Dishonesty During Recruitment Justifies Dismissal
The Fair Work Commission has found the Melbourne Fire and Emergency Services Board (MFB) was justified in terminating an employee’s employment for dishonesty during the recruitment process.
What happened?
The applicant, Mr Duggan, was a trainee firefighter in Victoria at the time of dismissal. Prior to this Mr Duggan was an accredited osteopath in New South Wales between 2005 and 2010. He had numerous female patients during this time, several of whom made allegations of sexual and indecent assault against him. He was charged and brought to trial in 2012. He was subsequently acquitted.
During the firefighter recruitment process, Mr Duggan was required to provide a national police background check. Because he had been acquitted the report simply stated, ‘There are no disclosable court outcomes recorded.’ No further inquiries were made.
Even though he had been acquitted, the Health Care Complaints Commission filed a complaint of unsatisfactory and professional misconduct with the New South Wales Civil and Administrative Tribunal (NCAT). This related to conduct between 2009-2010. The submission was filed at around the same time the applicant was undergoing the recruitment process to become a firefighter. As the proceedings were pending, there was no practical way that MFB would have knowledge of them unless they were disclosed by Mr Duggan. They were not disclosed.
The NCAT hearing took place on 17 March 2016. The findings contained a formal reprimand, and an order that Mr Duggan be banned from practising as an osteopath for period of six years. At the same time Mr Duggan was undergoing his initial employment training and had still not disclosed these proceedings to his employer.
The matter came to the attention of his employer on 30 April 2016. Mr Duggan was stood down and his employment subsequently terminated. The two main reasons were:
- Failure to disclose relevant information during his recruitment, particularly given the serious nature of the allegations.
- The NCAT findings suggested that his behaviour was inimical to the high standard of trust and honesty which firefighters, who are frequently in unsupervised contact with vulnerable people, were required to uphold.
What the Commission found
On the question of whether there was a valid reason for Mr Duggan’s dismissal, Deputy President Masson of the Fair Work Commission found as follows:
[189] I am not satisfied that the NCAT findings in themselves and the conclusions that the Respondent reached that the Applicant was not a fit and proper person based on that decision establish a valid reason for his dismissal. Nor am I satisfied that the Applicant was dishonest by not volunteering information beyond the affirmative responses he provided to the arrest and charge questions during the recruitment process.[190] I am however satisfied that the Applicant engaged in dishonest conduct during the recruitment, employment and investigation process. That dishonesty of which I have made findings above are that he:
(i) disingenuously responded to questions during his formal job interview on 19 November 2015 in which he held out his osteopath skills as relevant to his application for a firefighter role and identified his having achieved a goal in walking away from osteopathy while failing to disclose the NCAT proceedings dealing with the HCCC application for his osteopath de-registration;
(ii) failed to disclose the NCAT Decision No. 2 of 17 March 2016 in circumstances where an order in that decision prohibited him from providing “health services”, such prohibition being directly relevant to his capacity to perform the full range of duties of a firefighter with the Respondent, specifically EMR; and
(iii) provided a false and misleading version of events to the Respondent during its investigation and to the Commission in his evidence as to the NCAT proceedings, the timeline of NCAT proceeding events and to his knowledge of those events relative to his recruitment by the Respondent.
[191] The dishonesty engaged in by the Applicant was not a trivial or one-off event but can be seen as a pattern of dishonest conduct motivated by the Applicant’s concern that honest and candid disclosure would have threatened his employment with the Respondent. In the circumstances, I am satisfied that the Applicant’s dishonesty constitutes misconduct and establishes a valid reason for his dismissal.
Deputy President Masson was ultimately satisfied the Applicant’s dishonest conduct during his recruitment, employment and the investigation conducted by the MFB justified the dismissal.
For Employers
Failure to disclose information upon initial employment does not automatically qualify an employee for termination or serious misconduct. Each case is different, and the proper procedure to follow depends on the material facts of each case. The correct action to take therefore can often be unclear. If you or your business is in a similar situation, we recommend speaking to one of our consultants. Employer Services offers free phone advice and live chat for subscribers. We can advise on appropriate steps to take for any allegations or suspicions of misconduct.