Case study
The Fair Work Commission (FWC) recently dealt with an employee’s unfair dismissal claim, alleging that his employer fired him for “vague” accusations that he shared pornographic material with his co-workers while at the workplace.
The employee was employed as a dump truck operator at the employer’s mine site from August 2020 until April 2023. In March 2023, a coworker raised a complaint with the employer concerning the employee’s conduct.
Specifically, she alleged that in late December 2022 or early January 2023, during a bus ride at the end of a shift, the employee initiated a sexually explicit conversation with several other employees, and this conversation happened around the seat where she was seated.
During this exchange, the coworker said that the employee displayed a mobile phone containing explicit images between herself and the passenger beside her in a manner that allowed others to clearly view them.
Meeting with supervisors
In response to this complaint, the employee was summoned to a meeting with his supervisors. During this meeting, he was requested to promptly provide a written response addressing the allegations raised by the coworker. Subsequently, he was placed on suspension pending further investigation.
Later on, the worker attended another meeting with the area manager and the manager of employee relations to discuss the allegations against him.
During this meeting, the employee was accompanied by an organiser for the Australian Workers’ Union (AWU). The outcome of this meeting led to the employer committing to conduct a more comprehensive investigation. While the employee remained suspended, he was transported back to Perth.
A month after, a third meeting took place at the employer’s Perth offices. In attendance were the employee, his spouse, the mining manager, and the manager of industrial relations for the employer. The AWU also participated via telephone.
Ultimately, the employer made the decision to terminate the employee.
Employee challenges allegations
The employee said there was no valid reason for the dismissal related to his capacity or conduct because he was not guilty of the accusations made against him. Additionally, he said the employer’s investigations were not conducted with sufficient diligence, resulting in the allegations against him being somewhat vague to the point where it was difficult for him to make a proper response.
The employee also said that some of the explanations he provided were not properly investigated, and as such could not have been properly considered in the process of making a decision regarding his guilt.
Furthermore, the employee said the employer was wrong when it placed the burden on him to prove that he did not engage in the alleged activities, rather than discharging its own burden to prove to a reasonable standard that he did.
Essentially, the employee said the investigation was flawed, and he was not given a fair chance to answer the allegations against him.
What did the FWC rule?
In its decision, the FWC found that there was a culture of inappropriate activity on the work buses, but it said the allegations against the employee were been made out.
The process followed by the employer was deficient. The initial complainant was interviewed in front of the other witness she named. Then, based on assumed information about certain elements of the claim, for example, that the complainant’s witness had seen pornography, the employer interviewed the employee and put some accusations to him which were somewhat imprecise.
When the employee offered up some witnesses to support his version of events, they were not interviewed. Nor was there a review of other data, such as relevant records, the FWC added.
The site employee relations manager proceeded instead to recommend termination, and when the recommendation was received at the head office, the evidence suggests there was an assumption that a proper investigation had taken place at the site.
The FWC stated the lack of adequate rigour in the process followed by the employer contributes to the unjustness of the termination, and it ruled that the employee was unjustly dismissed and ordered his reinstatement.
Why are investigations so important?
All employers have a duty to provide a healthy and safe place of work. This includes obligations around workplace bullying, which can be enforced by the FWC. Workers Compensation claims can arise from employees experiencing stress or other physical or mental harm because of issues with coworkers. If the alleged behaviour is serious enough such as sexual harassment or assault, the employer could become civilly or even criminally liable.
Employers must conduct fair investigations into all types of allegations made by complainants. Similarly, the accused employee has the right to have the complaint against them determined objectively and the sanction decided on by an unbiased decision-maker.
Fact finding versus formal investigation
Any workplace complaint requires a process of fact finding or initial enquiry, whereby a third-party should interview both the complainant and the accused party for information about what happened. The objective of this process is to determine whether the matter is serious enough to warrant a formal investigation or whether the conduct complained of can, for instance, be deemed trivial or minor in nature and can be dealt with on that basis.
A formal investigation process goes much further. It requires the collection of information and evidence, interviewing of witnesses and the drafting of formal statements, the preparation of a detailed investigation report, analysis of the evidence and subsequent detailed consideration by key decision-makers as to the appropriate consequences.
So, what is involved in conducting a workplace investigation?
The key elements of an effective investigation include:
Planning the investigation
- Undertaking adequate planning before the investigation starts, including considering any potential conflicts of interest.
- The investigator familiarising themself with the potential consequences which could flow from the investigation, and ensuring that all relevant parties will be interviewed.
- Preparing a list of interview questions for each witness.
- Gathering and reviewing relevant documents such as the complaint, employment contracts, performance reviews, relevant policies and procedures, incident reports, and any other relevant emails, notices, memos, other documents, and information.
- Notifying all parties of their involvement, rights, and obligations.
Interviewing
- Providing sufficient notice and making appropriate arrangements with all witnesses.
- Conducting formal interviews objectively and sensitively, having regard to the circumstances.
- Checking that representation or support has been offered and outlining the investigation process and timeline.
- Obtaining as much detailed evidence as possible.
Analysing and weighing the evidence
- Assessing the evidence with regard to reliability, consistency and credibility.
- Preparing an investigation report setting out your findings, including the behaviour that has or has not occurred and consider whether it is unlawful, unreasonable, or a breach of policy.
- Coming to a conclusion and making a finding, based on the evidence gathered.
Facilitating a resolution
- This could include making amendments to business policies, training improvements, broad disciplinary action, mediation, and counselling.
The consequences of a flawed investigation can be serious: decisions can be challenged in the courts; reputations can suffer and employee morale can take a nose-dive. In some situations, it may not be appropriate to conduct an investigation internally, and an external investigator is required to help ensure a fair and unbiased process.
If you require assistance with investigating allegations of misconduct, get in touch with our team. We offer full investigation services, supported investigations and employee training on how to conduct workplace investigations.
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