“A degree of unfairness”: explosives worker reinstated after Fair Work Commission criticises company’s dismissal procedure
The Fair Work Commission has ordered a major coal miner to reinstate an employee it dismissed for alleged serious misconduct, after questioning the thoroughness of the employer’s workplace investigation.
The Commission upheld an unfair dismissal claim by the explosives worker after the complainant refused to give evidence, having allegedly received death threats and being allegedly told by police that it would be "best for him to disappear".
The miner sacked the shotfirer and CFMEU member after receiving complaints claiming he had made "threatening and intimidating comments" of a "violent nature" to colleagues. An internal investigation into the allegations found that he had breached the company’s Code of Conduct by engaging in a "pattern of threatening and intimidating behaviour" towards other workers.
In response to a comment at a lunch room meeting about somebody on the crew informing to management, it was alleged that the employee responded by stating that the “dogs would get bashed if they were found out” and that “I have cut … tongues out for less than this”.
The employee was also alleged to have requested other blast crew members not to work overtime shifts, against the Company’s wishes, on the weekend by making the statement:
“If anyone helps out with overtime on the weekend there will be f..king trouble”.
The employee disputed the allegations, claiming they were "unfounded". The shotfirer also argued that he had been denied procedural fairness as he wasn't provided with details of the allegations made against him, including evidence that he had made disparaging posts about other workers on social media.
At the hearing, he called witnesses interviewed during the employer's investigation to corroborate his arguments. Each witness refuted claims that they had been bullied or intimidated by the employee. It also emerged that only one complaint was made about alleged misconduct.
The company knew the complainant and the employee had a difficult working relationship, with the complainant later refusing to attend the hearing and provide further evidence because of concerns for his safety. As a result, the shotfirer was unable to test the allegations put to him in the complaint.
The shotfirer argued the investigation process was flawed. There were no formal records or transcripts of interviews made and none of the employee's interviewed as part of the investigation "had adopted [the employer’s] interview summary" as an accurate reflection or account of events.
In his ruling, the Commissioner criticised the employer for apparently accepting the complainant's account of the alleged conduct without obtaining further supporting evidence or corroboration. Given the gravity of the allegations, the Commissioner said, "the [shotfirer] has suffered a degree of unfairness" in being unable to cross examine the complainant.
"Having considered the evidence in its totality I am not satisfied that the conduct relied upon by [the employer] to dismiss [the shotfirer] is proven to the requisite standard. The [company's] decision to dismiss [the shotfirer] was a disproportionate response," said the Commissioner.
After taking into account the shotfirer's "exemplary employment" record, his nine and a half years' service and the fact that his colleagues had signed a petition calling on his return, the Commissioner ordered that the shotfirer be reinstated.
iHR observes that employers can face costly and time consuming legal action if they do not follow procedure when disciplining or dismissing employees. One way of ensuring correct procedure is followed is via thorough and expert workplace investigations.
iHR provides a range of investigation services, from dealing with informal complaints to significant and complex formal investigations. We are experienced in dealing with complaints at operational to senior executive and board level, including liaising with unions involved in representing parties to a complaint. iHR can also review your internally-conducted workplace investigations, providing advice or recommendations, and can help ensure that internal workplace investigations are sound and will stand up to external testing.