Australia: Are you flying into danger with your workplace investigations?

It is an unfortunate fact of doing business that employers will be required to conduct workplace investigations from time to time. Whether these investigations are conducted internally or outsourced, an employer needs to ensure that the investigative process adopted is robust and ensures that all involved are afforded procedural fairness. This includes ensuring that the process complies with any policies or procedures the employer has in place. Recent decisions of FWA highlight the potential consequences of getting it wrong.

Failure to follow an appropriate procedure

In a recent case, an airline dismissed an employee for a number of breaches of the airline’s policies and procedures in relation to changes to a customer’s ticket booking.

The facts relevant to the employee concerned were complicated. Further, Fair Work Australia ultimately determined that the alleged misconduct engaged in by the employee could not be demonstrated to be in breach of the airline’s policies, procedures and the established culture of changing fares that were in place at the employee’s place of work.

The airline had a comprehensive policy that set out the procedures to be followed during a disciplinary investigation. The policy imposed a number of obligations on the airline, including:

• ensuring the employee had the opportunity to have a representative present at any disciplinary meeting (which the airline failed to ensure at the termination meeting)
• informing the employee of their internal appeal rights (which the airline failed to do)
• ensuring that alternatives to a dismissal were considered (which the airline could not demonstrate).

Fair Work Australia was critical of the airline for not strictly following its policies and procedures relevant to the matters being investigated. As a result of the airline having no valid reason to dismiss the employee, and the airline’s non-compliance with its own policies and procedures, Fair Work Australia ordered that the employee be reinstated with continuity of employment.

Failure to allow an employee to participate

In another decision, a university dismissed an academic for serious misconduct, namely plagiarising others’ research papers, or otherwise failing to give credit to individuals who were involved in the preparation of those papers. This conduct was considered to be very serious given the ethical obligations attached to academics conducting research. Accordingly, the university decided to hold a misconduct hearing, and the academic was directed to not leave his city of residence while an investigation leading up to the hearing was conducted.

Despite the university’s direction, the academic left Australia and went to China for a period. The academic did not inform the university that he was leaving the country, and Fair Work Australia observed that it appeared that the academic did not want the university to know his whereabouts, and had deliberately avoided either seeking permission, or informing the university, about his travels to China.

The university decided to proceed with the misconduct hearing without the academic being present. After considering the material available to it (which did not include a response from the academic), the university decided to terminate the academic’s employment.

Fair Work Australia was satisfied that the university had a valid reason for dismissing the academic and found that, but for the university’s conduct in relation to the academic’s dismissal, the dismissal would have been fair. Despite this, Fair Work Australia found that because the university had not delayed the misconduct hearing to allow the academic to present a response to the allegations, the dismissal was unfair. This was the case even though Fair Work Australia found that even if the academic was provided with an opportunity to participate in the misconduct hearing, the outcome would not have changed.

As a result, the academic was awarded two months’ compensation for his unfair dismissal.

Key lessons for employers

When an employer is faced with a situation that requires investigation:

• it is important that preliminary steps are taken to set out the investigation process, including consideration of whether the investigation will be conducted internally or externally, which employees will be involved and whether employees should be stood down during the investigation
• when multiple matters require investigation, employers should consider whether to deal with these matters together or separately
• employers should ensure that the investigation procedure is appropriately communicated to those involved in the investigation, and review compliance with the investigation procedure as the investigation proceeds

Gadens Lawyers has extensive experience in advising and conducting workplace investigations and can provide assistance and support where the employer is conducting an internal investigation. In addition, Gadens Lawyers can facilitate or conduct independent outsourced investigations. For more information, please click here.

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