The Fair Work Commission recently handed down an interesting finding on the issue of dishonesty in the workplace as grounds for dismissal. Whilst the Commission had previously held that dishonest conduct was grounds for dismissal, the recent case discussed in this article exemplifies the need for a nexus between dishonest conduct and dismissal.

Valid reasons and unfair dismissal

Unfair dismissal claims lodged with the Fair Work Commission (FWC), including those involving genuine redundancies, can often be complex. To avoid a claim for unfair dismissal under the Fair Work Act 2009 (Cth), the termination must be made for a valid purpose and it must not be “harsh, unjust or unreasonable” or made for an unlawful reason.

Therefore, an important consideration for determining whether an employee’s termination constitutes unfair dismissal because it was harsh, unjust or unreasonable is whether there was a valid reason for that termination. We have provided examples of unlawful reasons and valid reasons for dismissal in another article concerning terminating an ex-partner’s employment.

Where the employee’s conduct is being used as a reason to justify the dismissal, it must be sufficiently connected to the employee’s employment and of sufficient gravity or seriousness to justify the dismissal as a “sound, defensible or well-founded” response. Applications to the FWC claiming unfair dismissal must be lodged within 21 days from the date the dismissal takes effect.

Previously, the Fair Work Commission has upheld that dishonest conduct in the recruitment process was grounds for dismissing an employee: see Garth Duggan v Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire and Emergency Services Board (MFB) [2018] FWC 4945 (23 August 2018). In this case, the employee failed to disclose that he was subject to legal proceedings which would impact his ability to conduct work and was generally misleading during the formal interview process. The Fair Work Commission held that this dishonesty was a valid reason for dismissal, and is a timely reminder for all prospective employees to ensure they are accurately representing themselves to recruiters and employers.

Dishonesty and unfair dismissal claims

In the most recent case of Steve Newton v Toll Transport Pty Ltd [2021] FWCFB 3457, Mr Newton was dismissed by Toll Transport Pty Ltd from his employment as a truck driver after he was involved in a physical altercation outside of work. Mr Newton sought remedies for unfair dismissal with the FWC. In the initial proceedings, Deputy President Boyce found that Mr Newton had been dishonest to both Toll and the FWC, and that this, not the physical altercation outside of work, constituted a valid reason for dismissal. The Full Bench granted permission for Mr Newton to appeal this decision which was subsequently upheld.

The Full Bench held that Mr Newton’s dishonesty to the FWC could not constitute a valid reason for dismissal as this dishonesty did not occur at the time of the dismissal. Furthermore, it held that Mr Newton was not required to be honest in Toll’s investigation of his private conduct (the physical altercation), nor answer their questions, merely because these questions were asked at work. The fight had occurred outside of work and lacked a sufficient connection to his employment. However, the full bench held that an employee does have an obligation to answer their employee’s questions about private conduct honestly in some circumstances, such as if that conduct damaged the employer’s interests. In those circumstances, dishonesty would constitute a valid reason for dismissal. As the appeal was upheld, Mr Newton’s specific unfair dismissal matter is to be reheard.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law in relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with unfair dismissal claims or employment terminations. If you need further advice or assistance with employment matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.