When dealing with litigated matters, we cannot stress enough the importance of having evidence and witnesses that are credible and reliable to support a party’s position in the proceedings.
A recent decision of the Fair Work Commission (FWC) has shown how providing false and misleading evidence can not only be detrimental to the case, but can also have very serious personal consequences for those who provide that evidence.
In the decision of Durado & Isugan v Foot & Thai Massage Pty Ltd [2019] FWC 1533, Deputy President Kovacic has referred the conduct of two witnesses to the General Manager of the FWC to consider whether they provided false and misleading evidence to the FWC during a hearing, in contravention of the FW Act. If it is found they have provided false and misleading evidence, they face up to twelve months’ imprisonment.
The matter before the FWC concerned applications for unfair dismissal by two employees of a massage parlour in Canberra, ACT. The two employees, employed on 457 visas, had engaged in a romantic relationship in contravention of the employer’s ‘no-relationship’ policy. It was alleged that, upon hearing of the relationship, the employer sought to immediately terminate the employment of these employees and send them back to their home country of the Philippines. The Deputy President ultimately found that the dismissals were unfair and ordered payment of compensation to each employee.
A significant factor in this finding was the reliability (or lack thereof) of the employer’s evidence. The employer had relied on the written statements of its manager/director and the massage supervisor to recount the circumstances of the dismissals, which turned out to be inconsistent.
Subsequent to the manager/director giving his oral evidence at the hearing, during which he could not explain the inconsistencies, there was a luncheon adjournment and the witnesses were photographed in discussion with each other.
Upon return to the hearing, the massage supervisor sought to amend his witness statement so that it was consistent with the manager/director’s evidence. He denied discussing this with the manager/director. When questioned about their discussion, both witnesses asserted that they had simply discussed a separate witness statement which they had agreed could not be tendered as evidence as it was too late in the proceedings.
The witnesses were directed to produce their text messages from the adjournment period, which appeared to discuss what they would say to the FWC about their discussion and the evidence of other witnesses. According to the Deputy President, the text messages suggested that the manager/director had sought in some way to influence the supervisor’s evidence.
The Deputy President also noted that the supervisor had deposed that he was not present at the meetings with the employees where dismissal was discussed, however, the text messages produced to the FWC from the day of the meeting confirmed that he was present at the meetings.
According to the Deputy President, these circumstances suggested that they had provided false and misleading evidence and therefore warranted referral to the General Manager of FWC.
By this referral, the FWC is sending a very strong reminder to any person who provides evidence in the course of litigation that there are very serious consequences for providing evidence that is false and misleading, including possible imprisonment. This is the case regardless of the court or tribunal in which a matter is heard.
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