A recent decision by the Fair Work Commission (FWC
) highlights the importance of conducting thorough and fair workplace investigations. In Crook v CITIC Pacific Mining Management Pty Ltd
, the FWC reinstated an employee who had been dismissed for engaging in inappropriate conduct of a sexual nature towards a new female trainee, following a flawed investigation.
Key takeaways: what do organisations need to do when conducting a workplace investigation?
- Draft clear and detailed allegations, allowing employees a fair opportunity to respond with their own exculpatory evidence.
- Conduct separate interviews with witnesses to ensure impartiality.
- Explore all available sources of evidence eg swipe card records.
- Take care in assessing witness credibility.
Ms K made a complaint against the applicant, a co-worker employed as a Dump Truck Operator. Allegedly, the applicant:
(i) engaged in a conversation about objects being inserted into female genitalia and complications in a transgender reassignment surgery, sharing explicit images on a mobile with a colleague during the shift bus ride; and
(ii) stared lewdly at Ms K and remarked to colleagues “Cooore look at that”.
Following an investigation, the applicant was dismissed. He made an application to the FWC claiming he was unfairly dismissed because the investigation was flawed: the allegations against him were vague, making it hard for him to respond.
The FWC found that the investigation process was flawed because:
- Ms K and another co-worker, who was a witness, were interviewed together.
- The witness was unclear about the content of the images allegedly shown by the applicant to his colleagues. Instead, the witness referred to photos of women with bikinis and underwear.
- The investigators did not check the swipe card records, which could have provided insights about where the employees sat on the bus and their proximity.
- The applicant’s testimony was discredited because he changed his version of the events during the investigation. However, this was because the allegations were poorly drafted.
- The investigators conducted interviews with five witnesses. Three had no recollection of the events under investigation, while two supported the applicant’s account. However, the credibility of these two witnesses was questioned by the investigators due to their alleged friendship with the applicant. However, the nature of the friendships was not investigated.
- The witnesses proposed by the applicant were not interviewed.
- No attempts were made to identify potential witnesses regarding the second allegation.
- In a “show cause” interview, the applicant faced poorly drafted allegations and was denied the opportunity to present evidence.
The FWC concluded that the two allegations were not substantiated, and that the employer’s process was unfair. It ordered reinstatement.
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