A recent decision of the Fair Work Commission demonstrates that a flawed investigation can render a dismissal unfair. The failure to properly investigate led to the Fair Work Commission reinstating a long-serving Bluescope Steel employee, Michael Duncan, after finding that Bluescope’s operations manager had botched the investigation into a safety incident at the plant.

The incident, the investigation, and its outcome

The incident leading to the investigation related to allegations that Mr Duncan failed to respond to a safety alarm that went off while Mr Duncan was on his lunch break. The evidence showed that there was dispute between relevant employees about who was responsible for responding to the alarm.

Mr Landon Ronay, the Operations Manager, conducted what he described as a “detailed” investigation into the incident.

In a letter to Mr Duncan setting out the outcome of the investigation, Mr Ronay stated that he had found that:

• Mr Duncan had a responsibility to respond to the gas alarm as per the critical procedure;
• He knew that nobody else was in fact responding to the alarm;
• He did not make any attempts to respond to, or even check the alarm, and instead relied on assumptions as to the cause and severity of the alarm; and
• He mislead the investigation with his evidence.

Mr Duncan’s employment was then terminated without notice for serious misconduct.

Failure to properly investigate

Commissioner Bernie Riordan reviewed relevant case law and reinforced the principle that “it is important for an employer to make an appropriate level of enquiry in relation to the facts of a case before an employee is terminated.”

When Commission Bernie Riordan applied these principles in the current circumstances, he identified several key flaws in the investigation including that:

• Mr Ronay was not experienced enough in investigations of this type;
• Questions that should have been asked were not asked;
• Individuals were present at interviews when they should have been identified as being conflicted; and
• Conclusions were drawn from information that “appear[ed] to have no substance”.

Of critical importance was the decision of the investigator to accept the evidence of one employee (the employee Mr Duncan claimed should have responded to the alarm) over that of every other employee. Of the evidence of the first employee, Commissioner Riordan stated that the first employee’s comments were inconsistent, showed a poor recollection of events and discussions, demonstrated a “habit of fabricating facts” and were contrary to the views of other staff- including his supervisor.

Importantly, other employees who also did not respond to the alarm did not have their employment terminated. The investigator had also not involved Bluescope’s HR department in a timely way.

Taking the above factors into account, Commissioner Riordan determined that Bluescope did not have a “valid reason” for the termination of Mr Duncan’s employment. This was notwithstanding his finding that Mr Duncan had in fact failed to comply with critical safety procedures by not responding to the alarm.

Reinstatement

Considering Mr Duncan’s age, employment history and assurances from him that he would never again not respond to a safety alarm (even if he believed that it was not his responsibility) Commissioner Riordan ordered that Mr Duncan’s be reinstated to his former position, with continuity of service and payment of all lost salary.

As Mr Duncan’s employment had terminated on 3 May 2013, this equated to almost 6 months’ pay.

Implications

Even in circumstances where there is a valid reason for termination, a dismissal still may be unfair where the investigation into the facts leading to the dismissal is conducted improperly. In particular, this case exemplifies the importance of:

• Having an appropriately qualified investigator conduct any investigation and involving HR in a timely way;
• Ensuring that any conclusions reached are done on the basis of clear evidence;
• Ensuring that credibility assessments (in other words whose evidence to prefer) can be justified based on the evidence;
• Ensuring that the investigator is conscious of when it is necessary, for procedural fairness considerations, to go back to a witness to obtain their response to a point and to ensure that all witnesses are treated fairly.

 

This article was written by Jane Wright, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.