Case law has consistently demonstrated the importance of procedural fairness when conducting workplace investigations. Workplace investigations which are not carried out in a robust and thorough way can result in headaches for employers, irrespective of their best intentions to address inappropriate behaviour, or cultural or systemic issues within their organisation. Where misconduct is reportable to a regulator such as the Victorian Institute of Teaching or Commission for Children and Young People, organisations may face additional scrutiny of investigation findings and whether the process was procedurally fair. In this article we highlight some key cases that demonstrate the pitfalls for employers when investigations are not carried out with using a robust, objective and thorough investigation process.
Robert Crook v CITIC Pacific Mining [2023] FWC 2446
Mr Crook alleged he was unfairly dismissed by CITIC Pacific Mining Management Pty Ltd (CITIC) after one of his female colleagues made a complaint alleging that during an end of shift bus ride, Mr Crook initiated an explicit conversation with other employees in the area where she was sitting. She further alleged that:
- Mr Crook exposed her to explicit images on a mobile phone while passing it to another male colleague; and
- on a separate occasion, Mr Crook stared at her in a ‘lewd manner’ and remarked to other employees, ‘Cooore look at that’,
(together referred to as ‘the Allegations’).
Mr Crook was asked to provide an immediate written response in an initial meeting. Following an investigation and two further meetings, his employment was terminated.
The Fair Work Commission (FWC) found that the process followed by the employer was “deeply flawed”, “deficient” and “lacked rigour”, and therefore the employer did not have a valid reason for termination. In reaching this finding, Deputy President O’Keefe noted the following:
- the complainant and a witness were interviewed together, which had the potential to taint the evidence;
- the Allegations put to Mr Crook were somewhat imprecise;
- witnesses named by Mr Crook were not interviewed;
- CITIC did not seek to gather and review data which may have assisted with its investigation, including swipe card data, and relied heavily on the complainant’s account;
- Mr Crook sought to provide evidence, some of which supported his position and none of which corroborated the Allegations, however CITIC said he was not allowed to provide it;
- there was over three months between the date of the alleged incident and the investigation; and
- the evidence available to CITIC did not support the findings upon which the decision to terminate Mr Crook’s employment was made.
The FWC found Mr Crook was unfairly dismissed and ordered reinstatement, continuity of service and restoration of lost pay.
Kumar v Opal Packaging Australia Pty Ltd [2023] FWC 2090
Mr Kumar worked as a machine operator for Opal Packaging (Opal) for almost 30 years. Opal alleged that Mr Kumar failed to follow the proper ‘lock out tag out’ (LOTO) procedure when operating conveyor belt machinery, and that a failure to comply with this procedure could have had significant safety implications, such as injuring or even killing Mr Kumar or other workers.
Opal conducted an internal investigation into the alleged conduct. Following a week-long investigation conducted by an internal workplace specialist, Opal concluded that Mr Kumar had not complied with the LOTO procedure and terminated his employment on the basis of serious misconduct. Mr Kumar made an unfair dismissal application to the FWC.
The FWC found that Opal did not have a valid reason for Mr Kumar’s dismissal and identified a number of deficiencies with the investigation process. Those deficiencies included that the investigator:
- relied on unreliable records including witness interviews that were incorrectly recorded;
- posed leading questions that presupposed that Mr Kumar had engaged in wrongdoing and/or assumed that a breach had already taken place;
- relied on an apology made by Mr Kumar to his manager as an admission of wrongdoing without further context;
- failed to provide Mr Kumar with relevant material forming the basis for his decision before making findings, which was a requirement of the process set out in the applicable enterprise bargaining agreement;
- relied on several previous breaches of the LOTO procedure to suggest a pattern of behaviour that increased the likelihood of Mr Kumar engaging in the breach that was the subject of the investigation, without providing Mr Kumar an opportunity to contextualise the previous breaches. These breaches were found to have been unlikely to have occurred, which highlighted the risks of relying on tendency evidence as part of an investigation; and
- made errors in relation to the date of the alleged LOTO procedure breach which the FWC found demonstrated a lack of attention to detail given the seriousness of the allegation.
These deficiencies undermined the reliability of the investigator’s report and findings. As such, the FWC found Mr Kumar’s dismissal was unfair and ordered reinstatement and restoration of lost pay.
Mark Andrawos v MyBudget Pty Ltd [2018] FWC
Mr Andrawos was employed by MyBudget as a Personal Budget Specialist. Over a period of time, Mr Andrawos struck up a friendship outside of work with a man named James, who in December 2017 received a large inheritance. Mr Andrawos became concerned about James’ spending. He encouraged James to sign up for a MyBudget account, and subsequently advised him to transfer the remaining $90,000 of his inheritance into a MyBudget account with him as a co-signatory, so James could not access or spend that money on his own.
MyBudget undertook an investigation following a complaint by James’ mother. Mr Andrawos’ employment was subsequently terminated for serious misconduct. Mr Andrawos made an unfair dismissal application to the FWC.
The FWC found breaches of the Code of Conduct and Mr Andrawos’ employment duties were valid reasons for termination. However, the Commission found there was evidence that MyBudget had already decided to terminate Mr Andrawos’ employment before the investigation had taken place, and Mr Andrawos was given an opportunity to respond in form and not in substance. That evidence included the following:
- at the time Mr Andrawos was suspended pending investigation into the complaint, the Human Resources Manager had formed the view that the conduct was likely to be serious and wilful misconduct;
- Mr Andrawos was prevented from providing information about his relationship with James and his mother before he was suspended;
- MyBudget initially gave Mr Andrawos only 24 hours to respond to the allegations, which indicated it had only a ‘limited interest’ in his explanation;
- despite Mr Andrawos requesting them, MyBudget failed to provide him with copies of telephone recordings and the transcriptions of those recordings that it relied on as evidence of misconduct. While it may not always be appropriate to share recordings due to obligations related to privacy and surveillance, here, the FWC found that the recordings provided evidence of breach but also evidence of mitigation, and MyBudget’s failure to make them available was evidence of the employer’s propensity to focus on breach at the expense of explanation and mitigation;
- the investigator was not made aware of Mr Andrawos’ claim that James’ mother had made accusatory and threatening statements to him the night before she made her complaint;
- MyBudget did not seek out further information after it interviewed Mr Andrawos, even though he provided information that was not known to it at the time, which the Commission described as a “poor decision”; and
- at no stage did MyBudget speak to James, which the FWC criticised as “especially unfair”.
Having found substantial mitigating factors and that the failure to provide procedural fairness had a ‘material impact’ on the decision-making process, the FWC ultimately concluded that the dismissal was harsh, even if it was not unjust or unreasonable.
Key Takeaways
These cases show why it is critical that employers undertake a robust and thorough investigation into alleged misconduct. This is particularly relevant where the investigation findings may lead to disciplinary action up to dismissal.
When considering potential misconduct, employers should take care to:
- gather all relevant available evidence;
- consider that evidence with an open mind;
- avoid making pre-determined decisions until the investigation is complete and findings have been made;
- ensure all relevant evidence is provided to the respondent in a timely manner having regard to relevant policies and industrial instruments (unless there is a lawful and reasonable excuse for not providing that information e.g. due to breaches of privacy or surveillance laws);
- ensure that investigators have the appropriate skills or qualifications to consider the relevance and weight of evidence, including tendency evidence.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.