The Fair Work Commission has considered whether an independent investigation report can be relied upon by an employer to defend an unfair dismissal claim.

Toyota Motor Corporation Australia dismissed a Paint Shop supervisor with over 20 years’ service after an independent investigator found that the supervisor had acted inappropriately. His alleged inappropriate behaviour included failing to perform his supervisory duties in a consistent and fair manner,  favouring certain team members due to personal relationships, making inappropriate comments to team members (described by the Commissioner as “a rather blatant form of benevolent sexism”, such as describing women of shorter stature as “cute people” or commenting on the size of his co-worker’s breasts), and inappropriate physical conduct with team members. These actions were considered to foster an exclusionary culture within the Paint Shop.

Following receipt of an anonymous whistle-blower complaint about the inappropriate behaviour, Toyota engaged a barrister to conduct an independent investigation into the allegations. Despite the supervisor’s denial of many of the allegations against him, the investigator found that a number of the allegations were substantiated.

Toyota issued a ‘show cause’ letter to the supervisor which attached the independent investigator’s findings. Ultimately, relying on the investigator’s findings and its own internal inquiries, Toyota terminated the supervisor’s employment. The supervisor lodged an unfair dismissal application challenging the termination.

During the hearing, Toyota sought to rely on the independent investigation report and the investigator’s findings (as annexed to the ‘show cause’ letter) in its defense of the claim. The supervisor objected to the report and findings being admitted into evidence on grounds that they were hearsay.

The Commission ultimately admitted the investigation report and findings for the purpose of proving that the investigation was conducted and that the report was provided to Toyota who relied on the report’s findings. The Commission noted that its task in an unfair dismissal claim is to satisfy itself of the validity of the reason relied upon for the dismissal and its factual basis. Accordingly, the Commission proceeded to make its own findings about the supervisor’s conduct and only relied on the investigation report to a limited extent in making factual findings.

Finding the dismissal was not unfair, the Commission demonstrated its intolerance for inappropriate workplace behaviour directed towards female employees. The decision also highlighted the Commission’s reluctance to accept as excuses for inappropriate behaviour that the perpetrator was just joking or that the comments were flattering and friendly, that the subjects of the bad behaviour did not object (stated by the Commission as not providing ‘a justifiable excuse’), or that no offence was intended. The behaviour was directed to subordinate employees whom the Commission noted were not “in a position to express any objection given the disproportionality between the role and authority of [the supervisor] and their own.”

Homer Abarra v Toyota Motor Corporation Australia Ltd [2018] FWC 3761

Authors:  Cassie Howman-Giles and Kerryn Tredwell, Q Workplace Solutions