Why it’s critical to be honest with your employer
In unfair dismissal cases, the honesty of an employee is a central consideration the Fair Work Commission takes into account. Of course, we all know that outright lying to your employer is wrong and can have serious consequences. But withholding information from your employer can often be just as damaging. What is critically examined by the Fair work Commission in recent cases is the “trust and confidence” been broken by the employee and in turn then fairly dismissed. Why it’s critical to be honest with your employer should be compulsory reading.
For the most part, all employees have the right to keep details about their private life to themselves. What you do outside of work hours, the opinions you hold, and the relationships you pursue generally aren’t the business of your employer. However, there are instances when failing to disclose certain information about yourself to your employer can see you fairly dismissed.
Unfair dismissal: Firefighter dismissed for dishonesty about sexual assaults
For instance, in the unfair dismissal case Garth Duggan v Metropolitan Fire and Emergency Services Board, a firefighter failed to disclose that he had been subject to legal proceedings during his former career as a osteopath. Mr Duggan commenced his role with Victoria’s Metropolitan Fire Brigade (MFB) in early 2016. Four years earlier, he had faced criminal charges for allegedly sexually assaulting three female patients.
Mr Duggan was cleared of the criminal charges. However in 2015, at the same time he went through the recruitment process with MFB, the NSW Civil and Administrative Tribunal (NCAT) started proceedings against him. NCAT found that he had inappropriately touched the patients and notified him that he was prohibited from providing any health services. Mr Duggan didn’t disclose this finding to MFB, which later became aware of it through fellow recruits.
MFB subsequently dismissed Mr Duggan during his probation period for not honestly disclosing the charge against him. He challenged the decision through an unfair dismissal claim with Fair Work. Mr Duggan was successful in being reinstated, however when MFB appealed, Fair Work reversed its decision. It held that Mr Duggan’s dishonesty was a valid reason for his dismissal.
Unfair dismissal: Dishonest tram driver fails to disclose stroke
In the another unfair dismissal case – Mr Warren Soans v KDR Victoria Pty Ltd – a tram driver was summarily dismissed for serious misconduct for his dishonesty. Warren Soans, 63, had worked for Yarra Trams (otherwise known as KDR Victoria) since 2000. On 8 July 2021, he arrived at work but suddenly feeling unwell, and therefore didn’t start his shift. When Mr Soans arrived at home, his wife called an ambulance and he was taken to hospital. He was told that he had suffered a stroke.
Four days later, Mr Soans was discharged from hospital and was provided with a medical certificate. This stated that he was unfit to work for the next four weeks. Mr Soans passed the certificate on to his daughter, who subsequently emailed it to Yarra Trams. His daughter, however, didn’t explain that Mr Soans had suffered a stroke. She simply said that he couldn’t operate heavy machinery for a month.
The National Standard for Health Assessment of Rail Safety Workers states that someone who suffers a stroke is “unfit for duty for at least 3 months.”
Employee returns to work despite having suffered stroke
After no contact for four weeks, Mr Soans contacted Yarra Trams to say that, on medical advice, he could start working again. Critical to this unfair dismissal case is that he still didn’t mention that he had suffered a stroke. In accordance with the National Standard, Yarra Trams directed him to undergo a health assessment with a Rail Safety Accredited Doctor.
Mr Soans was legally required to undergo the health assessment before returning to work. However, proper protocol wasn’t followed, and he worked for three days before attending the assessment. He didn’t disclose that he had suffered a stroke to the doctor, who deemed Mr Soans fit to return to work. Mr Soans would need to attend a further review in a fortnight and he consented to the doctor accessing his medical report from the hospital.
“Clearly withheld information:” Doctor discovers that the employee wasn’t honest
Mr Soans went on to work several more shifts. Meanwhile, the doctor received his medical report from the hospital which revealed the stroke diagnosis. In the follow up assessment, the doctor asked Mr Soans if he was aware of the diagnosis, and he replied that he was. The doctor then said that he would need a clearance from a neurologist to continue working.
Around a month later, Mr Soans had an assessment with a neurologist. He passed the assessment, but was now required to wear corrective lenses. The neurologist, however, had noticed something strange on Mr Soans’ medical assessment form. Next to the question “have you had a stroke,” it appeared he had scribbled out a tick in the “no” box and ticked “yes.” Yarra Trams’ HR manager was informed of the results of the assessment and contacted the neurologist, who told her that Mr Soans “clearly withheld information.” He agreed with the assessment of the other doctor that Mr Soans was unfit for work.
Yarra Trams conducts investigation into the employees dishonesty
A week later, Mr Soans had an appointment with a different neurologist. He was deemed to have fully recovered from the stroke and provided clearance to continue working.
A week after that, Mr Soans was informed that Yarra Trams would conduct a workplace investigation into two allegations. Namely, that he had failed to disclose his medical condition to the Rail Safety Accredited Doctor and the first neurologist.
Employee is dismissed by Yarra Trams
The investigation concluded that the allegations were either partially or fully substantiated. Mr Soans was informed that Yarra Trams was considering dismissing him. He was invited to provide a written response.
Mr Soans was later summarily dismissed by Yarra Trams for serious misconduct. He subsequently lodged an unfair dismissal claim with Fair Work.
Fair Work rules on the unfair dismissal case
At his unfair dismissal hearing, Mr Soans offered an explanation why he hadn’t told the Rail Safety Accredited Doctor about his stroke diagnosis. He said that as someone without a medical qualification, the details of the diagnosis were difficult to understand and accurately recall. Mr Soans also said that he wanted the doctor to find out about the diagnosis himself, via the hospital report.
He also claimed that both the doctor and the neurologist had breached their confidentiality obligations under the National Standard. This, he felt, would deem the reason for his dismissal unfair. He said that “no one should have had this information available to them, and been able to use it, including Yarra Trams and the Commission.”
“Lack of candour and dishonesty:” Fair Work rejects Mr Soans’ claims
Fair Work Commissioner Tim Lee found that the neurologist had breached his confidentiality obligations. However, he disagreed with Mr Soans that Yarra Trams could not rely on the knowledge of his diagnosis to justify his dismissal. This was because Yarra Trams had conducted an investigation due to the “differing assessments of fitness to work from two doctors.” And that during the investigation, Mr Soans had disclosed his stroke diagnosis.
“Secondly, the confidentiality point does not alter the consideration of whether there was a valid reason,”said Commissioner Lee.
It was found that Yarra Trams had a valid reason for Mr Soans’ dismissal. Commissioner Lee said that he should have been aware of his obligation to notify his employer of his diagnosis, as per the National Standard. Commissioner Lee found that Mr Soans’ “lack of candour and dishonesty” were a “central consideration” in his unfair dismissal case. He found that Mr Soans had engaged in misconduct that “strikes at the heart of the employment relationship.” Ultimately, he found that Mr Soans’ dismissal was “not a disproportionate response.”
Remember to be honest at all times
It’s sometimes understandable that employees want to keep information to themselves that may affect their ability to work. Or in order to project the best image of themselves to their employer.
But if doing so involves breaking the law or their employee’s policies, it’s simply not right. And it can place them at risk of being fairly dismissed. If there is something in your personal life or past that could affect your role at work, it’s always best to be open and honest about it to your employer. Declaring it up front is always the best policy. If you withhold information or mislead your employer, they will very likely be informed about it later on anyway.
Trust and confidence
The term of trust and confidence (the “implied term”) is implied into all contracts of employment and case law in the 20th century defined as follows.
The employer and employee shall not:
“without reasonable or proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”
Trust and confidence are key components of the employer employee relationship. There are many benefits that can accrue from a trusting relationship. Including open communication of information, improved adherence to policies, improvement of salaries and benefits and better overall workplace experience. Telling lies, “porkies”, exaggeration of the facts and circumstances, strike at or erode the relationship. Once the trust and confidence is broken its hard to repair, and in many cases end in a dismissal or a resignation. That’s why it is “Why it’s critical to be honest”.
Conclusion to Why it’s critical to be honest with your employer
Have you been unfairly dismissed?
There are many cases, when employees are unfairly dismissed for failing to disclose information about themselves. Often, they are denied procedural fairness by their employer. Or it may be that they feel they weren’t obligated to disclose the information in question. These are all part of the reasons that end in a dispute or conflict. Do you have to tell your employer you have depression for example?, your a victim of domestic violence? or child sexual abuse? (these three examples are more common than you think). What’s it’s critical to be honest in order to avoid that dismissal is a case by case basis.
If you feel you have been unfairly dismissed, a Whole New Approach can help. We’ve assisted over 16,000 Australian workers to make unfair dismissal claims in every state and territory. AWNA are not lawyers, but the nations leading workplace advisors and commentators. All employees rights, casual employee issues, adverse action towards you, sacked from work, whatever call us We can provide the expert advice you need to make your claim a success. And you can benefit from our no win, no fee service.
Call us today on 1800 333 666 for a free and confidential conversation about your circumstances.
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