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Employer no dummy, rules FWC

Submitted on Thursday, 14th July 2016

A man who submitted a fake job application in an attempt to expose discrimination against him was rightly dismissed for breaching his organisation’s code of conduct, the Fair Work Commission has found.

An independent investigator engaged by the employer found that over three years the man had submitted or was instrumental to submitting a number of job applications under his friend’s name. The man was suspended from work with full pay for four months before his employment was terminated.

At the unfair dismissal hearing, the man argued that his friend had applied for the jobs but had used the same or similar responses to selection criteria as he had written in his own application. The man stated that he had shown his application to his friend to help him with his own job applications and could not be held responsible for his friend’s actions. His friend gave evidence to the Fair Work Commission, stating that he had submitted the application and had used the man’s selection criteria responses.

The man believed that he was dismissed because in 2011 he had lodged a general protections claim in the Federal Circuit Court, alleging his employer had discriminated against him by choosing not to promote him. During these proceedings the man had submitted an affidavit stating he had applied for a position in the company and had also submitted a “dummy application”. The dummy applicant was shortlisted for an interview and the man was not.

According to the man, his statement in the affidavit was an “unintentional error” resulting from a miscommunication (due to English being his second language) with his lawyer at the time, and that when he used the term “dummy application” he was referring to his friend using plagiarised information rather than him submitting a fake application. The man did not tell his employer that his friend had applied for the role using false information, even when he sought to correct the misunderstanding in the affidavit a year later.

In his ruling Deputy President Bull stated that the man had wilfully breached the organisation’s code of conduct and the employer was in its rights to dismiss the man. Deputy Bull noted that while evidence for all five job applications was “unclear and confusing”, on at least one occasion (the one referred to in his affidavit) the man had submitted a fake application or knowingly helped his friend to do so.

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