Train driver who left his co-driver behind at a toilet break reinstated by Commission: the need for thorough workplace investigations

When an employer is faced with allegations of employee misconduct, it is crucial that the complaint is investigated thoroughly. Initiating a workplace investigation ensures that any decision made is fair and objective and that the decision is evidence-based. This is vital if the investigation is to be used as a legal defence. It also 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.

A recent case before the Fair Work Commission highlights the importance of all allegations and evidence being thoroughly investigated and stress-tested during a workplace investigation.

The train driver, who was employed by a large freight transport company, had worked for the employer for over 9 years. The driver was dismissed in February 2015 due to several alleged safety breaches during a train trip between Broken Hill and Parkes in November 2014. One such allegation was that he left his co-driver behind while she took a trackside toilet break.

The co-driver allegedly told the driver she was going for a pee, which he wrongly interpreted to mean she would be using the on-board facilities.

Shortly after moving off, the driver could see that his co-driver was not on-board and stopped to find the co-driver. When the driver realised he could not contact his co-driver, he followed company protocol and contacted the shift manager at Parkes, the line operations representative, Parkes police and the Australian Rail Track Corporation.

The co-driver was found a few kilometres back, walking along the railway tracks. The driver conceded that there was a miscommunication between them. It is also claimed that during the trip he broke the speed limit of 80km/h on 855 occasions. He also allowed his co-worker to breach the company’s policy by smoking while on board.

Three days after the alleged breaches the applicant was suspended on full pay pending the outcome of an investigation into the incident.

The Deputy President of the Fair Work Commission noted that there were a number of matters arising from the evidence which, in his view, undermined the respondent’s finding that the applicant had left his co-driver behind. The most serious of these involved a conclusion found in the investigators’ report that the driver had told the co-driver that, ‘I’m going to the toilet, don’t leave without me’.

The Deputy President found a conflict between what the co-driver had said in her first and second interviews. Noting that the employer’s reliance on the words in the investigator’s report, namely, “I am going to the toilet, don’t leave without me”, was a “critical error”. Deputy President found that neither of the two main reasons for the dismissal had been proven by the employer or amounted to “wilful”, “deliberate” or “reckless” conduct.

The Deputy President reinstated the driver, but because he was partly at fault in speeding and starting the train without the co-driver, it was found that an “effective” sanction for the breaches should apply to send the appropriate “message” to other employees

Fair Work Australia ordered the employer to apply a $25,000 discount to the driver’s payment for lost remuneration as a sanction for his misconduct but directed the parties to calculate the precise amount.

Such a time-consuming and costly legal dispute may have been avoided had the employer more thoroughly investigated the alleged breaches of policies and procedures. A thorough investigation would have identified the discrepancy in events between the first and second interviews and prompted further investigations to determine the facts.

Utilising the services of an impartial and experienced workplace assessor would have ensured that the investigation was undertaken correctly.

iHR believes prevention is the best cure. To create a winning culture, allegations of inappropriate behaviour need to be accompanied by a thorough workplace investigation carried out by an experienced workplace assessor. The cost of a workplace investigation is minimal compared to court costs and the associated reputational risk.

Successful employers understand that workplace investigations can be a catalyst for policy changes to prevent future complaints.

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.