In a recent decision of the Federal Court, an employee’s claims that she was denied ‘procedural and substantive fairness’ and ‘an unbiased process of judgement’ during the course of a workplace investigation have been rejected, with the Court ultimately finding that the employee’s summary dismissal for bullying was justified.
The employee, who was a coordinator of a children’s services learning centre, was involved in an altercation with a staff member, in which it was alleged that the employee had physically pushed the staff member, prevented her from leaving the workplace by blocking exits, and threatened her with disciplinary action if she left early.
The general manager of the centre sought industrial advice on how to best handle the complaint made by the staff member about the incident and, based on that advice, suspended the employee pending an investigation into the matter. The company then engaged an independent investigator to conduct the investigation and, from that time until the conclusion of the investigation, the general manager removed himself from the process.
The investigator found four of the 10 allegations against the employee to be proven, while another three were partially proven. The investigator also found that, if the behaviour was allowed to continue, it could amount to bullying under the Fair Work Act 2009 (Cth). Following the completion of the investigation, the employee was summarily dismissed for serious misconduct.
The employee subsequently commenced proceedings against the company, claiming that the termination of her employment constituted unlawful adverse action because of a bullying complaint she had lodged two years earlier against the general manager of the centre. Further, the employee alleged that during the course of the investigation she had been denied procedural and substantive fairness and an unbiased process of judgement.
What did the Court decide?
The Court rejected the employee’s adverse action claim as well as her submissions in relation to the procedural unfairness of the investigation process, ultimately finding that her summary dismissal for bullying was justified.
It was held that the complaint made by the employee against the general manager two years before played no part in the more recent decision to suspend and terminate her employment (including because the general manager was unaware of that complaint until after the investigation took place), and that there was no adverse action.
In relation to the investigation, the employee had argued that the general manager predetermined the result of the investigation, with the independent investigation being ‘no more than window dressing to give the appearance of due process’. This submission was rejected, with the Court finding that the earliest stage at which the general manager would have made a decision as to whether the employee should be dismissed was upon receiving the draft investigation report.
Lessons for employers
When conducting an investigation into allegations of employee misconduct, employers should ensure that the investigation is conducted by an independent person who is removed from the allegations, and that there is no appearance of actual or apparent bias. If there is no suitably qualified or independent person within the workplace, the employer should appoint an external investigator who is impartial and unbiased. This is particularly important where a potential outcome of the investigation processes is dismissal.
Gadens has extensive experience in advising on and conducting workplace investigations, and can provide assistance and support where an employer is conducting an investigation internally. Gadens provides training for organisations on best practice investigations and can assist your organisation to develop a suite of investigation documents for use with internal investigations.