Informal responses are not appropriate when an employer or an employee is faced with allegations of serious misconduct in the workplace. Initiating an independent workplace investigation ensures that any decision made is fair and objective and that the decision is evidence-based. These findings can support an employer’s position if the matter becomes a legal dispute.
A workplace investigation provides the complainant and the person facing an allegation of misconduct with an opportunity to have their voice heard and discuss the matter with someone impartial. Workplace investigations can also provide an insight into the underlying causes of the complaint such as lack of capability, cultural issues, systematic process failures and risky management styles. Addressing these deficiencies can significantly improve workplace culture.
A recent case before the Fair Work Commission highlights the importance of an organisation utilising the services of an experienced and impartial workplace investigator when investigating allegations of misconduct.
The IT Manager was employed by a company that manufactured tyres. The employee was long serving, having worked for the employer for about 12 years. The employee was also an internationally-renowned competitive shooter.
It is alleged that in July 2015, the employee assisted a woman he was mentoring in target shooting to bring a Tikka T3 rifle to his workplace to get advice about a rifle accessory she had purchased. The woman and the IT Specialist were discussing how to fit the accessory onto the firearm in the employer’s carpark when an on-looker spotted them and reported the suspicious behaviour to police.
The IT Manager alleged that he did not wilfully or deliberately ask the woman to come into the car park with a gun and he did not know that the visitor was carrying a gun. Further, the applicant stated that he did not wilfully or unreasonably continue to engage with the visitor in any way once the rifle had been produced.
The police did not charge the employee with an offence. The employee initially refused to speak to his immediate manager about the incident, and advised that he had been instructed by the Police not to discuss the incident with anyone.
The matter was escalated to the company’s HR director, who suspended the IT manager, pending further investigation. A workplace investigation was then initiated.
Following the investigation, the applicant was provided a dismissal letter dated 25 August 2015, which set out various aspects of the alleged misconduct arising from and following the incident.
The employer concluded that the IT manager had breached its workplace policies and procedures, as the presence of the rifle and ammunition created a serious risk to the health and safety of its employees and clients and also had the potential to damage the reputation and profitability of its business.
The applicant stressed that he was an employee of 12 years standing and a valuable employee, who was dismissed based upon a single two-minute timeline with no facts, no proof, and no evidence.
Consequently, the applicant said that his summary dismissal was flawed and unjustified. The applicant also indicated that the real reason for his dismissal may have involved the prospect that the circumstances presented an opportunity to dismiss, rather than avoid a redundancy that may have been in contemplation.
The Commissioner noted that while his actions involved a “serious error of judgement”, it was not a deliberate act of serious misconduct that could justify dismissal without notice. Noting that compensation of an amount that would remedy the summary nature of the dismissal is the appropriate remedy, the Commissioner noted the employee’s letter of offer of employment provided for termination on the basis of four weeks’ notice. Consequently, the employee was awarded more than $8,000 in compensation.
The person nominated to conduct the workplace investigation was the regional HR Director. Appointing an internal HR representative to oversee the investigation can be perceived as a conflict of interest.
The employee argued that the employer’s investigation process involved “bullish like thuggery” and was “incomplete” and “unacceptable”.
A workplace investigation should provide an opportunity for the employee to have their version of events heard by someone impartial. It also provides an opportunity for fresh eyes to review the complaint.
iHR Australia is a leading provider of workplace investigations services to organisations that are dealing with allegations of allegedly inappropriate workplace behaviour. iHR provides a range of investigation services, from dealing with informal complaints to significant and complex formal investigations. By attending iHR’s workplace investigation training program you can learn how to undertake a successful workplace investigation. In this program, iHR’s facilitator and expert Senior Investigator will guide participants through the key principles of conducting a lawful workplace investigation, focussing on unlawful discrimination, harassment and bullying.