Twin horns of dilemma – when the cover-up is worse than the crime

Quite often when employees face disciplinary action and investigations by their employer for alleged misconduct, there may be a desire to not be as upfront and truthful in responses provided.

Invariably, where an employer uncovers the mistruth, they will rely on the old formula of saying they have lost trust and confidence in the employee and that the employment relationship has been broken.

This is an interesting problem faced by employees, particularly in circumstances where had they been upfront and honest, then likely, the original misconduct might have been dealt with by way of counselling, retraining or reprimand at worst.

There have been numerous Fair Work Commission decisions involving an examination of precisely these types of scenarios. The key take-away from those decisions is that there is a duty by the employee to provide truthful answers to the employer.

In concluding whether an employer has a valid reason to dismiss an employee, the Commission will frequently consider the question of whether the employee has demonstrated a lack of candour and dishonesty throughout the process.

Where such serious misconduct occurs, Commissioners have found that it strikes at the heart of the employment relationship making reinstatement virtually impossible as the outcome sought.

Members are reminded to always seek the support and representation from trained union officials when facing any kind of workplace investigation and to contact the union before responding to any workplace allegations.