- Whether dishonesty in connection with a workplace investigation constitutes a valid reason for dismissal will depend on the context.
- The Fair Work Commission is likely to closely examine whether ‘out of hours’ conduct has sufficient connection with the employment to provide a valid reason for dismissal.
- An employee is not required to answer questions that do not have a relevant connection to their employment.
- In determining whether there was a valid reason for dismissal, the Commission is not confined to the reason(s) advanced by the employer at the time of dismissal or during the hearing. However, an employee must be afforded procedural fairness, so any reason ultimately relied upon must be put to the employee during the hearing.
A Full Bench of the Fair Work Commission has considered when dishonesty in connection with a workplace investigation can constitute a valid reason for dismissal for the purposes of the unfair dismissal provisions of the Fair Work Act 2009. The answer will depend on the context, including whether the investigation was in relation to matters that occurred at or in connection with work, or alternatively was in relation to ‘out of hours’ conduct.
Newton v Toll Transport Pty Ltd  FWCFB 3457 (‘Newton’) concerned an appeal from a finding by a single commissioner that, while a fight outside of work hours was not sufficiently connected to the workplace to constitute a valid reason for dismissal, the employee’s subsequent dishonesty regarding the fight provided a valid reason for dismissal.
Facts in Newton
Mr Newton and Mr Chambers were employed by Toll Transport Pty Ltd (‘Toll’) and were both Union delegates. They were involved in a fight outside a hotel where they were each staying in connection with a Union meeting, and which they had taken leave to attend. After an investigation by Toll, both were dismissed.
Mr Newton and Mr Chambers each brought unfair dismissal applications, which were heard together. In that hearing, they gave conflicting evidence about the fight and who started it. The Deputy President at first instance preferred Mr Chambers’ evidence, finding that Mr Newton was the aggressor. He rejected much of Mr Newton’s evidence about the fight, characterising it as ‘self-serving or implausible’, as ‘sinister conduct’, and as false assertions that were made in an attempt to save his job by damaging the character and reputation of Mr Chambers.
The Deputy President concluded the fight did not have a sufficient nexus with Mr Chamber’s or Mr Newton’s employment with Toll. That led to a conclusion that Mr Chamber’s dismissal was unfair, and an order reinstating him.
When it came to Mr Newton’s application, notwithstanding the conclusion that the fight did not have a sufficient nexus with the employment, the Deputy President concluded that Mr Newton’s dishonesty in giving his account of the fight during the investigation constituted a valid reason for dismissal, such that his dismissal was not unfair. In concluding there was a valid reason for dismissal, the Deputy President referred to Mr Newton’s dishonesty ‘both to Toll, and before this Commission’. Mr Newton appealed.