Findley v MSS Security Pty Ltd

This matter concerned an appeal by Mr Luddington, representing MSS Security Pty Ltd, against a decision of the Fair Work Commission. The dispute arose from allegations that Mr Luddington had deliberately made misrepresentations, omissions, or false statements regarding his previous employment with Diamond Protection to secure employment with MSS Security. Specifically, it was alleged that Mr Luddington failed to disclose his role as "Night Manager" at Diamond Protection, which MSS Security considered relevant to the security position he applied for, despite Mr Luddington's assertions that it was unrelated and irrelevant.

The court was required to determine whether Mr Luddington's failure to disclose his employment with Diamond Protection constituted a breach of his employment contract with MSS Security, particularly in relation to the honesty and integrity expected of employees. A key issue was whether his explanation for the omission, that the role was irrelevant and unrelated to security work, was plausible, especially given that the Diamond Protection role required a security licence and was at a university campus. The court also considered whether Mr Luddington's attempts to distance himself from the security nature of his previous role, and his explanations for not disclosing it, were disingenuous.

The court found that Mr Luddington's explanation for not disclosing his employment with Diamond Protection was implausible. It noted that the role required a security licence, was at a university campus, involved another security services company, and was titled "DRS Night Manager (Security)". The court considered it highly unlikely that such experience would be considered irrelevant to a security position. Furthermore, the court found Mr Luddington's claims about confidentiality clauses preventing disclosure to be implausible, especially in light of evidence suggesting he would have received a statement of service or reference from Diamond Protection. The court concluded that Mr Luddington had made every indication that he had not had significant or relevant employment since 2007, which was found to be untrue.

Ultimately, MSS Security determined that while Mr Luddington's conduct was disingenuous, they would not take formal disciplinary action on that occasion, citing extenuating circumstances and the employment contract not specifically referring to lying by omission. However, they reminded him of the importance of honesty and integrity, and warned that future breaches could lead to disciplinary action, including termination. The outcome of the process was to remain confidential.