When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to the investigation. This is to ensure that the employee is afforded proper procedural fairness.
The purpose of an investigation into allegations of misconduct is to determine whether or not the misconduct has actually taken place and can be put to the employee as part of a disciplinary process. During the course of an investigation, the employee should be given the opportunity to put their own version of events forward so that the employer can determine what happened. However, a disciplinary process should provide the employee an opportunity to respond to those allegations in the context of potential disciplinary action.
The importance of distinguishing between the two processes was recently demonstrated in Bridge v Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits  FWC 3153, where the Fair Work Commission (FWC) found that an employee “was not provided with any form of procedural fairness”, despite finding that there was a valid reason for dismissal.
The employee was as a Store Manager for Globe Bottleshops Pty Ltd (the Employer).
In March 2021, the Employer received a complaint made by a customer alleging that she had been sexually harassed by the employee. The allegation was that the employee had said to the customer “would you like a r**t?” and then laughed, corrected himself and said “receipt”.
The Employer sent an email to the employee detailing the complaint and stood him down on full pay pending an investigation.
The employee provided the Employer with an initial response to the customer’s allegations stating that he was stunned by the unsubstantiated and anonymous allegation. The Employer was not satisfied with this reply and requested the employee provide a second written response to the allegations.
Before providing the Employer with a second response, the employee requested further information as to the identity of the customer, what the customer had purchased, and CCTV footage of the incident so that he could better recall what had occurred. The Employer refused to provide any further information, stating that the customer wished not to disclose her identity. The employee was therefore unable to add anything further to his response and his position remained that the incident did not occur.
The Employer concluded the investigation and emailed the employee informing him that the allegations were substantiated and his employment was terminated for serious misconduct with immediate effect.
The employee subsequently lodged an application for unfair dismissal, claiming that the investigation was procedurally unfair and that the decision to dismiss him was made before the allegations were put to him.
The FWC first considered whether there was a valid reason for dismissal and ultimately favoured the Employer’s evidence, which included evidence that the employee had a number of past complaints made against him and he had been warned that his humour was at times offensive.
The FWC found the customer complaints and reviews to be telling of how the employee conducted himself in the workplace and that while he may not have intended any malice or to cause offence on the day of the incident, a reasonable person would anticipate that such a comment would likely cause the customer to feel harassed.
The FWC therefore held that there was a valid reason for dismissal.
Turning then to whether the dismissal was fair, the FWC stated that the dismissal of the employee “was nothing less than procedurally disastrous”.
The FWC was critical of the Employer for not providing the employee with the details surrounding the allegations and denying his request for further information, including the CCTV footage, the complaint details and what the customer had purchased. Therefore, the FWC held that the employee was not given an opportunity to respond to the full and proper allegations which the Employer relied on for the termination of his employment.
The FWC found that the Employer had engaged in a “flawed investigation process” because it did not interview the employee and it was evident that the Employer had already decided that the employee was guilty before the investigation had commenced.
The FWC also found that the Employer did not commence any disciplinary process after the investigation and prior to the employee’s dismissal because the employee was not provided with the substantiated allegations or given an opportunity to show cause as to why his employment should not be terminated.
Given the lack of procedural fairness provided to the employee, the FWC found his dismissal to be unfair.
The FWC ordered the Employer to compensate the employee $3,000.00 for the two weeks it considered the employee would have remained employed if the Employer had followed a proper dismissal process.
Lessons for employers
One of the key elements of procedural fairness is that an employee must be provided with a reasonable opportunity to provide a response to any allegations put to them. This includes providing them with sufficient detail of any allegation to enable them to properly respond. It also includes properly notifying an employee that disciplinary action might be taken against them.
As demonstrated in this decision, the employer’s flawed investigation process and lack of show-cause process rendered the employee’s dismissal to be unfair, despite there being a valid reason for dismissal.
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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