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FWC upholds HR investigation of 'workplace clown'

Thanks to a textbook approach to it’s workplace investigation, this employer enjoyed an emphatic win over a dismissed employee before the Fair Work Commission.

When scrutinised by the FWC, the employer’s workplace investigation left the employee’s denials wanting and ticked all the relevant boxes.

This recent case[1] provides a stark reminder of just how crucial effective workplace investigations are; particularly when they are challenged by aggrieved employees.

The Facts

An employee since October 2007, Mr Federici had himself admitted to experiencing the damaging and distressing impact of racist behaviour and comments.

However in July 2013 this did not stop him from allegedly mocking and mimicking an Indian co-worker in a way that amounted to a serious breach of Kmart’s Equal Opportunity Policy and staff Code of Conduct.

By copying his co-worker’s distinctive accent, on more than one occasion, and after being asked to stop by both the co-worker and another employee, Mr Federici’s behaviour amounted to harassment.

He was stood down with pay while his employer conducted a workplace investigation.

The Investigation

The employer’s workplace investigation consisted of interviews with witnesses, the alleged wrongdoer and the harassed employee. It was conducted by a lead investigator who was supported by other HR staff.

Throughout the investigation, Mr Federici continually denied the allegations put to him.

At the conclusion of its investigation, the employer considered that ‘on the balance of probabilities’ the allegations could be substantiated.

At a second meeting with his employer, failing again to display remorse or admit to the behaviour, Mr Federici was dismissed.

Mr Federici then sought to overturn his sacking by lodging an unfair dismissal claim with the Fair Work Commission.

The FWC’s Decision

From the outset, the FWC observed that there were major discrepancies between the evidence of Mr Federici and his former employer.

Mr Federici claimed that he had no prior history of these behavioural issues and that even if the behaviour did occur, his sacking was a disproportionate response to his misbehaviour because of Kmart’s response to an earlier incident.

Unfortunately for Mr Federici, the FWC preferred his employer’s evidence, citing it as “credible and convincing”.

It was accepted by the FWC that the behaviour did in fact occur, it had a significant effect on the co-worker and Mr Federici should have been aware of the effect and impact given both his submissions and his commitment to various workplace policies that banned harassing behaviour.

In the eyes of the FWC, Mr Federici’s continued denials during the workplace investigation process compounded the significance of the issue.

The prior incident which Mr Federici raised, was found to have had little or no relation to the matters at hand and was dismissed by the FWC.

All in all, Kmart had a valid reason for his dismissal. Mr Federici was notified of the reason for his sacking, he had a support person at all meetings with his employer and was provided with an opportunity to explain or mitigate the behaviour which he chose to ignore.

In all matters, his dismissal was not harsh, unjust or unreasonable.

Lessons for Employers

Even employers with clearly set out workplace policies about discrimination and harassment can be faced with misbehaviour overstepping the mark.

Workplace wrongdoers can even attempt to justify their harassment as a harmless joke or a prank.

Thanks to checks and balances within its HR protocols, this employer was able to draw the line between the give and take of acceptable workplace humour and misbehavior amounting to serious workplace harassment.

Following a watertight workplace investigation and despite the employee’s denials, the FWC had no reason to doubt or question the employer’s case.

In the end the defensible and justifiable reason for the employee’s dismissal meant the ‘joke’ was on the sacked employee rather than his employer.


[1] Claude Federici v Kmart Australia Ltd T/A Kmart Fountain Gate [2013] FWC 9587

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