Unfair dismissal; honesty during employer investigation

In Butler v City of Wanneroo (2015) FWC 8 January 2015 the relevance of dishonesty by an employee during the course of an investigation by an employer in determining whether a dismissal is harsh and unreasonable was at the centre of Commissioner Williams decision who said “The Commission has previously considered balancing the issue of seriousness of an employee’s misconduct against the consequences of the employer’s disciplinary action. Relevantly the Full Bench of this Commission in Soliman v University of Technology, Sydney (2014) FWCFB 6394:

“These findings demonstrate that Vice President Watson balanced the seriousness of Dr Soliman’s conduct as found by the Misconduct Investigation Committee against the personal consequences for Dr Soliman of his demotion. That consideration was consistent with the test for harshness of a dismissal enunciated by McHugh and Gummow JJ in Byrne v Australian Airlines, namely whether it was “harsh in its consequences for the personal and economic situation of the employee or … it is disproportionate to the gravity of the misconduct in respect of which the employer acted”. We therefore consider that the central point of Dr Soliman’s case was properly considered.” (Reference omitted)

In its consideration of the appropriate penalty in this case the respondent initially considered it would dismiss Mr Butler solely because of his failure to provide employees under his control with a safe workplace. It however, taking into account the personal circumstances of Mr Butler, decided to apply the lesser penalty of demotion. In the circumstances, balancing the seriousness of Mr Butler’s conduct in failing to ensure the employee’s safety and in addition his dishonesty during the investigation against the relative penalty of the demotion and considering his lengthy service I find that there is no basis at all to find this was a disproportionate penalty.

The demotion and therefore in this case the dismissal of Mr Butler was not harsh, unjust or unreasonable. The dismissal was not unfair and this application will be dismissed and an order to that effect will be issued.