Was company justified in dismissing construction worker?
Under Australian labour law, an employer has the power to dismiss an employee who has committed misconduct or violated company policy.
When an employee commits misconduct, the employer must follow a fair and reasonable process that considers the employee’s actions, the policy violation, and the consequences of their actions. This involves allowing them a reasonable amount of time to defend and explain themselves.
And after a thorough investigation, the employer can decide to dismiss the employee or impose other disciplinary action.
In this case, a worker was dismissed for lying about alleged firearm and pornography charges, with the employer arguing that he was fired due to reputational risk.
Background of the case
The worker was employed as a construction worker. He lived in Seven Hills, New South Wales, but during his employment, his place of work was Bowral, NSW.
Around August 2022, his driver’s licence was suspended on the spot. He rang the employer’s site health and safety officer, who picked him up and drove him to Campbelltown train station. Instead of driving to work, he caught public transport at that time. He said he was sometimes late but said they never cautioned about it at the worksite.
In October, the worker suffered a psychological workplace injury. He reported it to the site’s safety officer and stopped working. For the weeks that he was absent, he had certificates of capacity. The employer allegedly instructed him to stay home and undergo counselling for his injury.
After a while of staying at home, he complained to the safety officer about being “stood off” because of his injury and made several allegations about how he had been treated at work, including “being asked to drive a vehicle for which he was not licensed,” and “not being given appropriate training or instruction and whether he could be responsible for damage to a machine he was not licensed to drive.”
In November, the general manager wrote to him, noting the suspension of his driver’s licence, and how it meant that he “could not perform the inherent requirements of his role ‘regardless of’ his recent certificates of capacity.”
The manager’s letter also raised “other concerns”, including pending charges against him concerning “alleged possession of unlawful pornography with a court appearance” and “alleged unlawful possession of a firearm, with a court appearance.
The manager said these charges “had real potential to cause the business reputational harm due to his employment, despite there being no conviction,” and said that the company was “considering terminating his employment.”
HRD recently reported on a federal case of a worker who got fired over a political post on LinkedIn.
In another HRD report, a worker was dismissed for lying about the suspension of his driver’s licence.
The exchange of letters between parties
The letter requested a response, despite the certificate of capacity then in place. He also “vehemently denied” that the worker had been asked to “do illegal operations” (driving machines without a licence).
The worker wrote back and confirmed his intention “to return to work once medically fit” and to use public transport to get to work until his licence was reinstated. He argued that management knew about his gun charges when he was employed and said he had witnesses.
He noted that his employment contract “did not require disclosure of previous criminal history or bail status and that there was no duty to volunteer facts of this kind if not asked to do so.”
He also listed five company employees aware of his firearms charges before he started working, saying “they had let him leave early each Monday to meet his bail conditions.”
As for the alleged pornography offence, he explained those charges were sealed. He had pled not guilty and was likely to be found not guilty.
The company wrote back and rejected the worker’s defence “that any staff knew about the firearms offences before his employment commenced.”
After a series of exchanges, the employer ultimately dismissed him without notice for serious and/or wilful misconduct.
The company said he had “twice made written false representations” about site management’s knowledge of his firearms charges before employment.
It said when the worker “was allowed to leave work early on Mondays, this was because of a driver’s license issue, not for any other reason, and certainly not for firearm charges.”
The employer argued that the site managers were “appalled” that he had misrepresented their knowledge on important matters and could no longer work with him.
Was there unfair dismissal?
The Fair Work Commission (FWC) found the allegation against the worker “were confected in a bid to justify dismissal after he ceased work due to his injury and his worker’s compensation claim.”
The Commission gave the following points:
- “The notion that he could not perform the inherent requirements of his job because he could not get to work ignores the fact that he had been doing exactly that for approximately two months; that his work site was close to the train station; and that he used an e-scooter to travel to and from the station.”
- “The site management was also aware of his firearms charges before he commenced employment because he was allowed to leave early on Mondays to meet his bail conditions,” pointing out to the sequence of events where he started work in March 2022, and the driver’s licence was not suspended until August 2022.
It also said, “the pornography charges did not present a reputational risk.”
“The worker told the employer that the case was sealed and names were not published in connection with the charges. They have also since been withdrawn by the NSW Police.”
Thus, for all these reasons, the Commission said there was no valid reason for his dismissal and ordered his reinstatement.
