An employer has successfully defended its decision to dismiss a shot-firer engaged in blast operations work in connection with the employer’s operations after it discovered what it considered to be ‘brazen’ misconduct during a workplace investigation.  Despite some deficiencies in the investigation, the employer was able to demonstrate in the Fair Work Commission (FWC) that the employee’s misconduct was sufficiently serious to justify termination.

The misconduct

The employer uncovered tampering by shot-firers at some of the blast sites where it was engaged to regulate blasting to meet regulatory standards in relation to noise levels.  The employer discovered that two noise monitors that had been set up side by side gave significantly different noise readings because duct tape had been placed over one of the monitor’s microphones. 

As a result, the employer began to review its records to see if there were any other anomalies in noise level recordings and to track those anomalies to identify the person responsible for the tampering.  The employer suspected that a particular employee was responsible for the tampering and later found taped monitors in that employee’s possession. 

The employer met with the employee to ask the employee about the taped monitors it had found.  The employee was also asked about the unusually low noise level recordings it had uncovered and which it suspected were the result of tampering.  The employee said that there was a widespread culture of tampering to keep noise levels down, and said that he had learnt about tampering when he arrived at a blast site and discovered that some monitors had already been tampered with.  The employee admitted to tampering with the monitors and stated that he had done so on ‘a couple’ of previous occasions.  The employee was subsequently dismissed.

After expanding its investigation to include the employee’s allegation that tampering was widespread, the employer interviewed other shot-firers and asked whether they were aware of tampering or had previously tampered with noise level recordings.  One employee admitted to tampering and, after apologising for his conduct, was stood down from shot-firing for six months on reduced remuneration as a disciplinary measure.

The unfair dismissal proceedings

The dismissed employee applied to the FWC for an unfair dismissal remedy.  The employee claimed that he was denied an opportunity to properly respond to the allegations, that there was a culture of dishonesty and that the employer had shown greater leniency to the other employee who had admitted to tampering (whom it had only stood down).  In the context of the employee’s previously unblemished record, the employee said that the dismissal was harsh, unjust or unreasonable.

The employer denied the allegations and sought to have the employee’s unfair dismissal application dismissed.  The employer stated that the employee was dismissed for misconduct in relation to his ‘brazen’ and wilful tampering of audio monitors, which had potentially serious consequences for the employer.  The employer said that tampering with monitors flouted the regulatory environmental conditions and jeopardised the contractual relationship with the employer’s client, as well as licence conditions. 

FWC findings

The FWC found that it was unlikely that the employer tolerated dishonesty, particularly given its statutory and contractual obligations.  While the FWC noted that the employee’s misconduct was serious, it found that the processes leading to the employee’s dismissal were not ‘particularly generous’.  In particular, the employer’s conduct in relation to the investigation was criticised because the employer did not invite the employee to have a representative or support person present, nor did it give the employee a proper opportunity to respond to the allegations. 

Despite the flaws in the investigation process, the FWC ultimately dismissed the unfair dismissal application on the basis that the employee had engaged in wilful misconduct by tampering with the monitors (even though he was fully aware of his responsibilities in relation to noise readings), and because he failed to report the tampering that he had observed to his employer.  The FWC held that these matters impacted on the trust and fidelity between the employee and employer.

The FWC was reluctant to pass comment on the alleged disparate treatment between the two employees, noting that it was important ‘not to act precipitously to censure an employer’s conduct’.  However, the FWC distinguished between the dismissed employee who had been caught ‘red handed’ and failed to specify the extent of his misconduct, and the other employee who, after voluntarily admitting to tampering on one occasion, was stood down.

Lessons for employers

While the procedural deficiencies in the workplace investigation did not undermine the seriousness of the employee’s conduct in this case, employers need to be conscious that procedural flaws – in an investigation or termination process – may render a dismissal harsh, unjust or unreasonable.

When an employer is faced with a situation that warrants investigation, the employer should:

  • set out a clear investigation process
  • ensure that the investigation process provides procedural fairness to all investigation participants
  • invite investigation participants to bring a support person to interviews and meetings held as part of the process
  • consider whether to expand the scope of the investigation to deal with matters that arise in the course of the investigation, or deal with those matters separately
  • ensure that the investigation process is appropriately communicated to all investigation participants
  • review compliance with the investigation process as the investigation proceeds and rectify any non-compliance.