The Fair Work Commission has found that a truck driver who urinated at a customer’s site was unfairly dismissed because of flaws in the investigation process which led to the dismissal.1
This decision again underscores the importance of abiding by the rules of procedural fairness in workplace investigations, as discussed in our article titled Worrying about Workplace Investigations, published in the Autumn 2014 edition of The Bulletin.
The employee, Mr Cowan, was employed as a truck driver by Sargeant Transport Pty Ltd for approximately four years. Mr Cowan attended a Woolworths Regional Distribution Centre to make a delivery. After putting a call through on the entrance intercom, Mr Cowan turned his back away from the security cameras and urinated.
As a result of the incident, Woolworths wrote to Sargeant Transport to advise that Mr Cowan was banned from all Woolworth sites for a period of three months and asked what action the employer proposed to take in relation to the ban.
Sargeant Transport referred the matter to its Human Resources Manager, who investigated the incident. The investigation process involved the HR Manager firstly obtaining a copy of and reviewing Woolworths’ CCTV footage of the incident. She then made a brief, follow-up telephone call to Mr Cowan about the allegations. During the telephone conversation, Mr Cowan admitted to urinating at the customer’s site, but was not provided with a proper opportunity to explain the surrounding circumstances. Mr Cowan was not told that he might be dismissed.
Sargeant Transport subsequently dismissed Mr Cowan for misconduct.
Valid reason for dismissal…
Commissioner Bissett found that there was a valid reason for the dismissal because:
- Mr Cowan did urinate at the customer’s site;
- his conduct was unacceptable to Woolworths; and
- the incident also constituted a breach of the employer’s Drivers Manual which required employees to conduct themselves in a “polite and courteous professional manner at all times whilst on duty” and adhere to applicable rules at customer sites.
… but no procedural fairness
Despite the existence of a valid reason, the dismissal was nonetheless found to be unfair, largely due to the flawed investigation process.
At the hearing, Mr Cowan told the Commission that he suffered from urinary urgency related to his diabetes, which meant that he could not wait for a toilet. As such, he was forced to urinate at the Woolworths entrance, or risk wetting himself. This was a vital piece of information which the HR Manager failed to realise or take into account.
The Commissioner commented that he found it “disturbing” that neither the HR Manager nor anybody else from the employer “sat with the Applicant and explained to him the allegations, the evidence and the potential consequences of the allegations if proven, nor asked him why he should not be subject to a disciplinary outcome (including dismissal).” At the very least, even if a face-to-face meeting was too difficult to arrange, the Commissioner said that the allegations and potential consequences ought to have been put to Mr Cowan in writing. As a consequence of these failures, the HR Manager did not take all the relevant circumstances - including Mr Cowan’s medical condition - into account.
The Commissioner also found that by pre-judging the outcome of the investigation after reviewing the CCTV footage and then failing to provide Mr Cowan with an opportunity to respond to the allegations, the HR Manager also effectively denied Mr Cowan of the opportunity to have a support person present.
For these reasons, the Commissioner found that the dismissal was “unreasonable”. The dismissal was also found to be “harsh” because of the personal impact on Mr Cowan.
Bottom line for employers
Procedural fairness in an investigation requires the following.
- The employee must be informed of the allegations against them.
- The employee must have a sufficient opportunity to respond and be heard.
- The decision maker must act without bias or pre-judgment.
- There must be facts or evidence to support any adverse findings.
- The employer must allow the employee to have a support person present (if requested) at any discussions relating to the dismissal.
Failure to adhere to the rules of procedural fairness can fundamentally undermine an investigation and its outcomes.