22 June 2021
A recent Full Bench decision of the Fair Work Commission (FWC) considered the circumstances in which a dishonest answer by an employee to their employer’s questions provides a valid reason for dismissal.
In Newton v Toll Transport Pty Ltd [ FWCFB 3457], the FWC Full Bench, headed by President Justice Iain Ross, overturned a ruling that a truck driver was fairly dismissed because he lied about his involvement in a fight with a colleague at a union conference outside a Melbourne hotel.
Decision at first instance
In the first instance ruling, the FWC found that despite the fight taking place between two co-workers and the employer paying for the delegates’ flights, meals and accommodation, there was no sufficient connection between the fight and their employment because the event was organised by the union and it was outside of working hours.
Nevertheless, the FWC determined at first instance that the investigation into the incident did have the requisite connection because it occurred “at work” and so the untruthful responses did fall within the employment relationship.
Decision on appeal
On appeal, the Full Bench observed that in some circumstances a dishonest answer to a question about conduct outside of working hours may provide a valid reason for dismissal if the conduct has sufficient connection to employment.
For example, a dishonest answer to a question about conduct outside of work may provide a valid reason for dismissal if an employee damages the employer’s interests by dishonestly and intentionally impugning the character of another employee. Or the dishonesty might mean the employer cannot be confident the employee would be honest with it in the future.
However, the Full Bench ruled, where there is an insufficient connection to employment, dishonest answers by an employee to their employer’s questions about their out of hours conduct could not be a valid reason for dismissal. Moreover, the connection is not established merely because those questions were asked while the employee is at work.
The Full Bench referred the case to another FWC member to determine whether the driver had been dishonest, and, if so, whether this was a valid reason for dismissal and whether the fight had a connection with the workplace.
Lessons for employers
The FWC decision restates existing legal principles set down by earlier FWC and court rulings. These can be summarised as follows:
Generally speaking, a dishonest answer given by a senior executive to their employer’s question is more likely to provide a valid reason for dismissal than if given by a junior employee because the employer has a greater expectation that the more senior employee will act with loyalty, fidelity and faithfully serve their employer, which is inconsistent with dishonesty. Of course, most senior executives do not have access to unfair dismissal rights so the issue is moot.
Authors: Charles Power & Ashleigh Warren
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