FWC rules timesheet falsification, workplace dishonesty justified termination
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a site supervisor who challenged his termination for alleged misconduct. The worker claimed he was unfairly targeted after raising concerns about company policy violations.
The worker argued that following his complaint about colleagues not adhering to procedures, management engaged in what he described as a "witch hunt" to remove him from the workplace. He maintained that several incidents cited by his employer were either exaggerated or fabricated to justify his dismissal.
Central to the worker's case was his belief that the real motivation behind his termination was retaliation for speaking up about workplace issues, rather than the misconduct allegations his employer relied upon.
The worker was employed as a site supervisor on a full-time basis from August 2022 until being terminated for misconduct in February 2024. The employer, DNA Construction Pty Ltd (DNA), claimed there were several discussions and warnings given throughout his employment that ultimately led to termination.
The dismissal letter dated 16 February 2024 specifically cited "deliberately recording incorrect start and finish times" as the reason for termination, which breached the worker's employment contract. DNA also relied on previous warnings given on 7 February 2024, 8 January 2024, and a letter of concern from 22 September 2023.
During the hearing, the worker admitted he did not record his start and finish times correctly. He claimed that when he first commenced employment, he had accurately recorded his hours but then stopped because an accounts manager told him this would "confuse issues with payment." He also claimed that "everyone puts 7.00 to 3.30 regardless what time they start or finish," though he provided no evidence to support this contention.
The FWC found this explanation inadequate, noting: "[The worker], as someone in a position of responsibility as a site supervisor, should have known better." The Commission determined this conduct constituted misconduct given the clear guidelines in DNA's handbook about recording working hours.
In September 2023, the Chief Operating Officer of DNA received a phone call from an operations manager raising concerns about the worker's conduct on a construction site, specifically that he was being intimidating and accessing restricted areas without permission.
The worker argued he wasn't provided with a copy of the written complaint, suggesting it wasn't genuine. However, DNA explained the complaint was initially made by phone before being followed up in writing after the worker had been spoken to about the issue.
At the hearing, the worker's own testimony revealed his dismissive attitude toward these restrictions, stating: "They kept saying, '[the worker], just keep in mind you can't go into this room', or, 'Just keep in mind you can't' -'Yes, yes, we understand all that', but nothing was ever said...'" This response indicated he didn't regard their comments as concerns about his conduct.
The FWC determined the worker didn't need to receive a copy of the written complaint itself - it was sufficient that he was advised of its nature and given a chance to respond. The Commission found the concerns about unauthorized site access to be legitimate and constituted misconduct.
Another serious incident involved the worker's handling of plastic vapour barriers on a construction project in November 2023. The project manager at DNA gave evidence that he had specifically discussed the drawings with the worker beforehand and explained how the old and new vapour barriers needed to be lapped and taped properly.
When the project manager later inspected the work, he discovered it hadn't been done correctly - the new vapour barrier wasn't overlapping the old one. This resulted in the initial site inspection failing, which the project manager testified was directly related to the worker's failure to follow instructions.
The worker denied any wrongdoing, claiming at the hearing: "To me plastic is plastic. Vapour is something that you breathe. I didn't understand until [the project manager] pointed it out to me, what a vapour is."
He argued it wasn't his area of expertise and that other contractors on site were responsible for the error, further stating that "it all worked out in the end" as the job was eventually signed off at inspection.
The FWC preferred the project manager's evidence, finding him "a credible and honest witness." The Commission concluded the worker failed to follow both verbal and written instructions regarding the vapour barrier, constituting a breach of his employment obligations "to act faithfully, honestly and diligently, and to carry out his work with care and competence."
In December 2023, the worker was invited via email to a disciplinary meeting regarding the vapour barrier incident. The email explicitly stated the worker was to keep "all matters and information relating to [the] allegation" confidential and he was directed not to discuss them with any other person without express prior consent from the Chief Operating Officer.
Despite this clear direction, the worker showed the email to a co-worker. The Commission noted that this co-worker then called the Chief Operating Officer "quite angrily saying 'there are nicer ways to invite someone to a meeting, ...[the worker] showed me the email you sent him.'" This indicated the co-worker had detailed knowledge of the meeting beyond just its scheduling.
The Commission found the confidentiality requirement to be "lawful and reasonable," stating: "Discussions regarding performance can be sensitive and whilst [the worker] may have had course to discuss the matter with a support person, I do not find he acted reasonably in showing the email to a co-worker, when [the Chief Operating Officer] had directed that the contents of the email not be disclosed without his express consent."
Following this and other incidents, the worker was issued a written warning on 8 January 2024 which stated: "[y]ou are reminded that any further misconduct may result in more serious disciplinary action, up to and including termination of your employment."
In January 2024, another incident occurred where steel contractors arrived at the construction site but were turned away by the worker due to flooding. When the project manager later texted asking "Did the steel guys turn up?", the worker simply replied "No" despite knowing they had arrived.
The worker claimed he turned them away because the flooding on site meant it would be an occupational health and safety hazard for them to be working. However, he admitted he didn't inform the project manager about this safety concern.
DNA provided evidence that parts of the site were not underwater and the flooded areas could have been cleaned up or the contractors could have worked in other areas.
The worker later claimed his text response was referring to a previous incident, but the FWC found this explanation unconvincing given the timing of the text exchange. The Commission concluded the worker "acted dishonestly when he advised [the project manager] that the steel contractors had not turned up, when in fact, he knew that they had."
Throughout the disciplinary process, the worker consistently refused to acknowledge any wrongdoing. The FWC noted: "throughout the various discussions had with [the worker] about his conduct, he has at all times remained steadfast in his unwillingness to acknowledge any wrongdoing or show remorse."
This attitude led DNA to reasonably conclude the worker's conduct was unlikely to change.
The worker claimed his dismissal was actually retaliation for a complaint he made in May 2023 about other employees not following company policies. He alleged that "Ever since that email, there was a 'Wit[c]h Hunt' to get rid of me." However, the FWC found that DNA had responded appropriately to this complaint.
The Commission found "no nexus between [the worker's] complaint and him being dismissed some eight months later," stating: "Simply making a complaint does not prevent conduct or performance issues from being raised with an employee. While, in some cases, it may be that a complaint is the catalyst for a retaliatory response, couched as 'performance' issues, there is no evidence of that here."
The worker also claimed he had been terminated in December 2023, but the evidence showed he continued working after the holiday shutdown period until his actual dismissal in February 2024. The Commission observed that "any such assertion is clearly contradictory to the parties' subsequent conduct."
In its conclusion, the FWC stated: "On balance, taking into account all the circumstances, I consider that the dismissal of [the worker] was not harsh, unjust or unreasonable. I am also satisfied that [the employer's] decision to terminate [the worker's] employment because of misconduct was not unfair." The worker's application was therefore dismissed.
