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Investigation a “credit” to fair dismissal process

Submitted on Thursday, 22nd June 2017

The Fair Work Commission has found an employee who transferred $342 000 from the account of a deceased person without obtaining a certified copy of probate was not unfairly dismissed

The employee was engaged as a store supervisor by a credit union business for just short of two years when she was found to breach the deceased member policy by releasing the funds. The policy outlines at the time of releasing such funds, employees are required to follow a ‘deceased account checklist’. The employee did so, however failed to mark the item re; witnessing or obtaining a certified copy of probate. When allegations were put to the employee in a disciplinary meeting, she did not answer a number of questions and shrugged her shoulders as response. The credit union considered her response for six days prior to terminating the employee.  

Commissioner Saunders accepted whilst the employee wasn’t given any training in her role regarding the policy, evidence supported the employee had read the policy, the policy was clear and unambiguous, and the checklist filled out prior to releasing the funds referenced obtaining a certified copy of probate so if the employee did not understand why the document was required, she should’ve asked someone. The employee submitted the credit union should have the ability to “engineer out” the possibility of this particular error and that the business was “grossly negligent” in failing to do so. Commissioner Saunders found “That BCU could have implemented a technological solution to eliminate the risk is not, in my view, relevant to an assessment of whether [the employees] dismissal for breach of the Deceased Member Policy was harsh, unjust or unreasonable.”

Commissioner Saunders weighed the harsh aspects of the dismissal against the gravity of the conduct in exposing the credit union to the risk of significant financial loss. The commissioner found the credit union had a “sound, defensible and valid reason” for dismissal, undertook a detailed investigation and gave the employee an opportunity to respond. The Commissioner was thus satisfied the termination was not harsh unjust or unreasonable and dismissed the unfair dismissal application. 

This case highlights the importance of following a thorough internal investigation process to ensure reports of bullying, harassment, discrimination and serious misconduct are handled correctly. The Victorian Chamber’s Investigations in the Workplace training will provide knowledge on what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator. 

Written by Phillipa Preston


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