An employee has recently been reinstated after the Fair Work Commission (FWC) found the investigation leading to his dismissal had serious flaws.

What happened?

The employee was one of a number of workers at a steel mill who failed to respond when a gas alarm went off. The employee was on his lunch break at the time the alarm sounded and gave evidence that he believed another employee, who was in charge, should have responded to the alarm. 

An investigation undertaken by the mill’s operations manager found that the employee:

  • had a responsibility to respond to the alarm, in line with company procedure;
  • knew that no one else was responding to the alarm;
  • did not make any attempts to respond to, or check, the alarm and instead relied on assumptions about the cause and severity of the alarm; and
  • misled the investigation with his evidence.

The employee was subsequently summarily dismissed for serious misconduct.

What did the FWC find?

The FWC found that there were a number of significant flaws in the investigation process because of the inexperience of the operations manager in conducting workplace investigations, including that:

  • obvious questions that should have been asked of employees were not asked;
  • some employees attended interviews as witnesses when they should have been identified as being conflicted; and
  • conclusions were drawn from information that appeared to lack substance.

Although a number of employees failed to respond to the alarm and were therefore also in breach of company policy, only one was the subject of serious disciplinary action.Despite the employer being large and having a dedicated human resources team, human resources did not have any involvement in the process undertaken until a late stage, by which time the FWC said it was ‘too late’.

The FWC found that failure to comply with cardinal safety procedures should not be tolerated and that breaches of those procedures can provide a valid reason for dismissal.  However, because of the deficiencies in this case, in particular the way the investigation was mismanaged, the FWC found that there was no valid reason for the employee’s dismissal and ordered that the employee be reinstated with continuity of employment and back pay.

Lessons for employers

Investigation flaws can lead to dismissals being rendered harsh, unjust or unreasonable.  Employers therefore need to exercise caution and follow due process when investigating employee misconduct or moving to dismiss an employee based on the findings of an investigation.In this case, a comprehensive investigation conducted by an experienced professional could have resulted in a different outcome.