The Fair Work Commission has overturned yet another workplace dismissal investigation that could have been avoided through some simple modifications to the investigation procedure.
Instead, the employer was left red faced and forced to reinstate an employee with 23 years prior employment history, who in it’s eyes, had committed a cardinal sin.
Significant gaps and errors throughout the investigation, coupled with an inexperienced lead investigator who involved the HR department too late, rendered the dismissal unfair and unreasonable; despite a potentially valid reason.
The employee in question was on his lunch break when a gas alarm sounded that necessitated immediate attention. The employee had chosen to eat his lunch in the Control Room where the alarms were situated, instead of using the designated break out area.
A number of accepted employee practices meant that another employee, not on his lunch break, had responsibility for the control panel and monitoring the alarms at the time it sounded.
After two other workers responded to the alarm, it sounded again.
The employee in question still failed to take responsibility for responding.
A workplace investigation into the employee’s ignorance of the alarm was commenced by the Operations Manager.
Following discussions with both the alleged wrongdoer and a number of other employees, the manager issued a show cause letter to the employee.
The employee responded verbally within 15 minutes and in writing after another 2 hours, outlining a number of mitigating factors and reasons.
That same afternoon, the employee received a second letter, terminating his employment for serious misconduct.
The letter informed the employee:
“This termination is due to failing to follow the Company’s Life Preserving Principles (Cardinal Rules) when you deliberately and knowingly did not follow a critical safety procedure, and for providing misleading information during the course of the investigation.”
The sacked employee filed an unfair dismissal claim with the Fair Work Commission.
The FWC recognised the importance for an employer (when it came to investigating misconduct) to make an appropriate level of enquiry in relation to the facts of a case before an employee is terminated.
The FWC observed that a blatant and deliberate disregard of a safety procedure can be a valid reason for summary dismissal – but it did not occur in this situation.
Instead, the FWC categorised the employee’s actions in a ‘non-deliberate’ breach category.
The FWC found that the allegation the employee had acted intentionally in not responding to the alarm could not be supported by the evidence.
The FWC also found that the allegation of deliberately misleading the investigation was similarly unproven.
The FWC identified the following other flaws in the employer’s HR investigation:
- There was possibly more than one employee at fault, but inconsistent treatment by the employer meant that only one was disciplined;
- The investigating manager accepted the evidence of only one employee; whom he knew to be an unreliable witness;
- Potential witnesses were interviewed twice, while the alleged wrongdoer only had one opportunity to respond;
- Numerous and obvious questions that should have been asked of a number of witnesses were simply not raised; and
- A dedicated HR department was not involved until it was too late.
In the eyes of the FWC, the employer’s investigation errors meant that the employee did not receive a ‘fair go’ and thus his dismissal was unfair.
Disastrously for the employer, it was ordered to reinstate the sacked employee to his original position.
Lessons for Employers
Significant gaps and errors in this workplace investigation by a manager not experienced in workplace investigations lead to the overturning of the employer’s actions.
Just as it is important for employers to investigate reports of employee misconduct, it goes without saying that those employees responsible for conducting workplace investigations need to have a proper understanding of the correct process.
Time and time again the unfair dismissal cases demonstrate that employers are failing to make the appropriate levels of enquiry when conducting HR investigations.
By failing to ask the right questions, drawing incorrect conclusions, engaging in inconsistent interview practices, and failing to ensure the existence of valid reason, there was little opportunity for this employer to successfully defend it’s disciplining of an employee who in its eyes had committed a grave safety breach.
If only the employer had taken advantage of our HR investigation tools!
The employer certainly would have benefited from the DVD recording of our recent webinar How to take Complainant and Witness Statements the Right Way.
The webinar contains straight-to-the-point guidance and information about how to correctly interview, and take statements from, witnesses.
Our workplace investigation tools help employers ensure their misconduct investigations don’t become error riddled and ultimately wasted exercises, with disastrous consequences.
 Mr Michael Duncan v Bluescope Steel Ltd T/A Bluescope Steel  FWC 8142 (4 November 2013)