Launching an investigation in response to a workplace complaint can be a serious business. Investigators are required to speak to witnesses and review any evidence that is available to them. Weighing the evidence provided during an investigation is a crucial step in reaching a valid conclusion about whether an alleged event or incident occurred as it is said to have occurred.
But what happens when an employee withholds information or evidence that is relevant to an investigation? What action can an employer take?
These questions were examined in a recent Fair Work Commission (FWC) decision (Mocanu v Kone Elevators Pty Ltd  FWC 1335) where the FWC upheld the dismissal of an employee who failed to hand over critical evidence.
In that case, the employer received a formal bullying complaint from an employee in relation to two managers. The employer’s HR team attempted to arrange a meeting to discuss the complaint with the employee but he advised them that he was not in the right frame of mind to discuss it and subsequently took a period of medical leave.
After three months of medical leave, the HR team enquired with the employee via email about his return to work. He responded to that email indicating that he had covert records which would prove that he had been bullied and intimidated by the two managers. The employee included in his email what he claimed were transcript extracts of the covert recordings and demanded that his employer put the transcript extracts to the two managers and have them confirm the veracity of the statements.
Believing that the recordings could be critical pieces of evidence in the bullying investigation, the employer responded by requesting that the employee produce the covert recordings. The employee did not produce the recordings but instead responded with a request for further information about the investigation into his bullying complaint.
About a week later, the employer again emailed the employee and requested that he produce the covert recordings. Again, the employee responded with requests for further information about the investigation, including queries about the potential outcome and possible dismissal of the two managers.
Having made two email requests to the employee, the employer then determined that a more formal direction to produce the covert recordings was required. It wrote a letter to the employee, which was sent by registered post, formally directing the employee to hand over the covert recordings. The letter advised the employee that his continuing employment was at risk should he fail to follow the direction.
The employee responded to the letter by stating that he would only hand over the covert recordings when he could be satisfied that he would get a fair and respectful internal hearing. He also demanded answers to a series of questions about potential outcomes of the bullying investigation in relation to the two managers.
The employer in turn responded with an email containing a further direction to hand over the covert recordings. The email advised the employee that a courier would attend his home to collect the recordings on a USB stick. The email also advised the employee that a failure to hand over the covert recordings following this formal direction would result in summary dismissal.
The employer arranged a courier as promised but the courier reported that it was unable to take delivery.
The next day the employer received an email from the employee advising that he would hand over the recordings if, upon his upcoming return to work, a meeting with the alleged bullies could be arranged and if everyone cooperated during that meeting.
The employer then determined to terminate the employee’s employment and sent him a termination letter by email and by registered post. The letter summarily dismissed the employee for failing to follow lawful directions, specifically in regard to the covert recordings.
The employee then made an unfair dismissal application to the FWC claiming that his dismissal was unfair because he was away from the workplace at the time and had offered a solution by proposing a meeting upon his upcoming return to work. He claimed that he should not have been expected to comply with any of his employer’s directions because he was on medical leave and was not being paid. He further claimed that it was not a great deal of time until his return to work and the matter could have been dealt with then.
The employer argued that it had a valid reason for the dismissal in that the employee’s failure to hand over the recordings after two requests and two formal directions had frustrated the investigation process and amounted to a refusal to follow the employer’s reasonable and lawful directions.
The FWC found that the employer had been very patient with the employee. In total, the employer had waited some five months from receiving the bullying complaint for further information from the employee before terminating his employment. Further, the period between when the first request to hand over the recordings was made and the proposed return to work date was almost three months. On this basis, the FWC rejected the employee’s argument his dismissal was hasty.
The FWC also rejected the employee’s argument that he was on medical leave and was not capable of complying, and should not have been expected to comply, with his employer’s directions.
The FWC found that the employee was able to draft emails and attach material to emails and so he was more than capable of complying with the employer’s directions.
The FWC also found that, although the employee was on a form of unpaid leave, the employment contract remained on foot. Accordingly, the employee still had obligations to the employer, including to follow reasonable and lawful directions, such as handing over material that is relevant to a serious workplace investigation.
Ultimately, the FWC found that the employer had followed a proper course of action and its dismissal of the employee was not unfair. The employee’s application was dismissed.
Lesson for employers
When an employee refuses to hand over information or evidence that the employer considers is relevant to an investigation, a formal direction may be issued for that relevant material to be handed over. If the employee repeatedly refuses to comply with the direction, their conduct may amount to serious misconduct and result in disciplinary action, including termination of employment.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.
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