Procedural Fairness Essential in Investigation Process
In a case recently heard by the Fair Work Commission, it has been confirmed that while serious safety breaches may provide a valid reason for terminating an employee's employment, a finding of unfair dismissal may still be found if the employer has not conducted a fair investigation and/or termination process.
This case involved a BHP Coal employee who was employed as a diesel fitter. Four months prior to his employment being terminated, the employee had received a final warning relating to a serious safety breach in which he threw a rattle gun over a high wall at the mine. At the time of receiving this warning, the employee was warned that his employment may be terminated if he was found to have been involved in any further act of misconduct.
In late March 2016, the employee was involved in another serious incident in which he allegedly breached workplace safety policies while conducting maintenance on a cat dozer vehicle.
Following this incident, the employer conducted an internal investigation in which several witnesses were interviewed. The employee involved was not interviewed by the employer during the course of their investigation. Rather he was stood down on full pay while the investigation was conducted.
Once the investigation had concluded and the specific allegations against the employee were formulated, BHP wrote to the employee and asked him to respond to each of the allegations in writing. Following the employee providing his response, he was required to attend a meeting with BHP management during which he was given a final opportunity to respond to the allegations.
After having taken the employee’s response to the allegations into account, BHP Coal decided to terminate his employment and an unfair dismissal claim was subsequently lodged.
In considering the unfair dismissal claim, the Fair Work Commission held that while the serious safety breaches did provide the employer with a valid reason for terminating his employment, the dismissal was unfair due to the lack of procedural fairness that was afforded to the employee. In particular, it was found that:
- The investigation conducted by the employer was flawed as it had not made further inquiries of the employee, and he was effectively "frozen out" of the investigation process.
- The employer’s policies and procedures regarding acceptable methods of accessing the dozer, use of barriers and working at height risks were too vague; and
- The decision was affected by the employer’s allegations that the employee was rude and dismissive towards his manager at the time of the incident. These allegations had not been put to the employee for response.
While conducting thorough workplace investigations can be time-consuming, they can pose significant risks if they are not handled correctly. To minimise such risks, employers should ensure that their current policies provide a consistent framework for conducting an investigation without being overly prescriptive. It is essential that procedural deficiencies are avoided to ensure that procedural fairness is applied, particularly where an investigation relates to serious safety issues.
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