‘False Complaints’ and Unfair Dismissal

November, 2015

By Clayton Payne, Special Counsel

If a complaint made by an employee about another employee is found to be false, is this a valid reason for dismissal?

What type of scrutiny do external reports have to come under before they are relied upon to take action against an employee?

And if the reports are not appropriately scrutinised, what are the consequences if an employee has been dismissed?

These matters were recently examined by the Fair Work Commission.

The Facts  

In Osmond v St Vincent’s Hospital Sydney, it was alleged that the worker, an employee of 23 years standing, had been unfairly dismissed. This dismissal followed an external review finding that he had maliciously lodged a false complaint against a co-worker.

The complaint related to the physical search of a female patient by a male co-worker, which the worker claimed had been conducted indecently and in breach of policy.

Given the nature of the complaint, the matter was referred to the police.

The worker refused to make a formal statement to the police, as he claimed that he did not want to exaggerate the seriousness of the incident.

An external investigator was then recruited by the employer to investigate the worker’s conduct in making the complaint.

The key findings of the external report were seemingly contradictory. The report found that the worker knowingly made a false complaint, but that if the complaint was not false, the worker had engaged in misconduct by failing to immediately bring the complaint to the attention of his manager.

The employer decided to terminate the worker’s employment after a consideration of the external report. The employer concluded that the worker had made a false complaint with the intention of harassing and/or victimising his co-worker, and that he was untruthful throughout the course of the investigation. This conclusion was reached despite:

  1. the evidence of a witness whose recollection of the incident coincided with the worker’s;
  2. the widely accepted possibility that the action could have unintentionally taken place; and
  3. the fact that immediately following the incident, the worker had attempted to discuss the matter with his male co-worker who had conducted the search.

Deputy President Bull found that the worker was unfairly dismissed on the grounds that:

“ … any finding that (the worker) had fabricated the complaint with malice was a conclusion simply not available to (the employer) on any reasonable, and impartial evaluation of the evidence”.

Among other orders made, the Commission ordered the worker’s reinstatement, despite the employer’s submission that that it had lost trust and confidence in the worker.

Conclusion

The approach adopted by the Commission in this case was that for a dismissal to be valid, the reason for it occurring must be sound, defensible or well founded, and should not be “capricious, fanciful, spiteful or prejudiced”.

Should an employer find on reasonable grounds that a complaint is made by one worker against another, with malicious intent, then this of course may be grounds for a dismissal.

It can be argued however, that such findings:

  1. should be based on sound, and to the fullest extent possible, impartial evidence; and.
  2. if emanating from external investigations, that the evidence from the investigation should be thoroughly evaluated and scrutinised by the employer before being relied upon to take grave disciplinary action, such as a dismissal.

Noting these potential traps, employers will need to consider whether appropriate expert advice is required before going down the path of appointing external investigators and dismissal.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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