A recent decision of the Fair Work Commission demonstrates that a flawed investigation can render a dismissal unfair. Notably, the Commission held that the dismissal was unfair even in circumstances where the employee was given an opportunity to respond and admitted to the misconduct.
The phone call
Mr Ryan was employed in a facilities management role at a youth detention centre in Victoria. In what he called an ‘act of stupidity’, he rang a radio station’s Rumour File segment, stating that the Department was going to put up razor wire at the Centre in order to ‘keep the inmates in’ as ‘they’ve been escaping a fair bit down here, in Melbourne’.
The Department subsequently terminated Mr Ryan’s employment for serious misconduct, and Mr Ryan brought an unfair dismissal claim.
The Commission held that the Department had a valid reason for terminating Mr Ryan’s employment, given that he disclosed confidential security information that he had obtained whilst undertaking his role. However, the Department was found to have ‘acted in a seriously procedurally unfair manner’ by failing to properly investigate a number of matters raised by Mr Ryan in the steps leading up to his dismissal.
Failure to properly investigate
Following the ill-fated telephone call, a meeting was arranged at which time Mr Ryan was given an opportunity to respond to the allegations against him. During this meeting, Mr Ryan admitted to making the call, and expressed remorse. He explained that his intention was to not to compromise security, and he was instead hoping that the call would lead to the installation of razor wire so that staff members and the public would not be at risk from further escapes.
Mr Ryan also raised a number of mitigating factors during the meeting, including that he was suffering stress due to his workload and as a result of a co-worker’s conduct towards him. He also stated that he had been profoundly affected by recent escapes from the centre and that he had been seeing a psychologist who had indicated that he was suffering from a breakdown and did not know what he was doing at the time of the call.
Following the meeting, the Department made attempts to obtain a report from Mr Ryan’s psychologist, however Mr Ryan would not consent to this. Aside from this, the Department did not investigate any of the other matters that Mr Ryan raised during the meeting. For example, the Department did not attempt to discuss these issues with his supervisor or check his personnel file. The Department considered that any further investigation was unnecessary given that Mr Ryan had admitted to making the call.
However, the Commission held that the Department had started an investigation when it put the allegations to Mr Ryan, and was required to complete this process by investigating the explanations that had been provided by him. This was required by the terms of the relevant disciplinary policy, and was also a matter of ‘common sense and procedural fairness’.
Lack of procedural fairness
Following the meeting with Mr Ryan, a submission was sent to the relevant delegate so that a determination could be made about Mr Ryan’s employment. Whilst the submission referred to the ‘stress’ that Mr Ryan was under at the time of the call, it did not mention any of the other mitigating factors that Mr Ryan had raised, nor did it include any of Mr Ryan’s explanations or the remorse that he had displayed. Mr Ryan was not given a copy of this submission, or told that he also had a right to submit material to the delegate. In finding this aspect of the process to also be procedurally unfair, the Commission stated,
As he had no knowledge of the Department’s view about the mitigating circumstances, how could Mr Ryan have responded fully and how could he have had a genuine opportunity to try and persuade the Department not to proceed to the foreshadowed ultimate penalty – the termination of his employment?
Taking into account Mr Ryan’s length of service, previously unblemished work record, genuine remorse and the clear lack of procedural fairness, the dismissal was found to be harsh. It was also accepted that Mr Ryan was having a ‘meltdown’ at the relevant time due to a range of work pressures.
Ruling out reinstatement, the Commission has asked for more information before making a determination as to compensation.
Implications
Even in circumstances where there is a valid reason for termination, a dismissal still may be unfair where the employee is not afforded procedural fairness.
In particular, this case exemplifies the importance of getting the investigative process right. Providing an employee with an opportunity to respond to allegations does not necessarily constitute the end of the investigation. If an employee provides further evidence at this stage of the process, it is critical that this information is further explored and taken into account when a final decision is made.