What is ‘time fraud’? Worker claims unfair dismissal over ‘excessive’ breaks

'Deliberate and willful flaunting' of employer's trust, says commission

What is ‘time fraud’? Worker claims unfair dismissal over ‘excessive’ breaks

Ask any HR professional, and each one can tell you the importance of paid breaks in the workplace. It gives the staff a chance to rest and relax, making them more productive and efficient at their jobs.

Under the Fair Work Act, employers must provide employees with a certain number of paid breaks under their respective enterprise agreements. But what if it leads to abusive behaviour?

In this case, a worker took excessive breaks, leading to his termination. He argued that it wasn’t “intentional” and apologised. Meanwhile, the employer claims he “lacked integrity.”

Background of the case

The worker said he was unfairly dismissed from his employer, The Smith’s Snackfood Company Pty Ltd. He worked as a maintenance technician at its Tingalpa manufacturing location.

Around June 2022, he was called to a meeting to discuss the employer’s “concerns” about a break he took that month that was “lengthy.” The company’s representatives wanted to talk to him about the first break of the day which he had taken.

The employer asked if “he had permission to go off-site and if he took his break upon his return, as it would have exceeded his 30-minute paid break time under their enterprise agreement.”

The worker said he was getting lunch for himself and his co-workers off-site and that he “did this most Fridays.” He added that “it was accepted that they all had lunch together as a team.”

The meeting then ended abruptly with the worker walking out and saying, “this is bullshit” or “fucking bullshit.”

The supervisor asked him to return, but he continued walking away.

Following this meeting, the management reviewed CCTV footage for the previous week and saw that he had been late from his breaks on all the reviewed footage. Afterward, his supervisor advised him that he would be suspended on pay pending an investigation.

Based on their findings, the employer determined there was misconduct and considered the disciplinary outcome. It said it was “improbable” that he “did not know that his breaks were well in excess of the site agreement,” arguing that it was “deliberate conduct as it was repeated behaviour.”

It also considered his swearing and leaving the meeting without notice. The employer summarily terminated his employment around July.

Consequently, the worker filed a case for unfair dismissal, saying that termination was “too harsh” as he worked “diligently and responsibly.”

The parties’ arguments

The company terminated his employment for exceeding his allotted break time under their enterprise agreement, allegedly “on 10 different occasions, spanning 5 different days.” It said that it did not permit him to extend his breaks, and the inappropriate and disrespectful conduct that followed was unacceptable.

The employer also called his conduct “dishonest, lacked integrity, and struck at the heart of the employment relationship and resulted in them irretrievably losing trust and confidence.”

For his defence, the worker argued that his “excessive” breaks were “not intentional,” and he apologised for his actions. He also said the swearing resulted from “the meeting feeling like an interrogation,” adding that it was “not directed at the management but was a description of the situation itself.”

He further argued that his “extended breaks were known by management and accepted as a team building activity.”

The FWC’s consideration

The Fair Work Commission (FWC) commented on the worker’s act of leaving the meeting and swearing in front of the employer’s management, calling it “disrespectful and insubordinate.”

It said that “refusing and challenging the managers and supervisors’ authority to clarify his movements” were unacceptable.

“The supervisor was entitled to know about the worker’s movements, particularly as it related to a possible breach of the policies and the enterprise agreement,” the decision said.

As for the “excessive” breaks, the FWC said the “paid breaks that he took were significantly beyond the site agreement stipulations, and they were frequent and repeated over a 5-day period.”

“There were 10 instances of the worker taking breaks that spanned from 20 mins longer per day up to 50 minutes in excess of the agreement,” the decision said.

“This was a deliberate and willful flaunting of the trust of the employer,” it added.

“The worker engaged in ‘time fraud’ on a repeated series of days, which [is] misconduct of a serious nature,” the FWC said.

Thus, it found the employer had a valid reason to dismiss the worker. “The trust and confidence between the parties have been broken,” the FWC added.

HRD previously reported about a case where an employee claimed he was entitled to overtime payments because he took an employer-provided bus to work.

Meanwhile, fast-food giant and global icon McDonald’s faced a wage theft claim of over $250 million last year following its alleged denial of paid breaks to workers.

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