Waknin v Servcorp Administration Pty Ltd [2023] FedCFamC2G 634 (19 July 2023)
When weighing two conflicting accounts in a workplace investigation, investigators should consider plausibility and seek to corroborate each party’s version of events.
A recent adverse action case highlights the difficulties inherent in making findings of fact when faced with two conflicting accounts about a critical event.
A sales director claimed he was dismissed a few hours after telling his manager about his plan to take unpaid parental leave for the birth of his two surrogate children. He claimed the dismissal was unlawful because it resulted from his proposal to exercise a workplace right to take parental leave.
The sales director’s manager disputed that the parental leave conversation ever happened. The Court referred to the “two different and inconsistent accounts” of the conversation and noted that the matter largely turned on findings of fact.
In this case, the evidence of the manager’s executive assistant, whose desk was located outside the manager’s office, was also to the effect that the conversation did not happen. This supported the manager’s evidence.
Weighing up the conflicting accounts, the Court ultimately preferred the evidence of the manager and the executive assistant because it was consistent and corroborated each other’s version of events. The Court concluded that as neither of them worked for the employer company anymore, they had no motivation not to tell the truth.
While the adverse action claim did not succeed, the sales director did succeed in a claim against the company for failing to give notice of termination in writing as required by section 117 of the Fair Work Act 2009 (Cth).
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