Late last month, the Fair Work Commission (FWC) found that a Victorian council worker was unfairly dismissed after his employer incorrectly attributed alleged discriminatory comments to him in a workplace investigation.

This case highlights how a poorly managed internal workplace investigation can result in:

1. Significant reputational damage for an employer and its HR team, as many deficiencies of the council’s workplace investigation are now a matter of public record.
2. Significant and lengthy legal exposure, in that the employer must now wait to see whether the FWC will order the employee’s reinstatement or award compensation.

In this case, the employer terminated the employee’s employment, relying on its substantiated findings, which included that, during a toolbox meeting, the employee stated that an Acknowledgement of Country was “not necessary” and that, Aboriginal and Torres Strait Islanders do not “deserve an acknowledgement at the start of meetings”.

The FWC decision offers valuable lessons on the need for fair workplace investigations and the implementation of reasonable and proportionate disciplinary action, including:

• Ensure evidence is accurately interpreted and applied: In this case, the council wrongly stated in its show cause letter to the employee that he had confirmed making the alleged comments about the Acknowledgement of Country. However, during the investigation, the employee had in fact denied making the alleged comments and instead had said that he had questioned whether an Acknowledgement of Country was necessary and why past and present servicemen were not also acknowledged, and expressed his opinion that Acknowledgements of Country are at risk of being overused.
• Ensure findings are supported by available and credible evidence: The employer relied on adverse findings it made about the employee’s tone and behaviour. However, the FWC found that the employer failed to produce any witness evidence from its investigation to substantiate its findings, including any evidence that the employee’s comments were delivered in a disrespectful, sarcastic, or aggressive tone as alleged.
• Carefully assess all evidence: Investigators must consider tone, intent, and context before concluding that conduct is inappropriate. In this case, the employee explained during the investigation that he questioned why Acknowledgement of Country was necessary because it was the first time it had been done at a toolbox meeting, in his approximate 7 years of employment with the employer. Whilst the employee’s position was that it had very strong expectations that Acknowledgements of Country should be conducted at all formal meetings, the FWC noted that this had not occurred at its own meeting with the employee during the investigation process, and at which the employee had an indigenous support person present. These circumstances should have been relevant to assessing the reasonableness of the employee’s conduct.
• Allegations of serious misconduct must be well-founded and supported by evidence: In this case, the employer concluded that the employee had engaged in serious misconduct by breaching the employer’s code of conduct and equal employment opportunity policy, and because the employee had already received a final warning in 2023 for similar breaches. The FWC was critical of this conclusion for many reasons, including that the employee contested the 2023 final warning. Further, the FWC was not persuaded by the employer’s evidence about the level of training, if any, the employee had received in relation to its policies.

The FWC made it clear that:

• Even if the employee’s comments about the Acknowledgement of Country were inappropriate, the punishment to sack him ‘did not fit the crime’.
• It did not agree with employer’s position that it had a valid reason to terminate the employee’s employment, which effectively rested on the premise that its employees must, without question, both subscribe and adhere to its views when it comes to Acknowledgements of Country.

Notably, just two days after this decision, the Federal Court delivered its ruling in the Lattouf v ABC unlawful termination case. Whilst the Lattouf case will be the subject of much legal analysis in the coming weeks, it is now clear that employees are protected from dismissal for reasons including either holding a political opinion, or expressing it in the workplace.

Now more than ever, employers must implement robust investigative practices and resultant disciplinary outcomes when dealing with nuanced and sensitive matters involving potential legal issues, such as discrimination and freedom of political expression.

To minimise reputational and legal repercussions, internal HR teams should always consider whether such matters could benefit from the independent and specialist expertise of external investigators and employment law support.