Fighting in the workplace is a commonly accepted category of serious misconduct, which will often justify the immediate dismissal of the employees involved.
However, the potential presence of a valid reason for a dismissal does not give employers free reign to simply ignore their many various obligations of undertaking a procedurally sound and fair workplace investigation into allegations of misconduct.
As this employer recently learnt, a valid reason such as assaulting a supervisor does not necessarily equate to a “sound, defensible or well-founded reason” when scrutinised by the Fair Work Commission.
In February 2013, an argument broke out between a supervisor and an employee over the placement of a roll of paper in proximity to a printer. As the argument escalated, a manager and a second employee became involved.
Prior to trading blows, the supervisor and employee had repeatedly sworn at each other and the supervisor pushed the employee, causing him to retaliate by punching the supervisor in the head. Once restrained by the manager, the second employee intervened, also punching the supervisor.
Following the altercation, the Joint Managing Director and Financial Controller of the employer were approached by the supervisor and manager with their version of events. Meetings were called that afternoon with each employee, where the allegations were put to them verbally. Both the complainants were present at each meeting.
The first employee said very little when asked for his response to the events and was summarily dismissed for serious misconduct. The second employee gave his version of events and suggested other witnesses be contacted. He was also summarily dismissed at the conclusion of the meeting.
Both employees were long-standing employees having each worked for more than a decade at the business.
The employees brought an unfair dismissal claim before the Fair Work Commission suggesting that there was no valid reason for their dismissal, no sufficient workplace investigation into the alleged misconduct and that they were not given a proper opportunity to respond to the allegations against them.
The FWC was quick to point out that there clearly was a valid reason for their dismissal. Their supervisor suffered “unprovoked blows to the head”. Neither employee was “acting in self-defence”. The employees acted as the “aggressors”, which in context amounted to serious misconduct.
However while both employees were notified of the reason for their dismissal, the circumstances of their subsequent meetings did not allow for “meaningful or sufficient opportunity to provide either an explanation or contradictory evidence” to those reasons. Further any limited response that was offered, was plainly not taken into account by the Managing Director.
Other factors the Commission commented on were the lack of expertise of the lead investigator, who had no HR training.
Also, the two employees were of Vietnamese descent but were offered no English language assistance to understand and respond fully to the allegations (despite requiring the use of translators during the FWC hearing).
Ultimately, despite the valid reason, their dismissal was found to be harsh, unjust and reasonable.
Reinstatement to their previous positions was considered not appropriate and so instead the Commission awarded compensation to each employee.
Lessons for Employers
While the ultimate cost to the employer was not on the higher end of the compensation scale, the number of mistakes made throughout the investigation process took its toll.
The fact that the procedural flaws ultimately outweighed acts of significant gravity (ie. assaulting a supervisor without provocation) is a strong message to employers about the risks of failing to maintain a fair and consistent HR investigation process.
When dealing with allegations of serious misconduct, a firm and consistent approach to the investigation is always recommended. Remember to:
- Fully or formally investigate the matters brought to your attention;
- Seek out other nominated witnesses and genuinely consider alternative explanations for the alleged behaviour;
- Arrange for written statements to be taken from complainants and witnesses; and
- Not allow complainants to remain in the same room when interviewing other witnesses or the alleged wrongdoer.
Do you want to know how to properly interview an alleged wrongdoer?
Our next webinar Investigative Interviewing – How to Interview Alleged Wrongdoers will be held on 10 December 2013 and it will give you all the answers.
Failing to interview the subject of a complaint risks having any disciplinary action overturned by a body such as the Fair Work Commission.
If you want to know how to conduct no nonsense, effective investigative interviews find out more by browsing here.
 Sheng He v Peacock Brothers & Wilson Lac v Peacock Brothers (2013) FWC 7541