV, but next day some one from management took my car, which should not happen and put me in a stressful situation on CSV Day. I approached Mr Bowen and as soon I told him he was very rude and angry in front of team that his hands were shaking and his complexion changed into red. How can Mr Bown lie about that? Ms Lisa Charet stated in point 17 & 18 that: "Mr Chowdhury further advised that another employee had done the same thing and had only gotten a warning. 18. We have been unable to identify who he was referring to or another similar situation." This is a complete lie as I have never ever mentioned anything like during interview. In fact, Ms Charet advised me in the allegation letter that I am not allowed to speak about internally and not allowed to victimise any staff regarding this matter. I personally requested that face to face interview to further explain the matter as Ms Charet as she terminated me on 16 July 2021 without understanding the reason. According to her instruction I did not mention anyone's name even Frayne Mackay up to that moment rather tried to make her understand that it was an unintentional mistake, never had any motive to record CSVs wrongly as successful. I did not have any choice but mentioning while I receive the final outcome on 23 July 2021 that 23 July 2021was my last day of service with the Department. I emailed after to let Ms Charet know that I will be taking this matter to IRC and media as unfair dismissal and for the first time I had to mention Frayne Mackey's name. This can be proven from attached documentation (my email to her after receiving final outcome) to commission from Ms charet. Ms Charet also stated that in point 35: "35. Mr Chowdhury did not raise anything related to discrimination, nor do I consider him raising it later relevant or credible. He was almost dismissive of the issues in my meeting with him and said it was a simple mix up ashe was filling in the paperwork in the car. When f pointed out there was a policy regarding needing to fill these out in person in the home, he agreed but was not able to offer any reason for not following policy." In response to above statement, Ms Charet made this up, I am absolutely certain that I mentioned during the interview in front of Christine Hiebler, Senior HR Advisor. I said I do not believe my CSV mistakes are the only issue for receiving such an allegation letter. Is there anything else Ms Charet aware of behind this? But I believe there is definitely more to it, which is an underlying discrimination from Mr Bowen, Team Leader and unfairness and harsh treatment from Mr Alex Tamrazians, Supervisor and Mr Luke Spires, CSO Specialist. After listening to my explanation Ms Charet concluded the meeting saying, "/ needed to see you and I have seen and I will now investigate the issue you raised, will reread your statement and will be reconsidering my decision regarding the matter and will get back to you soon," 1. The third of the applicant's reply statements contained the following: In response to Ms Niven Morcos (Housing Manager) statement, I want to say that a lot of hard work is done to investigate this matter but unfortunately Ms Morcos failed to identify the truth. Ms Morcos stated that: "As part of my enquiries I made telephone contact with 3 other tenants on whose properties Mr Chowdhary claimed he had visited on 12 May 2021, completed a CSV checklist and noted "successfully visited" in HOMES and TRIM. All the 3 tenants advised me that Mr Chowdhary either did not visit them at all on the day (tenant H was not at home and tenant S advised that no one visited that day), or that they (tenant B) had refused Mr Chowdhury's entry into her property due to non-compliance of the 14-day notice period required 002 for inspection. I then lodged these additional 3 incidents via the PCU portal and notified my Director of my findings". My question to Ms Morcos would be why did you call only 3 clients randomly? How many successful visits did I do during that week on 12 May 2021? I believe Ms Morcos made this thing up. I doubt Ms Morcos integrity here. If anyone wants to do an investigation you would be calling every single client of successful visits to get a real picture. Also, according to client, I did not visit them at all or I was refused entry to the property by tenant. Which one is true according to client? Why this or that? Client response would be simple and straight not complex and confusing. Ms Morcos also stated below in point 16 and point 17 that: 16. "On the 4 August, I undertook a further spot check of Mr Chowdhary's work schedule by reviewing his "Fieldwork Movement Sheet" (FMS) of 12 May 2021. A FMS is completed by CSOs for the purposes of inspections and other visitations, The FMS records the name of the CSO and their mobile number, the registration number of the vehicle used to undertake inspections, the expected time of return of the CSO, names of clients to be visited and for what purposes. Mr Chowdhury's FMS of 12 May shows names of 21 tenants who were listed for CSV. Nine of the tenants listed on the FMS could not have been visited because a BA had not been created/or them (and therefore a letter had not been sent to these tenants with 14 days' notice advising them of the visit). I was not clear on what basis he could have scheduled these visits. Based on the reporting arrangements described in paragraph 9 of this statement, the BAs for 7 of the 9 tenants mentioned in this paragraph would not have been generated until 27 May 2021 and 23 June 2021 respectively, with BAs not yet commenced for a further 2 tenants." 17. "On the basis of my investigation of Mr Chowdhury's FMS of 12 May 2021 as outlined above, I am of the opinion that Mr Chowdhary falsified his FMS of 12 May 2021 by making up a list of CSVs to show that he had planned visits on that day to make himself look busy. I question how Mr Chowdhury spent the remaining day on the basis of inadequate workload and the amount of time spent on each visit (only a few minutes were noted for each visit). I am aware that it takes a bit of time to complete a CSV checklist and undertake the necessary property inspection. I also note that Mr Chowdhury's FMS for 5 May and 12 May 2021 have some names repeated on them which should not be the case. It would appear that Mr Chowdhury had been recycling names on his FMS to make himself look busy. Mr Chowdhury's FMS for 5 May and 12 May 2021 are annexed and marked as NM2 and NM3 respectively. Mr Chowdhury's CSV report of 12 May 2021 is annexed and marked as NM4." My response to Ms Morcos would be, to the best of my knowledge, I made a genuine list of 21 clients for CSV for that day on 12 May 2021 as like any another week. As you aware we work under tremendous pressure, I could not have afforded to prepare a list to pretend that I am very busy. This claim is base less and untrue. As a CSO, we do not visit clients just to conduct property inspection but also visit to drop various letters, different forms, rent arrears call notes, dropping keys, antisocial behaviour investigation, maintenance issue, attending with real estate for Head Lease property inspection etc. All the above visits we add in the CSV list as CSV. So, on 12 May 2021 some of the visits must have been related to above kind, and there is no option in systems to create business action for those visits. It is strange, not a practice among all CSOs in Parramatta and does not make any sense at all. It is also normal to see repeated clients name in the CSV list as if l miss any client on the CSV Day, I generally used to call them and rebook according to their convenience. So, this practice should not surprise Ms Morcos for no reason. Just for Commissions information: - There are policy, procedure and legislation for all tasks we perform for the Department, but in reality, we only practice whatever training and advise we receive from Supervisors. - Ms Morcos expected me to create Business Action (BA) for every visit in system. But practically it is not always possible to all CSO work in Parramatta. Sometimes we conduct CSV in 1 week notice by providing hand written letter. - Ms Morcos also mentioned that how come CSV visits was done in 2 minutes. Regarding this- We all CSOs in Parramatta have been advised not to spent to much time in visits where there are no issues, we can just straight in, ask questions on the run including anything they want to raise, is fire alarm working fine any contacts changed etc. if no issues, condition good I move I move on to next and complete it in the system in the end in the car. There is absolutely nothing wrong with that. This a practice across the board and this how we got trained in order to save time. - Some week we conduct about 25 CSV in 3 hours as people called in sick and we have covered their PM Phone shift from I pm to 5pm and get back to office by 12:30pm and get a break for ½ an hour. In response to Rocco Esposito's statement…: … Also, in point 27 Mr Esposito said: "I also considered that where Mr Chowdhury had subsequently recorded against one of the checklists that it had been entered in error as a cover up by him. When he made that entry, it was by that time known that there was a particular issue with the property. For the reasons above, if checklists are properly completed at the time of inspection, it really is not possible for such a mistake to be made. In all the circumstances I was of the view that Mr Chowdhury had falsely completed the two CSV Checklists on 5 May 2021and was now lying about it. My email to Ms Croker is annexed as RE4." I simply do not accept Mr Esposito's claim as it might appear like that to anyone who is thinking straight but truly it was an unintentional mistake and I never ever falsify or fraudulently entered wrong data in the system to gain any advantage or cause any harm to the Department. So, it is wrong for Mr Esposito saying that with assumption as I was aware of a particular issue of the property as no one including Team Leader, Supervisors or any other colleagues have ever told me about this. In fact, I was aware of that incident while I was planning my next client service visits and I added a note "done in error" as soon as I remembered, after getting instruction from my Supervisor Mr Alex Tamrazians. In Conclusion, all I can say is, by providing statements including Mr Esposito and Ms Morcos­ are trying to prove the incident was done purposefully and I should be terminated. But it was an unintentional mistake that occurred to me once for reasons over the last 14 months of my employment with the Department. It could have been addressed and rectified. And, sincerely appeal to Commissioner Murphy to reinstate my position anywhere but Sydney Western District as the termination was harsh, unfair and unreasonable. Determination 1. I have determined to dismiss the Application on the basis that, in my opinion, the overwhelming bulk of the evidence before the Commission leads to the conclusion that the allegations against the applicant, which are set out at [4] above, are sustained. 2. I agree with and accept the outline of submissions relied upon by the Department (at [17]). 3. In addition, I rely upon the inherent unlikelihood that, on 5 May 2021 when completing the CSV Checklist reports in his work provided car for the property inspections he had undertaken that day as he alleged he did, the applicant "must have mistaken unintentionally with the unit number and mixed up successful and unsuccessful visits in the end". In this respect, I agree with the submission put on behalf of the Department at paragraph 25a of its outline of submissions (at [17]) to the effect that all 12 CSV's undertaken by the applicant on 5 May 2021 were recorded by him as successful. There is no evidence before the Commission that the applicant attached a Call Note to the front door of any property where the CSV was unsuccessful on that day and took a picture of it to upload to TRIM as he was required to do (see paragraph 15 of Mr Bown's witness statement (at [12]). This being the case, I agree that it "was therefore not readily apparent how there was a mix up of successful and unsuccessful visits". 4. Further, the applicant's stated practice of completing multiple CSV Checklist reports in the car was contrary to the Department's policy and his training (see paragraph 10 of Ms Morcos' statement at [11]; paragraph 17 of Ms Charet's statement at [9]; paragraphs 18 and 26 of Mr Esposito's statement at [10]; paragraphs 4-6 of Ms Turan's statement at [15]). I regard this breach by the applicant of the Department's policy and procedures as serious misconduct which, of itself, warrants dismissal. 5. I his initial written response to the allegations, the applicant stated: After a few days of my CSV while I am preparing and rebooking my CSV for next week, I suddenly remembered one of the visits at first address Parramatta (I don't remember unit number now) no one answered the door and was unsuccessful and I added a note in TRIM right away as "done in error". 1. In fact, the "done in error" notation in TRIM was made by the applicant on 20 May 2021, more than two weeks after the alleged unsuccessful CSV at first address, and after the long term hoarding of the tenant of the property had become a talking point in the team following its discovery on 14 May 2021. I agree with Mr Esposito and Mr Bown that this was an attempt by the applicant to cover up the false CSV Checklist report he had created on 5 May 2021 (paragraph 27 of Mr Esposito's statement at [10]; paragraph 9 of Mr Bown's statement at [12]). 2. I accept the evidence of Ms Morcos that further enquiries made by her disclosed that the falsification of records by the applicant was part of a pattern of behaviour (paragraphs 13-16 of Ms Morcos statement at [11]). 3. I had the benefit of observing the applicant being cross-examined on this issue as the following extract from the transcript demonstrates: Q. Now, again, this is - we looked before lunch at your fieldwork movement sheet for 12 May? A. Yes. Q. This is the list of the six successfully completed client service visits you undertook that day. Do you see that? … Q. You will see that this is the completed or successfully completed CSVs for you for 12 May? A. Yes. Q. Do you see that? And you'll see when you look at the start times and the end dates for those CSVs-- A. Yes. Q. --certainly for the bottom five of those-- A. Yes. Q. --it follows a very similar pattern to 5 May, doesn't it, where you start at 12.31 and finish at 12.33, start 12.34 finish 12.36 and so on. Do you see that? A. Yes. Q. Now, Ms Morcos' evidence is that she spoke to a Mr S, and you will see Mr S who is the third client down, at address? A. Yes. Q. He says no one came to see him on 12 May? A. So how many successful visit I did on that day? Q. No. The question I'm asking you, Mr Chowdhury, the question-- A. Yes. Q. --I'm asking you is-- A. Yes. Q. --did you visit Mr S on that day or is he right that no one came to visit him? A. If I say - if the system is telling here that I have visited him and I put it in the system, I definitely have visited him. Q. Ms Morcos records a conversation that she had with Mr S? A. Yeah, okay. Q. And you can see the details of that on page 8 of her exhibit? A. Yes. Q. And she records that Mr S - she spoke to Mr S and asked about the customer service he received from DCJ Housing staff recently. "He asked me what service I was talking about. I told him that a staff member visited him on 12 May. He said no one visited him. I apologised and said, 'I know it was a couple of weeks ago. Are you sure you don't remember?' Mr S asked the purpose of the visit and I said, 'It was like an inspection and that they would've walked through your apartment.' He laughed at me and said, 'Unless this happened in my sleep,' and stated that he has not been visited by anyone from Housing. I apologised for the inconvenience and his reply," Mr S's reply, "was, 'You have staff that are lying to you'." That's the truth, isn't it, Mr Chowdhury? You're lying about having visited that property? A. Not at all. I believe that Ms Morcos is lying because Ms Morcos, why did she randomly call only for three clients, not all of them, if she was investigating? Q. Mr Chowdhury-- A. If she is investigating - answer my question, please. If she is-- Q. No, Mr Chowdhury-- A. --investigating-- Q. --I'm going to ask the Commissioner to direct - I don't answer your questions. You answer my questions. A. Well, look, you asked me a question did I - have I been there. I said yes and then you're still twisting and take it the other way. So you are not moving forward. I said, yes, I went there. I went there and I did the thing. But if you ask me then I would - I will put another question to you that why Ms Morcos called only two clients, not every single successful visit-- 1. The applicant was further cross-examined about other properties that he claimed to have inspected where the tenant denied that such inspection had taken place. 2. Having observed the applicant under cross-examination, I formed the opinion that his responses to questions on these matters were untruthful. 3. I also reject the claim by the applicant that he was bullied, targeted or, in any way, discriminated against by other employees of the Department. This was emphatically denied by every witness called by the Department who worked with the applicant (paragraphs 18-20 of Mr Bown's statement at [12]; paragraphs 4-7 of Mr Spires' statement at [13]; paragraphs 5-8 of Mr Tamrazian's statement at [14]; see also paragraphs 30-31 of Mr Esposito's statement at [10]). None of the witnesses was cross-examined on this evidence which I accept without hesitation. 4. I find no unfairness, either procedural or substantive, in the dismissal of the applicant. The Application must be dismissed 5. I so order. John Murphy Commissioner ********** Amendments 08 December 2021 - Duplicate of heading removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2021