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Dishonesty not a good 'policy' for sacked employee

A recent Fair Work Commission dismissal case[1] has once again highlighted the benefits of a textbook workplace investigation after an employee was sacked for dishonesty.

As is not uncommon in unfair dismissal litigation, the employee disputed aspects of the employer’s evidence particularly the key discussions and meetings it held with him.

The employer’s clear evidence supported by contemporaneous, detailed notes of conversations, however, stood it in good stead with the Commission.

The Facts

The employee in question was dismissed over a knowingly incorrect timesheet entry for 13 March 2013 which claimed one hour’s overtime.

The employee had attended a toolbox meeting the prior day (12 March 2013) in which it was made clear to those present that no overtime was to be performed without the permission of the construction or operations manager.

The toolbox meeting included clear and specific directions about the manner of completing timesheets and with an accompanying warning that disciplinary action could be taken if  timesheets were not accurately completed. The employee had signed the toolbox meeting record of attendance.

The employer initiated a workplace investigation into the employee’s suspicious overtime claim, which (amongst other steps) involved a meeting between the HR Manager and the employee.

During the meeting, the HR manager questioned the employee about the circumstances of his claim.

The employee asserted that he had worked overtime till 5:30pm on the day in question and had arrived home at 6:00pm.

The HR Manager then showed the employee the GPS log for his work vehicle which demonstrated that he actually left work at 4:18pm and arrived home at 4:55pm.

The employee physically reacted to viewing the GPS records by shaking his head and placing his head in his hands.

At the completion of the meeting, the misconduct was considered substantiated and the employee dismissed.

In response, the employee filed an unfair dismissal claim with the Fair Work Commission.

The Decision

The employee claimed that he had been denied procedural fairness during the investigation process by being “cut short” when he attempted to respond to the allegations and that he was simply informed that he had been terminated.

The Commission preferred the evidence of the HR Manager about the conduct of the meeting and rejected the employee’s version.

The Commission observed that the HR Manager’s account of the termination meeting was “reconstructed in a detailed e-mail note composed only some minutes following the meeting.”

The HR Manager was assessed by the Commission as “an earnest HR practitioner whose evidence was given in a matter of fact manner and with a concern for detail and accuracy” and her evidence was “consistent and coherent.”

In contrast, the Commission described the employee’s account of the disciplinary meeting as “unstructured, incomplete and incoherent.”

The Commission viewed the employee’s physical reaction to being shown the GPS records as, in effect, “his response to the central, current allegation.”

The Commission found the employer had a valid reason for the dismissal because the employee “completed his timesheet incorrectly for reason that he intentionally sought to conceal a claim for an hour of overtime about which he was uncertain, or else knew, he could not legitimately claim.”

In finding that the employee was fairly dismissed, the Commission considered that over and above the employee’s non-compliance with his timesheet obligations, his failure to give open and honest responses during the workplace investigation irreparably damaged the essential relationship of trust and confidence.

Lessons for Employers

The relationship of trust and confidence sits at the heart of an employment relationship.

If the employer had carried out a sloppy or otherwise flawed HR investigation, the employee’s dishonest actions and responses may not have been uncovered.

When faced with a difficult employee with a poor disciplinary record, it may be tempting for some employers to cut corners during a disciplinary process, particularly if the behaviour has been long standing.

The employer’s robust workplace investigation ensured that its actions stood up to scrutiny.

The HR Manager’s textbook attention to detail during the investigation enabled the employee’s claims of unfairness to be given short shrift at the unfair dismissal hearing and serve as a textbook example to other HR investigators.

Do you know how to recognise dishonest responses during a workplace investigation?

Knowing how to properly gather witness evidence is a fundamental requirement for workplace investigators.

Once an HR investigator has gathered and assessed the evidence of relevant witnesses, it will be much easier to identify dishonest responses by an alleged wrongdoer during meetings.

Our recent webinar How to take Complainant and Witness Statements – the Right Way, showed attendees how to take statements easily and effectively.

The webinar is now available on DVD. For further information browse here.

[1] Mr Christopher Ferris v Water-It Queensland Pty Ltd T/A Dig It Landscapes Pty Ltd [2013] FWC 7158 (27 September 2013)

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