The Fair Work Commission has found a major hardware chain employee was unfairly dismissed after a brawl with a co-worker following a bungled workplace investigation.
In the Fair Work Commission’s view, the incident was not a minor performance issue but a “grave and serious rupture in the employment relationship”. The FWC even recognised the dismissed employee as having a propensity to consider “physical violence as a ready means to resolve conflict”. “What is clear is that this incident was not ‘hand bags at ten paces’ but a sufficiently serious incident between two work colleagues which demanded swift and decisive de-escalation,” the Commissioner said.
Yet despite strong grounds for the employee’s dismissal, inexperience and a botched workplace investigation has put the employer in a difficult situation.
The brawl started when a co-worker asked the employee for a customer order for a bath and the employee told him to “go and get f—ed”. The co-worker told the employee to “go and get f—ed himself” and then the brawl erupted when the pair went into an office.
The employee claimed he thought the co-worker was going to hit him, so he grabbed the lapels of the co-worker’s jacket and told him to calm down. The co-worker claimed the employee grabbed him around the throat and pinned him up against a desk.
They were then interrupted by a third employee attempting to defuse the situation. Both employees were suspended pending the outcome of a workplace investigation.
Two managers met with the employee and then separately two other workers were used to carry out a re-enactment of the brawl. The managers then dismissed the employee for serious misconduct with immediate effect.
The Fair Work Commission found even though the hardware store had a valid reason for dismissing the employee, the dismissal was harsh, unjust and unreasonable because the investigation and disciplinary procedure was not appropriately conducted. The FWC made it clear that a valid reason is “but one of the criterion” in determining whether a dismissal was harsh, unfair or unreasonable.
The appointment of two managers inexperienced in workplace investigations illustrated the necessity for only properly trained employees to conduct a workplace investigation. The two managers appointed to investigate were, by their own admission, completely inexperienced in HR practice and procedure.
The FWC recognised that, despite the two investigating managers’ inexperience, the employer’s HR department left it [the investigation] to the managers to “sort out”. In condemnation of the HR department’s actions the FWC said: “…the approach adopted by the Employer’s Human Resources Department can be likened to a school taking Year 11 students on a bush camp and requiring them to go bushwalking without any training, teacher, map, compass or survival equipment. It is no wonder that the investigation and ensuing disciplinary process went amiss.”
Other issues with the disciplinary process that went against the employer included:
• The employee was not notified in writing of the reasons for his dismissal;
• The two lead investigators had, in the FWC’s opinion, preconceived notions about the alleged wrongdoer and a perception of bias;
• A witness’s version of events was recorded as “fact” prior to meeting with the alleged wrongdoer; and
• The investigation and disciplinary meeting were rolled into one – crystallised by the disciplinary meeting being adjourned to hold a reconstruction of the incident – and then reconvened – to impose the sanction of immediate dismissal for serious misconduct.
The FWC viewed reinstatement as inappropriate, in part due the employee’s actions as destroying the fundamental relationship of trust and confidence.
Employment lawyer Peter Vitale observed the case shows even where employers think they have a clear cut case for termination, the FWC will still look at the process that is followed prior to termination.
“The employer, particularly a large employer with a dedicated human resources department, needs to ensure its process is spot on,” he says. But Vitale says it is unclear whether the same standard would be applied to a small business. “If it wasn’t such a large and sophisticated employer it may have been cut a bit more slack,” Vitale says. The company was ordered to compensate the employee.
iHR Australia views this case as a classic example of a mishandled HR investigation that has cost an employer precious time and money. Ensuring workplace investigations are carried out fairly and thoroughly is essential, as these processes often form the basis for any decisions made regarding disciplinary action. They will also come under scrutiny if the employee later challenges the decision.
iHR Australia is a leading provider of workplace investigations services and can also review your internally conducted workplace investigations to ensure they are sound and stand up to external testing, as well as training your executives.
