FWC finds elaborate scheme to undermine workplace complaint process
The Fair Work Commission (FWC) recently dismissed an unfair dismissal application involving a senior HR executive who was terminated after fabricating a text message to discredit a sexual harassment complainant.
The case arose when the worker attempted to undermine workplace investigations by creating false evidence suggesting the complainant had been "talked into making" her allegations, leading to findings of serious misconduct that justified immediate dismissal.
The worker argued he had been unfairly dismissed following workplace complaints and alleged that procedural deficiencies in the termination process rendered his dismissal unjust.
He maintained that sexual harassment allegations against him were false and that a text message from his accuser proved the complaints were fabricated under pressure from management.
The employer contested the worker's claims, arguing that serious misconduct including fabrication of evidence, inappropriate contact with complainants, and dishonest conduct provided valid grounds for immediate termination.
HR role creates heightened conduct expectations
The employment relationship involved a senior HR business partner for Victoria and South Australia who commenced with the engineering consultancy in January 2022, earning approximately $157,743 annually.
As a vision-impaired employee, he was provided with a non-standard large screen iPhone to assist with work duties, which became central to the subsequent misconduct allegations.
The worker's senior HR position created elevated expectations regarding professional conduct and understanding of workplace investigation processes.
His role involved conducting workplace investigations and overseeing disciplinary matters, making his subsequent conduct during his own disciplinary process particularly concerning from an employer perspective.
The Commission noted that as "a senior HR practitioner with many years' experience" conducting workplace investigations, the worker would have been "acutely aware of the need to respect the confidentiality of the disciplinary process."
This expertise made his later violations of investigation protocols especially serious given his professional knowledge and responsibilities.
Pattern of complaints triggers multiple investigations
The case involved a series of workplace complaints spanning from 2022 to 2024, beginning with allegations from an HR advisor who reported to the worker. In May 2023, this employee raised concerns about being overworked, overwhelmed, used as a personal assistant, and regularly contacted after hours, leading to a formal warning for the worker.
A second complainant was recruited in October 2023 as an HR business partner reporting to the worker. By February 2024, she had raised formal complaints alleging coercive control over her personal time, infantilizing language, obsessive questioning about romantic relationships with colleagues, and attempts to make her feel indebted for her employment.
A third complainant emerged in April 2024 with allegations of sexual harassment at the company's 2023 Christmas party, claiming the worker had inappropriately touched her and made comments about her body and reproductive plans.
These multiple complaints created an escalating pattern of alleged inappropriate conduct toward female subordinates and colleagues.
Fabricated text message scheme exposed
The central misconduct allegation involved the worker's claim that he received a remorseful text message from the second complainant on 1 July 2024, stating:
"I was talked into making the complaint in return for my role being confirmed … and I'm not sure if you're aware, but I am no longer there and I've been feeling bad about the whole thing."
Technical analysis revealed the message was sent from the worker's own work phone to his personal phone, with evidence showing he had manipulated the second complainant's contact details in his personal phone to include his work phone number.
The second complainant provided Telstra records proving she sent no messages on 1 July 2024, while the worker could only produce screenshots taken months later.
The FWC found: "The Applicant did not leave his work phone in a cabinet at the Respondent's Collins Street offices as claimed by him. He retained the work phone after he went off on personal leave... He then sent the [message] from his work phone to his personal phone. The resultant text message when received on his personal phone appeared to have been sent by [the second complainant]."
Investigation protocol breaches compound misconduct
Following receipt of the show cause letter detailing the third complainant's allegations, the worker attempted to contact her directly by phone on 11 March 2025.
This action violated explicit confidentiality directions regarding workplace investigations and occurred while he was formulating his response to the sexual harassment allegations.
The worker's attempt to justify this contact as an instinctive response to being "shocked" at the allegations was rejected by the Commission. The FWC noted:
"It is almost inconceivable that the Applicant would not have been acutely aware of the need to respect the confidentiality of the disciplinary process in circumstances where he himself has had responsibility for conducting or overseeing workplace investigations."
The employer immediately demanded cessation of contact attempts, noting the behaviour was "highly inappropriate" and could "undermine the investigation process" particularly when the worker was preparing his response to the allegations.
This conduct demonstrated wilful disregard for established investigation procedures despite his professional expertise.
Credibility findings undermine worker's defence
The Commission made adverse credibility findings against the worker, describing him as "an unimpressive witness" who was "reluctant to make concessions on matters that plainly required a concession to be made."
The tribunal found much of his cross-examination evidence appeared to be "made up 'on the fly'" with numerous unsubstantiated assertions.
Specific credibility concerns included contradictions about his assessment of the second complainant during recruitment (describing her as "bottom of the pile" despite emails calling her a "close second" and "great fit"), misrepresentations about his formal warning covering only one matter when it clearly addressed two, and claims about case authorities that were "simply wrong."
The FWC noted: "The above are but some examples of the Applicant's persistence in making patently false statements, making unsubstantiated and at times misogynistic claims and demonstrating an unwillingness to make appropriate concessions. This leads me to conclude that the Applicant is not a witness of credit."
Serious misconduct finding justifies termination
The Commission found the worker engaged in serious misconduct through two primary actions: inappropriately contacting a complainant during investigations and dishonestly fabricating evidence to discredit harassment allegations.
The tribunal determined this conduct was "calculated, dishonest and engaged in for the purpose of discrediting [the second complainant] and achieving a lesser penalty."
The FWC described the fabricated text message scheme as "a complete fiction" and "a cynical fabrication designed by the Applicant to discredit and undermine [the second complainant], the allegations made by her and the disciplinary process."
The Commission found this conduct was "wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment."
The tribunal noted the worker's conduct involved "literally throwing [the second complainant] 'under the proverbial bus' by accusing her of dishonest conduct" through false claims she had made trumped-up allegations under pressure and then engaged in vindictive retaliation.
The Commission described this narrative as "a complete fiction that even the famed spy story novelist John Le Carré would have been impressed by."
Procedural deficiencies insufficient to establish unfairness
While finding valid reasons for dismissal, the Commission identified procedural deficiencies in the termination process.
The worker was not specifically notified that his attempted contact with the complainant or text message fabrication were grounds for dismissal, nor given opportunity to respond to these specific allegations before termination.
However, the FWC determined these procedural failings were outweighed by the gravity of misconduct.
The Commission noted that when asked whether an opportunity to respond would have changed his position, the worker confirmed he would have maintained his false claims about receiving the text message from the second complainant.
The FWC concluded: "while the procedural deficiencies of the disciplinary process meant the Applicant was not put on notice of the valid reasons for his dismissal and he was denied the opportunity to respond, the outcome would have been the same in my view given the gravity of established misconduct."
Professional position increases misconduct severity
The worker's senior HR role significantly aggravated the seriousness of his misconduct, as he possessed professional expertise in workplace investigations yet deliberately violated established protocols.
The Commission emphasised that his position created heightened obligations regarding confidentiality, procedural fairness, and ethical conduct during disciplinary processes.
The FWC found the worker's conduct was "inconsistent with the maintenance of his employment" given his professional responsibilities and knowledge. The tribunal noted his "relentless" attempts to discredit the complainant through fabricated evidence demonstrated behaviour fundamentally incompatible with continued employment in HR.
The decision reinforces that senior HR professionals are held to elevated standards of conduct, particularly during workplace investigations, and that violations of professional obligations can justify immediate termination regardless of procedural irregularities in the dismissal process.
