Dishonest behaviour excluded an employee from unfair dismissal remedy
A man who worked for the State Transit Authority was denied his appeal against the decision to dismiss him by the Industrial Relations Commission of New South Wales. The decision to uphold his termination was on the basis of the former employee’s lack of candour to his employer and to the Commission as well as his post-employment conduct on Facebook.
Mr Marroun was an employee of the NSW State Transit Authority (STA) until he was dismissed in May 2015 for misconduct. This misconduct was in the form of removing lost property from the STA’s Revenue Room without authority, failing to check he had removed the correct items and not returning all the items after he was notified of his mistake.
Mr Marroun, a duty officer for the STA, was instructed by his colleague to deposit certain lost property items from the Revenue Room into charity bins. Mr Marroun placed property he believed to be the specified items in his car and took them home, where he wife went though and removed some items. She placed the remaining items next to a charity bin.
Mr Marroun was informed by the STA that he had taken the wrong items, and he subsequently collected and returned most of these items.
A reviewing officer with the STA recommended that Mr Marroun be dismissed, however she never stated his actions constituted misconduct.
Mr Marroun’s initial mistake of taking the wrong items were influenced by another employee who breached her STA obligations by placing certain property in the Revenue Room when she was required to place them in a safe. She suffered no disciplinary action.
During investigations by the STA into the incident, Mr Marroun was dishonest in his account of what occurred.
Mr Marroun made statements on Facebook about his employers after his dismissal which were rude and inappropriate.
The Commission found that while some form of sanction against Mr Marroun would have been appropriate, dismissal was “disproportionate and inappropriate”. This was reinforced as the other employee did not face any disciplinary action.
However, the Commission ruled that Mr Marroun’s lack of candour when he was obliged to disclose during the STA’s investigation, as well as his lack of candour with the Commission, excluded him from remedy.
The Commission stated that dishonesty destroys the necessary confidence between employer and employee and as such the re-establishment of the employer-employee relationship was not suitable in this case.
Further, the Commission found that Mr Marroun’s Facebook posts were not in the heat of the moment and supported his decision to deny Mr Marroun’s reinstatement.
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