“WCI: NSW – Workplace Conduct Investigation”

Warning for employers relying on investigation reports in a termination   

What happens when the relationship of trust necessary between an employer and an employee breaks down? As the employer, who do you trust when you are trying to ensure honesty in the workplace?

In Shakir v Department of Family and Community Services [2017] NSWIRComm 1040, Commissioner Newall upheld the dismissal of an employee but criticised the employer for relying on conclusions made in an investigation report that were factually wrong.  

Ms Shakir (the Employee) was employed by the Department of Family and Community Services (the Employer) as a Disability Care Worker. On 17 August 2014, she was involved in an altercation with a co-worker and went on work-related stress leave shortly thereafter. In support of that leave, she submitted a number of Certificates of Capacity certifying her totally unfit for work.

In a Certificate of Capacity, an Employee is required to confirm whether they have or have not “engaged in any form of paid employment” in the time since their last Certificate. The Employee did not complete this section on any of her Certificates.

Shortly after submitting her first Certificate, the Employee successfully obtained secondary employment with Sunnyhaven Disability Services though didn’t actually commence work until 15 September 2014.

The Employee then continued to submit Certificates to her Employer after commencing with Sunnyhaven, a fact that surfaced as the result of an investigation report. The report falsely concluded that the Employee had been working for Sunnyhaven for the entire period that she was claiming incapacity and she had failed to declare this on all the Certificates she submitted.

The Employer dismissed the Employee for serious misconduct on the basis that she had actively deceived the Employer by engaging in paid employment and refusing to answer the section addressing this point on three Certificates.

The Employee challenged the dismissal.

Trust and honesty is at the heart of the employment relationship

Commissioner Newall dismissed the Employer’s allegation of misconduct in relation to the first two Certificates however upheld the allegation in relation to the third Certificate.

Upon reviewing the factual evidence before him, he found that, contrary to the report, the Employee had secured alternative paid employment but was not actually engaged in that employment until some weeks after. On that basis, the Employee did not actively deceive anyone by failing to complete the relevant section in her first two Certificates.

Commissioner Newall stated it was “unexplained and inexplicable” that both the investigator and the Employer would accept the falsity that the Employee had engaged in paid employment any earlier than 15 September 2014. Given the seriousness of a dismissal, he said “it is not sufficient to proceed by blindly accepting findings made by an investigator.”

However, he found that by the time of the Certificate dated 12 January 2015, the Employee had engaged in such employment and had failed to tick the appropriate box, which was a deliberate intention to conceal her true circumstances to obtain a financial benefit. This active deceit “struck at the heart of the employment relationship” and meant her employment could not be maintained.

An investigation into the investigator’s report?!

In our view, the role of an investigator is a simple one – investigate the factual circumstances of a matter. The role of the employer, however, is much more complex and involves a careful discretion to be exercised.

Investigators need to be carefully briefed at the outset of the critical issues to be investigated and any reports then need to be reviewed to ensure they meet that brief. For instance, the critical issue in this matter was whether the Employee had “engaged in any form of paid employment” and if so, on what dates had such engagement commenced.

Engaging the services of a legal professional early in this process, such as when drafting the briefing letter, will help minimise the margin for error.

Employers are entitled to consider, as part of the overall evidence, conclusions made in an investigation report but this does not remove their role as the ultimate decision-maker. This role carries an obligation to form their own view about a particular matter and to make sure that the reasons for their decision (including an investigation report) are well founded. 

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.

02 9256 7500 | sydney@workplacelaw.com.au

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. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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