A recent FWC decision comments on what it takes to be a workplace investigator
Key characteristics for a workplace investigator have been described in a recent Fair Work Commission (FWC) unfair dismissal case.
A male employee lodged an unfair dismissal claim after being sacked for making a sexually offensive comment to colleagues, and for repeating it to managers during a disciplinary process. The comment was considered to breach the mining company’s code of conduct and values charter.
The company sought to argue that not only had the comment offended the initial three colleagues (including two females) to whom it was made, but that it also offended two managers who were investigating the grievance when it was repeated to them during the investigation.
Commissioner Hunt robustly rejected the company’s submission that the repetition of the joke during the investigation warranted dismissal, calling it “completely disproportionate conduct” and describing it as an “extraordinary position to take”.
As for workplace investigators, Commissioner Hunt had this to say:
“In my view, as an investigator of workplace conduct, it is an investigator’s role to be able to hear everything that is put without personally taking offence with what is said during the investigation. An investigator should be strong and impartial, not prone to being a wilting flower upon hearing difficult or potentially offensive matters during an investigation. If they are easily offended, they should not be in the role of investigator.”
Despite finding that the employee’s joke was not, in and of itself, justification for dismissal, the FWC upheld the dismissal on the basis of the employee’s conduct during the investigation, in which he made a “repetitious slur” against the two women to whom he had originally told the joke. His conduct was deemed to have breached the company’s Code of Conduct, with the FWC ruling that the termination was not disproportionate to the conduct and therefore not unfair.
By way of comment…
At QWorkplace Solutions, we devote our working days to conducting fair, legally-defensible workplace investigations with empathy and commerciality. For seasoned workplace investigators, very few things will come as a surprise. This decision reinforces that remaining composed and unflappable – and assessing behaviors in the context of the relevant workplace – are indispensable skills for a good workplace investigator.
Boyle v BHP Coal [2020] FWC 1080 (4 March 2020)
