Unfair dismissal flawed investigation
Unfair dismissal flawed investigation – Workplace investigations may be necessary part of business but are often complex and difficult to conduct, especially for the untrained and inexperienced.
A question that is generally raised after a complaint has been lodged is whether to conduct the investigation internally or to obtain external investigation assistance.
Before relying on the findings of an investigation especially when terminating an employee, employers must consider whether the investigation itself and its findings are sound and can be supported by the facts.
In the case of Jennifer Walker v Salvation Army (NSW)  FWC 32 the internal investigation was found flawed due to reliance on false assumptions.
Link to case: http://www.austlii.edu.au/au/cases/cth/FWC/2017/32.html
In this unfair dismissal case at the Fair Work Commission, the applicant Ms Walker was the manager of the Salvation Army’s store in Lidcombe, Sydney. She had been an employee of the Salvation Army for 11 years and during that time had an unblemished employee record.
In July 2016, Ms Walker served a customer who wished to purchase items of furniture. Ms Walker did not enter a sale and provided the customer with a handwritten document indicating she had set aside certain items.
The customer arrived later in the week to pick up the furniture. The customer claimed he had paid $200 in full for the furniture, however, there was no record of sale. The Salvation Army subsequently investigated the issue. The investigation consisted of a review of the CCTV footage and discussions with Ms Walker and the customer.
The Salvation Army believed the customer’s account and that the CCTV showed Ms Walker had received $200 cash from a customer as payment for furniture he was purchasing.
The CCTV footage showed that while dealing with the customer, Ms Walker had at least $50 in her hand. Ms Walker denied receiving any money from the customer. The Salvation Army terminated her employment for serious misconduct (theft).
In considering the case, Senior Deputy President Hamberger noted that the more serious the alleged conduct the higher the standard of reasonable satisfaction is needed to be applied when determining whether the conduct occurred.
SDP Hamberger found that the evidence demonstrated that Ms Walker was holding a $50 note in her hand, but it did not establish that she had received that money from the customer. SDP Hamberger concluded the customer had not paid Ms Walker for the furniture and as a result held that Ms Walker had not engaged in serious misconduct and that her termination was unfair
SDP Hamberger was surprised at the lack of rigour in the internal investigation and that the Salvation Army so readily accepted the customer’s claims that he had paid ahead of the account of Ms Walker.
In finding that the dismissal was unfair, SDP Hamberger considered the criteria in section 392 of the Fair Work Act 2009 and awarded the Store Manager the maximum available compensation of twenty six weeks’ pay equating to $22,404.50.
Lessons for employers
When conducting a workplace disciplinary investigation, employers should undertake the following:
- Ensure that the employee is afforded procedural fairness especially the right to be heard
- Ensure that the employee is provided with an opportunity to respond to the allegations. This involves providing the employee with sufficient details of the alleged conduct in writing.
- In the case of CCTV evidence, it is recommended that employers, ensure that the employee are permitted to view the footage prior to providing a response.
- Genuinely consider different or alternative explanations for the alleged conduct, and ensure all available evidence is gathers from witnesses and duly considered.
- Consider any mitigating circumstances prior to making a determination in regard to disciplinary action such the length of service or employment record and past behaviour of the employee.
- Ensure impartiality and avoid making assumptions of guilt prior to the completion of a fair and thorough investigation;
- Provide the employee with the opportunity to have a support person present, including providing the employee with sufficient opportunity to find an appropriate support person; and
- When in doubt, consider other opinions before terminating.
This decision in this case demonstrates the disadvantages of undertaking an internal investigation which was not thorough and made assumptions (that is, the customer’s account was truthful), rather than taking a more open minded approach to all asserted facts.
If in doubt call an expert, getting a workplace investigation wrong can be costly both in terms of money and reputation.
AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations
The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.
You can contact me on 02 9674 4279 or email@example.com
This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.