When an employee thought he could outsmart his employer by failing to cooperate with an investigation into his conduct, and get away with it, he was dead wrong. He was summarily dismissed and has lost his unfair dismissal case in spectacular fashion with the Fair Work Commission (FWC) scathing in its criticism of him.
The trouble started for the hapless employee when he thought it a good idea to claim sick leave from his employer and work for a competitor. When his employer found out, he invented stories and generally failed to cooperate with the investigation, claiming privacy and that the employer was prying into his personal affairs. So he was sacked on the spot.
The employee claimed unfair dismissal but the evidence was overwhelmingly against him. For each piece of incontrovertible evidence proving the misconduct, the employee had a ludicrous, invented explanation. The FWC analysed these responses and dismissed them as “a farrago of lies” and made strong censorious comments about the entire case the employee mounted.
Of particular interest was the FWC’s discourse in this decision about how what an employee does outside of the work environment can and does have a bearing on the employer. Any suggestion that out of hours activities are none of the employer’s business, was rejected. The particulars of this case, namely the fraudulent sick leave claim, meant that the employer was unarguably entitled to know what the employee was doing when he wasn’t at work, but the decision also reinforces the general entitlement employers have to take such an interest.
Further, the FWC made a very strong statement about employees’ obligation during an investigation, saying “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.”
The FWC also gave the employer a very broad hint about a costs application.
This decision is a fillip for employers who often feel that FWC is a one-way street in this area, although it is true the employee’s behaviour in this case was particularly egregious. Nevertheless the decision reinforces some employer rights and for that reason alone it is important.