Dishonesty will very often cause such damage to the relationship of mutual confidence necessary between employer and employee that termination, even summary dismissal, will be justifiable, as in the following example.
An employer with a generous leave policy has had the termination of an employee, for abusing that policy, upheld by Fair Work Australia. In Pearce v Nyrstar (10 March 2011), the employer had an unlimited personal leave policy, under which employees could take as much leave as necessary, without regard to the minimum standards under the Fair Work Act, provided the employee provided the appropriate documentation.
FWA accepted that this policy operated to a great degree on trust and that the policy would be undermined if the employer could not trust employees to use it responsibly, and that it would disadvantage all employees if trust was abused.
In this case, Mr Pearce sought annual leave for a weekend, but was refused because it was not convenient for scheduled production. Mr Pearce then applied for carer's leave, supported by a medical certificate relating to time off to attend appointments with his daughter, who had suffered an injury. The leave was approved and the employer arranged replacement employees, but then heard rumours that the leave was not all that it seemed to be.
The employer engaged an investigator who provided evidence that the employee had travelled to a resort for the weekend with his family. The employee was stood down and given the chance the following day to explain. Although Mr Pearce said that he was having marital difficulties and had to make the choice of saving his marriage or attending his job, he was dismissed without notice for having claimed carer's leave under false pretences. The employee claimed that he was caring for his daughter, although not in the way anticipated by the medical certificate.
However, FWA held that use of leave as Mr Pearson had, when the medical certificate related to appointments, was at no time a legitimate use of the leave policy and was a valid reason for dismissing him, as was his dishonest response to questions about the leave. Lies were not excused by Mr Pearson being taken by surprise by the questions.
As an employer, if you think you've been lied to, consider this:
Can you prove that what the employee said was deliberately untrue, ie is there credible evidence to show this, disregarding suppositions and assumptions? Often as the employer you will bear the onus of proving dishonesty, so it is important to get the evidence straight before acting.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
