As workplace investigators, we are acutely aware of the importance of conducting a procedurally fair and thorough investigation. The recent case of Crook v CITIC Pacific Mining Management Pty Ltd [2023] FWC 2446 (22 September 2023) reinforces the importance of a procedurally fair investigation process.
The complaint
The Applicant was employed by CITIC as a dump truck operator at its Cape Preston mine site. A fellow employee made a complaint that during an end-of-shift bus ride, the Applicant initiated a conversation with several other employees seated nearby about sexually graphic and explicit matters. The Applicant then allegedly shared images of those things on a mobile phone with other persons such that the complainant could see the images. It was also alleged that on a different occasion, the Applicant stared at the complainant ‘in a lewd manner’ and said to fellow employees, “Cooore look at that.”
The process
As a result of the complaint, the Applicant was called to a meeting with his supervisor and another person and asked to make an immediate written response to the complaint. He was then stood down pending further investigation. After two further meetings about the complaint and allegations, the Applicant’s employment was terminated.
The Applicant submitted there was no valid reason for the dismissal because he didn’t do what was alleged, and the investigative process was flawed because he was not given a fair chance to answer the allegations against him.
The Applicant argued the allegations were vague to the point it was difficult for him to provide a proper response, and that some of the Applicant’s explanations about his conduct were not properly investigated. In addition, the Applicant submitted that the Respondent erred by requiring the Applicant to prove he did not engage in the alleged conduct, rather than requiring sufficient evidence to prove that it did occur.
A deeply flawed process
In determining that the findings of the Respondent did not constitute a valid reason to terminate the Applicant’s employment, Deputy President O’Keefe found the process followed by the Respondent in relation to the bus incident was deficient, deeply flawed, and lacked rigour. While Deputy President O’Keefe did not think the complainant was being untruthful, he relevantly found that:
- The complainant was interviewed in front of the other witness she had named.
- The Respondent interviewed the Applicant and put two allegations to him which were somewhat imprecise, and included an incident dating back three months.
- When the Applicant offered up some witnesses to support his version of events, they were not interviewed. Nor was there a review of other data, such as the swipe card records.
- While the Respondent sought some further evidence, some of which supported the Applicant and none of which corroborated the allegation, the Respondent nonetheless determined the Applicant had engaged in misconduct.
- No further opportunity was given to the Applicant to respond, meaning that the only chance he had to address the actual allegations was in the one meeting on site.
Key takeaways
It is vital that when employers make a decision to terminate employment, any investigation conducted and relied on as part of the termination process must be procedurally fair.
This requires:
- A reasonable attempt to obtain all relevant evidence, including witnesses and data;
- Providing a full opportunity to respond to an allegation;
- A careful assessment of whether, on the balance of probabilities, the evidence supports that the alleged conduct occurred.
If you’d like to equip yourself or your team to carry out workplace investigations with procedural fairness, Q Workplace Training regularly runs public online workshops on Conducting Effective Investigations.
