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Even though an employer thought it had caught two employees redhanded for workplace fraud, the Fair Work Commission[1] was not impressed with the employer’s “lack of effort” to seek information relevant to its HR investigation. A lack of effort which, in relation to one of the employees, subsequently brought the employer undone.


The employees, Mr Leimonitis and Mr Hourigan, were both dismissed on the same day in May 2012. Mr Leimonitis was summarily dismissed for alleged irregularities in timekeeping. Mr Hourigan was summarily dismissed for clocking on Mr Leimonitis who was not at work.

The employer considered both issues as “systematic” breaches of the payroll system. Mr Hourigan had, and the FWC later agreed to an extent, on a number of occasions stamped Mr Leimonitis’ time sheet on his behalf, before he actually attended the workplace.

What did the employer do wrong?

During the subsequent HR investigation, the employer failed to completely particularise the exact reasons for their dismissal and provided little to no opportunity to the employees to respond to the alleged misconduct[2]. In particular, the employer did not disclose all evidence at their disposal to the relevant employees – resulting in a clearly limited (and effectively one-sided) HR investigation that adversely affected an employees well established right to respond to allegations of misconduct.

The FWC reiterated that while employers have the right to expect their employees will be honest in their dealings, natural justice dictates that an employee should have an adequate opportunity to respond.

The termination of Mr Leimonitis’ employment was found to be harsh and unreasonable, with the Commissioner going so far as to suggest that had the HR investigation been conducted appropriately, his dismissal would not have been a likely outcome. He received one weeks pay + super in compensation. Mr Hourigan was not so fortunate. His dismissal was upheld – as it was his actions that clearly amounted to fraud/theft.

What does this mean for employers?

Ultimately, it is crucial for employers to act with the utmost transparency throughout an HR investigation so as to not undermine often clear, valid reasons for employee discipline. If evidence of wrongdoing is collected, it should be put to to the alleged wrongdoer for his/her comment. Failing to do so risks the overturning of disciplinary outcomes if the employee concerned challenges the employer’s actions by way of legal action.

[1] Leimonitis and another v Qube Logistics (Vic) Pty Ltd [2013] FWC 3 (4 January 2013)
[2] Paragraph [84]

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