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Flawed and defective workplace investigation crashes before FWC

Picture this. You have received a complaint and apparent investigation report from an important client about one of your employees, calling for their immediate dismissal.

The alleged incident has few to no discernible witnesses and no supporting evidence besides the version of the alleged wrongdoer.

This sounds like the workplace investigation from hell, but as one employer[1] recently found out that was no excuse to bury its head in the sand and ignore its obligations as an employer.

Background

As a school bus driver employed by Bacchus Marsh Coaches, the employee in question was responsible for both morning and afternoon bus runs for a major client (a school).

Complaint

An apparent incident with a student resulted in a parent’s complaint to the school about the bus driver.

The parent’s complaint was followed up with inquiries by the Deputy Principal in the form of two group meetings with students but some months apart.

The Deputy Principal passed on his findings to the school’s Principal, who then telephoned the employer and verbally reported the findings.

The Principal informed the employer that its findings were “absolutely conclusive” and “advised” the employer to dismiss the employee.

Meeting

The employer met with the employee on two occasions (Monday 25 March and Thursday 28 March 2013).

At the first meeting, the employee was informed that a “very serious allegation” had been made about her to the effect that she had “touched” a female student on the arm during a bus run.

The employee denied the allegation and the following day delivered a letter of defence to her employer in which she further denied the allegation.

The second meeting with the employee occurred after her morning bus run.  At the commencement of the meeting the employee was handed a letter which confirmed her dismissal.

The employee was informed that any incidents involving the school, being its “biggest contract”, “won’t be tolerated.”

When the employee, in response, questioned what was meant by the first line of the dismissal letter which read “In light of new information”, the employee was informed that it was “private information.”

The employee subsequently challenged the termination of her employment by way of an unfair dismissal application to the Fair Work Commission.

2013 HR Law UnpackedThe Decision

At the unfair dismissal hearing, the FWC was scathing in its assessment of the employer’s investigation.

The FWC accepted  that the school was rightfully concerned about the parent’s complaint and to request action by the bus driver’s employer.

However, the FWC pointed out that the school’s inquiries did not amount to an investigation and, critically, the employer failed to undertake its own investigation.

The FWC viewed the methodology employed by the school to investigate the complaint about the employee as “seriously flawed” and that other aspects of the investigation had the potential to be “tainted.”

The FWC commented that because of the investigation’s methodology there were no means by which the employee could either have known in detail the allegations about her, or through which she could test what was said about her.

A serious defect observed in the school’s investigation was that it did not prepare a written investigation report.

The FWC observed that a properly completed investigation report could have recorded the competing witness versions and “objectively weighted” the facts and opinions.

Condemmingly, the FWC viewed the school’s  investigation findings as “anything but conclusive” and observed that it:

  • did not sufficiently describe the alleged actions or words of the employee;
  • did not place the allegations according either to time or location;
  • did not indicate who might have been present at the time.

When it acted upon the school’s complaint the employer failed to put the allegations “fairly or cogently” to the employee.

The FWC considered that there was not a valid reason to dismiss the employee and held the dismissal unfair.

The dismissed employee was awarded $12,841.29 in compensation.

 Lessons for Employers

Upon receipt of a complaint, the proper response by an employer is to conduct an objective and thorough workplace investigation into the substance of the allegation.

Not only had the employer in question blindly relied on an unsubstantiated ‘investigation’ conducted by its client, the employer’s own attempts at ascertaining the facts of the allegations were defective.

Clear, direct and consistent approaches to workplace investigations will help employers avoid erroneously putting weight on the fact a complaint exists (ie. an accusation), rather than the substance of the complaint itself (ie. whether it is proved).

With the right tools for collecting evidence and ensuring procedural fairness, an employer will maximise its ability to successfully defend its disciplinary procedures before the FWC and, in so doing, reduce the prospect of a hefty compensation payout.

Do you 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.

It is this step that troubles many employers, often causing them to bungle an interview or, worse still, avoid it altogether thereby denying the alleged wrongdoer procedural fairness.

If you want to know how to conduct no nonsense, effective investigative interviews find out more by browsing here.

 

[1] Andrea Greenland v Bacchus Marsh Coaches Pty Ltd T/A Bacchus Marsh Coaches [2013] FWC 7716

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