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Worker's "absolute dishonesty" sees fighting dismissal upheld on appeal

When dismissing an employee for serious misconduct, most employers are mindful that their actions may be challenged by way of an unfair dismissal claim.

Many employers are showing a preparedness to challenge adverse determinations in order that their dismissal action may be recognised as justified in the circumstances.

As this recent decision[1] demonstrates, losing an initial unfair dismissal hearing did not mean that the employer’s actions were not capable of vindication.

This employer’s rigorous HR procedures and thorough HR investigation assisted it to eventually come out on top.


An employee with seven years of previously unblemished work history was summarily dismissed in January 2013 following a workplace investigation into an altercation with a fellow employee.

The altercation consisted of a heated verbal exchange between the two employees that escalated into physical violence when the alleged wrongdoer grabbed the other employee’s arm, causing pain, bruising and scratches.

The comprehensive HR investigation undertaken by the employer into the allegations followed rigorous procedures including:

  • putting the allegations to the employee both verbally and in writing;
  • providing the alleged wrongdoer with opportunities to respond in person and in writing; and
  • allowing the employee to be represented and supported at meetings into the allegations.

Following the meetings, one employee (Mr Ishak) was dismissed on the basis of dishonesty and fighting.  The employee  subsequently lodged an unfair dismissal claim with the Fair Work Commission.

At the initial hearing, the FWC found in favour of the dismissed employee and ordered his reinstatement.

At the first instance hearing, the FWC held that the employee, Ishak, was unfairly dismissed.

The FWC Commissioner hearing the matter decided that the dismissal of the employee Ishak was harsh because of the differential treatment the employer had accorded to the Respondent when compared to the other participant in the altercation (Mr Samson).

In the FWC Commissioner’s eyes, both employees had been equally dishonest during the investigation process and the second employee’s actions were more than self-defence.

The Appeal

On appeal, a full bench of the FWC approved the employer’s actions and upheld the dismissal of the the employee, Ishak.

It found that the dismissed employee’s dishonesty throughout the investigation process was absolute – he denied any aggression or physical contact despite the evidence and when further approached contended that “nothing happened”.

Further, the conduct of the attacked employee (Samson) was not comparable to that of the dismissed employee.

Other findings by the Full Bench included:

  • the employee attacked his co-worker without physical provocation;
  • the altercation occurred in front of employer clients, causing embarrassment;
  • while the physical assault was on the lower spectrum, combined with the persistent dishonesty throughout the investigation, it warranted the employee’s termination; and
  • while it was a one-off incident for a long-term employee with no prior infractions, the employer could not be confident that the employee would be honest in the future.

All in all, there was a valid reason for the employee’s dismissal and nothing procedurally or otherwise gave rise to a consideration that the dismissal was harsh, unjust or unreasonable.

Lessons for Employers

The maintenance of the relationship of trust and confidence is vital to the continuance of the employment relationship.

The fact that the dismissed employee had been dishonest with his employer meant that it could not be confident that the employee would be honest with it in the future, thus destroying the relationship of trust and confidence

The employer, confident that it had its ‘ducks in order’, had sufficient incentive to pursue the courage of its convictions.

Having conducted a robust workplace investigation and with a sound basis for the disciplinary decisions made, the employer’s dogged determination in appealing the initial FWC decision paid dividends in the end.

[1] Jetstar Services Pty Ltd v L Ishak [2013] FWCFB 7030 (3 October 2013)

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