The Fair Work Commission handed down an interesting decision, finding that the Metropolitan Fire and Emergency Services Board’s reason for dismissal of an employee were invalid BUT that the firefighter’s dishonesty in regards to a professional ban he was facing in his previous profession as an osteopath due to indecent assaults was a valid reason for dismissal.
The MFB dismissed the employee based on the fact that due to the ban he did not “meet standards of personal integrity” and that the findings limited his ability to provide emergency medical assistance. The employee argued that he believes the ban issue by NCAT was not relevant to his application to work with MF, the FWC agreed, noting that work as an osteopath was not analogous to work as a firefighter, finding that the NCAT decision was not sufficient reason for dismissal.
However the FWC found that not alerting MFB during the recruitment process to the NCAT decision was dishonest as it was misrepresenting the reasons why he had left osteopathy. This formed part of a pattern of dishonesty during recruitment. The FWC found that this constituted misconduct and was therefore a reason for dismissal.
Despite the fact that these were not the reason initially relied on by MFB and therefore the employee did not have notice or an adequate opportunity to respond, the FWC found that on balance this failure on behalf of the employer did not outweigh the valid reason for dismissal and that consequently the dismissal was not unfair.
In its findings the FWC was critical of MFB for not doing its own due diligence during recruitment. The employee had disclosed his arrest and charges but this was not followed up by MFB, the FWC was critical of this lack of proper due diligence.
What does this decision mean?
This decision reiterates that employee dishonesty can mean misconduct, giving rise to a reason for dismissal. It also demonstrates that criminal charges, even those that have some kind of nexus to the employee’s role and employment, do not necessarily preclude them from employment or give rise to a reason for dismissal.
An Industrial Relations Commission decision recently found that a Legal Aid Solicitor who had been found guilty of assaulting his partner causing actual bodily harm did have sufficient nexus to his employment to allow for dismissal, and due to his seniority, his conduct may bring Legal Aid into disrepute. The Industrial Relations Commission upheld the decision by Legal Aid. However the Law Society deemed the man a fit and proper person, allowing him to keep his solicitor practicing certificate.
These decisions show the complex relationship between employment and criminal history which is not always clear cut. What is clear from the Fair Work Commission is that dishonesty from employees, when it amounts to misconduct, can be reason for dismissal.
For more advice on employee dishonesty or grounds for dismissal, call us on (02) 9199 8597 or email us.
The information contained in this post is current at the date of editing – 11 April 2025.