Avoid unfair dismissal claims with a robust investigation

Employers navigating the minefield of employee relations often forget that when it comes to terminating an employees’ employment there must be a ‘Valid Reason’ and a fair procedure, as required by the Fair Work Act.

They are just as important and not outweighed by the seriousness of the employee’s misconduct.

If either one of these requirements is missing, there is a real risk of the dismissal being deemed to be unfair, regardless of how sound or serious the reason for the dismissal.

Conducting a robust and sound investigation process will assist in fulfilling the second requirement of a fair procedure. The difficulty for HR professionals is they may not have the experience to conduct effective investigations, but nevertheless industrial tribunals expect them to be able to do so.

Furthermore, in today’s litigious society, conducting robust and sound investigations into complaints arising from alleged:

  • Bullying;
  • Sexual Harassment; and
  • Illegal Discrimination

that may or may not have occurred will assist in employers managing their employees appropriately and militate against any vicarious liability for employees’ misdeeds.

What is a robust and sound investigation?

It is very important that when conducting investigations employers:

  • Have a policy that is clear and transparent and that is consistently followed for all complaints;
  • Ensure the investigator is independent, unbiased, trained in obtaining Statements and dealing with evasive or untruthful employees;
  • Ensure natural justice was afforded to the person allegations were made against;
  • Ensure appropriate action was taken to address and resolve complaints; and
  • All complaints are treated seriously and investigated promptly.

The overall basis for any investigation is that it must be fair to both the complainant and the person the allegations have been made against. This means that:

  • The complaint be investigated by interviewing the complainant, any witnesses and all information gathered is presented to the respondent for his or her response, PRIOR to any decision being made.
  • No information that is not provided to the respondent for his or her response is used or considered when deciding the outcome of an investigation.
  • All relevant information, documentation and witness accounts, including those provided by a respondent is investigated, checked and considered.

A recent Fair Work Commission decision, highlights the importance of the above.

In Jacqueline Waite v Serco Australia Pty Ltd T/A Serco Australia Pty Ltd [2018] FWC 3113, despite the finding that the former employee had fundamentally behaved in conduct that undermined the requirements of the position she had held, the employer’s lack of a fair procedure meant that the employee had been unfairly dismissed.

Facts

Ms Waite was employed as a detainee services officer at an immigration detention centre in Brisbane. On August 22 last year, Ms Waite was assigned to work a night shift at a hospital, guarding detainees who had been admitted to the hospital and were located in a secure mental health ward.  The assignment required Ms Waite and a colleague to sit outside the door to the ward and prevent the entering or exiting of non-authorised persons.

During the shift, Ms Waite used her personal iPad, ostensibly to watch training videos but also had watched movies and accessed the internet, falling asleep for periods of time.  Both of these actions were contrary to the employer’s policies and procedures as well as the training provided to Ms Waite.

Ms Waite’s conduct at the incident was investigated by Serco and the employee was required to attend meetings to explain why she had used a personal iPad and slept while she was supposed to be working.  During the course of the investigation, Ms Waite admitted the allegations and provided reasons that mitigated her misconduct which were:

  • She was tired at the start of the shift
  • She was caring for her partner who was being treated for cancer which was causing her personal stress.

Crucially, Serco formed the view that Ms Waite had, in addition to her misconduct on August 22, not been remorseful about her conduct and therefore not been truthful to them when she claimed that she had shown remorse. However, Serco did not inform Ms Waite of this, nor did Serco give Ms Waite an opportunity to respond to this finding prior to deciding to terminate her employment for her misconduct.

It was this failure, on Serco’s part, to inform Ms Waite of the finding they had made in regards to her truthfulness that resulted in the Fair Work Commission deciding that the dismissal of Ms Waite was unfair. Serco had considered information that had not been provided to Ms Waite when deciding to terminate her employment.

Compensation of $6758 was ordered to be paid to Ms Waite.

Written by Stephen Farrell. Stephen Farrell is a Senior Employee Relations Consultant at CCI’s Workplace Consulting.

For further detail on how to conduct investigations, The Broome Chamber of Commerce and Industry is hosting Stephen at a HR/ER discussion on Thursday 18 October 2018.