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Sacked urinating worker turns tide on employer at FWC

A recent unfair dismissal decision[1] of the FWC has yet again highlighted the importance of following a proper procedure when conducting a HR investigation into employee misconduct.

Despite serious behaviour being committed by the employee in question, the HR Manager’s manner of conducting the investigation didn’t fare well before the FWC.

Background

The employee in question (Mr Cowan) was employed as truck driver by Sargeant Transport.

The employee’s duties included making long distance and local deliveries.

On 28 February 2014 the employee made a delivery to a Woolworths Regional Distribution Centre (RDC).

After pressing the RDC’s front gate intercom and whilst waiting for the gate to open, the employee was filmed by CCTV to move to the far side of his truck and urinate.

After viewing the CCTV footage, a manager from the RDC complained to the employer about the employee’s conduct.

The employer was also advised that Woolworths had banned the employee from all of its sites for 3 months because his actions were in breach of Woolworths’ policy.

The HR Investigation

The employer’s Group Operations Manager referred the complaint to the employer’s HR Manager for investigation.

During the investigation the HR Manager had discussions with the employee about the complaint and informed him of the existence of the CCTV recording.

On 14 March 2014, following discussions between the Group Operations Manager and the HR Manager, a decision was made to dismiss the employee.

The employee was verbally notified of his dismissal.  A subsequent letter to the employee confirmed the dismissal was on the basis of an “act of misconduct.”

In consequence, the employee filed an unfair dismissal claim with the Fair Work Commission.

The Dismissal Hearing

Reasons for dismissal

At the FWC hearing, the employer cited reasons for the employee’s dismissal including:

  • The employee breached the employer’s Transport’s Driver Manual, and his conditions of employment
  • The employee’s action’s constituted misconduct
  • The employer needed to protect its reputation and maintain its client relationship with Woolworths
  • The employee lied to the HR Manager during the workplace investigation when he initially denied he had urinated on the Woolworths’ site
  • The employee’s conduct was not acceptable to an important customer (Woolworths) which as a result had banned the employee from its sites for three months
  • Following the 3 month ban by Woolworth’s, no full time work was available for the employee
  • The employee had not provided any explanation for what he had done

A valid reason, but …

After considering the parties’ evidence (much of it conflicting) the FWC accepted that the employee did urinate at the entrance to the RDC and that the conduct was in breach of the employer’s Drivers Manual.

The FWC found that a valid reason existed for the employee’s dismissal given that his conduct was unprofessional, not acceptable and in breach of the employer’s policies.

However, the FWC did not consider any on-going damage occurred to the relationship of the employer and Woolworths.

Further, based on an unrelated prior banning incident, the FWC was not convinced the employee could not have been redeployed during the 3 month ban.

Critically, the FWC found a number of procedural flaws in employer’s workplace investigation including:

  • The HR Manager may not have been clear with the employee during questioning which could have led to confusion in answers given by the employee
  • The employee did not deny urinating at the RDC and thus did not lie to HR Manager during the investigation
  • The investigation was not conducted in a way which enabled or encouraged the employee to inform the HR Manager of medical reasons for his conduct
  • It was not enough for the employee be told of the reason for his dismissal – prior to the dismissal; he should have been given an opportunity to respond (to that reason) prior to the dismissal decision;
  • No one properly explained the allegations, the evidence and the consequences if substantiated
  • The employee was not given an opportunity to show cause why disciplinary action should not be taken (including his dismissal)
  • Although the employee did not expressly request a support person during interactions with the HR Manager – the manner in which workplace investigation was conducted, in essence, unreasonably refused the employee the opportunity to have a support person present

The FWC emphasised the importance of procedural fairness:

“The decision to dismiss the Applicant was also unreasonable in circumstances where there was a lack of procedural fairness. The existence of a valid reason must be balanced against the lack of procedural fairness. Procedural fairness is an important consideration. It should not be lightly cast aside. Its proper application ensures a robust and just process for all involved.”

The Verdict

The FWC found the dismissal of the employee was harsh and unreasonable, therefore, he was unfairly dismissed.

The sacked employee sought monetary compensation rather than reinstatement.

At a date to be determined, the FWC will make a decision as to appropriate monetary compensation, following input from the parties.

Lessons for employers

Yet again an employer has come unstuck before the FWC over the manner of conducting its HR investigation.

Despite there being a valid reason for the employee’s dismissal, the FWC emphasised that procedural fairness should not be “lightly cast aside” during an HR investigation.

The FWC’s decision emphasises the importance of clearly explaining the allegation to an alleged wrongdoer, explaining the relevant evidence against the person and providing specific relevant information, such as (in this case) details of the ban by Woolworths.

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[1] Cowan v Sargeant Transport Pty Ltd [2014] FWC 5330 (18 August 2014)

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