In the recent decision of Francis v Patrick Stevedores Holdings Pty Ltd, the Fair Work Commission was asked to consider the validity of a workplace investigation which led to the dismissal of an employee.
The Commission found that Ms Francis had been unfairly dismissed and reinstated her employment. In making this finding, the Commission found that the allegations against Ms Francis had not been substantiated, and that the failure to investigate the allegations properly had resulted in a drawn out and ineffective process.
Ms Francis was a Senior Tally Clerk at Patrick Stevedores who had a verbal altercation over the work radios with a co-worker, Mr Nichol on 27 November 2013. After this verbal exchange, Ms Francis was alleged to have confronted Mr Nichol in person and physically assaulted him by grabbing him around the throat.
Ms Francis maintained that she had considered Mr Nichol a friend, and that she had initially thought they were ‘mucking around’. She conceded that she pointed towards him in relation to the way he spoke to her over the radio, and that she may have touched his shirt, but emphatically denied grabbing him by the throat. Ms Francis alleged that Mr Nichol had punched her in the throat.
The HR manager, Ms Green, investigated the allegations and interviewed a number of witnesses before reporting to management by email. She found that the allegations against Ms Francis had “all been validated by numerous individuals” and implied that there were inconsistencies in Ms Francis’s evidence. The report recommended that Ms Francis be dismissed for misconduct.
Ms Francis was advised on 14 January 2014 that her employment was terminated due to serious misconduct. She then lodged an unfair dismissal claim with the Fair Work Commission.
The Commission found that the termination of Ms Francis was unfair, on the basis that it was “harsh, unjust and unreasonable both substantively and procedurally”, and ordered her to be reinstated.
The key problems for Patrick Stevedores arose from what DP Sams described as “serious and fundamental flaws” with the internal investigation.
During the hearing before the Commission, Ms Green admitted that some of the allegations had not been supported by a number of the witnesses. She also admitted that while there were differences in the way Ms Francis described the incident, those differences were not significant. She admitted that a number of the conclusions which she reached in the investigation were incorrect.
Commissioner Sams assessed the evidence from the witnesses and determined that the central allegations against Ms Francis could not be substantiated by the evidence.
Patrick Stevedores stated that the investigation had been impeded by the “code of silence” of the dock workers, and argued that this should be taken into account in considering the process, and the question of whether reinstatement was appropriate. However, Commissioner Sams found that the applicant had cooperated with the investigation, and that the investigation was sufficiently flawed for other reasons. Allegations made by Ms Francis had been ignored in the investigation process, and the General Manager who made the decision to terminate had effectively been misled by Ms Green’s incorrect summary of the evidence.
Lessons for employers
Employers investigating allegations of misconduct of employees must be diligent and responsive to these claims. Employers should ensure that they are thorough in investigating allegations of misconduct and that all information is put to employees and considered by management before making a finding. If an employer is not certain that it has staff with adequate skills and experience to conduct an investigation, the investigation process should be outsourced.
Employers should also be aware that if they wish to rely on legal professional privilege over any investigation process, they must seek legal advice before any investigation commences. Employers should always seek legal advice before contemplating dismissing an employee to ensure the dismissal has a proper basis.