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Claims of  “I didn’t do it”,  “Nobody saw me do it”, “You can’t prove anything”, may work in cartoon-land but they are less likely to wash in the face of a solid HR investigation.

Despite compelling evidence against him, one employee thought that disingenuous explanations for his hostile behaviour would serve him more than the truth.

Unfortunately for the employee, the employer was unconvinced by his inconsistent excuses and belligerent manner. His then failure to cooperate during the workplace investigation, rather than being a ‘silver bullet’ in his favour, did not place him on solid ground when he decided to pursue an unfair dismissal action[1].


Dissatisfaction with the allocation of work related accommodation quickly escalated into a war of words between two employees of Chinese origin. The language used by one employee towards the other was particularly culturally sensitive and amounted to “f*** you and f*** your mother!”.

The aggrieved employee initiated a complaint resulting in a workplace investigation.  As part of the investigation, the employee was required to attend a meeting with the employer’s Industrial Relations Manager.

The IR Manager informed the employee of the co-worker’s complaint alleging abusive and insulting language. The employee was also informed that the allegations were considered serious and the behaviour complained of was against the employer’s policy.

The employee appeared baffled by the accusations of his behaviour from the previous day (which he denied) and maintained that he had never heard of his co-worker nor had he ever spoken with her. Told that his behaviour was unacceptable, his employer dismissed him for verbal abuse and harassment of a fellow employee.

The employee brought an unfair dismissal claim alleging that the real reason for his dismissal was that the employer was in the process of reducing staff numbers and that he was targeted for dismissal as a result.

The Decision

Unsurprisingly, the Applicant and the employer had significantly divergent accounts of the facts.  The Applicant contended that he lacked a proper opportunity to respond to the conduct alleged and he was not given an opportunity to have a support person present at his meeting. He asserted that the allegations of misconduct were fabricated or concocted by the employer.

The FWC was unimpressed by the ‘evasive and unconvincing’ behaviour of the Applicant during the hearing. Stark contrasts and inconsistencies in his own evidence failed to convince the FWC of his innocence, instead suggesting that he was unnecessarily uncooperative and in denial. Throughout the investigation and subsequent hearing the employee persisted with providing a misleading account of events, thus failing to give any proper account or genuine explanation of his behaviour.

The FWC found that it was improbable that the employee did not know of the reasons for his meeting with his employer. Further, the employee was found to have lied on more than one occasion to both the employer and the Commission, when given an opportunity to respond to the allegations.

All in all the employee failed to cooperate; failed to accept any wrongdoing and; failed to show remorse or apologise for his behaviour – all of which resulted in a determination that his dismissal was not unfair.

Lessons for Employers

Despite compelling evidence against them, some workplace wrongdoers will steadfastly deny allegations of misconduct in the belief that their admissions are necessary for a complaint to be substantiated.  HR investigators need to maintain focus when faced with blanket denials, a lack of cooperation and seemingly spurious counter-claims.

An alleged wrongdoer’s lack of cooperation during a workplace investigation is a factor to be taken into account in the overall assessment of whether there is a valid reason for dismissal.

This employer satisfied its legal requirements by having a valid reason for the dismissal and providing procedural fairness throughout the workplace investigation. The employee maintained a facade of denial which was ultimately his undoing.

[1] Yan Wang v MCC Mining (Western Australia) Pty Ltd [2013] FWC 4325 (8 July 2013)

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