Wednesday 10th June 2015
Where workplace investigations
go wrong: one employer’s hard
|In today's Workplace Bulletin:|
- Case Study: FWC reinstates employee despite bullying claims
On the surface, a lot of dismissals for misconduct look pretty straightforward.
If somebody has done something seriously wrong – think fraud, assault, theft, or intimidation – it’s easy to think that your actions are the right ones, no matter what. Some actions are so serious they justify your immediate response.
And if other people have been the victims of an employee’s misconduct, you’ll be feeling the pressure to keep them safe and well.|
But you need to take a deep breath…
A workplace investigation shouldn’t usually involve the same standard of forensic detail that a police investigation or a court hearing might. But the same fundamental principles of natural justice apply.
In the rush to deal with what seems like unacceptable employee behaviour, it’s easy to forget that they still have the right to answer the allegations put to them, and the right to explain themselves.
And it’s easy to forget to sit down and take the time to give the evidence you’ve gathered a good, hard look.
But if you don’t take these simple actions at the time, it’s nigh-on impossible to put things right later on.
Today I take a look at a recent Fair Work Commission case where BHP Billiton’s dismissal of an employee for misconduct was found to be harsh, unjust and unreasonable.
More than that – they ordered that he be reinstated to his old role.
I think we can agree that BHP isn’t a mum-and-dad employer muddling through a disciplinary procedure over the weekend, so in some ways a result like this can be surprising. If they can’t get it right – what hope is there for you?
Plenty, as the case may be. It’s always worth looking at what went wrong in a case like this. And then anyone, with care and attention, can figure out what to do right.
Click here to find out how to make sure you’re fully equipped to conduct an effective workplace investigation - without creating any legal risks for your business.
Case Study: FWC reinstates
employee despite bullying claims
A decision in the FWC last month, Fitzpatrick v Mt Arthur Coal Pty Ltd  FWC 2243, shows how a number of seemingly minor omissions in a workplace investigation can stack up and lead to an unfair dismissal – even for a big employer with sophisticated HR procedures.
What were the facts?
The employee, Mr Fitzpatrick, was a shotfirer at a BHP Billiton coal mine. In July 2013, another employee. Mr Jenner, approached the production superintendent of the mine and said Mr Fitzpatrick had made violent threats toward him.
After interviewing Mr Jenner at length, the mine commenced a full investigation. More than 30 employees were interviewed, before the allegations were put to Mr Fitzpatrick in writing.
They included a number of explicit and violent remarks made to co-workers – most of them not appropriate to repeat in an email like this.
Mr Fitzpatrick denied virtually all the allegations in a meeting. His employer subsequently decided that the allegations were substantiated and serious, invited him to show cause for the conduct, and then dismissed him without notice.
Mr Fitzpatrick filed for unfair dismissal, saying that he had been denied a fair procedure by his employer and that all allegations were either fabricated or exaggerated.
What was the outcome?
Mr Fitzpatrick took issue with the fact that he received a summary of allegations, but not written statements from the co-workers who had claimed they were bullied and harassed.
In fact, there were no such statements – formal records of interviews had not been made, and the first time Mr Fitzpatrick had the chance to consider the complete materials relied on by his employer was the FWC hearing itself.
Crucially, the original complainant, Mr Jenner, refused outright to give evidence at the FWC hearing. And a number of co-workers who had been interviewed during the investigation took issue with how their original evidence had been interpreted when put to Mr Fitzpatrick as allegations.
For example, although some of Mr Fitzpatrick’s co-workers confirmed he had sworn at them, they did not consider it a matter of bullying, harassment or intimidation. Rather, it was the kind of coarse banter many employees engaged in from time to time.
The FWC found that the employer had not corroborated a number of the allegations Mr Jenner had made, and therefore not substantiated the misconduct.
Mr Fitzpatrick wanted to be reinstated to his old position, something his employer opposed. The FWC found that his long and otherwise unblemished employment record and the view of his colleagues that they would work alongside him again favoured his return to work.
An order was also made that BHP Billiton pay him lost wages from the time during his dismissal.
What can you learn?
Mr Fitzpatrick’s employer most likely leapt into action when it received notice of the allegations against him.
And they were right to act promptly. The bullying and intimidation described would have been a serious health and safety risk, and serious misconduct – if proven.
If you’re ever in a similar situation, remember these key takeaway points:
If this happens, it will be very hard to rely on those notes to substantiate your case – or even recall conversations for your own benefit!
- It is essential that you attempt to corroborate a complaint against an employee before forming a conclusion about whether or not it is true. This is especially important where a complainant is describing things they saw done or said to others.
- When interviewing participants as part of a workplace investigation, make sure that your questions are open-ended, simple, neutral, and relevant to the allegation being investigated.
- Consider the most appropriate way to record an interview. In this case, the written notes from the interviews were challenged later on by several participants.
Hard investigations made easy
Mistakes like these aren’t the hallmark of a bad employer. They’re a reflection of how hard it is to get an investigation right. Often, it takes employment and HR professionals at the top of their game to run a gold-standard investigation.
That’s why we had three of them write an e-book for us.
I’ve only looked at one possible scenario today, but Effective Workplace Investigationsis a 292-page eBook that runs you through every step of a fair and lawful workplace investigation.
As the only up-to-date and comprehensive guide of its kind in Australia – prescribed to law school students, endorsed by the Australian Human Resources Institute - it usually retails for $395.
But until the end of the financial year, we’re cutting it back to $295.
So if you’re looking to make one of an employer’s hardest jobs a lot easier, now might be the time.
Until next time,
Editor, Workplace Bulletin
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