Timesheet fraud – is lying about time worked on your timesheet ever ok?

Question: Is lying about time worked on your timesheet ever ok?

Answer: I want to scream at you NO. NO. NO. It is never ok to put incorrect times on your timesheet. Not only is this dishonest (which should be deterrent enough), but there is always the risk your timesheet discrepancies will be sufficient reason to justify immediate termination of your employment. However, instead of lecturing you, I am going to provide examples from case law to highlight how important accurate timesheets are to keeping your job.

The most recent unfair dismissal case on falsified timesheets

Lacase v Neon Group Ltd Ltd [2016] FWC 3058

Mr Lacase worked for Neon Cosmetics, an Australian cosmetics manufacturer, as a Compounding Supervisor. Mr Lacase was dobbed in by a fellow employee who Mr Lacase had told about claiming overtime without actually working the overtime hours. Mr Lacase’s ordinary hours were 7:45am to 3:51am. Mr Lacase had been claiming morning overtime payments of about 1 to 1.5 hours a day, which would put his start time to 6:45 or 6:15am so that in a normal week Mr Lacase would claim 38 normal hours and 6 overtime hours in his time sheets. The company’s Production Planner checked to see whether Mr Lacase was at work at these times by observing whether Mr Lacase’s car was in the staff carpark. It was not. When the allegations were put to Mr Lacase he denied he was lying about time worked on time sheets and that he was not working the overtime he was claiming. His employment was then terminated. Mr Lacase made an unfair dismissal application to the Fair Work Commission within the 21 day limitation period.

Commissioner Wilson decided that the termination was justified and Mr Lacase had not been unfairly dismissed:

·         In deciding on the balance of probabilities whether the alleged misconduct (fabricated timesheets) actually occurred the Commission will take into account whether it is satisfied of the proofs of the conduct and the need for honesty on the part of the applicant during the course of an investigation. Commissioner Wilson found that Mr Lacase had both claimed overtime on timesheets that had not been worked and had not been truthful when allegations were put to him. This is reason for dismissal.

·         Mr Lacase claimed that he worked overtime on various days and then aggregated his claims for overtime payment into a single period. Commissioner Wilson commented that this may be a potential defence where corroborative evidence of the matter is put forward, but Mr Lacase did not put such evidence forward in this situation.

Claiming time where you were actually working on your own business is sufficient reason for summary dismissal

Eghlima and another v Winco Systems Pty Ltd [2012] FWA 10836

Two brothers, David and Hamid, were employed as electricians by Winco Systems. They had worked on a number of projects including at the University of Sydney and the Star City Casino prior to being dismissed. David and Hamid had started their own electricians business without notifying Winco and had been conducting work in direct competition with Winco Systems in the time they had recorded as working for Winco. There were issues with the timesheets David and Hamid had completed in time claimed when the timesheets were compared to objective evidence such as phone, site and toll records and the discrepancies can be explained by time spent working on their own business. Deputy President Sams found the discrepancies “alarming and most disconcerting”. The discrepancies were very large for some projects, with 33 days being claimed for one particular project, but site access records showing David only worked 12 days and Hamid only worked 6 days. Given the evidence, Deputy President Sams found that even if the brothers resignation could be characterised as a dismissal, it would not have been unfair.

What if I am only claiming a little bit extra on my timesheet?

No. No. No. Even small amounts of additional time claimed on a timesheet may form a sufficient reason for dismissal, especially when combined with other conduct, such as if the employee acts deceptively towards an employer when the discrepancy is put to them.

One hour of overtime claimed on timesheet not actually worked – sufficient reason for dismissal
Ferris v Water-It Queensland Pty Ltd T/A Dig It Landscapes Pty Ltd [2013] FWC 7158
Mr Ferris was employed as a leading hand landscape gardener by Water-It. Water-It alleged that Mr Ferris had incorrectly completed his timesheet entry for 13 March 2013, adding an hour of overtime in which he had not worked. The previous day, Mr Ferris has received a reminder that timesheets were to be completed accurately and no overtime was to be performed without prior approval on that particular project and that failure to accurately complete start and finish times could lead to disciplinary action. The timesheet said Mr Ferris finished work at 5:30, but GPS evidence showed he finished work at 4:18 and arrived home at 4:55pm. Mr Ferris did not justify his conduct or seek an opportunity to review the timesheet, diary or other documents in this meeting where the discrepancy was put to him. In the course of the hearing Mr Ferris indicated that he claimed the additional hour in lieu of a call out he attended to later that evening. However, this overtime claim had not received the required prior approval.
 In considering whether there was a valid reason for dismissal relating to Mr Ferris’ conduct, Senior Deputy President Richards noted:
·         Mr Ferris had filled in his timesheet incorrectly despite the previous day being reminded of the importance of accurately completing timesheets and being provided with examples of how to correctly fill out a timesheet;
·         Although Mr Ferris claimed the hour was for a call out he attended later that day, he did not disclose this to his employer when given the opportunity – Mr Ferris did not avail himself of the opportunity to explain his defence. Regardless, the overtime claim had not received prior approval;
·         The 1 hour discrepancy alone was sufficient reason for dismissal when combined with the deceptive manner in which Mr Ferris acted when confronted with the discrepancy and seeking to mislead his employer about the time he arrived home, as the issue of trust and confidence arose when the matter was not openly and honestly explained by Mr Ferris when the employer was making inquiries.
 

Uber and paid ride-sharing services - are they legal in your state?

Paid ride-sharing services such as Uber are not legal in all Australian jurisdictions. As the law is different in every Australian state, I have compiled this guide which explains the current legal status of Uber in each state. In most jurisdictions where Uber and other ride-sharing services are illegal, a passenger is not committing an offence by using Uber. It is the driver and/or Uber as a company that is committing the offence.

STATES THAT HAVE NOT LEGALISED PAID RIDE-SHARING

Queensland

Paid ride sharing is illegal in Queensland as providing taxi services without a licence is an offence under the Transport Operations (Passenger Transport) Act 1994. Recently fines that can be issued to Uber drivers have been increased to $2,356 (almost double the previous maximum fine of $1,413) while administrators (Uber and its Directors) can be fined up to $23,560. The increased fines are the product of the Transport Legislation (Taxi Services) Amendment Act 2015 which was passed by Queensland’s parliament on 21 April 2016 after being introduced by Bob Katter and receiving opposition support. As well as increasing the size of fines that can be issued to Uber drivers, the amendments inserted a new s.70A into the Transport Operations (Passenger Transport) Act 1994 to enable the recording of demerit points issued to persons providing taxi services without a licence.  

Practically, while the Queensland government has been issuing fines to Uber drivers, most drivers have not paid the fines, allowing the matter to proceed to court, where the Queensland government ordinarily decides not to proceed with the prosecution or lets the fine lapse.

Ride sharing services such as Uber are illegal in Queensland under the Transport Operations (Passenger Transport) Act 1994.

STATES THAT HAVE LEGALISED PAID RIDE-SHARING

New South Wales

Uber and other paid ride-sharing services have been able to operate legally in NSW since 19 December 2015 so long as the driver pays the $45 registration fee and registers the vehicle for business purposes (approx. $200). Taxi plate owners will be compensated $20,000 and some will be eligible for $40,000 total compensation for loss of business caused by the opening up of the market. Prior to these changes, NSW Roads and Maritime Services was issuing Uber drivers with $2,500 fines, and the Department of Transport had taken several Uber drivers who failed to pay the fines to court.

Uber and other paid ride-share services can operate legally in NSW.

South Australia

Uber and other ride-sharing companies will be permitted to operate legally in South Australia from July 1 2016. Under the new legislative regime, all passengers will be charged a $1 levy which will be used to compensate taxi licence plate owners and drivers for the loss of business given the market will now be open (officially) to new entrants.

From July 1 2016 Uber and other ride-sharing companies can operate legally in South Australia.

STATES WHERE THE LEGALITY OF PAID RIDE SHARING IS UNCERTAIN OR ABOUT TO CHANGE

Victoria

In Victoria, it is an offence under s.158(1) of the Transport (Commercial and Miscellaneous) Act 1983 for an owner or driver or a commercial passenger vehicle to operate without a licence, permit or other authority. It is also an offence under s.165(1)(a) to drive a commercial passenger vehicle without a driver accreditation.

The Victorian government has been cracking down on Uber drivers since May 2014, issuing drivers with $1,700 fines. Most Uber drivers simply pay the fine and continue operating.  In late 2015 Victoria’s Taxi Services Commission (TSC) took an Uber test case to the Magistrates Court, by using the Uber app to order and ride in an Uber vehicle. Two Taxi Compliance Officers rode in Mr Brennan’s Uber vehicle and at the end of the trip identified themselves to Mr Brennan. Mr Brennan was not licensed or authorised to operate a commercial passenger vehicle. The case turned on whether the Uber vehicle could be considered a “commercial passenger vehicle”.

“Commercial passenger vehicle” is defined in s.86 as any motor vehicle that is “used or intended to be used for carrying passengers for hire or reward”. Section 87 states that “a motor vehicle shall be deemed to operate as a commercial passenger vehicle if passengers are carried therein for hire or reward”.

The TSC was successful at first instance in arguing the Uber driver had breached both s.158 and s.165. The Uber driver (Mr Brenner), appealed to the County Court (see Brenner v Taxi Services Commissioner https://www.countycourt.vic.gov.au/recent-decisions/brenner-v-taxi-services-commissioner). Counsel for Mr Brennan argued that there was not a sufficient nexus between the carriage of passengers and hire and reward in an Uber trip. Chettle J immediately dismissed this argument, as although there was no direct evidence of any financial arrangement between Uber and the passenger, a financial agreement can be inferred and it was clear the Uber driver received reward for driving the two TSC officers to South Yarra.

Section 159 provides that in a “prosecution against the owner or driver of any commercial passenger vehicle the onus shall lie upon the accused of proving that the passengers carried upon such vehicle were not carried for reward at separate and distinct fares for each passenger but the accused shall not be under any obligation to discharge such onus until the informant first discharges the onus of proving that the passengers carried upon such vehicle were carried for reward”. Demonstrating that the reward or hire was for separate or distinct fares for each passenger used to be an element of the offence, which was repealed, but which continues to be part of the evidentiary onus contained in s.159. Chettle J held that the two passengers were not carried for reward at separate and distinct fares for each passenger, and that Mr Brenner has a defence to both s.158 and s.165.

The County Court decision will no doubt be appealed), so in the meantime the legal status of Uber in Victoria remains uncertain, especially as the County Court decision is reliant on the obscure evidentiary onus in s.159 and Chettle J appears to jump to conclusions on this point without much legal analysis.

Tasmania

Uber may soon be legal in Tasmania, as the Tasmanian government has moved to amend the Taxi and Hire Vehicle Industries Act 2008 to allow Uber drivers and other drivers of paid ride-sharing services to operate subject to similar rules that currently apply in Tasmania to luxury hire-car licences including that all drivers must hold an ancillary certificate requiring medical, police and working with vulnerable people checks. To appease the local taxi industry, the Tasmanian government has agreed not to issue any new taxi licences in the next two years. The Taxi Hire Vehicle Industries Amendment Bill 2016 (THVIA Bill) was introduced to the Tasmanian House of Assembly in March 2016 and is currently at the third reading stage. Do not hold your breath, as the changes will only provide the initial framework required and be part of a broader 2 year review of the taxi and hire car services industry in Tasmania and the legislation.

Ride sharing services such as Uber are currently illegal under the Taxi and Hire Vehicle Industries Act 2008. The Tasmanian government is currently moving to make Uber and other ride-sharing services legal in and the THVIA Bill is currently before the House of Assembly.

Western Australia

It is currently an offence under the Taxi Drivers Licensing Act 2014 to drive a vehicle for the plying or hire or otherwise for the purpose of carrying passengers for reward without a licence. Uber commenced operating in the Western Australian market in 2014 and the Department of Transport has issued fines to a number of individual Uber drivers. In early 2016, 400 taxi drivers commenced legal action in the Supreme Court against Western Australia’s Minister for Transport for failing to take action against Uber or Uber’s directors. Justice Tottle dismissed the application as it was a matter of policy whether the Department pursued prosecutions, not a legal issue.

In late 2015 the Western Australian government announced it would take steps to legalise Uber and other paid ride sharing services. It has been a slow process, but on 19 May 2016 the Western Australian government finally introduced the Taxi Amendment Bill 2016 into the lower house. The Bill is currently at the Second Reading speech stage. When passed, the legislation will allow for Uber drivers to operate with an “Omnibus licence” (cost $272). Each taxi plate licence owner will receive $20,000 in compensation for loss of business.

While it is currently illegal for Uber and other ride sharing services to operate in Western Australia, the Taxi Amendment Bill 2016 currently before the WA lower house will legalise Uber once passed, so long as Uber drivers have purchased an “Omnibus licence”.

Attwells v Jackson Lalic Lawyers [2016] HCA 16 – High Court rules on the advocate’s immunity from suit

On 4 May 2016 the High Court handed down its decision on whether to extend the advocate’s immunity from suit to situations where negligent advice is given which leads to the settlement of a case by agreement between parties and consent orders. This case summary has been written for junior lawyers working in litigation and law students studying Ethics and the Legal Profession.

The advocate’s immunity from suit

The two High Court precedents on advocate’s immunity are:

1.       Giannarelli v Wraith (1988) 165 CLR 543

The advocate’s immunity was said to extend beyond conduct of a case in court to “work done out of court which leads to a decision affecting the conduct of the case in court” (at 560). Mason CJ described two tests for determining whether work outside of court will attract the immunity:

a.       “work done out of court which leads to a decision effecting the conduct of the case in court” (at 559)

b.      “where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing” (adopted from the New Zealand case of Rees v Sinclair [1974] 1 NZLR 180) (the “intimately connected” test).

In D’Orta the High Court held that these two tests are essentially the same.

2.       D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 (applying Giannarelli)

In D’Orta, the High Court confirmed there are two categories where the immunity arises (inside of court and outside of court) and approved Mason CJ’s scope of the immunity for work occurring outside of court. The High Court held the immunity applied in the facts before it where an accused was given negligence advice to plead guilty, as the acceptance of this advice to plead guilty effected the determination of the case by the court as the court cannot conclude its function until a conviction is recorded, and the decision about a plea of guilty is intimately connected to the hearing of a criminal case as it is a decision made preliminary to the hearing of a charge which effects the conduct to the matter before the court.

Facts in Attwells v Jackson Lalic Lawyers

Gregory Attwells was a guarantor of payment of liabilities of a company to a bank. The company defaulted on the payments and the bank commenced proceedings against both the company and the guarantors (see Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335). The guarantors were represented by Jackson Lalic Lawyers in the proceedings. Proceedings settled (on what turned out to be negligent advice from Jackson Lalic Lawyers). The settlement was reflected in consent orders. The negligent advice from Jackson Lalic Lawyers included that the guarantors would be liable to pay the bank $3,399,347, when the guaranteed amount was $1,856.122, and the guarantors were not liable to pay more than this amount. The guarantors signed the consent orders based on this advice. The guarantors commenced negligence proceedings against Jackson Lalic Lawyers in the NSW Supreme Court, where Smchmidt J ordered that the question of whether Jackson Lalic Lawyers is immune from suit be decided separately from the other issues in the negligence proceedings.   

Legal question

Does the advocate’s immunity extend to negligent advice which leads to the settlement of a case by agreement between the parties?

Court of Appeal - Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335

The Court of Appeal held that Jackson Lalic Lawyers’ advice was within the scope of the immunity as the advice fell into the category of work done out of court affecting the conduct off the case in court, that the advice was intimately connected with the conduct of the guarantee proceedings.

High Court

The High Court held 5:2 that the immunity does not extend to negligent advice that leads to a disadvantageous settlement, even where the settlement is made into consent orders. Nettle J and Gaudron J dissented in separate judgments.

French CJ, Kiefel, Bell, Gageler and Keane JJ (the majority judgment):

a.       Intimate connection – look to the policy reason behind the immunity

The High Court majority began its analysis by identifying the policy reason behind the immunity. The rationale behind the advocate’s immunity is that the community at large has a vital interest in the final resolution of decisions by judicial determination, and that after a judicial determination has been made, it should not be open to collateral attacks seeking to demonstrate that a judicial determination is wrong ([34]). The immunity exists to protect the public interest in the finality of judicial decisions ([35]). This rationale is why the scope of the immunity is limited to conduct of the advocate which contributes to a judicial determination ([37]). The Law Society of NSW (as an intervener in proceedings) submitted that the immunity should be extended otherwise lawyers will not encourage their clients to settle their claims, as they will not have immunity from protection ([52]). The High Court rejected this argument, as it does not accord with the primary policy reason for the immunity.  Extending the immunity to advice which leads to the settlement of litigation takes the immunity away from its primary rationale, which is to protect the exercise of judicial power from collateral attack. The “intimate connection” between the advocate’s work and the conduct of the case in court must be such that the work affects the way the case is to be conducted so as to affect its outcome by judicial decision.

b.      Historical connection alone is not sufficient

The joint judgment discussed what would constitute an “intimate connection”, distinguishing “merely historical connections” from “functional connections” ([49]). The Law Society of NSW submitted that negligent advice not to settle is intimately connected with an ensuing judicial decision of the court so as to attract the immunity. The High Court rejected this “historical connection”, stating it is not sufficient that one event precedes another event to create an “intimate connection”. The “intimate connection” discussed in Giannarelli and D’Orta is a “functional connection” which is the connection required by the public policy reason for the immunity.

c.       Consent orders

The settlement was embodied in consent orders, and the respondent argued that this involvement of the court was sufficient to constitute an “intimate connection”. The High Court rejected this argument, as the substantive content of the rights and obligations in the consent orders were determined by the parties without any determination by the court. The terms of the settlement agreement “were not, in any way, the result of the exercise of judicial power”. The High Court left the question open as to whether it would be different in situations where “the making of the order itself requires the resolution of issues by the exercise of judicial power” such as where representative proceedings are settled or where proceedings on behalf of a person under legal incapacity are to be compromised.

The dissenters

Gordon J held that the advocates immunity does extend to negligent advice leading to settlement where the agreement is reflected in consent orders. Gordon J focused on a different aspect of the plurality’s judgment in D’Orta, being that the immunity plays a part in a series of rules which are “designed to achieve finality in the quelling of disputes by the exercise of judicial power” ([100]), equating the final quelling of disputes with “work intimately connected with” work in the court, and proceeded to focus on the final quelling of disputes rather than the intimate connection test the plurality focused on. While the majority distinguished Attwells v Jackson Lalic Lawyers from D’Orta, Gordon J argued that both cases involved a final quelling of the outcome, in that both admissions were given legal effect by authority of the court – in one case by entry of conviction, and in the other by entry of verdict and a judgment. Gordon J was careful to analyse the orders made by the court. Orders 1-9 constituted orders of the court recording a verdict and judgment made, whereas paragraphs 10 onwards in the orders merely noted the agreement made between the parties. The verdict and final judgment contained in Orders 1-9 constituted a final quelling of a controversy by exercise of judicial power which attracts the advocate’s immunity from suit.

Nettle J agreed with Gordon J’s reasons for dissenting, focusing on the final quelling of a dispute by judicial power. Even where the parties are agreed on the orders which should be made for the final determination of their rights and liabilities, it remains for the court to be satisfied that it is appropriate to do so to order, which involved judicial power and attracts the advocate’s immunity.