Workplace Investigation failure
Workplace Investigation failure – originally published in HRD Magazine
The Fair Work Commission (FWC) has reinstated an employee of a mining company after his employer failed to conduct a thorough investigation into allegations of misconduct. The decision is a reminder for employers to ensure that they have the necessary expertise and procedures in place before conducting internal workplace investigations, particularly when there is conflicting witness accounts and limited documentary evidence.
In Robert Crook v. CITIC Pacific Mining Management Pty Ltd [2023] FWC 2446, Robert Crook (applicant) was employed as a dump truck operator at CITIC Pacific Mining Management Pty Ltd (respondent), from 20 August 2020 until 6 April 2023.
In March of 2023, the applicant was accused of instigating sexually explicit conversations with other male colleagues and sharing pornography on his mobile phone on a bus ride at the end of a work shift.
The Workplace Investigation failure
After the complaint was made, the applicant was called into meetings with his supervisors and senior managers, where he denied any wrongdoing. Notwithstanding, the respondent stood down the applicant from his role so that it could fully investigate the complaint.
During the investigation, the respondent only interviewed one investigation participant who was a witness to the event as a part of its investigation into the complaint. This colleague sat next to the complainant during the bus ride and partially supported her version of events. The respondent heavily relied upon this colleague’s interview statement as its justification for terminating the applicant’s employment. The respondent chose not to interview any employees who supported the applicant as it believed they would only do so “out of loyalty to a mate.”
Following its investigation, the respondent terminated the applicant’s employment on the basis that he had engaged in “inappropriate conduct of a sexual nature towards new female trainees.”
The respondent justified this decision for the following reasons:
- The applicant failed to provide evidence which showed he was not guilty of the conduct the subject of the Complaint.
- The demeanour of the complainant was difficult to reconcile with a falsified complaint.
- The complainant was able to name another employee who corroborated parts of her complaint.
- At least two other employees allegedly viewed the explicit material.
Following the decision to terminate his employment, the Applicant made an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) seeking reinstatement and restoration of lost pay.
Evidence presented to FWC
When this matter came before the FWC, both the applicant and respondent called on numerous witnesses in the proceedings to give evidence as to what happened during the bus ride. The majority of these witnesses supported the applicant’s narrative; this being that the complaint was unfounded. However, the Commission found these witnesses gave evidence which were “essentially character references for the Applicant.” As a result, the FWC did not rely upon those parts of the witness evidence.
The FWC also heard from the witness who supported the complainant during the respondent’s investigation. Whilst this participant was deemed credible by the FWC, her evidence was “tainted” as:
- The respondent originally questioned her with the complainant present
- She was only asked to confirm or deny the complainant’s allegations, rather than providing her own independent statement as to what took place during the bus ride.
Commission’s findings on misconduct investigation
Notwithstanding the FWC determining there was an opportunity for the applicant to engage in the alleged conduct, due to a lack of evidence and the applicant’s continued denial of the complaint, the FWC was unable to find that he was guilty of any misconduct. Moreover, the FWC found the investigation conducted by the respondent to be deeply flawed and lacking rigour.
In particular, the commission took issue with the following conduct in relation to the investigation:
- Not providing the applicant with an opportunity to present evidence as to his innocence.
- The respondent did not properly consider the evidence of employees who were present during the bus ride, and incorrectly labelling them as “mates” of the applicant (when it had not actually gathered any evidence to confirm if this was true).
- Interviewing the one participant who supported the complainant with the complainant present, rather than separately.
- Failing to consider the available objective evidence, such as the swipe card records.
- Judging the applicant’s guilt in part on the complainant’s demeanour.
- Making no effort to interview the two employees who had the potential to corroborate the complainant’s version of events.
The FWC held that the respondent did not have a valid basis for dismissing the applicant and ordered that he be reinstated with backpay.
Workplace Investigation failure – My advice for employers/business owners.
In cases such as this employers have options.
1. Engage an external expert, but make sure the person is an expert, qualified and licenced. There are a lot of people claiming to be able to conduct workplace investigations. I recommended using someone who’s core business is workplace investigations, not someone who has investigations as part of but not the major part of their business
Why, a full time investigatior is conducting investigations all the time others may do 1 or 2 a month, maybe more maybe less, personally I conduct investigations every day, every week. If I am not conducting investigations I am providing training in investigation and misconduct in the workplace.
2. Do it yourself. If you are going to take that option as the commission stated in the case, employers must ensure that they have the necessary expertise and procedures in place before conducting internal workplace investigations.
Why, because people lives, families and futures depend you the investigator getting it right.
Conducting a workplace investigation is a complex task from complaint analysis, investigation and interview planning, conducting interviews, evidence analysis, and report writing. Not to mention understanding procedural fairness, the rules of evidence and employement laws.
Need help to make sure you get it right the first time every time, call an expert or get training in best practice workplace investigations.
If I can assist please contact me phil@awpti.com.au or via www.awpti.com.au