What not to do in workplace investigations - A list from the FWC
In a recent unfair dismissal decision in Robert Crook v CITIC Pacific Mining Management Pty Ltd, Deputy President O’Keefe of the Fair Work Commission gave a helpful summary of errors made in a “deeply flawed” workplace investigation, that led to an unsound finding that an employee had engaged in misconduct.
In finding that he could not be satisfied that the alleged misconduct had occurred, the Deputy President listed flaws with the employer’s investigation process including:
The initial complainant was interviewed in front of the other witness she named.
Allegations put to the respondent were imprecise
When the Applicant offered up some witnesses to support his version of events, they were not interviewed.
There was no review of other data, such as the swipe card records.
Evidence supporting the respondent was ignored
No further opportunity was given to the respondent to respond, meaning that the only chance he had to address the actual allegations was in the one meeting on site where he was presented with unclear allegations raised for the first time.
The flaws in the employer’s process meant the FWC was not satisfied there was a valid reason for the applicant’s dismissal. The applicant was reinstated to his former position with an order for lost pay.
Where allegations of misconduct are made it is essential that employers conduct sound and defensible workplace investigations.
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