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‘You can’t handle the truth’ determination by FWC

Photograph courtesy of Sony Pictures

The ‘stakes’ are usually high for an employee who is being investigated for alleged serious misconduct.

When an alleged wrongdoer’s job is on the line it is not uncommon for the person to be evasive or give dishonest answers during a workplace investigation.

This unfair dismissal case[1] involved conduct described by the FWC as a “farrago of lies” and “ridiculously implausible explanations” by the employee in question.

Importantly for HR investigators, the FWC gave a valuable breakdown of the differing levels of employee dishonesty and their seriousness.

Background

The employee in question (Mr Vujica) was employed as a forklift driver by TNT Australia Pty Ltd.

At the time of his dismissal, the employee had been employed for 10 years but his employment was not without in incident.

Warnings

In 2010 the employee received a written warning over repeated customer complaints (7 complaints in 8 years).

On 14 November 2013, the employee also received a written warning for repeatedly breaching the employer’s safety policies by failing to wear the forklift drivers’ seatbelt at all times while operating the forklift.

Dismissal

On 21 January 2014, the employee was dismissed from his employment for serious misconduct.

The employer’s reasons for the dismissal were that the employee had: (1) worked for a competitor while certified medically unfit for work, and (2) sent his HR Manager a threatening letter.

The (unsigned) threatening letter to the HR Manager complained:

  • that the forklift’s seat belt was badly designed and caused discomfort
  • the employee had been unfairly targeted and the warning letter and punishment were merely “a ruse” to make his life miserable

The letter threatened that unless the HR Manager told the employee’s supervisor to leave him alone, he would report every safety breach by the employer he found to the Roads and Maritime Service.

Workplace Investigation

During the employer’s HR investigation the employee had denied sending the letter to his employer and nominated his ex-girlfriend as the person responsible.

When pressed for further details, the employee refused to name his ex-girlfriend.

The employee also refused to answer questions about working for another employer while unfit for duties with TNT.

Given the weight of evidence in support of the allegations, the employer did not accept the employee’s denials and considered his actions serious misconduct.

Unfair dismissal claim

Following the termination of his employment, the employee filed an unfair dismissal claim with the Fair Work Commission.

The denials continue …

At the FWC hearing, the employee denied sending the letter to the HR Manager.

Under cross-examination, the employee did name his ex-girlfriend but said that she had returned to live with her family overseas.

The employee was also cross-examined as to how his ex-girlfriend would have known the non-public workplace details set out in the letter.

The employee maintained his denial about writing the letter and stated that he had told his ex-girlfriend a number of the workplace issues in the letter.

The employee also denied performing work for Toll personally but stated that a person by the name of ‘Rex’ had performed the work on behalf of a company of which the employee was a director.

What did the FWC say?

The FWC was condemning in its assessment of the employee’s evidence.

In my view, the applicant is a practised, consummate, but utterly implausible manipulator of words and events for his own ends. He relies on this in order to cast himself as the victim, the honest whistleblower and to deflect attention from his obvious shortcomings.

In this case, he twisted and manipulated circumstances to either cover up or explain away his own lies and dishonesty. There were many examples of the applicant’s unbelievable, almost laughable propositions.

The FWC found that the employee was guilty of serious and wilful misconduct in that he:

  • lied to his employer as to the authorship of the letter to the HR Manager
  • defrauded his employer by working for another employer and claiming to be certified unfit for work
  • lied to his employer when stating that he had not worked for Toll at any time, including when certified unfit for duty

In a statement sure to be of significant interest for HR investigators, the FWC said the following about the employee’s failure to cooperate with the HR investigation.

“In my opinion, the … failure to co-operate with the investigation is no unimportant or trivial matter. …

It must be emphasised that employees have a duty to cooperate with an employer’s investigation of their conduct. It is paramount to getting to the bottom of the allegations and may go to mitigating against an otherwise more serious outcome, if the misconduct is found to have occurred.

Where an employee deliberately sets out to lie during an investigation, it is even more serious than a lack of cooperation or failure to disclose relevant information. It could well be viewed as misconduct of itself.”

Although recognising the employee’s long service with the employer (10 years), the FWC commented that even if the employee had 40 years of unblemished service, the seriousness and wilfulness of his misconduct outweighted the mitigation of lengthy service.

In further condemnation of the employee’s evidence, the FWC observed:

“There was not a hint of contrition, not a skerrick of an acknowledgement that the evidence against him was overwhelming – just a farrago of lies and ridiculously implausible explanations, even lies created during the proceeding itself … .”

The FWC considered the employee’s termination to have been fair and dismissed his claim.

Lessons for Employers

Dishonesty during an investigation can create a valid reason for an employee’s dismissal irrespective of whether the original allegations under investigation are established.

In the case in question, the FWC identified a ‘hierarchy’ of dishonesty capable of being committed by an employee during an HR investigation.

That is:

  1. Where the employee deliberately sets out to lie during a workplace investigation.
  2. Where the employee engages in a lack of cooperation or fails to disclose relevant information.

HR investigators should be mindful of those categories whilst undertaking a workplace investigation, particularly when faced with responses at odds with the gathered evidence.

Learn how to handle difficult opponents during a workplace investigation

How to handle difficult opponents during a workplace investigationWorkplace investigators often encounter evasive answers and dishonest responses from alleged wrongdoers during workplace investigations.

The HR Investigator’s How to Handle Difficult Opponents During a Workplace Investigation DVD will teach you how to stay out of hot water.

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[1] Vujica v TNT Australia Pty Ltd [2014] FWC 4790 (1 August 2014)

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