Recent cases in the Federal Court of Australia and the Fair Work Commission highlight the importance for employers who are seeking to terminate the employment of employees for misconduct to conduct demonstrably fair and thorough workplace investigations. 

What does this mean for employers?

Failing to get workplace investigations right can place in jeopardy the ability of the employer to successfully defend claims by employees arising out of the outcomes of a workplace investigation.  Due to increasing claims in the general protections jurisdiction, and the commencement of the Fair Work Commission bullying jurisdiction on 1 January 2014, it is now more than ever, important for employers to be able to rely on fair and thorough workplace investigations to support their decisions to dismiss employees. 

The cases in brief

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2013] FCA 1097

The matter of Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (BHP case) is a general protections case that was determined by the Federal Court in October this year.

The facts of the case were that an employee (Judd Crompton) was summarily terminated after his involvement in three separate incidents in which he was found to have verbally or physically abused and intimidated another employee and a contractor of his employer, BHP Coal Pty Limited.

When the misconduct came to the attention of the employer, an investigation was commenced by the HR team.   The investigation involved interviewing witnesses and the creation of detailed records of interview.  Following the completion of the investigation, the decision maker who was the manager of the mine at which Mr Crompton worked, Mr Craig, relied on the investigation to assist him to make his decision as to the appropriate course of action (which was to dismiss Mr Crompton from his employment immediately). 

Following Mr Crompton’s dismissal, the CFMEU made a general protections application on Mr Crompton’s behalf alleging that he was dismissed because of his role as a union representative in breach of the general protections provisions in the Fair Work Act 2009.  In its defence, BHP Coal Pty Ltd was able to convince Justice Collier that the adverse action taken against its employee - the termination of his employment - was motivated not by his industrial activities but due to his misconduct in the workplace.

Justice Collier referred favourably to the ‘investigation of the incidents … including the detailed records of interviews and events …’ 

Whilst the existence of the investigation records were not the sole reason for the finding in the employer’s favour, their existence supported the evidence given by Mr Craig as to his reasons for deciding to terminate the employment of the employee.  

Mr Michael Duncan v Bluescope Steel Ltd T/A Bluescope Steel [2013] FWC 8142

In the unfair dismissal case of Mr Michael Duncan v Bluescope Steel Ltd T/A Bluescope Steel [2013] FWC 8142 (Bluescope steel case), the Fair Work Commission was asked to determine whether an employee’s dismissal for a serious safety breach was harsh, unjust or unreasonable.

In its defence of the employee’s unfair dismissal claim, the employer relied on what was criticised by the Commission as a faulty investigation in reaching its decision to terminate the employee’s employment following a serious safety incident.  The employee won the case and was reinstated to his former position.

Commissioner Riordan found that despite the employee having breached the safety procedure as alleged, the failure of the employer to investigate appropriately meant that the employer could not show it had made an ‘appropriate level of enquiry in relation to the facts of the case’ before terminating the employee’s employment. 

Commissioner Riordan noted that there were ‘significant gaps and errors in the investigation process …Questions that should have been asked were not asked, individuals were present at interviews as witnesses when they should have been identified as being conflicted and conclusions were drawn from information that appears to have had no substance.’  Additionally, Commissioner Riordan criticised the employer for the lack of involvement of its ‘dedicated and experience HR Department’ in the investigation process.

The Bluescope steel case illustrates the pitfalls of not having the right people with the right expertise conduct workplace investigations, including getting HR and legal professionals involved early in the process.  It is a timely reminder that gaps and errors in an investigation process can undo a dismissal, even if the reason for the dismissal is a valid one. 

Key tips for getting workplace investigations right

  • Plan the investigation.  Ask and answer questions such as: What is the purpose of the investigation?  What is being investigated: are the allegations factual and capable of investigation?  Who are the stakeholders, including who is the respondent and who are the witnesses?  Who needs to know about the investigation?
  • Select a good investigator and brief them properly.  The investigator needs to be independent and perceived as such, and have the appropriate investigation skills, including interviewing and report writing skills.  They also need to have the time and inclination to conduct the investigation.
  • Ensure proper processes are followed and the rules of natural justice are observed.  This includes ensuring that the investigation process is consistent with organisational policies, and all parties are given directions in respect of preserving confidentiality and not victimising others.
  • Ensure the investigation report is clear, documents the investigation process and makes findings on which allegations are or are not substantiated based on the evidence that has been considered to reach those conclusions.