But I’m telling the truth!

What happens when the parties to a case have varying accounts of what was said and done? Who is to be believed?

In the matter of Ashley Duddington v Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd, a former restaurant manager made an unfair dismissal claim against his former employer.

The parties, who were not legally represented, provided very different versions of the events that took place leading up to the termination.

Without any physical evidence to prove what actually happened, the responsibility fell on Deputy President Bull to establish the truth.

In his judgment, Deputy President Bull noted that he had significant difficulty with the employer’s evidence, which he described as “contradictory and evasive” and noted that clear answers were not provided to some of the questions asked.

As a consequence, Deputy President Bull made the decision to accept the evidence of the employee whenever the evidence of the parties was in conflict.  

The Commission found that the employee was unfairly dismissed without notice or a valid reason and made orders for each party to make submissions about the compensation to be awarded.

The best lesson to learn here is to put everything in writing! The Fair Work Commission is not bound by the rules of evidence, but help yourself and help your case and take notes of everything that is said and done when it comes to performance management and disciplinary matters.

If all else fails, you will need to rely on detailed submissions and oral evidence; this is where an experienced legal representative can help! If you are an employee or an employer in an unfair dismissal or general protections claim, call the Workplace Relations team at Nevett Ford on 9614 7111 to answer all your questions.