Employee witness support for employer’s actions essential in FWC

The widely reported decision of Commissioner Stanton in William F v Mt Arthur Coal Pty Ltd [2015] FWC 2343 highlights the importance of witnesses participating in the FWC’s hearing processes.

Employees raising concerns about workplace issues or incidents must not only be willing to complain, but also to then support the employer who acts in relation to that complaint once the matter comes to trial.  Employers too, must also create an environment that is supportive and ensures that the employee will be protected throughout this process.

Commissioner Stanton ordered the reinstatement of an employee who was known to be a member of a well known Motorcycle Club.  Mr F was dismissed with notice by his employer as the result of his serious misconduct, in particular swearing, inappropriate language, bullying and harassing others and interference with company property (refusing other employees access to vehicles).  Given the nature of the allegations, the Complainant was concerned for his safety and as a result the employer arranged for a security company to monitor the employee's home.

The Complainant and other employees were reluctant to participate in the formal investigation conducted by the employer and also refused to give evidence at the Hearing. Commissioner Stanton found that the investigation was flawed because the employer accepted the Complainant’s version of the events without obtaining proper supporting evidence or corroboration.  As a result, Mr F was reinstated and returned to the workplace.

Employers need to keep in mind that it may take a lot of courage for a Complainant to come forward, especially if they feel threatened, scared or intimidated or if there is a fear that their loved ones or fellow employees may be affected by their decision to speak up.  It is important for employers to offer a supportive environment to encourage complainants to raise important issues. Examples of how employers can do this include:

  • Having a clear grievance policy and/or procedure where employees are able to lodge complaints or voice concerns they may have within the organisation.  It is important that the policy makes clear that all matters will be kept confidential and only those who are required to know about the complaint will be made aware of it.
  • Offering employees access to an Employee Assistance Programme (“EAP”) for confidential external counselling and support.
  • Making arrangements for security support at the employee’s home and adding additional security measures to the workplace.

This decision also serves as a reminder that for an employer to respond to a complaint, first hand evidence (i.e. evidence that is from the Complainant or witness actually seeing an event or being part of an event) is the preferred form of evidence required – hearsay evidence (i.e. second hand evidence – someone else had seen or was a part of an event and they informed someone else) does not carry much weight.  Whilst it is tempting, employers must steer clear of assuming everything the Complainant has said is true and avoid making decisions purely based on unsubstantiated allegations.

To avoid an outcome such as in the this decision, employers should encourage Complainants to put their complaints in writing and/or provide a written Statement as this will give the employer the opportunity to rely on something that is first hand evidence in circumstances where the Complainant may decide to withdraw their complaint or decide not to appear at a hearing for some reason.  Should the matter end up in a Court or Tribunal, employers should remind employees that if they are feeling scared or intimidated that many Courts and Tribunals have facilities to allow individuals to appear by video link, telephone or if permitted, by way of an affidavit.

There is no doubt that this is a challenging situation for employers and employees confronted with these types of matters – however this case demonstrates the “worst case” for an employer and indeed, the other employees involved in the complaint as the dismissed worker is now reinstated to his previous position with the employer to work with those same colleagues.

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