Employee Who Claimed to Be In India While In Oz Wins Dismissal Claim

An employee (the Applicant) who was sacked from his job at a Canberra language college has won his unfair dismissal claim in the Fair Work Commission (FWC) despite the FWC hearing evidence that he pretended to be in India caring for his sick father when he was really in Australia.

Background

The Applicant started work with the employer, EnglishWise (the Respondent), in July 2018 as a casual Trainer/Instructor. On 26 July 2019, he advised the Respondent that he needed to return to India due to a family emergency as his father was ill and that he had arranged a flight for 29 July.  He also gave the Respondent a copy of his flight reservation.  On 19 August 2019 the Respondent and the Applicant exchanged messages on WhatsApp:

Respondent: Still in India Lakshay?

Applicant: Yes, will update you soon, planning to come back soon.

Respondent: Lakshay! We will need the date at the earliest. I need to have a chat with you anyway.  Please keep me posted

Applicant: Once i book flights, i will update you

The Respondent told the FWC that it contacted the travel agency identified on the Applicant’s flight reservation and learned that the reservation belonged to someone other than the Applicant.  The person to whom the reservation belonged was said to be a Mr Paliwal who is a former employee of the Respondent who had set up a rival business in Darwin. The Respondent summarily dismissed the Applicant by email on 22 August 2019 in the following terms:

 This is to advise that your employment is now terminated at EnglishWise with immediate effect.

You have breached non-negotiable aspects of the employment contract. We have started our investigation and legal action may be taken against you and associated parties upon collecting all evidences.

You went overseas few weeks ago and until this day we do not have your returning date thus leaving us in complete dilemma and we have suffered huge loss to the business.

Please surrender all the assets immediately you possess under the company and Company itself will make arrangements to collect those assets.

Before the FWC the Applicant argued the dismissal was unfair because the Respondent did not undertake the investigation referred to in its dismissal email.  He also asserted that he had received no warnings and nor had there been a single meeting convened by the Respondent to discuss its concerns.  The Respondent argued the Applicant had put the business in a dilemma by not providing an exact date for his return from leave, that it had reason to believe the Applicant had used a forged itinerary and did not leave for India but was in Darwin working for a competing company using its confidential information. 

What the FWC found

Deputy President Kovacic of the FWC found that the Applicant had lied about his whereabouts when contacted by the Respondent and questioned why the Applicant had not been upfront with the Respondent when his plans changed.  The Deputy President also found that the Applicant’s conduct in jointly with Mr Paliwal inviting likes on a competitor’s Facebook page not only showed extremely poor judgement but was inconsistent with his general duty to act in the best interests of the Respondent.  The Deputy President said these factors supported a finding that there was a valid reason to dismiss the Applicant.

Despite the existence of a valid reason, the Deputy President found the “absence of any semblance of procedural fairness” in the manner in which the dismissal was effected made the dismissal “completely unreasonable”.  The Respondent dismissed the Applicant without advising the Applicant of its concerns and without giving him the opportunity to respond was in part explained by the absence of dedicated human resources expertise in the business.  However, the absence of that expertise did not diminish the significance of the procedural flaws in the case.  The Deputy President noted that the Applicant’s lack of honesty with his employer reflected very poorly on him as well.

The Respondent was ordered to pay to the Applicant the amount of $4,073.42 as compensation for his unfair dismissal.

Chandan v Language Smart Pty Ltd T/A Englishwise [2020] FWC 1057