Industrial Relations Commission New South Wales Medium Neutral Citation: Zoran Krstic v Marrickville Council; Hussein Zreika v Marrickville Council [2015] NSWIRComm 39 Hearing dates: 11 August 2015, 12 August 2015, 13 August 2015, 14 August 2015, 2 September 2015 Decision date: 03 December 2015 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: 1 I find that the allegations of misconduct are proven. Mr Zreika claimed payment for time not worked. Mr Krstic approved payments contrary to his duty to the employer. 2 I find that the mitigating circumstances do not outweigh the gravity of the misconduct. 3 I conclude that termination of employment was not harsh, unreasonable or unjust and decline to intervene. 4 The applications are dismissed and Matters No IRC 148 and 155 of 2015 so concluded. Catchwords: Termination of employment – Dismissal arising from overtime claimed but not worked - Defence that overtime was approved under a Job and Finish scheme not sustained - Further payments claimed for occasional absences approved by Ganger contrary to policy and responsibility to ensure payment only for time worked. Held - Job and Finish not approved – Breach of trust by employees - No procedural unfairness - Employer not penalised for trusting employees. Investigation valid. Mitigating circumstances – length of service – employment record – not sufficient to outweigh gravity of offences. Use of mobile phone records to identify time and location "off the job" adequate to establish without expert evidence on balance of probabilities that employees were absent from work location – better evidence may be required to establish precise location of an employee beyond reasonable doubt. No basis for intervention. Applications dismissed. Legislation Cited: Industrial Relations Act 1996 Local Government Act 1993 No 30 Cases Cited: Clouston & Co Ltd v Cory [1906] AC 122 Electricity Commission of NSW trading as Pacific Power v Nieass & Ors [1995] 81 IR 46 New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440 Peter Rochester Gow v Cronulla Sutherland Leagues Club Ltd [2002] NSWIRComm 247 Australian Workers Union v Australian Steel Mill Services Pty [2009] NSWIRComm 1035 Leimonitis and Another v Qube Logistics (Vic) Pty Ltd [2013] FWC 3 Mr N v The Bakery [2010] FWA 3096 Peco Cergoski v Florsheim Australia Limited [1998] AIRC 346 Robert Houston v James Hardie Pipelines [1995] IRCA 286 A Guch v Toyota Motor Corporation Australia Limited [2002] AIRC 260 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Briginshaw v Briginshaw (1938) CLR 336 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Grose) and Griffith City Council [2006] NSWIRComm 1137 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Buckman v Burdekin (1998) 85 IR 415 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 In re Loty and Holloway and Australian Workers' Union [1971] AR (NSW) 95 New South Wales v The Commonwealth (Work Choices Case) [2006] HCA 52 Jones v Dunkel (1959) 101 CLR 298 Swain v R [2015] NSWCCA 176 R v Simmons (No 7) [2015] NSWSC 574 R v McGee & McGee [2010] SADC 36 State of Western Australia v Coates [2007] WASC 307 McKay v Commissioner of Police [2005] WAIRComm 2151 Trotter v Astrazeneca Pty Ltd [2006] NSWIRComm 1130 Category: Principal judgment Parties: Mr Zoran Krstic Mr Hussein Zreika Marrickville Council Representation: Counsel: Mr R Moore (Applicants) Solicitors: Maxwell Berghouse & Ives (Applicants) Mr S Jauncey Henry Davis York (Respondent) File Number(s): IRC 148 of 2015IRC 155 of 2015 DECISION 1. It was a wet and unpleasant Sunday morning in Marrickville on 3 May 2014 when the Civil Works crew assembled at the Marrickville Council depot. The events which unfolded resulted in the asphalt crew being sent home, receiving only one hour's pay for the day, which was in itself subject to proceedings in this Commission. 2. The concrete crew were dispatched to pour concrete for a road slab prepared the previous day and were paid eight hours overtime, leading to complaints and dissension within the workforce which revealed the continuation of a "job and finish" system that management believed had been removed from the organisation. 3. The ultimate consequence was the termination of employment of the Supervisor, Mr Borg, the Applicants in these proceedings who were engaged as Gangers, and one other employee. 4. Further consequences were set out by Mr Strickland, Director Infrastructure Services in his evidence [1] in the following terms: 75. However, although the conduct of other Civil Works staff was judged as less serious than that of the Gangers, Council still considered the actions of those employees to be very highly inappropriate. As a result, Council has implemented the following disciplinary action: (a) final warnings have been issued to all other Civil Works staff who were paid for overtime not worked; (b) Council has determined not to offer any weekend overtime work to any Civil Works staff (with this work instead being outsourced to contractors); (c) As a result of the final warning being issued to all such employees, they will not be eligible for any performance bonus in the current year; (d) Council has cancelled any performance bonuses issued to any such staff in respect of prior years since late 2012, and is in the process of recovering any such bonuses which were previously paid; (e) Council is in the process of seeking recovery of overpayments made to all relevant employees (including meeting individually with almost all such employees to explain the amounts calculated by Council as having been overpaid). 1. These proceedings arose from those events, the Applicants here are seeking reinstatement on the basis that the termination of their employment was harsh, unreasonable and unjust. Joinder 1. The parties agreed that the matter be heard, the evidence in one being the evidence in the other. It is appropriate that the Decision be delivered in the matters together as they are intrinsically linked by the facts. The Applicants Mr Zoran Krstic 1. At the time of termination of employment Mr Krstic was 48 years old with a total of 28 years' service, comprising four years from 1986 to 1989 and 24 years continuous service from 1991. Mr Hussein Zreika 1. At the time of termination of employment Mr Zreika was 48 years old with a total of 28 years' service comprising 3 years from 1986 to 1988 and 25 years continuous service from 1990. 2. Both applicants were employed in the concrete crew in the position of Grade 7 Ganger. Organisational Structure 1. Road maintenance in the Council falls within the Infrastructure and Services Directorate. Mr N Strickland is Director of that area, reporting to the General Manager. Mr G Swilks is the Works and Services Line Manager; Mr D Mathieson is the Works Supervisor. 2. The civil works crew at the time in question was under the direct control of Mr Joe Borg. The concrete crew included gangers and labourers. THE EVIDENCE Job and Finish – Joe's Rules 1. The evidence establishes that the Supervisor, Mr Joe Borg, authorised a job and finish system for weekend overtime work on concrete road slab replacement and other timekeeping/payment arrangements, loosely described by Mr Moore on behalf of the Applicants as "Joe's Rules". 2. The evidence suggests that a form of "job and finish" was long standing at the Council, having been endorsed by a Mr Stephens who was Mr Borg's supervisor up to some time in 2010/2011. There is conjecture between the parties as to whether Mr Stephens allowed no more than employees to finish early when they had worked through their lunch break; or whether a full job and finish existed, allowing employees to leave whenever the set work was completed. Mr Stephens was not called to give evidence and those issues remain unresolved, however, are not material to the instant matters. 3. Mr Mathieson then became Mr Borg's supervisor and reported to Mr Swilks who has held the position of Manager Infrastructure Works and Services Marrickville Council from June 2005. 4. Mr Swilks provided a statement of evidence (exhibit 17) and was subject to cross examination. 5. Mr Swilks' evidence is that a job and finish system had been negotiated with the unions for garbage collection, formally documented in a specific Marrickville Council Waste Services Agreement No 2 ("Waste Services Agreement") in or about 2001 as a Council Agreement under the Local Government Act 1993 No 30. 6. Mr Swilks deposed that around 2009/2010 he and other mangers formed the view that job and finish was not appropriate as it encouraged employees to rush to collect all bins, resulting in unsafe work practices and higher injury rates. 7. Mr Swilks deposed that in 2009/2010 the Council undertook sustained negotiations with the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (United Services Union) (USU) to terminate job and finish arrangements under the Waste Services Agreement, which led to a number of separate matters in this Commission including conciliation and arbitration. 8. Mr Swilks deposed that an incident arose in September or October of 2012 when some civil works employees were scheduled for weekend overtime which was cancelled due to wet weather, leading to consideration of entitlement to payment of eight hours overtime. Mr Swilks' evidence is that the Council was advised by the Local Government and Shires Association (LGSA), as it then was, that payment should be for hours worked. 9. Mr Swilks deposed that in discussion with Ms Kapsalis, People and Workforce Advisor, she advised there was no such thing as job and finish on overtime. 10. A decision was made by management that Ms Kapsalis should give a presentation to all staff in the Infrastructure and Services Division on overtime arrangements. 11. Ms Kapsalis gave a presentation to co-ordinators and supervisors on 1 November 2012 and to works staff on 2 November 2012. 12. Mr Swilks deposed that he had never approved job and finish arrangements, conceding that he had agreed that some employees working on a cycleway project could work through the lunchbreak and finish early, putting that this ws not job and finish as the work was ongoing at the time and no set task was involved. 13. Mr Swilk's evidence is that in May 2013 there was a discussion with civil works staff, initiated by Mr Borg, which involved the likely amount of overtime available; emphasising that there was no discussion of job and finish or any suggestion that overtime arrangements were other than those set out by Ms Kapsalis in the presentations of November 2012. 14. Mr Swilks' evidence is that during 2014 he received some reports of inappropriate conduct in respect to timekeeping involving staff signing off in advance and crews returning to the depot early on weekdays. 15. Mr Swilks deposed that he took these issues up with the supervisors, including Mr Borg, and subsequently checked by observing when crews returned to the depot on weekdays but did not check weekends. 16. Mr Swilks put that his observation of week day conduct led him to the conclusion that staff were behaving in the manner expected. 17. An email dated 21 May 2014 was sent by Mr Swilks to Mr Borg and others stating: "I also wish to remind everyone that under no circumstance is there to be any form of informal "Job and Finish" arrangements when using overtime. No staff member including myself has the authority to engage in such a practice which can result in significant disciplinary action being the outcome. Happy to discuss but please understand these matters are legal obligations and requirements that we are responsible to properly apply and are not negotiable in regard to personal interpretations." [2] The Kapsalis Presentation of 1 and 2 November 2012 1. Ms Kapsalis provided a statement of evidence (exhibit 18) and was subject to cross examination. 2. Ms Kapsalis' evidence supports that of Mr Swilks in respect to the events leading to the presentation. 3. A PowerPoint presentation given by Ms Kapsalis to management and supervisors, including Mr Borg, on 1 November 2014 and to gangers and crew on 2 November 2014, stated the purpose to be: "to define what overtime is and how it is paid". [3] 1. Ms Kapsalis' evidence is that during the presentation she emphasised that employees were only entitled to payment for actual hours worked and that this applied even if overtime was cancelled or finished early due to weather conditions. 2. Ms Kapsalis emphasised that all start and finish times were to be recorded accurately and she took the participants through a new timesheet to be used in the future which required the relevant employee to sign the timesheet, certifying that "details claimed for time and work performed are correct". 3. Ms Kapsalis' evidence is that she stressed the need for employees to observe the work breaks required by the Local Government (State) Award 373 IG 192 (the Award) and the Council's requirement that breaks be taken. 4. There was no specific mention of job and finish. 5. Ms Kapsalis was not subject to any cross examination in respect to her evidence regarding the presentation. 6. The evidence shows that a job and finish system, whereby employees were paid for a full shift of eight hours at overtime penalty rates for a set amount of work, had been in place in various aspects of Marrickville Council for up to 30 years. 7. Mr Krstic was at the presentation of 2 November 2012; Mr Zreika was absent on leave, returning shortly thereafter. 8. Despite these circumstances the events of 3 May 2014 and subsequent occasions reveal that Mr Borg and the concrete crew continued the practice of job and finish for Saturday and Sunday work on the replacement of road slabs. 9. Both Messrs Krstic and Zreika denied any wrongdoing on their part, asserting that they had simply continued to follow the instructions of their supervisor, Mr Bork. 10. Mr Krstic claimed he was confused by the presentation given by Ms Kapsalis and, while not asking any questions of her, sought out Mr Borg afterwards to ask him what the practice should be going forward. Mr Krstic's evidence is that Mr Borg told him there would no change in their practice. Method of Work – Greensheets and Timesheets 1. The practice of Marrickville council is that when a concrete road requiring repair is identified by Council engineers, a permit for road closure is obtained from Roads and Maritime Services (RMS) for a length of road to be repaired in several sections over a number of weekends. 2. At the time of the events leading to these proceedings, the particular work of a weekend was marked out by Mr Borg in conjunction with Mr Lyndon, the Works Engineer. 3. The usual practice is that Saturday work involves breaking up and disposing of existing concrete, setting formwork and reinforcing steel. Sunday work involves the pouring and finishing of the slab. 4. The record of work is detailed by the ganger in charge on a form known internally as a greensheet, which specifies the particular employees on the job, the hours worked and the materials and subcontractors used. 5. The greensheet is the originating documents for the generation of the overtime timesheet which is signed by employees who claim payment and used by the payroll section in the compilation of each employee's pay. 6. Ms Elaine Keenan is the Workplace Relations Co-ordinator at the Council. Attachments EK1 and EK 2 to her Statement of evidence [4] include a large number of greensheets and resultant timesheets and the records of mobile phones provided to Messrs Krstic and Zreika by Council. 7. An analysis of those records revealed that Messrs Krstic and Zreika had not been on work sites during the whole time payment had been claimed. In addition the records established that Mr Zreika had on occasions left the work site before the job was finished and claimed payment for the full eight hours in the same way those who had remained to perform the work claimed payment; and that Mr Krstic had recorded Mr Zreika present and eligible for payment. The evidence of Mr Zoran Krstic 1. Mr Krstic deposed evidence in chief [5] and in reply [6] ; and was subject to cross examination by Mr Jauncey. 2. Mr Krstic's evidence is that he had worked job and finish in the civil works section since 1991 under a system he believed was authorised by his direct supervisor, Mr Borg, and Mr Stephens, then Works Engineer. 3. Mr Krstic deposed that he had been a Senior Ganger from about 2008/2009 at which time he was provided with a mobile phone by the Council to assist in his duties, which he described as preparation of tools and safety equipment on the afternoon prior to work being undertaken; to ensure the work proceeded as planned; to co-ordinate with suppliers; to ensure concrete was delivered on time to the required specification; then to work with the crew to motivate them to complete their tasks. 4. Mr Krstic deposed that when he worked with Mr Zreika he generally took instructions from him as the Senior Ganger as it was Mr Zreika who would relieve Mr Borg when he was absent. 5. Mr Krstic put that if Mr Zreika asked him to complete greensheets (work records detailing staff, hours worked, materials used and other information) he would do so in the manner he had been instructed by Mr Borg. 6. Mr Krstic testified that he was instructed by Mr Borg that, for weekend work, the hours of 6.00 am to 2.00 pm be recorded, adding that invariably no meal breaks were taken, and that if the work went a little beyond 2.00 pm there was no change. However, if work went for an hour or more past 2.00 pm additional hours would be recorded. 7. The greensheets were used to prepare timesheets for payment. 8. Mr Krstic's evidence is that he did not prepare the timesheets; however, there is evidence that he signed timesheets certifying that they were correct. 9. Mr Krstic's evidence is that he would be presented with a number of timesheets to sign, which he did as instructed by Mr Borg, without looking at the detail of the information contained therein. 10. Mr Krstic deposed that the only occasion he departed from the pattern of eight hours pay for a weekend day was on 7 April 2013 when he deposed that the concrete pour was large and could not be done in eight hours. All crew members with the exception of Mr Zreika stayed on the job to complete it; Mr Zreika left, instructing him to complete the work and that he (Mr Zreika) would return and open the road, which involved removal of barricades and restoration of normal traffic, and accordingly he put Mr Zreika down for nine hours. 11. Mr Krstic described his involvement in the fact finding and disciplinary interview process and representation on his behalf by the USU. The first of these meetings took place on 19 December 2014, then on 12 January 2015 and 3 February 2015 with attendant correspondence between the Council, Mr Krstic and the USU setting out the allegations, providing an opportunity to show cause why employment should not be terminated, and the response from Mr Krstic and the USU on his behalf. 12. Mr Krstic's employment was terminated on 3 March 2015 on the basis that: "on various occasions even after 1 November 2012 (the Kapsalis presentation) you falsified time sheets and claimed payment for overtime which was not actually worked by you"; and that he had signed off on greensheets asserting that he and the crew had worked eight hours of overtime on various days when they had not. 13. The letter of termination of Mr Krstic's employment, attached to the application in Matter No IRC 148 of 2015, then detailed 23 separate dates as a minimum upon which transgressions took place. The letter advised Mr Krstic that he: "failed to comply with Council's pay procedures in order to claim money to which you were not entitled". 14. In cross examination Mr Krstic was unable to recall details of specific occasions and maintained that his actions were all in accordance with the instructions of his supervisor, Mr Borg. Mr Krstic emphasis that he was at all times willing to comply with the requirements of his supervisors. The Evidence of Mr Hussein Zreika 1. Mr Zreika deposed evidence in chief [7] and in reply [8] and was also subject to cross examination. 2. Mr Zreika gave evidence of his participation in the fact finding and disciplinary interviews and representation by the USU on his behalf, which commenced on 11 December 2014 when allegations of falsifying timesheets were put to him, and continued on a number of occasions through January and February 2015 up to the termination of his employment on 3 March 2015. Mr Zreika's evidence in respect to the method of work and the role of Mr Borg is similar to and supports that of Mr Krstic. 3. Mr Zreika challenged the accuracy of the mobile phone records, putting that the locations were doubtful and in some cases mysterious to him. 4. Mr Zreika recalled that there were occasions when he could have been called off the job to attend to a family emergency, putting that wherever possible he would inform the supervisor of his need to leave, and return later. 5. Mr Zreika deposed that he had an unblemished work record, had never been subject to counselling or warning in respect to his work or conduct, and in fact had been commended for the work he had performed. 6. Mr Zreika deposed that he had acted in accordance with instructions and that it was never his intention to perform his duties in a manner in breach or contravention of those instructions as conveyed to him by his managers and supervisors. 7. Mr Zreika insisted that the practice of job and finish on weekends was well established and authorised by Mr Borg with full knowledge of management, Mr Swilks and Mr Mathieson. 8. Mr Zreika mentioned that he had only been doing what he was told by his supervisor and if management had wanted him to stop he would. 9. Mr Zreika defended the job and finish arrangements, putting that [9] : "We have worked in all weather, without any amenities on the basis of what our supervisors told us, namely job and finish, to complete this weekend work. All job sheets were completed in accordance with his instructions and time sheets were all signed off. No one has done anything wrong. We did what we were told. It has been this way for more than 20 years." 1. Mr Zreika's evidence is that he did not attend the presentation by Ms Kapsalis on 2 November 2012 as he was on leave and that the subject matter of the presentation had not been raised with him subsequently. Mr Zreika put that the greensheets remained unchanged and the timesheets were never opened up for inspections. The Evidence of Ms Denise Groth 1. Mr Jauncey brought evidence from Ms Denise Groth, Manager for People and Workforce. Ms Groth provided a Statement [10] and was subject to cross examination. 2. Ms Groth's evidence is that she first heard of the notion of job and finish in the civil works area in 2008 when Mr Stephens, then Works Manager, raised it as an option during the course of a broad, Council wide discussion on flexible working hours. 3. Ms Groth deposed that the Council had engaged a consultant to examine the issue of flexibility in working arrangements which included consideration of a four day week, which was not pursued. 4. Ms Groth deposed that she heard nothing more of the job and finish proposal. Her evidence traversed the removal of job and finish from the Waste Services Agreements, and some discussion in 2013 around the decline in the availability of overtime, in which she put there was no mention of job and finish in the civil works section. 5. Ms Groth gave brief evidence of a complaint by the USU that civil works staff were sent home on Saturday, 3 May 2014 due to wet weather conditions and only paid from 6.00 am to 7.15 am, not for a minimum of four hours. This claim was rejected as the overtime was pre-arranged and not a call-out. The Evidence of Ms Elaine Keenan 1. Mr Jauncey brought evidence from Ms Elaine Keenan, Workplace Relations Co-ordinator whose Statement of evidence [11] is accompanied by two folders of documents [12] which include greensheets and telephone records and other Council documents relevant to the proceedings. Ms Keenan was subject to cross examination. 2. Ms Keenan's evidence is that following a regular consultative meeting in May 2014, officials of the USU approached her concerning the asphalt crew being sent home on Saturday 3 May 2014 and paid only for time at work, not a minimum number of hours. Ms Keenan deposed that the USU Officials put to her that Mr Borg: "hates the asphalting drew, won't speak to them and cancelled their work and only paid them for one hour". 3. Ms Keenan deposed that she checked the timesheets and confirmed that the asphalt crew had been paid for one hour on Saturday, 3 May 2014 and the concrete crew had been paid eight hours for that day and the following day, Sunday 4 May 2014. 4. Ms Keenan deposed that she made enquiries of Mr Borg who she put told her that the asphalt crew were only there one hour and that was all they should be paid, and that at no time in that conversation did Mr Borg mention job and finish. 5. Ms Keenan's evidence is that in mid October 2014 Ms Kapsalis informed her that she received a telephone call asking if crew members received an eight hour minimum and informing her that a weekend concreting crew had finished work at 12.30 pm and claimed for hours not actually worked. The caller was subsequently identified as a disaffected member of the asphalt crew. 6. Ms Keenan's evidence is that this information led to the investigation uncovering serious and systemic timekeeping and payment irregularities. 7. Ms Keenan deposed that Lyonswood Investigations and Forensic Group were engaged to conduct surveillance of the concrete crew for the weekend of 22 November 2014. Their report is found at tab 5 of EK1 (the first attachment to exhibit 21). 8. Ms Keenan's evidence details the further investigation, request for telephone records from Telstra, subsequent analysis, fact finding and disciplinary interview processes. The Evidence of Mr Neil Strickland 1. Mr Jauncey also brought evidence from Mr Neil Strickland, Director Infrastructure Services [13] and Mr David Mathieson, Co-ordinator Civil Works [14] , which details their involvement in the matter and supported that of other Council witnesses in respect to the events, the investigation, and outcomes. Submissions 1. The specific charges against Messrs Krstic and Zreika are detailed in the notices of termination discussed above, and further analysed in Mr Jauncey's submissions which for convenience are repeated below. Mr Krstic 38. It is, of course, now clear that a so-called practice of "job and finish" was continued even after the presentation by Ms Kapsalis on 2 November 2012. In the circumstances, the only inference which can appropriately be drawn is that there was a collective decision among all relevant employees, including Mr Krstic, not to follow the direction that had been given by Ms Kapsalis. That state of affairs may well have been encouraged or promoted by Mr Borg. However, each and every staff member, including Mr Krstic, must share complicity in what then occurred. 39. Indeed, Mr Krstic's responsibility, as a senior Ganger, was substantially greater than that of most other Civil Works employees. This is because he not only held a leadership position, but was also the senior Ganger who completed many greensheets. This was an instrumental step in the whole process. 40. In Mr Krstic's case, it is apparent that he claimed 8 hours of overtime on a range of days despite being part of a road crew performing road slab replacement work that performed less than 8 hours of overtime work (ie finished prior to 2:00 pm, even assuming no lunch break was taken).Those days include the following: (a) Sunday, 10 February 2013: on this day, Mr Zreika's mobile phone was used to make a call at 1:57 pm in the Chester Hill vicinity. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika had done a full day's overtime work. Mr Krstic conceded that his signature was on that greensheet, and that the hours recorded on it were in his handwriting. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day. (b) Sunday, 17 March 2013: on this day, Mr Zreika's mobile phone was used to make a call at 12:50 pm in the Villawood vicinity. In a letter dated 18 February 2015, Mr Zreika stated that "Work was completed for this day ­ worked to job and finish". In cross-examination, Mr Zreika conceded that he probably left work at about 12:30 pm that day. He said he could not remember the day, but thought that the work had been completed by the time he left. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika had done a full day's overtime work. Mr Krstic conceded that his signature was on that greensheet, and that the hours recorded on it were in his handwriting. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day. (c) Sunday, 24 March 2013: on this day, Mr Slaveski's mobile phone was used to make a call at 1:42 pm in the Hurstville vicinity. In cross-examination, Mr Krstic said he could not remember the day, but did not suggest that Mr Slaveski had left earlier than the rest of the crew. However, Mr Krstic still signed a greensheet claiming that both he and Mr Slaveski (recorded as "Louie", as well as the rest of the crew, had done a full day's overtime work. It is also apparent that both Mr Krstic and Mr Slaveski then claimed for 8 hours of overtime for the day. (d) Sunday, 28 September 2014: on this day, Mr Zreika's mobile phone was used to make a call at 11:04 am in the Bass Hill vicinity with a further call at 11:45 am in the Villawood vicinity. Ms Keenan's evidence is that Mr Zreika stated to her that he had left work about 10:00 am to 10:30 am that day. In a letter dated 15 December 2014, Mr Zreika stated that he worked to "Job and finish". In cross-examination, he claimed he probably left after 10:30 am. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika, as well as the other members of the crew, had done a full day's overtime work. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day. (e) Saturday, 15 November 2014: on this day, the evidence of Mr Mathieson is that he went to the site at 1:30 pm but could not see any member of the Civil Works crew. He says he then returned to the depot around 1:40 pm to 1:45 pm, and saw that the trucks had returned but could not see any of the crew. Ms Keenan's evidence is that Mr Zreika stated that he, and the other crew members, had left site before 1:30 pm. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika, as well as the other members of the crew, had done a full day's overtime work. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day. (f) Sunday 16 November 2014: on this day, the evidence of Mr Mathieson is that he went to the site at 10:15 am but could only see about 5 of the 10 Civil Works crew. He says he then returned to the site at about 11:00 am and could not see any of the crew. Ms Keenan's evidence is that Mr Zreika stated that he, and the other crew members, had left work by 11:00 am. However, Mr Krstic still signed a greensheet claiming that both he and Mr Zreika, as well as the other members of the crew, had done a full day's overtime work. It is also apparent that both Mr Krstic and Mr Zreika then claimed for 8 hours of overtime for the day. (g) Saturday, 29 November 2014: on this day, the evidence of Mr Mathieson is that he went to the site at 1:22 pm but could not see any of the crew. He says he then returned to the depot by about 1:30 pm and saw that the trucks had returned but could not see any member of the crew. However, Mr Krstic still signed a greensheet claiming that he, as well as the other members of the crew, had done a full day's overtime work. It is also apparent that Mr Krstic then claimed for 8 hours of overtime for the day. 41. On some of these days, it is apparent that the overtime work was completed in far less time than the 8 hours claimed. 42. For instance, on 17 March 2013, the overtime work must have been completed inside 5.5 hours (even assuming that no break was taken). Nevertheless, Mr Krstic signed a greensheet stating that 8 crew members had each worked a full day. In effect, this resulted in a claim for 64 man-hours of overtime for the day (at double time), when only about 44 man-hours of work had actually been performed. 43. Similarly, on 28 September 2014, the overtime work must have been completed inside 4 to 4.5 hours (even assuming that no break was taken). Nevertheless, Mr Krstic signed a greensheet stating that 8 crew members had each worked 8 hours. In effect, this resulted in a claim for 64 man-hours of overtime for the day (at double time), when only about 32 to 36 man-hours of work had actually been performed. 44. These actions resulted in Council paying thousands of dollars in overtime (at double time rates) for work which simply had not been performed. Put simply, no reasonable person could seriously have thought that Council had authorised such arrangements. Indeed, the arrangements implemented following 2 November 2012 went well beyond any practice which can be established, by evidence, to have occurred under the tenure of Mr Stephens. This must have been known to Mr Krstic. Further actions inconsistent with so-called "job and finish" 45. In any event, it is also clear that, following 2 November 2012, Mr Krstic engaged in a range of other actions entirely inconsistent with even his own stated understanding of the so-called "job and finish" system as had previously been applied. These included: (a) signing a personal overtime form claiming for 8.5 hours overtime when he not done more than 8 hours of overtime; (b) signing greensheets stating that Mr Zreika and Mr Slaveski had worked a "full day" of 8 hours of overtime (the same as the rest of the crew) when Mr Zreika and Mr Slaveski had started after 6:00 am (ie at a later time than the other crew members); (c) signing a greensheet stating that Mr Slaveski had worked more than 8 hours of overtime from 6:00 am to 3:00 pm (the same as the rest of the crew) when Mr Slaveski had actually started after 6:00 am (ie at a later time than the other crew members); (d) signing a greensheet stating that Mr Zreika had worked 9 hours of overtime (the same as the rest of the crew) when, in fact, Mr Zreika had ceased work and left site even at a time when the other crew members were still working; and (e) signing greensheets stating that Mr Zreika had worked a "full day" of 8 hours of overtime (the same as the rest of the crew) when, in fact, Mr Zreika had ceased work and left site even at a time when the other crew members were still working. 3 November 2012 46. On Saturday, 3 November 2012, Mr Krstic performed overtime work related to concreting on Illawarra Road. This was the day after the presentation by Ms Kapsalis. Mr Krstic was the senior Ganger that day, and was responsible for signing the greensheet for that work. 47. In cross-examination, Mr Krstic agreed that, on 3 November 2012, he and the other members of the concreting crew did 8 hours of work and then finished. 48. Mr Krstic then signed a greensheet for the day (which is at pages 1-2 to Tab 5 of EK-2). This greensheet recorded "8.00" hours of work against the name "Zoran" (although a separate notation of "8 1/2" has also been recorded). 49. Mr Krstic agreed that the signature on the greensheet was his, although he claimed that claimed that none of the other handwriting had been included by him. 50. Mr Krstic did, however, agree that he signed the greensheet on 6 November 2012 (being the following Tuesday). This, in itself, seems somewhat unusual, given that Mr Krstic also gave evidence that he generally signed greensheets at the end of work on the relevant weekend day, rather than in the following week. 51. It remains unclear whether Mr Krstic signed the greensheet for 3 November 2012 at a time when it included the notation "8 1/2" against his name. 52. However, what is clear is that an overtime form was then prepared for Mr Krstic which claimed for "8.5" hours of overtime on Saturday, 3 November 2012. This was a "new" version of the overtime claim form, which specifically included claimed start and finish times as well as the number of hours of overtime claimed for the day: see page 1 of Tab 3 of EK-2. 53. Mr Krstic agreed that he signed the relevant overtime form claiming 8.5 hours of overtime for Saturday, 3 November 2012. His signature is undated. However, the Supervisor's signature is dated "7/11/15" [sic]. As a result, it must be inferred that Mr Krstic signed the overtime form on 6 November 2012 or 7 November 2012. 54. At the time he signed, Mr Krstic must have known that he had only done 8 hours of overtime work on Saturday, 3 November 2012. He must also have known that he was not entitled to the greater amount of overtime claimed. 55. In cross-examination, Mr Krstic claimed that he did not see anything on the overtime sheet as the details would have been "obscured' by Mr Borg's folder. However, he failed to give any adequate explanation as to how the details on the time sheet were said to have been "obscured'. Indeed, he even went so far as to make the quite extraordinary denial of even having seen the words "I certify that the details claimed for time and work performed are correct", despite his signature appearing only a few millimetres above that notation. 56. These denials are simply not believable. It is almost inconceivable that Mr Krstic signed the relevant overtime sheet without looking at it especially given: (a) that, only a few days earlier, Ms Kapsalis had given a presentation about the new overtime forms, and the need for them to be completed accurately; (b) that, despite his denials, he must have seen the words " I certify that the details claimed for time and work performed are correct" ; (c) that he signed the overtime form either on the day he signed the greensheet, or on the day after he signed the greensheet; and (d) his own assertion that he had recently spoken to Mr Borg about weekend overtime issues. 57. Mr Krstic's conduct in claiming for 8.5 hours overtime for Saturday, 3 November 2012, when only 8 hours had actually been worked, cannot possibly be justified by reference to the so-called "job and finish" system. After all, even on his version of events, such a system only ever permitted an employee to claim for more than 8 hours of overtime work if more than 8 hours had actually been done. 24 November 2012 58. On Saturday, 24 November 2012, Mr Krstic performed overtime work related to lllawarra Road. He agreed that Mr Zreika worked with him that day. 59. The evidence establishes that Mr Zreika's phone was used on 24 November 2012 to make a series of calls in the vicinity of the Marrickville Local Government Area between 8:50 am and 3:30 pm, before then being used to make a call at 4:11 pm in the Bass Hill vicinity. 60. In the circumstances, the only possible inference is that Mr Zreika had left work by about 3:45 pm on 24 November 2012. Indeed, Mr Zreika seemed to concede that this was possible and had most likely occurred. Certainly, he did not dispute the proposition when put to him. 61. Mr Krstic then signed a greensheet for the day (which is at pages 8-9 to Tab 5 of EK-2). This greensheet recorded a finish time of "5:00pm" against all employees, including "Sam" (being Mr Zreika). This notation was made in the column under "Hours". The greensheet also recorded clock times of " 6am - 5pm = 10.5 hrs". 62. Mr Krstic claimed that claimed that none of the handwriting on the greensheet had been included by him. However, he agreed that he had signed it as being a true account of the daily activities. He also agreed he did not sign blank greensheets. 63. An inspection of all other greensheets in Tab 5 of EK-2 signed by Mr Krstic also shows that, almost without exception, a notation has been made under the "Hours" column. In the circumstances, the clear inference is that the time of "5.00 pm" must have been inserted against all names, including that of Mr Zreika, by the time Mr Krstic came to sign the greensheet. 64. It is clear, however, that Mr Zreika did not work 10.5 hours of overtime on that day. Instead, he could only possibly have worked about 9.75 hours of overtime even assuming that he started at 6:00 am and worked without any break to 3:45 pm. 65. In cross-examination, Mr Krstic maintained that the remainder of the crew continued working after 3:45 pm. 66. In his evidence, Mr Zreika claimed that he did not recall whether he had left earlier than the remainder of the crew, but thought that the crew would have left altogether. This evidence was contrary to that Mr Krstic. However, the inference that the remainder of the crew continued working past 3:45 pm is also supported by the telephone records for Mr Slaveski's mobile phone which show that it was used at 4:32pm on 24 November 2012 in the Sydenham vicinity. 67. In the circumstances, only two possibilities are open: (a) first, that Mr Zreika left at or about 3:45 pm (prior to the rest of the crew and after only having performed 9.75 hours of overtime) but that Mr Krstic still signed a greensheet recording Mr Zreika as having worked until 5:00 pm; or (b) secondly, that the entire crew left at or about 3:45 pm (after having only performed 9.75 hours of overtime) but that Mr Krstic signed a greensheet recording all crew members as having worked until 5:00 pm (and also signed an overtime form personally claiming 10.5 hours of overtime up to 5:00 pm when he had not done that work). 68. Either way, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 8 December 2012 69. On Saturday, 8 December 2012, Mr Krstic performed overtime work related to Illawarra Road. He signed a greensheet for the day (which is at pages 17-18 to Tab 5 of EK-2). This greensheet recorded clock times of "6.00am & 3.00pm". 70. Mr Krstic agreed, in cross-examination, that he had written the notation "6.00 am & 3.00pm". He also expressly agreed that he had recorded all the employees on the greensheet, including Mr Slaveski, as having started at 6:00am that day. 71. However, the evidence establishes that Mr Slaveski's mobile phone was used at 5:57 am on 8 December 2012 to make a call in the Hurstville vicinity (where Mr Slaveski's home is located) before being used to make a series of calls between 8: 34am and 11:50 am in the vicinity of the Marrickville Local Government Area. 72. In the circumstances, the only possible conclusion is that Mr Slaveski arrived at work later than 6:00 am (most likely at some time on or after 6:20 am or 6:30 am), but that Mr Krstic still signed a greensheet: (a) recording Mr Slaveski as having performed overtime from 6:00 am (along with the rest of the crew) when this was not, in fact, the case; and (b) recording Mr Slaveski, along with the rest of the crew, as having performed more than 8 hours of overtime (when, in fact, Mr Slaveski had performed less overtime than the rest of the crew). 73. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 10 March 2013 74. On Sunday, 10 March 2013, Mr Krstic performed overtime work related to Fitzroy Street. He signed a greensheet for the day (which is at pages 32-33 to Tab 5 of EK-2). This greensheet recorded "8.44" hours for each employee, including "Sam" (being Mr Zreika). 75. Mr Krstic agreed, in cross-examination, that he had written the notation "8.44" under the column "Hours". He also expressly agreed that this was a way of recording a "standard day''. In his own timesheet, Mr Krstic also claimed for 8 hours work on 10 March 2013 between the hours 6:00am to 2:30 pm. 76. However, the evidence establishes that Mr Zreika's mobile phone was used at 6:05am on 10 March 2013 to make a call in the Regents Park vicinity (near where Mr Zreika's home is located) before being used to make a series of calls between 6:57 am and 10:56 am in the vicinity of the Marrickville Local Government Area. 77. In his evidence, Mr Zreika conceded that he was in the Regents Park vicinity at 6:05 am on 10 March 2013. He then sought to justify the situation by making the (rather implausible) claim that, on Sundays, work did not start until 6:30am or 6:40 am. He then went even further and claimed that 6:30 am or 6:40 am starts also applied for Saturday overtime work, before then back-tracking and asserting that he was usually in the yard for weekend overtime at 6:00am or 6:05 am. 78. This evidence simply was not credible. There is no other suggestion in the evidence that the normal start time for weekend road slab overtime was anything other than 6:00 am when performed under Mr Zreika or Mr Krstic as senior Ganger. Indeed, were it otherwise, the only conclusion is that, on many other days, the employees would have worked a great deal less than the amount of overtime claimed (and, in fact, on some days, would have worked less than 8 hours of overtime despite claiming for additional hours). 79. In the circumstances, the only credible conclusion is that Mr Zreika arrived at work later than the rest of the road crew (most likely at some time on or after 6:20 am or 6:30am), but that Mr Krstic still signed a greensheet recording Mr Zreika as having performed a full day's overtime (along with the rest of the crew) when this was not, in fact, the case. 80. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 7 April 2013 81. On Sunday, 7 April 2013, Mr Krstic performed overtime work related to Fitzroy Street. He signed a greensheet for the day (which is at pages 46-47 to Tab 5 of EK-2). This greensheet recorded "9.00" hours for each employee, including "Sam" (being Mr Zreika) and "Louis Slavski" (being Mr Slaveski). 82. In cross-examination, Mr Krstic agreed that he had written in each of the names and had also written the "9.00" for each employee under the column "Hours". He also expressly agreed that he was certifying that each of the named employees, including Mr Zreika, had done nine hours of overtime work on that day. 83. However, the evidence establishes that Mr Zreika's mobile phone was used to make the following calls on 7 April 2013: (a) a series of phone calls in the vicinity of the Marrickville Local Government Area between 8:03am and 10:08 am; (b) a call at 10:48 am in the Hurlstone Park vicinity; (c) two calls at 11:36 am and 11:37 am in the Greenacre vicinity; and (d) a call in the Chester Hill vicinity at 1:32 pm; and (e) a call in the Bass Hill vicinity at 1:33 pm. 84. Before the Commission, Mr Zreika conceded that it was "possible" that he had left the site by about 11:00 am after performing no more than 5 hours of overtime. However, both Mr Krstic and Mr Zreika have, over time, given substantially conflicting explanations as to events on 7 April 2014. 85. By letter dated 18 February 2015, the USU, on behalf of Mr Zreika, made the following assertion: "Poured concrete - left, came back later that day to open up the job up, other workers stayed on the job. "I left work early and the boys had stayed back on the job. I had returned to work later that night to open the road, did road slabs." 86. By letter dated 18 February 2015, the USU, on behalf of Mr Krstic, asserted that "We stayed on the job. Sam left and came back later to open up the road." 87. However, in his statement filed on 22 May 2015, Mr Zreika changed his story to claim (at paragraph 80): "My recollection, based upon the Green Sheet, is that I worked as part of the crew that day and that the work required 9 hours of work on that day. I do not recall leaving the site prior to completion of the work on the day. I also stated to the Council that I had no specific recollection of the day..". 88. In his statement filed on 22 May 2015, Mr Krstic gave an alternative version. He claimed (at paragraphs 64-65): "My recollection is that Sam Zreika left the job, instructing me to complete the work and then to finish up and that he would then come back later and open up the road. I was then left to complete the Green Sheet. "I marked down Mr Zreika's hours consistent with those that had been worked by the rest of the crew. I did so as Mr Zreika to my knowledge was the only employee who was going to return after the concrete had set to open up the road which involves the removal of barricades and the restoration of normal traffic movement [underlining inserted]. 89. In his Statement in Reply, Mr Zreika maintained that he had not, in fact, left work prior to other crew members, stating (at paragraph 74): "Sunday 7 April 2013 was a concrete pour at Fitzroy Street Marrickville in which the volume of concrete poured and finished was 35.2m3 ... The work on that day was done on a "job and finish" basis under the then practice." 90. However, in his Statement in Reply, Mr Zreika also separately claimed (at paragraph 55 and contrary to his statement at paragraph 74): "In relation to the particular day and the site I have no specific recollection of what may have been done but it could include the cutting of expansion joints, the sealing of the joints and the collection of Council's equipment together with the clearing of any obstructions prior to the re-opening of the road [underlining inserted]." 91. Separately, in his Statement in Reply, Mr Krstic gave another explanation. He noted (at paragraph 41) that the traffic control invoice at Annexure DM-9 to the Statement of David Mathieson indicated that external traffic controllers were still on site at 12:30 am on Monday, 8 April 2013. Mr Krstic then claimed: "The fact that Contract traffic controllers were still in place at 12:30am on Monday morning would indicate to me that there may have been some problem on the worksite." 92. However, Mr Krstic also went on in his Statement in Reply to admit that he had "no current recollection of what occurred on this job ...". 93. In cross-examination, it was put to Mr Krstic that Mr Zreika had left site by no later than about 11:00 am. Mr Krstic responded that he could not remember. He was then specifically asked: Q: Do you have any memory of the day? A: No. No, I can't remember, I am sorry. 94. Mr Krstic was then taken to the previous assertions made in his earlier statements. However, he again asserted that he could not remember whether Mr Zreika had left site on 7 April 2013, and could not remember what Mr Zreika might have said to him. However, he further admitted that: (a) he had never personally come back to re-open a road; and (b) he had never put any Council staff down on a greensheet for additional overtime for coming back to re-open a road (and that whatever someone got for re-opening a road was between them and Mr Borg). 95. Ultimately, Mr Krstic made the following admission: Q: You filled out 9 hours for this day when he left at about 11am, didn't he? A: Yes, I did. 96. However, Mr Krstic remained entirely unable to explain why he had signed the green sheet recording Mr Zreika as having performed "9.00" hours of overtime for the day. 97. Before the Commission, Mr Zreika kept changing his story. He first claimed that he "would have come back later on to do the saw cutting, do the joint sealing and also to open the road up". However, he then admitted that he did not know whether or not he did, or did not, return to work on the day (although continuing to assert that "…I could have, it is possible ...)". 98. Put bluntly, Mr Zreika's current assertion that he may have returned to do the saw­cutting of expansion joints is highly implausible. It smacks greatly of a recent invention designed to try to escape from a hole. Importantly, any saw-cutting of expansion joints requires the involvement of two employees. As a result, if Mr Zreika performed such work on 7 April 2013, then it would be expected that additional overtime would also have been claimed by another Civil Works employee. 99. The evidence, however, is as follows: (a) Mr Krstic's overtime form for the week ending 12 April 2013 does not show any additional overtime on 7 April 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic; (b) Mr Slaveski's overtime form for the week ending 12 April 2013 does not show any additional overtime on 7 April 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic; (c) the overtime sheets for the other employees listed on the greensheet signed by Mr Krstic do not show any additional overtime on 7 April 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic; (d) the overtime sheets for Peter Fairburn, Garry Strickland and lan Parker do not show any overtime worked on 7 April 2013 (although showing overtime claimed for the previous day); (e) Ms Kapsalis deposed that, for the week ending 12 April 2013, her inspections had located overtime claims forms for Col Evans, Robert Gallardo, David Watson, and "Young" Col Evans which showed that they had performed night work during the week, but had not performed any overtime on 7 April 2013; and (f) Ms Kapsalis further deposed that she had been unable to locate any overtime forms covering the week ending 12 April 2013 for any of the remaining Civil Works employees and, based on her searches, did not believe that any relevant overtime claim forms existed for those employees being Darryl Bartlett, George Busuttil, Barry McCormick, Darren Bradstock, and Gordon Sharp. 100. It is, therefore, clear that no other Civil Works employee claimed any overtime for any supposed saw-cutting of expansion joints on 7 April 2013. 101. As a result, it can be very safely concluded: (a) that Mr Zreika left work at no later than about 11:00 am on 7 April 2013 (and at a time prior to other members of the road crew ceasing work); (b) that Mr Zreika did not return to the site after 11:00 am on 7 April 2013; and (c) that Mr Krstic nevertheless falsely completed and signed a greensheet for 7 April 2013 stating that Mr Zreika had performed "9.00" hours of overtime despite knowing that Mr Zreika had, in fact, left work by no later than about 11:00 am while the remainder of the crew continued to perform work. 102. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 103. Indeed, Mr Zreika's actions in leaving work prior to the rest of the crew resulted in a "double whammy" for Council. This was because his absence meant that the work which would otherwise have been done by him needed to be performed by the remaining crew members. In effect, Mr Zreika's absence resulted in Council paying a greater amount to the remaining employees, while also having Mr Zreika claim for 9 hours overtime, despite only having performed about 5 hours of work. 104. It is to be noted that, even if Mr Zreika were to have returned to perform some sort of additional saw-cutting work, there would still have been no basis for Mr Krstic to have completed the greensheet in the manner in which he did. 105. After all, Mr Krstic has separately admitted that the saw-cutting of expansion joints: "... was not done as part of the work allocated to the concrete road crew but was arranged separately by Mr Borg. I was not required to make any notation concerning this work on the 'green sheets' that I was required to fill out. Nor was I responsible for the work." 106. Indeed, an inspection of the greensheets signed by Mr Krstic reveals no other occasion on which he ever recorded any other employee has having performed any additional hours associated with any return to site to perform work associated with the saw-cutting of expansion joints. 107. Finally, it is also to be noted that the evidence establishes that, on 7 April 2013, Mr Slaveski's mobile phone was used to make three calls between 3:13 pm and 3:27 pm in the Hurstville vicinity (after having earlier been used to make a call at 7:23 am in the Marrickville vicinity). 108. In these circumstances, the clear conclusion is that Mr Slaveski must have also left work by no later than about 2:50 pm to 2:55pm on 12 April 2013. It is not known whether Mr Slaveski left prior to the rest of the crew, or whether the rest of the crew also ceased work shortly prior to 3:00 pm. Nevertheless, it is also clear that Mr Krstic completed and signed a greensheet recording Mr Slaveski as having performed "9.00" hours of work for the day when this was not the case. 25 August 2013 109. On Sunday, 25 August 2013, Mr Krstic performed overtime work related to Edinburgh Road. 110. Mr Krstic signed a greensheet for the day (which is at pages 75-76 to Tab 5 of EK-2). This greensheet recorded "8.00" hours for each employee, including "Sam" (being Mr Zreika). In cross-examination, Mr Krstic agreed that he had written in each of the names and had also written the "8.00" for each employee under the column "Hours". 111. However, the evidence establishes that Mr Zreika's mobile phone was used on 25 August 2013 to make the following calls: (a) call at 9:42 am in the Villawood vicinity; and (b) a call at 2:38 pm in the Villawood vicinity. 112. By letter dated 18 February 2015, the USU, on behalf of Mr Zreika, made the following assertion: "I had informed the other ganger that I had to leave for an emergency. The other ganger informed our supervisor. I came back." 113. Similarly, by letter dated 18 February 2015, the USU, on behalf of Mr Krstic, asserted that "Something urgent came up and Sam went home and came back to the job as it was a large job." 114. In cross-examination, Mr Krstic stated that it was possible that Mr Zreika left during the day, and that he could not remember whether Mr Zreika returned to work. He also stated that he could not remember any other instances in which he might have put any other employee down on a greensheet as having performed the same amount of overtime as the rest of the crew despite that other employee having left the work site for an extended period while others remained at work. 115. Before the Commission, Mr Zreika admitted that he had left work at about 9:00 am on 25 August 2013, and did not return to work until around 11:00 am. He also maintained that he had informed Mr Krstic that he was leaving site before actually doing so. 116. In the circumstances, it is clear that: (a) Mr Zreika left work at no later than about 9:00am on 25 August 2013; (b) Mr Zreika did not return to the site until at least 11:00 am on 7 April 2013;and (c) Mr Krstic nevertheless falsely completed and signed a greensheet for 7 April 2013 stating that Mr Zreika had performed "8.00" hours of overtime despite knowing that Mr Zreika had, in fact, left work for at least two hours while the remainder of the crew continued to perform work. 117. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 27 October 2013 118. On Sunday, 27 October 2013, Mr Krstic performed overtime work related to Edinburgh Road. He signed a greensheet for the day (which is at pages 87-88 to Tab 5 of EK-2). This greensheet recorded "8.00" hours for each employee, including "Sam" (being Mr Zreika). In cross-examination, Mr Krstic also agreed that he had written in each of the names and had also written the "8.00" for each employee under the column "Hours". 119. However, the evidence establishes that Mr Zreika's mobile phone was used to make a call in the Villawood vicinity at 12:16 pm on 27 October 2013. 120. By letter dated 18 February 2015, the USU, on behalf of Mr Zreika, made the following assertion: "Edinburgh Road - poured concrete, left early, the rest of the crew stayed. I came back later to open up the road for road traffic control." 121. Similarly, by letter dated 18 February 2015, the USU, on behalf of Mr Krstic, asserted that "Sam left and came back to open up the road." 122. In his Statement in Reply, Mr Zreika changed his story. He stated, at paragraph 77, that the work on Sunday, 27 October 2013, was "done on a Job and finish' basis under the then practice." 123. Mr Krstic, in his statements, did not give any evidence as to events on 27 October 2013. Before the Commission, however, Mr Krstic asserted that he could no longer remember what Mr Zreika did on the day. 124. In contrast, Mr Zreika conceded that he probably left a bit after 11:45 am possibly as late as around 12 noon on the day. He also admitted that it was more than likely he left work before the job had finished. He was not able to say why he might have left while other crew members remained at work. 125. Mr Zreika further admitted that he did not actually remember the day. Nevertheless, despite this lack of memory, he asserted that he "probably'' came back to do some other task after the other crew members had left before then downgrading this to an assertion that he "possibly'' came back even although he could not remember. 126. Mr Zreika then suggested (for the first time) that he may have returned to do saw­cutting of expansion joints. It was then put to him that the phone records for his mobile phone showed that it had been used to make a call at 5:23 pm in the Lidcombe vicinity. Mr Zreika was then unable to specify the time at which he might have come back to do any claimed saw-cutting of expansion joints. In fact, it is highly unlikely that any saw-cutting could have been done after 5:30 pm on 27 October 2013 given that the contract traffic control were only on site for 12 hours that day (meaning that, assuming they started at 6:00am, they would have ceased by 6:00 pm). 127. Mr Zreika's new assertions that he "could" have returned to do the saw-cutting of expansion joints is highly implausible. It falls far short of an assertion that he actually did so, and smacks greatly of a recent invention designed to try to escape from a hole. 128. Again, any saw-cutting of expansion joints requires the involvement of two employees. As a result, if Mr Zreika performed such work on 27 October 2013, then it would be expected that additional overtime would also have been claimed by another Civil Works employee. 129. The evidence, however, is as follows: (a) Mr Krstic's overtime form for the week ending 1 November 2013 does not show any additional overtime on 27 October 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic; (b) the overtime sheets for Quoc Cao, Lawrence Murray, Ljube Petkovski, and Darren Bradstock (being employees listed on the greensheet signed by Mr Krstic for 27 October 2013) do not show any additional overtime on 27 October 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic; (c) the overtime sheets for Gordon Sharp, Garry Strickland, Wayne Zaia, Peter Sterjovski and George Busuttil do not show any overtime worked on 27 October 2013 (although showing overtime claimed for the previous day); and (d) Ms Kapsalis further deposed that she had been unable to locate any overtime forms covering the week ending 1 November 2013 for any of Hassan Iskandar, Quang Le, Col Evans, Darryl Bartlett, Robert Gallardo, David Watson, or "Young" Col Evans). 130. As a result, while not absolutely definitive, it appears unlikely that any other Civil Works employee claimed any overtime for any supposed saw-cutting of expansion joints on 27 October 2013. 131. As a result, it can be concluded with a high degree of confidence that: (a) that Mr Zreika left work at no later than about 11:45 am to 12 noon am on 27 October 2013 (and at a time prior to other members of the road crew ceasing work); (b) that Mr Zreika did not return to the site after leaving on 27 October 2013; and (c) that Mr Krstic nevertheless falsely completed and signed a greensheet for 27 October 2013 stating that Mr Zreika had performed "8.00" hours of overtime despite knowing that Mr Zreika had, in fact, left work by no later than about 11:40 am to 12 noon and while the remainder of the crew continued to perform work. 132. Again, the inevitable conclusion is that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 9 February 2014 133. On Sunday, 9 February 2014, Mr Krstic performed overtime work related to Enmore Road. He signed a greensheet for the day (which is at page 102 to Tab 5 of EK-2). 134. In cross-examination, Mr Krstic also agreed that he had written in each of the names, including that of "Sam" for Mr Zreika. He could not explain why no hours had been recorded against the names (this apparently being the only greensheet signed by Mr Krstic which did not record hours). He said he may have "forgot [sic] to log it in". 135. Mr Krstic subsequently signed an overtime claim form for the week ending 15 February 2014 in which he claimed 8 hours of overtime for 9 February 2014 starting at 6:00am and concluding at 2:30 pm (with a claimed half hour break). So, too, did Mr Zreika. 136. However, the evidence establishes that Mr Zreika's mobile phone: (a) was used to make four calls in the Chester Hill vicinity at 5:48 am, 5:50 am, 5:51 am and 5:52am on 9 February 2014; and (b) was used to access two mobile WAP/internet sessions in the Chester Hill vicinity at 5:49am and 6:18am. 137. In cross-examination, Mr Zreika agreed that it was more than likely that he did not get into work on the day until about 6:20 am to 6:30 am. He claimed that it was "dark" on the day (even although it was clearly summer). He then asserted that "these overtime forms, the times that predict the 6am and 2:30pm, they mean nothing. They're just a bit of ink on a bit of paper ...". 138. Again, this evidence simply was not credible. There is no other suggestion in the evidence that the normal start time for weekend road slab overtime was anything other than 6:00 am when performed under Mr Zreika or Mr Krstic as senior Ganger. Indeed, were it otherwise, the only conclusion is that, on many days, the employees would have worked a great deal less than the amount of overtime claimed. 139. Mr Krstic claimed that he could not remember that day. However, he certainly did not suggest that he, or other crew members, only started later than 6:00 am. He also stated that he could not remember making any effort to tell anyone that Mr Zreika had been late that day. 140. In the circumstances, although Mr Krstic did not record any times in the greensheet, it is apparent that he made no effort to record that Mr Zreika had arrived late or to inform any person of this fact. 141. Again, the inevitable conclusion is that Mr Krstic's actions (or, in this case, potential inaction) went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 12 October 2014 142. On Sunday, 12 October 2014, Mr Krstic performed overtime work related to Trafalgar. He signed a greensheet for the day (which is at pages 180-181 to Tab 5 of EK-2). 143. This greensheet recorded "8.00" hours for each employee, including "Sam" (being Mr Zreika). In cross-examination, Mr Krstic also agreed that he had written in each of the names and had also written the "8.00" for each employee under the column "Hours". 144. Mr Krstic subsequently signed an overtime claim form for the week ending 17 October 2014 in which he claimed 8 hours of overtime for 12 October 2014 starting at 6:00 am and concluding at 2:30 pm (with a claimed half hour break). So, too, did Mr Zreika. 145. However, the evidence establishes that Mr Zreika's mobile phone: (a) was used to make a call in the Petersham vicinity at 6:52 am on 12 October 2014; and (b) accessed the internet in the Chester Hill vicinity at 8:09 am on 12 October 2014; (c) was used to make a call in the Sydenham vicinity at 10:35 am on 12 October 2014; (d) was used to make a call in the Villawood vicinity at 11:32 am on 12 October 2014; and (e) was used to make a call in the Chester Hill vicinity at 1:39 pm on 12 October 2014. 146. By letter dated 15 December 2014, the USU, on behalf of Mr Zreika asserted that, on this day, Mr Zreika "left site at 11am. - Job and finish". However, this statement appears to have been made before the apparent internet access at 8:09 am had been brought to Mr Zreika's attention. 147. In cross-examination, Mr Zreika said he did not actually remember what happened on 12 October 2014 and did not have a clear memory of the day. He said he could not recall whether he was in Villawood at 11:42 am on the day, and could not recall what time the road crew had finished work that day. However, despite his assertion that he could not recall the events of the day, he nevertheless denied that he had left the worksite and was not present at the worksite at 8:09 am. No explanation was provided, other than an assertion that the telephone records were "not accurate" as he "would not have been around my area at that time of day". This was notwithstanding that, on at least one other occasion (25 August 2013), Mr Zreika conceded he did leave site and return home relatively early in the day. 148. In the circumstances, the Commission is entitled to conclude that Mr Zreika was, in fact, in the Chester Hill vicinity at 8:09 am on 12 October 2014. There is no other rational explanation for the relevant telephone records. 149. It follows that Mr Zreika must have left the worksite, before returning again by no later than 10:35 am. However, no record of this absence was made by Mr Krstic. Instead, Mr Krstic inserted "8.00" hours against Mr Zreika's name on the greensheet (being the same as for other members of the road crew). 150. Again, it follows that Mr Krstic's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 151. Even regardless of whether Mr Zreika was still at the worksite at 8:09 am on 12 October 2014, it remains abundantly clear that he was in the Villawood vicinity by about 11:32 am. In the circumstances, it can be safely concluded that Mr Zreika had left the worksite by not later than about 11:10 am or 11:15 am (and, perhaps, earlier). 152. It is now entirely unclear whether the remainder of the road crew also ceased work about 11:00 am (or shortly afterwards) or whether Mr Zreika might have ceased work for the day prior to the rest of the road crew. Mr Krstic claims that he can no longer remember whether Mr Zreika left at the same time as the rest of the road crew or at an earlier time. Even Mr Zreika maintained that he could no longer recall whether the rest of the road crew finished work by a bit after 11:00 am. 153. Either way (and even leaving aside the earlier absence), it is clear that Mr Krstic's actions in relation to the day were inconsistent with anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system: (a) To the extent the Commission might conclude that Mr Zreika had ceased work by about 11:00 am, at a time earlier than the rest of the road crew, Mr Krstic's actions in recording Mr Zreika as having performed "8.00" hours of overtime for the day (as with the rest of the crew) were entirely improper; (b) To the extent the Commission might conclude that the whole road crew ceased work by about 11:00 am, along with Mr Zreika, Mr Krstic's actions in recording the entire 9 person crew as having worked "8.00" hours of overtime went well beyond what any reasonable person could seriously have believed to have been authorised Council had authorised. After all, on this scenario, only about 5 hours of work could have actually been performed by each crew member (even assuming a 6:00 am start). In effect, therefore, the claim for "8.00" hours of overtime for each crew member resulted in Council making payment for a total of some 27 hours of overtime (at double time) which had not actually been worked. This came at a cost to Council of well over a thousand dollars. The result went well beyond any practice which can be established, by evidence, to have occurred under the tenure of Mr Stephens. Conclusion 154. Mr Krstic's actions amounted to serious and substantial misconduct. His conduct provided a valid reason for dismissal. The dismissal was not otherwise, harsh, unjust, or unreasonable. According, Council respectfully submits that the application should be dismissed. 155. In the alternative, Council submits that, even if the Commission were to find the dismissal to have been harsh, unjust, or unreasonable, it can nevertheless be concluded that reinstatement or re-employment is not practicable. 156. First, the gravity of Mr Krstic's misconduct was serious and substantial. It directly contributed to Council outlaying many thousands of dollars for overtime which simply was not worked. Mr Krstic must bear substantial responsibility for this outcome. He, along with Mr Zreika, were the senior Gangers who signed the vast majority of all greensheets. In addition, it is clear he also acted on various occasions to effectively "bundy on" or "bundy off' other employees, particularly Mr Zreika, in circumstances which Mr Krstic must have known to be inconsistent with any previous practice of so-called "job and finish". 157. Secondly, in his position as a Grade 7 Ganger, Mr Krstic was responsible for, among other things, "completing all necessary records relating to the works, including timesheets, resource day sheets, and invoices". His own evidence was that he had responsibilities for coordinating and liaising with suppliers. It is also clear that he also had responsibility for checking off concrete and other supplier deliveries, and making sure that they were correct. However, quite frankly, Council can have no trust or confidence in Mr Krstic's ability or preparedness to ensure that important documentation is accurate and correct. 158. Thirdly, it is also apparent that Mr Krstic has shown no remorse or contrition for any of his actions. Mr Zreika 24 November 2012 32. On Saturday, 24 November 2012, Mr Zreika performed overtime work related to Illawarra Road. This was the weekend immediately after his return from leave on 19 November 2012. 33. The evidence establishes that Mr Zreika's phone was used on 24 November 2012 to make a series of calls between 8:50 am and 3:30 pm in the vicinity of the Marrickville Local Government Area, before then being used to make a call at 4:11 pm in the Bass Hill vicinity. 34. In cross-examination, it was put to Mr Zreika that he must have left work by about 3:45 pm on 24 November 2012. He agreed "[t]hat's without a meal break, yes". 35. Mr Krstic then signed a greensheet for the day (which is at pages 8-9 to Tab 5 of EK-2). This greensheet recorded a finish time of "5:00pm" against all employees, including "Sam" (being Mr Zreika). This notation was made in the column under "Hours". The greensheet also recorded clock times of "6am-5pm = 10.5 hrs". 36. It is clear, however, that Mr Zreika did not work 10.5 hours of overtime on that day. Instead, he could only possibly have worked about 9.75 hours of overtime even assuming that he started at 6:00am and worked without any break until 3:45pm. 37. In cross-examination, Mr Krstic maintained that the remainder of the crew continued working after 3:45 pm. In his evidence, however, Mr Zreika claimed that he did not recall whether he had left earlier than the remainder of the crew, but thought that the crew would have left altogether. This evidence was contrary to that Mr Krstic. 38. Telephone records for Mr Slaveski's mobile phone show that it was used at 4:32pm on 24 November 2012 in the Sydenham vicinity. This supports the inference, consistent with Mr Krstic's evidence, that the remainder of the crew continued working past 3:45pm. 39. In the circumstances, only two possibilities are open: (a) first, and most likely, that Mr Zreika left at or about 3:45 pm (prior to the rest of the crew and after only having performed 9.75 hours of overtime); or (b) secondly, and less likely, that the entire crew left at or about 3:45 pm (after having only performed 9.75 hours of overtime). 40. Either way, Mr Zreika was clearly not entitled to 10.5 hours of overtime for the day, even on his stated understanding of the so-called "job and finish" system. 41. An overtime claim form was then prepared for Mr Zreika which claimed 10.5 hours of overtime for Saturday, 24 November 2012. 42. In cross-examination, Mr Zreika claimed that it was not his signature on the form. He suggested that the writing appeared to be that of the person who had completed the greensheet for the day (being Mr Krstic). This proposition was not able to be tested with Mr Krstic, who had already given evidence. However, regardless of whether a notation purporting to be Mr Zreika's signature was placed on the form by Mr Krstic, or some other person, it is extraordinary that a purported signature was placed on an overtime form by a person other than the actual employee. 43. Mr Zreika must have known that he had not signed any overtime form for the relevant week. He must also have realised that his pay had nevertheless been processed. As a result, it can only be inferred that Mr Zreika must, at the very least, have suspected that some other person had purported to sign his timesheet (whether or not he knew the identity of the person). 44. In any event, Mr Zreika must clearly have known that he had only performed a maximum of 9.75 hours overtime on the relevant day (and, most likely, less work than the rest of the road slab crew). There was a clear duty on him to ensure that his timesheet, and his pay, was accurate. 45. The inevitable conclusion is that, at the very least, Mr Zreika was paid an amount that was above any amount justified even on his claimed belief in the continued application of the previous "job and finish" system. 10 March 2013 46. On Sunday, 10 March 2013, Mr Zreika performed overtime work related to Fitzroy Street. Mr Krstic then signed a greensheet for the day (which is at pages 32-33 to Tab 5 of EK-2). This greensheet recorded "8.44" hours for each employee, including "Sam" (being Mr Zreika). Mr Krstic agreed, in cross-examination, that he had written the notation "8.44" and that this was a way of recording a "standard day''. 47. However, the evidence establishes that Mr Zreika's mobile phone was used at 6:05am on 10 March 2013 to make a call in the Regents Park vicinity (near where Mr Zreika's home is located) before being used to make a series of calls between 6:57am and 10:56 am in the vicinity of the Marrickville Local Government Area. 48. In his evidence, Mr Zreika conceded that he was in the Regents Park vicinity at 6:05 am on 10 March 2013. 49. Mr Zreika then sought to justify the situation by claiming that, on Sundays, work did not start until 6:30 am or 6:40 am. He then went even further and claimed that 6:30 am or 6:40 am starts also applied for Saturday overtime work, before then back-tracking and asserting that he was usually in the yard for weekend overtime at 6:00 am or 6:05 am. 50. This evidence simply was not credible. There is no other suggestion in the evidence that the normal start time for weekend road slab overtime was anything other than 6:00 am when performed under Mr Krstic as senior Ganger. Indeed, were it otherwise, the only conclusion is that, on many other days, the employees would have worked a great deal less than the amount of overtime claimed (and, in fact, on some days, would have worked less than 8 hours of overtime despite claiming for additional hours). 51. The only credible conclusion is that Mr Zreika arrived at work later than the rest of the road crew (most likely at some time on or after 6:20 am or 6:30 am). 52. However, Mr Zreika signed an overtime form for 10 March 2013 claiming 8 hours of overtime from 6:00am to 2:30 pm. It is clear that this was for the same amount of hours, and with the same start and finish times. as claimed by Mr Krstic is his overtime claim form. Mr Zreika also admitted that, at the time he signed the overtime claim recording a start time of 6:00 am, he would have known that he had not started work at 6:00am on the day. 53. Again, the inevitable conclusion is that Mr Zreika's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 7 April 2013 54. On Sunday, 7 April 2013, Mr Zreika performed overtime work related to Fitzroy Street. Mr Krstic signed a greensheet for the day (which is at pages 46-47 to Tab 5 of EK-2). This greensheet recorded "9.00" hours for each employee, including "Sam" (being Mr Zreika). 55. However, the evidence establishes that Mr Zreika's mobile phone was used to make the following calls on 7 April 2013: (a) a series of phone calls in the vicinity of the Marrickville Local Government Area between 8:03 am and 10:08 am; (b) a call at 10:48 am in the Hurlstone Park vicinity; (c) two calls at 11:36 am and 11:37 am in the Greenacre vicinity; and (d) a call in the Chester Hill vicinity at 1:32pm; and (e) a call in the Bass Hill vicinity at 1:33 pm. 56. Before the Commission, Mr Zreika conceded that it was "possible" that he had left the site by about 11:00 am after performing no more than 5 hours of overtime. 57. However, both Mr Krstic and Mr Zreika have, over time, given substantially conflicting explanations as to events on 7 April 2014. 58. By letter dated 18 February 2015, the USU, on behalf of Mr Zreika, made the following assertion: "Poured concrete - left, came back later that day to open up the job up, other workers stayed on the job. "I left work early and the boys had stayed back on the job. I had returned to work later that night to open the road, did road slabs." 59. By letter dated 8 February 2015, the USU, on behalf of Mr Krstic, asserted that "We stayed on the job. Sam left and came back later to open up the road." 60. However, in his statement filed on 22 May 2015, Mr Zreika changed his story to claim (at paragraph 80): "My recollection, based upon the Green Sheet, is that I worked as part of the crew that day and that the work required 9 hours of work on that day. I do not recall leaving the site prior to completion of the work on the day. I also stated to the Council that I had no specific recollection of the day ...". 61. In his statement filed on 22 May 2015, Mr Krstic gave an alternative version. He claimed (at paragraphs 64-65): "My recollection is that Sam Zreika left the job, instructing me to complete the work and then to finish up and that he would then come back later and open up the road. I was then left to complete the Green Sheet. "I marked down Mr Zreika's hours consistent with those that had been worked by the rest of the crew. I did so as Mr Zreika to my knowledge was the only employee who was going to return after the concrete had set to open up the road which involves the removal of barricades and the restoration of normal traffic movement [underlining inserted]. 62. In his Statement in Reply, Mr Zreika maintained that he had not, in fact, left work prior to other crew members, stating (at paragraph 74): "Sunday 7 April 2013 was a concrete pour at Fitzroy Street Marrickville in which the volume of concrete poured and finished was 35.2m3 .. . The work on that day was done on a 'job and finish" basis under the then practice." 63. However, in his Statement in Reply, Mr Zreika also separately claimed (at paragraph 55 and contrary to his statement at paragraph 74): "In relation to the particular day and the site I have no specific recollection of what may have been done but it could include the cutting of expansion joints, the sealing of the joints and the collection of Council's equipment together with the clearing of any obstructions prior to the re-opening of the road [underlining inserted]." 64. Separately, in his Statement in Reply, Mr Krstic gave another explanation. He noted (at paragraph 41) that the traffic control invoice at Annexure DM-9 to the Statement of David Mathieson indicated that external traffic controllers were still on site at 12:30 am on Monday, 8 April 2013. 65. Mr Krstic then claimed: "The fact that Contract traffic controllers were still in place at 12:30am on Monday morning would indicate to me that there may have been some problem on the worksite." 66. However, Mr Krstic also went on in his Statement in Reply to admit that he had "no current recollection of what occurred on this job...". 67. In cross-examination, it was put to Mr Krstic that Mr Zreika had left site by no later than about 11:00 am. Mr Krstic then stated that he had no memory of the day. Ultimately, Mr Krstic made the following admission: Q: You filled out 9 hours for this day when he left at about 11am, didn't he? A: Yes, I did. 68. Before the Commission, Mr Zreika kept changing his story. He first claimed that he "would have come back later on to do the saw cutting, do the joint sealing and also to open the road up". However, he then admitted that he did not know whether or not he did, or did not, return to work on the day (although continuing to assert that: "... I could have. It is possible...". 69. Put bluntly, Mr Zreika's sudden assertion that he may have returned to do the saw­cutting of expansion joints is highly implausible. It smacks greatly of a recent invention designed to try to escape from a hole. 70. Importantly, any saw-cutting of expansion joints requires the involvement of two employees. As a result, if Mr Zreika performed such work on 7 April 2013, then it would be expected that additional overtime would also have been claimed by another Civil Works employee. The evidence, however, is as follows: (a) Mr Krstic's overtime form for the week ending 12 April 2013 does not show any additional overtime on 7 April 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic; (b) Mr Slaveski's overtime form for the week ending 12 April 2013 does not show any additional overtime on 7 April 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic; (c) the overtime sheets for the other employees listed on the greensheet signed by Mr Krstic do not show any additional overtime on 7 April 2013 beyond the nine hours recorded on the greensheet signed by Mr Krstic; (d) the overtime sheets for Peter Fairburn, Garry Strickland and lan Parker do not show any overtime worked on 7 April 2013 (although showing overtime claimed for the previous day); (e) Ms Kapsalis deposed that, for the week ending 12 April 2013, her inspections had located overtime claims forms for Col Evans, Robert Gallardo, David Watson, and "Young" Col Evans which showed that they had performed night work during the week, but had not performed any overtime on 7 April 2013; and (f) Ms Kapsalis further deposed that she had been unable to locate any overtime forms covering the week ending 12 April 2013 for any of the remaining Civil Works employees and, based on her searches, did not believe that any relevant overtime claim forms existed for those employees being Darryl Bartlett, George Busuttil, Barry McCormick, Darren Bradstock, and Gordon Sharp. 71. It is, therefore, clear that no other Civil Works employee claimed any overtime for any supposed saw-cutting of expansion joints on 7 April 2013. 72. As a result, it can be very safely concluded: (a) that Mr Zreika left work at no later than about 11:00 am on 7 April 2013 (and at a time prior to other members of the road crew ceasing work); and (b) that Mr Zreika did not return to the site after 11:00 am on 7 April 2013. 73. Mr Zreika nevertheless signed an overtime form claiming for 9 hours of overtime on Sunday, 7 April 2013. He ultimately conceded that he checked this timesheet to make sure it recorded the hours that he wanted. As a result, he must clearly have known, at the time he signed the overtime form, that he was claiming for 9 hours of overtime (at double time) despite having actually performed substantially less work. 74. Again, the inevitable conclusion is that Mr Zreika's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 75. Indeed, Mr Zreika's actions in leaving work prior to the rest of the crew resulted in a "double whammy" for Council. This was because his absence meant that the work which would otherwise have been done by him needed to be performed by the remaining crew members. In effect, Mr Zreika's absence resulted in Council paying a greater amount to the remaining employees, while also having Mr Zreika claim for 9 hours overtime, despite only having performed about 5 hours of work. 25 August 2013 76. On Sunday, 25 August 2013, Mr Zreika performed overtime work related to Edinburgh Road. 77. However, the evidence establishes that Mr Zreika's mobile phone was used on 25 August 2013 to make the following calls: (a) a call at 9:42 am in the Villawood vicinity; and (b) a call at 2:38pm in the Villawood vicinity. 78. By letter dated 18 February 2015, the USU, on behalf of Mr Zreika, made the following assertion: "I had informed the other ganger that I had to leave for an emergency. The other ganger informed our supervisor. I came back." 79. Similarly, by letter dated 18 February 2015, the USU, on behalf of Mr Krstic, asserted that "Something urgent came up and Sam went home and came back to the job as it was a large job." 80. Before the Commission, Mr Zreika admitted that he had left work at about 9:00 am on 25 August 2013, and did not return to work until around 11:00 am. 81. Mr Zreika nevertheless signed an overtime form claiming for 8 hours of overtime on Sunday, 25 August 2013. He ultimately conceded that he checked this timesheet to make sure it recorded the hours that he wanted. He must clearly have known, at the time he signed the overtime form, that he was claiming for 8 hours of overtime despite having actually left the worksite before the "job" was finished (and while other crew members remained at work). Indeed, he admitted he had claimed overtime at double time for two hours while he was absent. 82. Mr Zreika sought to justify his actions by claiming that there were occasions when he had signed a greensheet recording other employees as being present for a "full day" despite those other employees having left due to emergency. 83. These claims by Mr Zreika are inconsistent with Mr Krstic's evidence that he could not remember any other instances in which he might have put another employee down on a greensheet as having performed the same amount of overtime as the rest of the crew despite that other employee having left the work site for an extended period while others remained at work. 84. There must be real doubts as to whether Mr Zreika's justification was truthful. In any event, he subsequently asserted that, in cases where he had recorded an employee as having done a "full day" despite being absent, arrangements had been made to ensure that the employee would somehow "make up for it". In this case, however, there is absolutely no evidence to suggest that Mr Zreika ever performed any extra work to "make up" for the two hours of absence for which he nevertheless claimed overtime. 85. Again, the inevitable conclusion is that Mr Zreika's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 27 October 2013 86. On Sunday, 27 October 2013, Mr Zreika performed overtime work related to Edinburgh Road. Mr Krstic signed a greensheet for the day (which is at pages 87-88 to Tab 5 of EK-2). This greensheet recorded "8.00" hours for each employee, including "Sam" (being Mr Zreika). 87. However, the evidence establishes that Mr Zreika's mobile phone was used to make a call in the Villawood vicinity at 12:16 pm on 27 October 2013. 88. By letter dated 18 February 2015, the USU, on behalf of Mr Zreika, made the following assertion: "Edinburgh Road- poured concrete, left early, the rest of the crew stayed. I came back later to open up the road for road traffic control." 89. Similarly, by letter dated 18 February 2015, the USU, on behalf of Mr Krstic, asserted that "Sam left and came back to open up the road." 90. In his Statement in Reply, Mr Zreika changed his story. He stated, at paragraph 77, that the work on Sunday, 27 October 2013, was "done on a job and finish' basis under the then practice." 91. Mr Krstic, in his statements, did not give any evidence as to events on 27 October 2013. In cross-examination, Mr Krstic asserted that he could no longer remember what Mr Zreika did on the day. 92. Before the Commission, Mr Zreika conceded that he probably left a bit after 11:45 am possibly as late as around 12 noon on the day. He also admitted that it was more than likely he left work before the job had finished. He was not able to say why he might have left while other crew members remained at work. 93. Mr Zreika further admitted that he did not actually remember the day. Nevertheless, despite this lack of memory, he asserted that he "probably" came back to do some other task after the other crew members had left before then downgrading this to an assertion that he "possibly" came back even although he could not remember. 94. Mr Zreika then suggested (for the first time) that he may have returned to do saw­cutting of expansion joints. It was put to him that the phone records for his mobile phone showed that it had been used to make a call at 5:23 pm in the Lidcombe vicinity. The following quite extraordinary exchange then occurred: Q: You were in the Lidcombe vicinity at 5:23pm on 27 October 2013? A: Okay, where was I after that time? Q: Well, you weren't doing saw-cutting or opening the road then? A: Why, did I suggest that there was a time, a particular time that I came back to do the saw-cutting? Q: Well, you just don't know where you were that day, do you? A: Well, I could have come back to do the saw-cutting. 95. These wild assertions by Mr Zreika suggesting that he may have returned to the worksite after 5:23 pm do not stand scrutiny. Indeed, they are inconsistent with his other evidence. For instance, Mr Zreika separately agreed that saw-cutting of expansion joints was usually completed by about 5:00 pm to 6:00 pm (or sometimes a bit later or earlier). 96. In addition, in his Statement in Reply (at paragraph 4), Mr Zreika also stated that when saw-cutting of expansion joints had to be done on a weekend, then such work was undertaken "prior to the Contract traffic controllers leaving". For 27 October 2013, however, the evidence is that the contract traffic control workers were only on site for 12 hours that day (meaning that, assuming they started at 6:00 am, they would have ceased by 6:00 pm). 97. In the circumstances, it is very highly unlikely that Mr Zreika returned to the worksite after 5:23 pm on 27 October 2013 to perform any saw-cutting of expansion joints. Indeed, his assertion that he "could" have done so smacks greatly of a recent invention designed to try to escape from a hole. It is, frankly, building castles on a foundation of speculation which is entirely unsupported by the evidence. 98. Further, any saw-cutting of expansion joints requires the involvement of two employees. As a result, if Mr Zreika performed such work on 27 October 2013, then it would be expected that additional overtime would also have been claimed by another Civil Works employee. 99. The evidence, however, is as follows: (a) Mr Krstic's overtime form for the week ending 1 November 2013 does not show any additional overtime on 27 October 2013 beyond the 8 hours recorded on the greensheet signed by Mr Krstic; (b) the overtime sheets for Quoc Cao, Lawrence Murray, Ljube Petkovski, and Darren Bradstock (being employees listed on the greensheet signed by Mr Krstic for 27 October 2013) do not show any additional overtime on 27 October 2013 beyond the 8 hours recorded on the greensheet signed by Mr Krstic (c) the overtime sheets for Gordon Sharp, Garry Strickland, Wayne Zaia, Peter Sterjovski and George Busuttil do not show any overtime on 27 October 2013 (although showing overtime claimed for the previous day); and (d) Ms Kapsalis further deposed that she had been unable to locate any overtime forms covering the week ending 1 November 2013 for any of Hassan Iskandar, Quang Le, Col Evans, Darryl Bartlett, Robert Gallardo, David Watson, or "Young" Col Evans). 100. As a result, it appears highly unlikely that any other Civil Works employee claimed any overtime for any supposed saw-cutting of expansion joints on 27 October 2013. 101. As a result, it can be concluded with a high degree of confidence that: (a) Mr Zreika left work at no later than about 11:45 am to 12 noon am on 27 October 2013 (and at a time prior to other members of the road crew ceasing work); and (b) Mr Zreika did not return to the site after leaving on 27 October 2013. 102. Mr Zreika nevertheless signed an overtime form claiming for 8 hours of overtime on Sunday, 25 August 2013. He ultimately conceded that he checked this timesheet to make sure it recorded the hours that he wanted. He must clearly have known, at the time he signed the overtime form, that he was claiming for 8 hours of overtime despite having actually left the worksite before the "job" was finished (and while other crew members remained at work). 103. Again, the inevitable conclusion is that Mr Zreika's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 9 February 2014 104. On Sunday, 9 February 2014, Mr Zreika performed overtime work related to Enmore Road. 105. Mr Zreika subsequently signed an overtime claim form for the week ending 15 February 2014 in which he claimed 8 hours of overtime for 9 February 2014 starting at 6:00am and concluding at 2:30pm (with a claimed half hour break). 106. However, the evidence establishes that Mr Zreika's mobile phone: (a) was used to make four calls in the Chester Hill vicinity at 5:48 am, 5:50 am, 5:51 am and 5:52am on 9 February 2014; and (b) was used to access two mobile WAP/intemet sessions in the Chester Hill vicinity at 5:49 am and 6:18 am. 107. In cross-examination, Mr Zreika agreed that it was more than likely that he did not get into work on the day until about 6:20 am to 6:30 am. He claimed that it was "I'' on the day (even although it was clearly summer). He then asserted that "these overtime forms, the times that predict the 6am and 2:30pm, they mean nothing. They're just a bit of ink on a bit of paper ..." 108. Again, this evidence simply was not credible. There is no other suggestion in the evidence that the normal start time for weekend road slab overtime was anything other than 6:00 am when performed under Mr Zreika or Mr Krstic as senior Ganger. Indeed, were it otherwise, the only conclusion is that, on many days, the employees would have worked a great deal less than the amount of overtime claimed. 109. Mr Krstic claimed that he could not remember that day. However, he certainly did not suggest that he, or other crew members, only started later than 6:00 am. He also stated that he could not remember making any effort to tell anyone that Mr Zreika had been late that day. 110. Again, the inevitable conclusion is that Mr Zreika's actions went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 11 May 2014 111. On Sunday, 11 May 2014, Mr Zreika performed overtime work related to Trafalgar Street. 112. Mr Zreika signed a greensheet for the day (which is at pages 144-145 to Tab 5 of EK-2). This greensheet recorded "8.0" hours for each employee, including "Sam" (being Mr Zreika). In cross-examination, Mr Zreika agreed that he had written in each of the names and had also written the "8.0" for each employee under the column "Hours" . He also expressly agreed that he had signed the greensheet as true and correct. 113. Mr Zreika subsequently signed an overtime claim form for the week ending 16 May 2014 in which he claimed 8 hours of overtime for 11 May 2014 starting at 6:00 am and concluding at 2:30 pm (with a claimed half hour break). 114. However, the evidence establishes that Mr Zreika's mobile phone accessed a mobile packet data session in the Chester Hill vicinity at 10:31 am on 11 May 2014 in the Chester Hill vicinity. 115. In cross-examination, Mr Zreika admitted that he was in the Chester Hill vicinity by 10:31 am on the day. He also admitted that he must have left work by no later than about 10:10 am. 116. Mr Zreika claimed that he did not recall that particular day. he said he could not remember whether the whole road crew finished by about 10:10 am, or whether he left prior to the remainder of the road crew. He speculated that he might have come back to perform work associated with the saw-cutting of expansion joints (a proposition which had never previously been raised). This seems unlikely given that the telephone records show that his mobile phone was used in the Chester Hill vicinity at 3:14 pm and again at 3:21 pm on the day. In addition, it appears that saw-cutting work was actually performed that day by Mr Slaveski, and Mr Zreika did not record him as having performed any hors on the greensheet for the day. 117. In the circumstances, the most likely explanation is that Mr Zreika simply left the site at about 10:10 am that day, without returning. It is unclear whether the rest of the road crew left with him. Either way, however, it is clear that what occurred on the day was inconsistent with anything that could possibly be justified by a claimed belief in the continued application of the previous "job and finish" system: (a) If the whole road crew ceased work by about 10:00 am to 10:10 am, along with Mr Zreika, only about 4 hours of work could have actually been performed by each crew member (even assuming a 6:00 am start). In effect, therefore, the claim for 8 hours of overtime by Mr Zreika, as well as for each other 9 crew members, resulted in Council making payment for a total of some 40 hours of overtime (at double time) which had not actually been worked. This came at a cost to Council of well over a thousand dollars. The result went well beyond any practice which can be established, by evidence, to have occurred under the tenure of Mr Stephens. No reasonable person could seriously have believed that such an outcome had been properly authorised by Council; and (b) If Mr Zreika ceased work prior to the rest of the road crew, his actions in claiming 8 hours of overtime for the day despite leaving before the "job" was finished were entirely inconsistent with any claimed belief in the continued application of the previous "job and finish" system. 118. In addition, regardless of what occurred, it must have been very clear to Mr Zreika, even by the previous day, that either the work was likely to finish very quickly, or that the work would be able to be completed by the remaining crew without his presence. In those circumstances, Mr Zreika could easily have acted to reduce crew numbers or take other steps to lessen the cost to Council. He clearly did not do so. Instead, even on the best case for him, he went along with an arrangement which he knew was likely to cost Council far more than required. 21 June 2014 119. On Saturday, 21 June 2014, Mr Zreika performed overtime work related to Burrows Road/Canal Road. 120. Mr Zreika signed a greensheet for the day (which is at page 156 to Tab 5 of EK-2). This greensheet recorded "8.0" hours for each employee, including "Sam" (being Mr Zreika). In cross-examination, Mr Zreika agreed that he had written in each of the names and had also written the "8.0" for each employee under the column "Hours". A start time of "6.00" was also recorded 121. Mr Zreika subsequently signed an overtime claim form for the week ending 27 June 2014 in which he claimed 8 hours of overtime for 21 June 2014 starting at 6:00 am and concluding at 2:30 pm (with a claimed half hour break). 122. The telephone records show that Mr Zreika's mobile phone was used on 21 June 2014 to: (a) access a mobile packet data session at 8:22 am in the Yagoona vicinity; and (b) to make a call in the Mascot vicinity to at 11:16 am. As a result, it is clear that Mr Zreika was not in the Marrickville Local Government Area vicinity at the start time of 3:00 pm claimed on his overtime form. 123. In cross-examination, Mr Zreika conceded that he most likely had his phone on him that day. However, he denied that he was outside the Local Government Area at 8:22 am. 124. In the circumstances, the Commission is entitled to conclude that Mr Zreika was, in fact, outside the Marrickville Local Government Area at 8:22 am on 21 June 2014. There is no other rational explanation for the relevant telephone records. 125. It follows, that Mr Zreika must either have arrived very late, or left the worksite before returning again by. Such actions by Mr Zreika went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 14 September 2014 126. In his overtime claim form for the week ending 19 September 2014, Mr Zreika claimed: (a) 4 hours of overtime from 3:00am to 7:30 am (with a half hour break) on the morning of Sunday, 14 September 2014; and (b) a further 4 hours of overtime from 3:00 pm to 7:00 am (with a half hour break) on the afternoon/evening of Sunday, 14 September 2014. 127. Mr Zreika agreed that this overtime was claimed in respect of work in establishing traffic control arrangements for the Dulwich Hill Festival, and then in later removing those traffic control arrangements. In cross-examination, Mr Zreika conceded that he knew, well prior to that weekend that he would have to attend on the Sunday afternoon/evening to remove the traffic barriers. He also agreed that he was aware that it was important that the road be re-opened that evening by no later than 8:00 pm. 128. It is also clear that Mr Slaveski was also rostered to perform work re-opening the roads following the Dulwich Hill Festival on 14 September 2014. Indeed, Mr Zreika signed a greensheet (at page 168 of Tab 5 to EK-2) recording both he and Mr Slaveski as performing 8 hours of overtime for the day. 129. The evidence establishes that, at 4:32 pm and 6:14 pm on 14 September 2014, Mr Zreika's mobile phone was used in the Chester Hill vicinity to make two calls to Mr Slaveski's phone number. As a result, it is clear that Mr Zreika was not in the Marrickville Local Government Area vicinity at the start time of 3:00 pm claimed on his overtime form. 130. The evidence also establishes that, at 6:39 pm that day, Mr Slaveski's phone was used in the Sydenham vicinity to make a call to Mr Zreika's phone number. It appears that Mr Slaveski was, most likely, in attendance either at the site or the depot to commence work. 131. However, the only rational conclusion is that Mr Zreika was not with Mr Slaveski at that time. Indeed, Mr Zreika conceded that Mr Slaveski had phoned to say that he (Mr Slaveski) was in the yard. 132. Mr Zreika now says that he arrived at about 7:00 pm (shortly after the call from Mr Slaveski). He says he and Mr Slaveski then worked until about 9:00 pm. 133. Two points arise. 134. First, the telephone records for Mr Zreika's phone record it as having been used to access a mobile net packet data session in the Smithfield vicinity (which is somewhat further west than Mr Zreika's home in Chester Hill) at 7:16 pm on 14 September 2014. 135. Mr Zreika maintained that he was in the Marrickville Local Government Area at that time. However, he provided no explanation as to how his phone might have been recorded as being in the Smithfield vicinity at 7:16pm. 136. In the circumstances, the Commission is entitled to conclude that Mr Zreika was, in fact, in well outside the Marrickville Local Government Area at 7:16 pm on 14 September 2014. No other rational explanation has been offered for the relevant telephone records. 137. If so, the only possible conclusion is that Mr Zreika either did not attend to perform overtime on 14 September 2014, or that he arrived well after his claimed start time and did even less work than the two hours claimed by him. 138. Secondly, even if it were to be assumed that Mr Zreika arrived by his claimed time of about 7:00 pm, it is clear that he only performed about two hours of work on the evening, despite signing an overtime form claiming for four hours of overtime. 139. This work was not associated in any way with road slab replacement work, or the asphalting of roads. It was an attendance at a special event. 140. There is no evidence to suggest that any other Civil Works employee ever claimed for four hours of overtime in relation to work associated with a special event, despite only having attended for a substantially lesser period of time. Nor is there any evidence to suggest that any such practice was permitted under the so-called "job and finish" arrangements as previously applied under Mr Stephens. 141. For instance, in respect of the work performed earlier that day, Mr Zreika's phone records suggest that he was in the vicinity of the Marrickville Local Government Area between at least 2:36 am to 5:56 am. Similarly, Mr Slaveski also strongly disputed the claim that he had not performed the claimed four hours of overtime in relation to removing crowd control barriers associated with an Australia day event at Enmore Park (although conceding that his overtime form recorded incorrect start and finish times). 142. In fact, the events of 14 September 2014 appear to have previously been portrayed as somehow related to being a "call out" (even although Mr Zreika now concedes that he knew well prior to the weekend that he had to attend on the Sunday evening). 143. No justification of so-called "job and finish" was previously advanced. For instance: (a) the letter from USU dated 15 December 2014, on behalf of Mr Zreika, made no mention of the events of 14 September 2014 being justified on a "job and finish" basis (despite making that claim in respect of other instances); (b) the letter from USU dated 15 December 2014, on behalf of Mr Slaveski, also made no mention of the events of 14 September 2014 being justified on a "job and finish" basis (despite making that claim in respect of other instances); (c) the notes of the meeting with Mr Zreika on 12 January 2015 (at Annexure JDS-12 to the Statement of Jeffrey David Swilks), refer to Mr Zreika being asked about the time worked on the Dulwich Hill Festival, and record a response of "Paid double time 4 hrs Sunday morning (3.00 am- 7.30am + 7.00 pm- 11.00 pm)" , with no reference being made to any practice of so­called job and finish". 144. It is only as these proceedings have developed that Mr Zreika has raised a suggestion that "job and finish" also applied when he was performing overtime work associated with special events. 145. However, there is no basis on which the Commission might properly infer that there was ever a practice of other employees performing work associated with special events also claiming four hours work on the basis of "job and finish" when they did not in fact perform four hours of work. 146. It follows that, even assuming the Commission were to accept that Mr Zreika had arrived at 7:00 pm on 14 September 2014, and then performed two hours work, there was no basis for him to claim for four hours of overtime on the basis of any claimed belief in a prior practice of "job and finish" applied to road slab replacement work. 28 September 2014 147. On Sunday, 28 September 2014, Mr Zreika performed overtime work related to Trafalgar Street. 148. Mr Zreika subsequently signed an overtime claim form for the week ending 3 October 2014 in which he claimed 8 hours of overtime for 28 September 2014 starting at 6:00 am and concluding at 2:30 pm (with a claimed half hour break). 149. However, the evidence establishes that Mr Zreika's mobile phone was used to make a call at 11:04 am on 28 September 2014 in the Bass Hill vicinity with a further call at 11:45 am in the Villawood vicinity. 150. Ms Keenan's evidence is that Mr Zreika stated to her that he had left work about 10:00 am to 10:30 am that day. 151. By letter dated 15 December 2014, the USU, on behalf of Mr Zreika, stated that he worked to "Job and finish". 152. In cross-examination, Mr Zreika admitted he probably left a bit after 10:30 am, although later stating that he did not remember the exact time he ceased work. 153. Mr Krstic's evidence, however, was that he believed that, based on the amount of concrete laid that day, the rest of the crew must have worked for longer than 4.5 hours on 28 September 2014. 154. It is now entirely unclear whether the remainder of the road crew also ceased work about 10:00 am to 10:30 am (or shortly afterwards) or whether Mr Zreika might have ceased work for the day prior to the rest of the road crew. 155. Either way, however, it is clear that what occurred on the day was inconsistent with anything that could possibly be justified by a claimed belief in the continued application of the previous "job and finish" system: (a) To the extent the Commission might conclude that the whole road crew ceased work by about 10:00 am to 10:30 am, along with Mr Zreika, only about 4 to 4.5 hours of work could have actually been performed by each crew member (even assuming a 6:00 am start). In effect, therefore, the claim for 8 hours of overtime by Mr Zreika and Mr Krstic, as well as for each other 6 crew members, resulted in Council making payment for a total of some 28 to 32 hours of overtime (at double time) which had not actually been worked. This came at a cost to Council of well over a thousand dollars. The result went well beyond any practice which can be established, by evidence, to have occurred under the tenure of Mr Stephens. No reasonable person could seriously have believed that such an outcome had been properly authorised by Council; and (b) To the extent the Commission might conclude that Mr Zreika had ceased work prior to the rest of the road crew, his actions in claiming 8 hours of overtime for the day despite leaving before the "job" was finished were entirely inconsistent with any claimed belief in the continued application of the previous "job and finish" system. 12 October 2014 156. On Sunday, 12 October 2014, Mr Zreika performed overtime work related to Trafalgar Street 157. Mr Zreika subsequently signed an overtime claim form for the week ending 17 October 2014 in which he claimed 8 hours of overtime for 12 October 2014 starting at 6:00 am and concluding at 2:30 pm (with a claimed half hour break). 158. However, the evidence establishes that Mr Zreika's mobile phone: (a) was used to make a call in the Petersham vicinity at 6:52 am on 12 October 2014; and (b) accessed the internet in the Chester Hill vicinity at 8:09 am on 12 October 2014; (c) was used to make a call in the Sydenham vicinity at 10:35 am on 12 October 2014; (d) was used to make a call in the Villawood vicinity at 11:32 am on 12 October 2014; and (e) was used to make a call in the Chester Hill vicinity at 1:39 pm on 12 October 2014. 159. By letter dated 15 December 2014, the USU, on behalf of Mr Zreika asserted that, on this day, Mr Zreika "left site at 11am "Job and finish". However, this statement appears to have been made before the apparent internet access at 8:09 am had been brought to Mr Zreika's attention. 160. In cross-examination, Mr Zreika said he did not actually remember what happened on 12 October 2014 and did not have a clear memory of the day. He said he could not recall whether he was in Villawood at 11:42 am on the day, and could not recall what time the road crew had finished work that day. However, despite his assertion that he could not recall the events of the day, he nevertheless denied that he had left the worksite and was not present at the worksite at 8:09 am. No explanation was provided, other than an assertion that the telephone records were "not accurate" as he "would not have been around my area at that time of day". This was notwithstanding that, on at least one other occasion (25 August 2013), Mr Zreika conceded he did leave site and return home relatively early in the day. 161. In the circumstances, the Commission is entitled to conclude that Mr Zreika was, in fact, in the Chester Hill vicinity at 8:09 am on 12 October 2014. There is no other rational explanation for the relevant telephone records. 162. It follows, that Mr Zreika must have left the worksite, before returning again by no later than 10:35 am. Such actions by Mr Zreika went well beyond anything that could possibly be justified by his claimed belief in the continued application of the previous "job and finish" system. 163. Even regardless of whether Mr Zreika was still at the worksite at 8:09 am on 12 October 2014, it remains abundantly clear that he was in the Villawood vicinity by about 11:32 am. In the circumstances, it can be safely concluded that, whether or not Mr Zreika had separately left earlier in the day, he had left the worksite by not later than about 11:10 am or 11:15 am (and, perhaps, earlier). 164. It is now entirely unclear whether the remainder of the road crew also ceased work about 11:00 am (or shortly afterwards) or whether Mr Zreika might have ceased work for the day prior to the rest of the road crew. Mr Krstic claims that he can no longer remember whether Mr Zreika left at the same time as the rest of the road crew or at an earlier time. Even Mr Zreika maintained that he could no longer recall whether the rest of the road crew finished work by a bit after 11:00 am. 165. Either way (and even leaving aside the earlier absence), it is clear that what occurred on the day was inconsistent with anything that could possibly be justified by Mr Zreika's claimed belief in the continued application of the previous "job and finish" system: (a) To the extent the Commission might conclude that Mr Zreika had ceased work prior to the rest of the road crew, his actions in claiming 8 hours of overtime for the day despite leaving before the "job" was finished were entirely inconsistent with any claimed belief in the continued application of the previous "job and finish" system; (b) To the extent the Commission might conclude that the whole road crew ceased work by about 11:00 am, along with Mr Zreika, only about 5 hours of work could have actually been performed by each crew member (even assuming a 6:00 am start). In effect, therefore, the claim for 8 hours of overtime by Mr Zreika and Mr Krstic, as well as for each other crew member, resulted in Council making payment for a total of some 27 hours of overtime (at double time) which had not actually been worked. This came at a cost to Council of well over a thousand dollars. The result went well beyond any practice which can be established, by evidence, to have occurred under the tenure of Mr Stephens. No reasonable person could seriously have believed that such an outcome had been properly authorised by Council. 15 and 16 November 2014 166. On Saturday, 15 November 2014, Mr Zreika performed overtime work. He subsequently signed an overtime form claiming 8 hours of overtime for the day. However, the evidence of Mr Mathieson is that he went to the site at 1:30 pm but could not see any member of the Civil Works crew. He says he then returned to the depot around 1:40 pm to 1:45 pm, and saw that the trucks had returned but could not see any of the crew. Ms Keenan's evidence is that Mr Zreika stated that he, and the other crew members, had left site before 1:30 pm. 167. Sunday 16 November 2014, Mr Zreika performed overtime work. He subsequently signed an overtime form claiming 8 hours of overtime for the day. The evidence of Mr Mathieson is that he went to the site at 10:15 am but could only see about 5 of the 10 Civil Works crew. He says he then returned to the site at about 11:00 am and could not see any of the crew. Ms Keenan's evidence is that Mr Zreika stated that he, and the other crew members, had left work by 11:00 am. 168. Mr Zreika has conceded that work on 16 November 2014 most likely finished by about 10:30 am. This was the "rain day". Critically, however, even before the cessation of work on the Saturday, it must have been apparent that the work on the Sunday was unlikely to take anything close to a full 8 hours. In those circumstances, Mr Zreika could easily have acted to reduce crew numbers or take other steps to lessen the cost to Council. He clearly did not do so. Instead, even on the best case for him, he went along with an arrangement which he knew was likely to cost Council far more than required. 1. Mr Jauncey further submitted that Mr Krstic maintained his defence that he acted at all times with the approval of his supervisor, Mr Borg. He was unable to recall details of any events; and when questioned as to his approval of payments to Mr Zreika when he was not on the worksite, Mr Krstic deposed that as a ganger it was not his role or responsibility to be aware of the comings and goings of individual crew members. 2. Mr Zreika deposed that there had been occasions when he was called offsite to deal with personal issues, the only one of which he could recall in detail was when he was required to rush home to take his wife to hospital. Mr Zreika asserted that on those occasions he would "make up the time" by returning to the site later in the evening, often with Mr Slaveski, to cut expansion joints into the concrete and remove safety barriers to open up the road to traffic. 3. This is despite an occasion on 15 and 16 November 2014 when Mr Zreika claimed a full eight hours overtime at penalty rates for a Saturday and Sunday as well as a four hour call out payment on each evening. 4. Mr Jauncey put that the proposition advanced by Mr Zreika that he and Mr Krstic were good and faithful servants of the Council, believed themselves diligent and gave the Council more value than they received in wages, is a completely subjective opinion, self-serving and without any evidentiary foundation. 5. Mr Jauncey put that the attitude expressed by Mr Zreika further contradicts the Award, which sets out entitlements to overtime payment which is not on any job and finish basis. Submissions on behalf of the Applicants 1. On the conclusion of oral submissions by the Council on 2 September 2015, the applicants were afforded the opportunity to put written submissions in reply, which were filed on 22 September 2015. 2. These submissions relied upon previous submissions put both orally and in writing. 3. The substantive submission put by Mr Moore is that the Applicants were not knowingly and wilfully engaged in misconduct; and if it were found that they were guilty of misconduct the approval by their supervisor, Mr Borg, must be a mitigating circumstance. 4. Mr Moore identified the applicable case law as: Clouston & Co Ltd v Cory [1906] AC; Electricity Commission of NSW trading as Pacific Power v Nieass & Ors [1995] 81 IR 46; New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440; Peter Rochester Gow v Cronulla Sutherland Leagues Club Ltd [2002] NSWIRComm 247; Australian Workers Union v Australian Steel Mill Services Pty [2009] NSWIRComm 1035; Leimonitis and Another v Qube Logistics (Vic) Pty Ltd [2013] FWC 3; Mr N v The Bakery [2010] FWA 3096; Peco Cergoski v Florsheim Australia Limited [1998] AIRC 346; Robert Houston v James Hardie Pipelines [1995] IRCA 286; A Guch v Toyota Motor Corporation Australia Limited [2002] AIRC 260; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70; Briginshaw v Briginshaw (1938) CLR 336; New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Grose) and Griffith City Council [2006] NSWIRComm 1137; Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385; Buckman v Burdekin (1998) 85 IR 415; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273; Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; In re Loty and Holloway and Australian Workers' Union [1971] AR (NSW) 95; New South Wales v The Commonwealth (Work Choices Case) [2006] HCA 52. 5. In aggregate, those cases provide a discourse on the nature of misconduct, comparative and disparate penalty, and the discretion of the Commission. 6. Mr Moore seeks to distinguish this matter from Nieass. 7. Mr Jauncey also relied upon Nieass to support the submission that the Commission should not intervene. 8. I will discuss Nieass later. 9. Mr Moore put that the reliance by the Council upon Ms Kapsalis' presentation to the effect that the practice of job and finish was over, and the suggestion that attendance by Mr Mathieson, Mr Borg's supervisor, gave additional significance to the event, is another attempt to improperly elevate the status of Ms Kapsalis and her presentation. 10. Mr Moore put that the evidence established that the practice of job and finish in relation to weekend work on concrete road slabs was one of long standing, being instituted by Mr Stephens at least a decade prior to his retirement; and that subsequent superiors, Mr Swilks and Mr Mathieson, had known of and condoned the practice. 11. Mr Moore put that in any event Mr Borg was the direct supervisor and he had, notwithstanding the status of actual authorisation of the Council, continued to apply the practice of job and finish. 12. Mr Moore noted the information from the pre-termination interview by the Council of Mr Borg on 18 December 2014 in which it is recorded that Mr Borg said he applied "Joe's Rules". 13. Mr Moore submitted that the matter before the Commission was "how the particular practice was applied within the Council's operations and how it came to be applied". 14. Mr Moore submitted that the Council should have called Mr Borg to give evidence, failure to do so giving rise to a conclusion pursuant to Jones v Dunkel (1959) 101 CLR 298. 15. Mr Jauncey put that it was impractical to call Mr Borg as he had been dismissed from employment due to his role in the events and fraudulent overtime claims he had made on his own behalf which the Council was engaged in a civil suit to recover from him. 16. Mr Moore put that there was no evidence of the civil litigation, only a statement from the Bar table that the Council was suing Mr Borg. 17. Mr Moore submitted that in these circumstances Mr Krstic's evidence that Mr Borg told him there would be no change in practices following Ms Kapsalis' presentation is not open to challenge. 18. Mr Moore submitted that the Council's proposition of a collective response to continue job and finish, and a "wilful blindness" to its requirements, articulated by Ms Kapsalis in her presentation, is not sustainable on the evidence. 19. The Council's assertions that Ms Kapsalis' presentation "must have initially caused some consternation amongst the civil works crew"; and "there must have been some discussion amongst employees about what had been said" do not rise above presumption and are not supported by evidence from any of the civil work crew about whom these assumptions were made. 20. Mr Moore put that Mr Zreika was further removed as he had been on leave at the time of Ms Kapsalis' presentation and was not required to attend any later presentation or given a copy of it. 21. Mr Moore submitted that the Council's argument that Mr Zreika "must have noticed changes to the timesheet" is equally a resumptive inference with no factual foundation. 22. Mr Moore submitted [15] : 43. The fact that Mr Borg (and perhaps others such as Mr Boynes) prepared the timesheets which required the insertion of the date, times and hours worked as opposed to the employee, including the Applicants in the Proceedings, Mr Krstic and Mr Zreika, explains in no small way how the primary issue in this case arose. Time sheet preparation even after the changes made by Ms Kapsalis in November 2012 remained the responsibility of the supervisor acting on behalf of the Council whilst the certifying of the correctness of the entries passed from the supervisor to the employees. In hindsight and on the basis of the evidence in these Proceedings it would have been more appropriate for the preparation of the entire timesheet and the certifying of the correctness to have passed fully to the employees. 44. The Respondent Council appears incapable of accepting the evidence in the Proceedings that it was its appointed supervisor, Mr Borg, who either made or directed the date, times and hours entered upon the timesheets for the employees to sign. Leaving to one side whether the "practice" of "job and finish" was "approved" or "authorised" by the Council, the evidence appears clear that the Civil Works employees engaged on weekend overtime held such a view, namely, the practice was approved of by the Council (see for example, Mr Swilks: T: 14/08/15 at 283 lines 3 to 11). Indeed, a number of employees, including the Applicants had worked under the same or similar practice when performing weekend overtime on the road slabs from at least 2003 under Mr Stephens, if not before. 45. In such circumstance, it is not hard for the Commission to accept and to find that Mr Borg advised Mr Krstic to complete the green sheets as he always had after the Kapsalis presentation. Thereafter Mr Borg continues to present timesheets for signature consistent with the prior practice, recording now the same notional times for the period of work and wherever this work is completed prior to 2.00pm, by putting down 8 hours pay as claimed overtime at the appropriate weekend rate. This continued for a period approaching 2 years after the presentation given by Ms Kapsalis. In the circumstances the Commission can find that the employees in Civil Works would reasonably hold a view that this practice and payment was authorised by the Council.. As was observed by the Commission during the course of the Proceedings: The evidence is clearly that with the job and finish system in place the employees would expect to get paid 8 hours, now that takes it no further than that (T: 14/08/15 at 230 lines 42 to 44). 1. Mr Moore put that these circumstances compel a finding that employees would reasonably be of the view that work practices were authorised. 2. Mr Moore further submitted that the work crew made no attempt to disguise or conceal the practice, which would be clear to management if they had ever attended a site on a Saturday or Sunday afternoon, or viewed CCTV images of vehicles leaving and returning to the depot. 3. Mr Moore submitted that the employees concerned were entitled to believe that their conduct, as approved by Mr Borg, was sanctioned, despite Ms Kapsalis' presentation, and as such could not amount to misconduct. 4. Mr Moore put [16] : 52. Mr Borg in his position as supervisor was essentially in a gatekeeper role and controlled the messages passing down to the employees under his control and supervision acting at all times with the apparent authority of the Council. 1. Mr Moore submitted that the Council's argument to distinguish Mr Zreika and Mr Krstic from other gangers and employees in the concrete crew who were not dismissed is fundamentally flawed. 2. Mr Moore put that the argument that Mr Zreika acted as the supervisor in Mr Borg's absence does not give him any greater responsibility, he simply did what Mr Borg would do, believing it to be sanctioned. 3. Mr Moore noted that Mr Zreika was the only member of the crew to reside outside the Marrickville Local Government Area, putting that it was unfair and improper to distinguish him by use of his mobile phone records, which was not applied to other employees. 4. Mr Krstic lived within the Marrickville Local Government Area and no direct reliance is placed upon phone records in his case. 5. Mr Moore further submitted that the mobile phone accounts which identified locations were inaccurate, unsupported by expert evidence or from the mobile phone provider, and accordingly cannot be relied upon. 6. Mr Moore relied upon a number of cases in which the use of data from mobile phones is discussed, including: Swain v R [2015] NSWCCA 176; R v Simmons (No 7) [2015] NSWSC 574; R v McGee & McGee [2010] SADC 36; State of Western Australia v Coates [2007] WASC 307; McKay v Commissioner of Police [2005] WAIRComm 2151; Trotter v Astrazeneca Pty Ltd [2006] NSWIRComm 1130; which he put collectively required expert evidence. Mr Moore put that a telephone account is not adequate to establish conclusively the vicinity or location of a person. 7. Mr Moore submitted that inherent in the practice of job and finish is the fiction that employees started at 6.00 am and finished at 2.30 pm, inclusive of an unpaid meal break of 30 minutes, to effect the payment of eight hours overtime for the day. 8. Mr Moore submitted that once this fiction is adopted the actual start time, which may have been 6.30 am, or actual finishing times are irrelevant within the practice of job and finish. 9. Mr Moore proffered several examples of differing start and finish combinations in which he submitted the difference between actual and notional working times was not of great magnitude and that employees arriving late on occasions or being early on occasions was of no practical consequence. 10. Mr Moore put: [17] 91. Apart from Mr Krstic signing his timesheets in a manner consistent with all other employees who worked overtime on any given day, and his completion of green sheets showing 8 hours worked consistent with the practice applied and the instructions of Mr Borg the only other matter put against Mr Krstic is his recording of Mr Zreika's hours on 3 days where it appears that Mr Zreika left the work site for a period of time prior to the completion of the allocated work. Those days were 7 April 2013, 25 August 2013 and 27 October 2013. In stating this, the submission of the Respondent Council concerning the alleged lateness of Mr Slaveski and Mr Zreika and Mr Krstic's conduct has already been addressed. 1. Mr Moore submitted that Mr Krstic gave forthright and honest explanation of his conduct, applying the rules as he understood them from Mr Borg. 2. Mr Moore noted that there is no evidence of further investigation of Mr Zreika's movements to determine whether he returned to the work site as claimed on 7 April 2013. 3. Mr Moore put that there is a difference between a deliberate falsification of a timesheet and an administrative error; and that the latter does not give rise to a basis for termination of employment. 4. Mr Moore pressed for reinstatement of Mr Krstic, putting that there is no evidence to suggest such reinstatement is impractical. 5. Mr Moore put: [18] 101. In the case of Mr Zreika, the matters put against Mr Zreika by way of differentiation from the conduct of other employees who maintained their employment with the Council were more diverse. At times the search for such matters appeared strained. 1. Mr Moore defined the allegations against Mr Zreika in respect to the work associated with the Dulwich Hill Festival on 14 September 2014 as being in accordance with "Joe's Rules"; i.e. Mr Borg paid Mr Zreika for two call outs that day, not for the actual time worked. Mr Zreika and Mr Slaveski were required to set up signage and barricades to direct traffic flow in the morning and to remove it in the evening after the Festival was finished. 2. Mr Moore put that in the absence of evidence from Mr Borg, Mr Zreika's evidence that he attended and did the work as required by Mr Borg should be accepted. 3. Mr Moore submitted that in respect to the issue of late start or early finish by Mr Zreika outside the job and finish arrangements, this occurred with the approval of Mr Borg in accordance with an informal time in lieu system operated by Mr Borg, and accordingly there can be no culpability attributed to Mr Zreika. 4. Mr Moore submitted that a Jones v Dunkel inference should be taken against the Council for failure to provide the following documents: * Stores register showing the movement of the Council's equipment from the depot and return. Mr Moore put that this document would give fact to the full spread of time worked; * The "receipt" from the sub-contract traffic controllers given to the ganger, which is in effect the timesheet for the sub-contractors. Mr Moore put that this document would give substance to the spread of hours, who the ganger was on any particular occasion, and support Mr Zreika's evidence in respect to saw cutting and reopening the road. * Incident Report for the Fitzroy Street job on 7 April 2013. Mr Moore put that the report would verify or dispel the assertion that this job was delayed due to the inadvertent cutting of an electrical cable. * Sign off record for sub-contract traffic controllers. Mr Moore put that those records would support Mr Zreika's evidence in respect to the arrangement for the saw cutting of slabs to be undertaken. 1. Mr Moore submitted that a number of employees who participated in the job and finish arrangements permitted by Mr Borg have remained in employment and there is nothing to distinguish Mr Krstic and Mr Zreika from those other employees. 2. Mr Moore submitted there are no operative factors which could lead to a conclusion that reinstatement is impractical; and there is no direct evidence led by the Council identifying any concern if the Applicants are returned to their prior employment. 3. Mr Moore pressed for reinstatement with Orders for compensation and continuity of service. CONSIDERATION Telephone Records 1. I note Mr Moore's submission in respect to the Council's reliance upon telephone accounts and the absence of expert evidence. 2. A review of the cases relied upon by Mr Moore exposes some expert evidence that mobile phones will connect to the nearest transmission tower, giving a location (Swain v R); however, at times of high traffic may connect to a different tower, providing a different location (R v Simmons; R v McGee & McGee; State of Western Australia v Coates); and that telephone records will provide an approximate locations (McKay v Commissioner of Police; Trotter v Astrazeneca). 3. It is clear from these cases that where a criminal standard of proof ("beyond reasonable doubt") is required, expert evidence will be necessary. However, when applying the civil standard of proof, on the balance of probability, expert evidence may not be necessary. 4. There is a further consideration in this matter. The telephone records are not relied upon to place Mr Zreika at an exact location where an event is said to have occurred. The telephone records are relied upon to demonstrate that he was not at or in the vicinity of the work location at the time he claimed payment for being there. 5. The allegations of misconduct particularised in Mr Jauncey's submissions in respect to both Mr Krstic and Mr Zreika are supported by the evidence, and I find the misconduct as alleged to be made out. 6. Both Mr Moore and Mr Jauncey referred by to Nieass; Mr Moore to distinguish it and Mr Jauncey to support the submission that the Commission should not intervene. 7. It is appropriate to refer to the consideration of the Full Bench in Nieass (1995) 81 IR 46 at pp 66, 67, 68 "The Commissioner dealt extensively with what he saw as being inconsistent punishment. We have serious doubts whether alleged inconsistency of punishment should form part of the consideration of the reasons for intervention under s 246 in the manner in which the Commissioner saw as appropriate. The response to misconduct is a matter of discretion. The time, place and circumstance of one breach, the circumstances of the offender and the implications for adequate administration of an enterprise, will seldom coincide. The comparison must become even more difficult when successive acts of misconduct are the subject of complaint amounting to a conspiracy between several individuals to achieve dishonest manipulation of a pay and security system. The real questions for consideration were: ● the seriousness of the misconduct found proved or admitted; ● the range of actions which might be available as a response to the misconduct; ● any mitigating or aggravating factors, especially any where a breach of trust is involved. We have considered the material which the Commissioner relied upon to demonstrate inconsistent punishment. We have been unable to accept the validity of the comparison. To commence with, where an employee whose lack of social or industrial skills causes him to become a poor or very poor timekeeper, a compassionate employer might be prepared to take a lenient view. If the employer does so, in no sense is he bound to take the same view of every further case, whether similar or dissimilar. It is desirable that employers where they can should exercise leniency. Employers should not be discouraged from such a course by labouring under the disability that once a benign view is taken in one case that no other view is available. The serious problem inherent in the Commissioner's narrow comparisons, is that the cases are essentially dissimilar. Mr X's case is about Mr X's personal and social deficiencies which appeared to have made the customary performance of timekeeping difficult. By contrast the cases here under consideration concern long-serving, self-managing and knowledgeable employees who have no demonstrated personal, social or industrial difficulties concerning timekeeping at all. The essence of their behaviour is what the Commissioner has called elsewhere ''a conspiracy'' that is a form of behaviour based on dishonesty and deceipt for their own gain and convenience. This they did co-operatively, systematically and repeatedly while employed as part of a self managing team, at weekends, in the absence of the team manager, as ''a team thing'' as two of them described it at interview, in serious breach of the trust that management was entitled to have in them. The error of the Commissioner's approach to the case lies in his non-acceptance that at the centre of the case lay not a problem about timekeeping, but a problem, not denied, of a carefully constructed and dishonest manipulation of the time and security system. Assessment of the problem should have included the consideration that in breach of the Code of Conduct and their trusted position as members of a self-managed team they were undoubtedly possessed of the knowledge that their conduct was dishonest when they fraudulently manipulated the Time and Attendance System for personal gain. We find no basis on the evidence for inconsistency as found by the Commissioner. We note that the offence relied upon in the comparison occurred at a different power station distant from the present work site and the offences were those of Mr X not occurring in concert with fellow employees. There was no dishonesty demonstrated to be involved. Mr X was not a member of a self-management team, was not paid an extra salary for performing that additional duty, but was under ordinary supervision. We consider that the Commissioner was in error in finding the breaches comparable; we accept that they certainly were not; and it must follow that the Commissioner was in error in finding that the dismissals were for this reason rendered so inconsistent as to be inappropriate. The Commissioner found that there were additional grounds which justified the intervention of the Commission (AB, p 1146.4): ''Those circumstances include their length of service; their disciplinary history; their unchallenged good work performance; their contrition and the effects of their dismissal on their personal and family life.'' There was no doubt that the Commissioner was correct in finding that the length of service of the appellants was a factor in their favour. We consider that the disciplinary record of the appellants, including that of the employee who had previously been disciplined, was such that the appellants could rely on it as excellent. Their work must have been good enough for them to have been accorded the status of a member of a self-managed team and the effects of their dismissal on their personal lives and those who depended upon them was no doubt very serious. For reasons set out we have difficulty in coming to a similar conclusion with respect to contrition as a ground upon which the respondents could properly have relied both before the Conciliation Commissioner or on appeal. There has been developed within relatively recent time an industrially sound view that procedures relating to reviews of unsatisfactory work performance should give employees the advantage of warnings about that unsatisfactory performance. The purpose of warnings, includes the notion that an employee, having received a warning in terms has an opportunity to improve his work performance, meet the work requirements of the employer, and preserve his employment. Whilst by no means universal, formal procedures relating to warnings and the manner in which they are to be given are to be found in a number of awards, more usually than not the result of consent variations. However, such award terms dealing with warnings are not those the Commissioner had in mind when he spoke of warnings, nor do the type of warnings contemplated by those awards reflect the circumstance which applied to the offences of the respondents. Competing obligations of management come to the fore when serious and dishonest misconduct of employees is suspected. For a statutory employer, the primary obligation might require it to take action to comply with the terms of the Act under which the corporation is established and protect the public moneys that the corporation administers. At a management level the industrially appropriate responses might include the obligations to investigate the suspicions and the affording to those suspected of offences the opportunity to give explanations. In the circumstances of this case suspicions were raised that the appellants were involved in serious misconduct. If the suspicions were confirmed such actions might amount to criminal misconduct, certainly they would require consideration under s 66 of the Electricity Commission Act. Management decided to investigate whether there was substance to the suspicions. Those investigations involved the observation of the workplace over three weekend periods. The investigations did, in fact, reveal a concerted arrangement to obtain money by a false pretence, the pretence that some employees were at work and in gainful employment when they were not. Had the employer acted without investigation on rumour and without firm evidence, in our view it would have been open to criticism. The Commissioner formed the view that the employees should have been told that if the behaviour continued dismissal might result. We do not wish to say that absence of warnings in appropriate circumstances, might be taken into consideration in contemplating notions of harsh, unjust, and unreasonable. In industrial circumstances as in other avenues of life an employee or an employer must be taken to be aware of the natural and probable consequences of their actions. However, we reject as industrially inappropriate any notion that adult, responsible, and senior employees are entitled to a warning that they might be dismissed if they continue to misconduct themselves within employment, dishonestly. No employee of ordinary understanding and certainly not employees of mature age, substantial classification and seniority, need to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told that they should be careful in crossing the street." 1. There is no demur from the allegation that both Mr Krstic and Mr Zreika participated in a job and finish scheme for weekend roadworks prior to and consequent upon the removal of that system within the Council from the Waste Services Agreements and the presentation of Ms Kapsalis on 2 November 2012. 2. There were further communications from Mr Swilks to Mr Borg that reinforced the Council's requirement that the practice of job and finish not be applied. 3. There is no evidence that Mr Borg did or did not pass this on to the Applicants. They say not, there is no evidence from Mr Borg. 4. I do not make the Jones v Dunkel inference sought by Mr Moore. 5. The fact that Mr Borg was dismissed for his part in these events is not contested. 6. It was equally open and more available to the Applicants to call Mr Borg to corroborate their version of events and they did not. 7. As referred to in Nieass the team leader apparently did not pass relevant information to the team members. 8. I regard any failure by Mr Borg to pass on this information to team members as coincidental to their personal responsibility to be honest with their employer. 9. The argument that the clerk, Mr Boynes, made out the timesheets also falls at this hurdle. The Applicants verified the hours for their own benefit, there was no advantage to Mr Boynes, who created the timesheets from the greensheets provided to him by the Applicants. 10. The evidence further supports a conclusion that Mr Zreika came and went from the job during working hours and claimed payment for hours not worked outside the job and finish arrangement as detailed in Mr Jauncey's submissions set out above, and was supported in this by Mr Krstic. Procedural Fairness 1. I find no procedural unfairness. On receipt of the "complaint" to Ms Keenan, the Council undertook appropriate investigation and offered the Applicants every opportunity to respond to the allegations with representation. 2. The Council conducted a number of fact finding and disciplinary interviews as discussed above. Each of the Applicants had representation from their union and was afforded adequate time and resources to respond both orally and in writing, which they did. 3. I find no flaw with the investigation process and surveillance which established that the "complaint" received, that the concrete crew were finishing work prior to the times claimed for payment, was factual. 4. In all of the circumstances of these matters, the comments of the Full Bench in Nieass are applicable: "No employee of ordinary understanding and certainly not employees of mature age, substantial classification and seniority, need to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told that they should be careful in crossing the street." 1. I do not accept the submission that procedural unfairness arises as the Applicants did not have an opportunity to make direct representation to the General Manager, Mr Bennett, who it is put was the ultimate decision maker. 2. This may apply in some cases; however, in these matters the delegation is sufficient and the process thorough. CONCLUSION 1. I am compelled to a finding of serious and wilful misconduct on behalf of each Applicant, justifying the termination of employment. 2. Consideration of whether termination was harsh, unreasonable or unjust requires a consideration of mitigating circumstances. 3. Length of service, otherwise good employment record, and harshness of the consequences of termination are put as mitigating circumstances; as is the diligence of the Applicants in working in all weather to complete work for the benefit of the Council and to avoid significant waste by cancellation of work which would require the Council to pay for concrete ordered. 4. These factors do not outweigh the gravity of the offence, which was an ongoing, deliberate conspiracy attended by an element of disregard to the Applicants' obligations to attendance and honesty, demonstrating a contempt for their employer. 5. A consideration arises similar to that in Nieass in respect to other employees who were part of the system of job and finish conducted under "Joe's Rules", and the question of comparative fairness. 6. There is no evidence in respect to those others such as they may be. The Applicants are distinguished as Grade 7 Gangers, being a senior role with authority and responsibility to approve hours and payment. 7. Mr Krstic's defence that he was a "working ganger" does not detract from his responsibility to be honest with his employer in respect to timesheets authorised. 8. The evidence leads to a conclusion that Mr Krstic was subservient to Mr Zreika and facilitated any absence by Mr Zreika. This does not excuse him from his responsibility to make accurate records on the greensheets and timesheets. 9. As put in Nieass (at p 68): "We have noted earlier that the employer when first apprised of these possibilities called the team leaders together and directed that they remind their members of the employees' duty to conform to the pay and security system. In the circumstances and in the light of the information the employer had at that time, we consider this to be an appropriate response. We can see no criticism of the dismissals based on the failure to warn the appellants personally that they should desist from the practice of defrauding the EC. It follows that the Commissioner was in error in so finding." Harshness 1. The consequences of termination of employment will in any case involve a degree of economic stress, which must be balanced against all of the circumstances. Procedural Fairness Investigation 1. In so far as it could be said that the Council made no follow up weekend job inspection or review of records showing when vehicles left the depot and returned for two years following the Kapsalis presentation to detect the job and finish practice, it is not a criticism that mitigates the conduct of the Applicants. Trust 1. The inference from Mr Moore's submission is that if the Council trusted Mr Borg and did not check up on him or his crew, then the Applicants could equally trust Mr Borg that continuation of job and finish was authorised. 2. These are not supportable notions. 3. As found in Nieass, it is not good policy to restrain an employer from leniency by holding to a precedent preventing any other position. It is not good policy, reasonable or fair to punish an employer for trusting in its employees. 4. I find that the allegations of misconduct are proven. Mr Zreika claimed payment for time not worked. Mr Krstic approved payments contrary to his duty to the employer. 5. I find that the mitigating circumstances do not outweigh the gravity of the misconduct. 6. I conclude that termination of employment was not harsh, unreasonable or unjust and decline to intervene. 7. The applications are dismissed and Matters No IRC 148 and 155 of 2015 so concluded. ********** Endnotes 1. Exhibit 16 para 75 2. Exhibit 17 attachment JDS-5 3. Exhibit 18 attachment SKK 4 4. Exhibit 21 5. Exhibit 1 6. Exhibit 2 7. Exhibit 8 8. Exhibit 9 9. Exhibit 8 para 13 10. Exhibit 15 11. Exhibit 21 12. EK 1 and EK 2 13. Exhibit 16 14. Exhibit 24 15. Submissions in reply at p11 16. Submissions in reply at p13 17. Submissions in reply at pp22, 23 18. Submissions in reply at p24 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: 03 December 2015