Investigators should be thorough in testing conflicting evidence

Posted by on Nov 19, 2020

A recent decision by the Fair Work Commission (FWC) reminds employers a) of the importance of following a rigorous investigation process when serious allegations of misconduct are made, in this instance, theft, and b) that the FWC has to come to its own objective view as to the existence of a valid reason for termination – it is not enough for an employer to establish it had a reasonable belief that the termination was for a valid reason. In Benjamin Hatch v WesTrac Pty Ltd, the FWC found Mr Hatch had been unfairly dismissed, however declined to order reinstatement.

WesTrac dismissed its employee of 12 years after he was seen inspecting work items, removing their work tag and taking them from a work area to his car. In defending the unfair dismissal application, WesTrac did not call two workers to give evidence, whose hand-written statements the internal investigators relied upon to make their recommendation to summarily dismiss Mr Hatch. Whilst Mr Hatch had no opportunity to cross-examine them in the hearing, he was able to give his evidence in a consistent way, which, if not lending weight to his version of events, raised sufficient doubts during the proceeding about whether it could be demonstrated that he had had an intention to steal.

Saunders DP found WesTrac’s investigation had not met the standard of its own Counselling and Disciplinary Procedure requiring it to be thorough and fair. There were inconsistencies between Mr Hatch and the other two workers’ versions of events during the investigation. Their inconsistent assertions were not, however, put to each of them to test their veracity. Mr Hatch had raised issues about one of the worker’s motives in light of alleged previous issues between them, which was not further investigated. Accordingly, Saunders DP only gave weight to the parts of the two workers’ statements that were consistent with Mr Hatch’s evidence.

WesTrac not only failed to test the material evidentiary inconsistencies, but it relied on assumptions, not facts, to form an opinion as to the plausibility of Mr Hatch’s account. These assumptions should have been put to him for his response, particularly in light of the criminal nature of the allegation. Furthermore, the investigators provided inaccurate information to the decision maker who was determining the disciplinary outcome, namely that Mr Hatch had not provided any reasons for his actions, when in fact he had done so.

Ultimately, the FWC found that Mr Hatch’s story was substantially consistent through the investigation and FWC proceedings. It ‘hung together’ and had a ring of truth to it, to a sufficient enough degree for Saunders DP to be satisfied that on balance, based on the Briginshaw standard, there was no valid reason for the dismissal. “The employer bears the evidentiary onus of proving that the conduct on which it relies took place. In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.” And in a further case paraphrasing Dixon J in Briginshaw, that “weight must be given to the presumption of innocence and exactness of proof must be expected”. 

Lessons for employers:

  • Investigators must be thorough in capturing the evidence of witnesses, not relying on assumptions and where appropriate, putting material evidence that is in conflict with another party’s evidence to them for their response.
  • If a party or a material witness raises questions about the motives underlying witness evidence, then this should be further investigated and an assessment made about credibility.
  • An employer should be mindful that it must be able to call key witnesses to give evidence where this is critical to substantiating the reason for dismissal and they want to successfully defend a FWC proceeding.

Madeleine is a Lawyer at Justitia. To view Madeleine’s profile, click here.