Fair Work Commission Finds Employer’s Investigation Processes Lacking in Fairness, Reinstates Worker

Gosek v Illawarra Coal Holdings Pty Limited T/A South 32 [2017] FWC 4574 (3 November 2017)

In a recent decision the Fair Work Commission ordered the reinstatement of an electrical technician after it found an internal investigation was procedurally unfair because (amongst other reasons):

• The investigation team’s recommendations were removed from the draft report, and the decision maker’s own recommendations inserted in subsequent drafts of the report; and
• Mitigating factors identified by the investigation team were left out of the final report.

The decision highlights the importance of separating the roles of investigator and decision maker during internal investigations, and is a timely reminder for employers that the Commission is willing to scrutinise the finer details of the internal investigation process followed by an employer.

Introduction
Mr Gosek was employed by Illawarra Coal Holdings as an electrical technician. His employment was terminated on 31 January 2017 following an investigation. The Fair Work Commission reinstated Mr Gosek after finding that whilst Illawarra Coal Holdings had a valid reason to terminate Mr Gosek, the termination was harsh, unjust or unreasonable.

Background
The conduct that formed the basis for Mr Gosek’s termination centred around text messages and phone calls between Mr Gosek and eight employees on 4 October 2014. Mr Gosek had acted as a support person for a co-worker during a separate investigation and perceived the investigation to be flawed. After the allegations in that investigation were found to be unsubstantiated, Mr Gosek sent text messages that stated ‘dog?’ and then used inappropriate language in subsequent telephone calls to the co-workers. Mr Joel Plavecky, the operations manager of the mine, commenced an investigation after being informed of Mr Gosek’s conduct.

The Investigation
The Fair Work Commission noted that Illawarra Coal normally uses a textbook disciplinary process that starts with an investigation by independent investigators, followed by a report that makes a recommendation which is submitted to the decision maker. The decision maker’s decision is then peer reviewed.

Mr Plavecky selected an ‘independent’ investigation team comprised of a senior HR Business Partner from South32 but not from the Dendrobium mine, and a Human Resources Business Partner at Illawarra Coal. The investigation team conducted interviews with employees and compiled an initial draft report that contained a list of mitigating factors and draft recommendations.

After interviewing Mr Gosek, the investigation team provided an amended version of the report to Mr Plavecky with a blank recommendations section. Mr Plavecky recommended that the allegations were proven and Mr Gosek should be issued with a show cause for termination letter. After providing a show cause letter, Mr Gosek requested a meeting with the investigations team in which he provided further details about his depression, alcohol abuse and medication issues. The investigation team informed Mr Plavecky that the investigation report needed to be updated to include these mitigating factors. A final version of the report was never produced.

The Decision
The Fair Work Commission found that Illawarra Coal had a valid reason for terminating Mr Gosek’s employment as his behaviour breached the Code of Business Conduct. However, the Commission found that there were a ‘plethora’ of reasons why Mr Gosek’s termination was harsh, unjust or unreasonable, including that:

• There was a lack of procedural fairness in the investigation process, specifically:
o Despite the investigation team making considered recommendations in the initial report, subsequent versions did not contain their recommendations but rather those of the ultimate decision maker;
o The additional mitigating factors raised by Mr Gosek and accepted by the investigations team as relevant were not included in the final version of the report, meaning an independent review was unable to be made;
o Those responsible for conducting the process had a lack of experience in disciplinary proceedings of a serious nature; and
o None of the employees made formal complaints or requested an investigation: the decision to conduct the investigation was made by Mr Plavecky.
• The use of inappropriate language in the workplace is commonplace and has been condoned by Illawarra Coal for at least five years;
• Mr Gosek’s conduct was a one-off incident and he apologised to the employees; and
• Mr Gosek was suffering from depression, on very strong medication and was affected by alcohol.

Conclusion
This decision highlights the importance of conducting a procedurally fair workplace investigation. Where the procedural fairness safeguards that should be built into investigations are skipped, avoided or altered, the entire disciplinary process can be tainted and it can lead to a finding that the termination was harsh, unjust or unreasonable.

Author: Georgia Starky, Q Workplace Solutions