Dishonesty can be a valid reason for dismissal, even if not the original reason

The Fair Work Commission has found that an employee’s dishonesty during the “recruitment, employment and investigation process” was misconduct constituting a valid reason for the dismissal, despite dishonesty not being the original reason given by the employer for the termination of the employment.

Mr Duggan commenced his employment as a firefighter in 2015 and was involved in NCAT proceedings in relation to allegations of indecent and sexual assault during his former occupation as an osteopath in 2009 and 2010.

The employer’s initial reason for the dismissal was that because of the NCAT’s decision, the employee “was not a fit and proper person with the necessary level of personal integrity required of a firefighter”. The Commission found that this was not a valid reason for the dismissal in this case.

However, it was ultimately held that the employee was dishonest regarding his response to “questions during his formal job interview”; not disclosing the NCAT decision when a relevant prohibition imposed by NCAT would affect his ability to perform the work of his current employment; and providing “false and misleading” information to the fire brigade and the Commission. The Commissioner took the view that the dishonesty “was not a trivial or one-off event but can be seen as a pattern of dishonest conduct…”. This appears to provide another avenue for employers in an unfair dismissal situation where dishonesty is subsequently uncovered.

The Commission did acknowledge that a factor working against the case of the employer was that the employee was not “notified of the valid reason prior to his dismissal” because the dishonesty reason was advanced later. Even though this was not decisive in this case, it still shows the need for employers to conduct thorough investigations and to attempt to identify any elements of dishonesty, which could then be put to the employee before the decision to dismiss is made. Notwithstanding the success of the employer in this case, employers should not rely on the slim chance that dishonesty will be subsequently uncovered during the FWC process and upheld as a subsequent valid reason for the dismissal.

The case is also a reminder for employers to conduct “necessary due diligence” and to ask further specific questions where an employee has answered in the affirmative to a significant question that may be highly relevant to the employment. In this case, the Commission found that Mr Duggan was not “dishonest by not volunteering information beyond the affirmative responses he provided to the arrest and charge questions during the recruitment process”, answers which were not followed up by the employer. 

Garth Duggan v Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire and Emergency Services Board (MFB) [2018] FWC 4945 (23 August 2018)

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.