Investigations – the importance of getting it right

The importance of procedural fairness

A recent decision by the Fair Work Commission* assessed certain inadequacies of an investigation conducted by Mooroolbark Child Care Centre following an altercation between two child care workers. Whilst the dismissal was ultimately upheld due to the seriousness of the conduct in question, the Commission noted a number of flaws with respect to the investigation process which were considered to weigh in favour of a finding of unfair dismissal.

Commissioner McKinnon said, “In some respects, the process was orthodox. An allegation was made, [the employee] was stood down on full pay, and an investigation occurred before allegations were formally put and determined.”

However, the Commission noted that whilst the employer considered the respondent’s history of domestic violence and related mental health in deciding to dismiss her, it failed to recognise the necessary causal link between one’s prior history and present employment circumstances. The employer also failed to provide the respondent with an opportunity to put her past history into context, and as such these issues could have only been fairly considered with the input of the respondent. Denying the respondent the opportunity to address this resulted in a denial of procedural fairness.

Commissioner McKinnon also noted that other matters that arose during the course of the investigation were not dealt with by the employer on an equal footing which weighed further in favour of a finding of unfair dismissal. The Commissioner stated that this “… highlights both the importance of objectivity and the difficulty for inexperienced employers in ensuring procedural fairness for employees absent specialist advice and support.

Applying the findings of the investigation

However, ensuring a procedurally fair investigation is just part of the approach for an organisation in mitigating risk. Understanding the findings of an investigation and how they should be applied within an employment law context in making decisions around disciplinary action are equally important.

A decision of the Queensland Industrial Relations Commission** had a significant financial impact on the Wide Bay Hospital and Health Service (WBHHS). Not only was Dr Gregory Coffey reinstated to his former position of District Director of Medical Services at the WBHHS but he was also awarded compensation for remuneration lost or likely to have been lost as a result of the dismissal.

Dr Coffey’s exemplary and unblemished experience spanned more than 40 years and included 5-years with the WBHHS. Dr Coffey’s performance appraisals had always been positive and his professional judgement as a medical practitioner and administrator had never been the subject of criticism. In his role with the WBHHS, Dr Coffey was responsible for the recruitment and retention of medical officers at three hospitals. However, following an independent investigation, the WBHHS terminated Dr Coffey’s employment on 28 September 2017 as Medical Director and the Chair of its Credentialing Committee for appointing Dr Jocobus Cloete, who allegedly had an identified alcohol issue, to an obstetrics position.

Despite the investigation report making no findings critical of Dr Coffey’s actions, the WBHHS dismissed Dr Coffey for reasons including that he had failed to “ensure the highest, professional and ethical standards were followed for the credentialing of Dr J Cloete“. In fact, the investigation report concluded there was “no evidence that the conduct of any WBHHS employee (excluding Dr Cloete) was deliberate or knowingly in breach of any relevant policy or procedure” and that “All witnesses impressed as cooperative and credible, and it is accepted that all witnesses were acting with the best of intentions in relation to the appointment and credentialing of Dr Cloete“.

Following the test established in Byrne v Australian Airlines Ltd, the Commission found that Dr Coffey’s “dismissal was harsh” because “it was disproportionate to the gravity of the misconduct in respect of which the employer acted” and that “the termination was unjust and unreasonable because Dr Coffey occupied no special or different position to anyone else on the Committee but appears to be singled out for special consideration for no obvious or apparent reason.

Commissioner Thompson stated, “I have carefully considered the findings to substantiate each of the three allegations, relied upon as grounds for terminating his employment on 28 September 2017 and found each of the allegations were on the evidence and material before the Commission, on the balance of probabilities, incapable of being substantiated.

*Courtney Murphy v ECEC Management Pty Ltd T/A Mooroolbark Child Care Centre [2019] FWC 3169

**Coffey v State of Queensland (Wide Bay Hospital and Health Service) [2019] QIRC 56 (5 April 2019)

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.