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Perspective

Fair Work Commission confirms dishonesty on misconduct warrants dismissal

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Mr Thomas was a Detention Services Officer (DSO) employed on a casual basis by Serco Immigration Detention Centre (SIDC). While working at the Pine Rivers Hospital, he was responsible for closely supervising one detainee. The detainee exited the Hospital while Mr Thomas was on shift.

Mr Thomas was immediately stood down pending an investigation into the incident.  He met with his manager to discuss the incident and review the relevant CCTV footage.

The CCTV footage revealed Mr Thomas:

  • failed to maintain security protocols and processes;
  • did not ensure the detainee remained within his control and line of sight at all times;
  • was dishonest in his reporting of the incident details in the logbook (and again during the meeting with his manager).

Mr Thomas attended a disciplinary interview to respond to the above allegations alongside his support person. He was subsequently invited to a meeting during which he was advised a decision had been made to end his employment by reason of serious misconduct.

Mr Thomas claimed his manager initially directed him to not note the incident in the logbook then subsequently directed him to report the incident. The Fair Work Commission was not inclined to accept Mr Thomas’ claim and noted even if it were the case, Mr Thomas was trained on and aware of his reporting requirements under the relevant policy. The Commission noted Mr Thomas’ misconduct was compounded by his dishonesty, and the dismissal was not unfair.

See Tojo Thomas v Serco Immigration Detention Centre [2020] FWC 3738

Lessons

  1. This case highlights the importance of having good policies and procedures in place, and regular and documented training for employees on those policies and procedures, in defending an unfair dismissal claim following dismissal for policy and procedure breaches.
  2. If you suspect an employee is being dishonest about their conduct, you must give them an opportunity to correct their account. Should you determine they have been dishonest, you must advise them accordingly and give them an opportunity to show cause as to why their employment should not be summarily terminated. It is important to be gentle and generous throughout the process to avoid any risks of a workers’ compensation claim.
  3. Not all dishonesty will warrant summary dismissal or even dismissal with notice. It must be serious enough that it puts the organisation at risk or such that the organisation loses total trust and confidence in the employee. For example, it would not warrant dismissal if an employee steals office stationery on one isolated occasion and lies about it. An employee’s long-standing tenure and good behaviour must always be considered against the seriousness of their dishonesty.
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