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
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
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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