Gardner v Piacentini & Son [2024] FWC 211
KEY TAKEAWAYS
Procedural fairness:
- an employee is to be provided with an opportunity to respond to the details of any allegations before factual findings are made
- a show cause meeting, held after the employer has decided to substantiate misconduct allegations, does not provide an employee with sufficient opportunity to respond
Avoid other investigation deficiencies:
- take steps as soon as possible to secure relevant evidence, including any dashcam or CCTV footage
- take steps to interview relevant witnesses where available, rather than rely on written statements (particularly where the statements are sought and received by another witness)
Procedural fairness is the cornerstone of every workplace investigation. If this fundamental duty to give all parties “a fair go” is not observed during an investigation into employee misconduct it will draw criticism from the Fair Work Commission and provide grounds for an unfair dismissal finding, as demonstrated by this recent decision.
The facts
An employee at a mine in Western Australia was dismissed for misconduct in early September 2023 after it was alleged that in the previous month he fell asleep at work on two occasions and was uncontactable by radio.
After receiving an incident report on the employee’s alleged conduct, Human Resources (HR) invited him to attend a meeting in early September where he was stood down pending an investigation. The employee denied he fell asleep and submitted that if his radio was on the wrong channel it was not deliberate.
The investigation
The employee was first informed of the allegations when he was stood down. The following day he received a letter informing him the allegations had been substantiated. He did not have an opportunity to provide a substantive response to the allegations prior to the employer reaching a finding. The finding was also made without an effort to retrieve and view dashcam footage.
The HR Advisor conducting the investigation did not interview two relevant witnesses and relied on written statements sought and received by another witness, the employee’s supervisor.
The show cause meeting held five days days after the employee was stood down was his first opportunity to respond to the allegations. However, at this stage, the employer had already decided to substantiate the allegations.
Following this meeting, enquiries were made to retrieve dashcam footage. However, it was no longer available because it was only stored for four weeks.
Valid reason
Fair Work Commissioner Pearl Lim heard evidence from relevant witnesses and accepted the employee’s evidence that he was not asleep on one of the two occasions, and that his radio being on the wrong channel was not deliberate. However, Commissioner Lim found the employee was asleep on the second occasion.
Commissioner Lim found that while the employee did engage in misconduct by falling asleep, this conduct was not serious enough to amount to a valid reason for dismissal.
Unjust – deficiencies in the investigation
Further, Commissioner Lim found that the dismissal was unjust given the deficiencies in how the investigation was conducted, which included failing to interview two relevant witnesses and retrieve important dashcam footage.
“It is a poor reflection on the integrity of the investigation that the [employer] substantiated the allegations before [the employee] even received the detail of the allegations in writing, let alone before he had the opportunity to respond to them.
The issues with the way the investigation was conducted are so significant that even if I had found there was a valid reason for [the employee’s] dismissal, I would still be satisfied on balance that [he] was unfairly dismissed.”
More information
Seasoned workplace investigators from Q Workplace Solutions – one of Australia’s largest independent specialist workplace investigations firms – will unpack how to conduct a procedurally fair and legally defensible workplace investigation at an upcoming Q Workplace Training online workshop, How to Conduct an Effective Workplace Investigation, on 12 and 13 June 2024. Places are limited.
Q Workplace Solutions’ team of experienced and legally qualified investigators are trusted by public and private organisations, including ASX-listed companies and government departments, to investigate complex and often highly sensitive allegations of employee wrongdoing and misconduct. They also undertake: culture reviews of organisations, divisions or teams; reviews of workplace investigations; audits of complaint and investigation processes; and support internal investigation teams through training and external supervision.
