A recent Fair Work Commission decision, Ruben Sanzana v Activ Foundation Incorporated T/A Activ Foundation [2016] FWC 1686 contains valuable lessons for employers conducting internal investigations and relying on multiple allegations to dismiss an employee.

Background

Activ Foundation provides services to people with disabilities, including supported employment, education and training, home and community care, transport and recreational activities.  Three allegations of misconduct were made against Mr Sanzana, a Residential Aide working in one of Activ Foundation’s disability care facilities.  His employer investigated the allegations internally, and concluded that they were all substantiated. 

Mr Sanzana was subsequently dismissed and made an unfair dismissal claim.

The decision

Upon reviewing the employer’s evidence and grounds for the dismissal, the Commission found that only one of the three allegations could be substantiated.

The first allegation was that Mr Sanzana had upset a resident by yelling he "did not give a s___” about the resident’s friends.  The resident had Downs Syndrome, psychosis and heard voices regularly, and did not give evidence at the Commission.  Instead, the employer relied on another employee’s account of the resident’s complaint.  Because that employee had not actually witnessed the alleged incident, the Commission accepted Mr Sanzana’s denial of the allegation.

The second allegation was that Mr Sanzana had yelled at a fellow staff member, Mr Seia, in the presence of other staff and clients.  Mr Sanzana denied doing this, and a written witness statement from another employee established that in fact Mr Seia had been the one yelling at Mr Sanzana.  The Commission found that this allegation was not substantiated.

The third allegation was that Mr Sanzana had entered part of the employer’s female residential facilities despite knowing that residents would be showering and dressing.  Mr Sanzana had opened the door to the bathroom, attempted to converse with two female clients who were still getting dressed, and upset a third female client to the point where she began crying.  The Commission accepted that this allegation was substantiated because of direct evidence from another employee who witnessed the incident.

The Commission was satisfied that the third allegation provided a valid reason for Mr Sanzana’s dismissal. However, Activ Foundation’s decision had relied on all three allegations, and a previous warning that the Commission did not find persuasive.

The Commission was therefore not satisfied that the dismissal would have occurred if Activ Foundation had originally found that only the third allegation was substantiated. Because of this, whilst the Commission accepted that the third (substantiated) allegation warranted firm disciplinary action, it found that in all the circumstances Mr Sanzana’s dismissal was unjust. 

The outcome

Ultimately, the Commission did not reinstate Mr Sanzana, accepting that Activ Foundation’s clients are vulnerable and there may have been a risk to them if his employment continued. 

Instead, the Commission awarded Mr Sanzana 12 weeks’ compensation, which was reduced to seven weeks because he had not attempted to find other employment.

Lessons for employers when conducting investigations

When investigating allegations concerning clients, residents or customers, it is not always possible or practical to take statements from them before deciding whether or not allegations are substantiated. Employers should be cautious about rejecting an employee’s account of what happened in the absence of clear evidence to the contrary.

Employers should also be careful accepting allegations against an employee when there is only one person’s word against another’s, unless there is clear evidence to suggest that the complainant should be believed more than the respondent.

An employer may be able to rely on other factors to substantiate allegations, such as previous misconduct by the respondent, documentation and records (such as camera footage, emails and file/progress notes), the reliability of the person who made the allegation, and the credibility with which the parties give their evidence.  However, assessing those factors can be a difficult task.

Where employers do not have the resources or experience to conduct an internal investigation, or where there is a possibility of allegations of bias, we recommend that legal advice is sought and an external investigator is engaged.

Lessons for employers when dismissing staff

In Sanzana, it is apparent that the employer had lost confidence in Mr Sanzana’s ability to work with its vulnerable clients. 

When dismissing Mr Sanzana, the employer could have relied on each allegation as separate grounds for dismissing Mr Sanzana.  This might have led to the Commission accepting Mr Sanzana’s dismissal, at least in respect of the third allegation. By relying on all three allegations as the singular basis for dismissing Mr Sanzana, the employer was exposed when two of its three reasons for dismissing Mr Sanzana could not be substantiated in the Commission.

It can be tempting for employers to include weaker allegations in their reasons for dismissing an employee to bolster their reasons, rather than focusing on those allegations which can actually be proven.  While this may be an appropriate way to proceed in some circumstances, it can also ultimately undermine a decision that is otherwise valid. 

If you are considering dismissing an employee for misconduct, that misconduct must be properly investigated. Where there may be multiple grounds for a dismissal, you should obtain legal advice and assistance preparing the termination letter to ensure the dismissal can be justified later on.