Business defends unfair dismissal claim with robust investigation
In March 2019 the business convened a ‘team huddle’ where staff members were asked to share a piece of information about themselves. Before one employee could share with the team, the worker commented words to the effect of “what, don’t tell us you’re related to Deepak Chopra?” The employee responded by telling the worker his comment was racist to which the worker apologised. A complaint was subsequently made by a witness prompting the business to launch an investigation.
The business met with seven employees present in the meeting and noted five referred to a separate incident occurring on December 2018. Here it was alleged the worker stated “you can’t have a baby” after overhearing a colleague speaking about wanting children. The colleague understood this was due to the nature of their sexual orientation which upset them. The business considered both incidents warranted a formal investigation.
After the business opened the investigation the worker was absent for 7 weeks due to illness and other factors. When back at work the business provided the worker with an email setting out the allegations against him. This email included a clear directive to not disclose any details of the investigation to anyone and invited him to a meeting the next day. The worker discussed the allegations with a colleague soon after.
On the 7 May the worker attended the meeting with a support person where he avidly denied that the first allegation caused offence and denied the context of the second allegation. He stated the comment about the baby was in reference to the colleagues’ emotional state as she no longer had a partner.
The worker was suspended on pay throughout the investigation with the business requesting the workers response to the allegations in writing.
On the 13 May 2019, the worker along with their support person attended a meeting regarding the alleged breach of the code of conduct, diversity policy and the directive to keep the matters of the investigation confidential. The worker was provided with a show cause letter in which he was advised that the business was considering terminating his employment and that he was required to provide any further information, including any changes to his circumstances or mitigating factors that were relevant.
On the 16 May 2019, another meeting was held after considering the workers response and a decision was made to terminate his employment due to breaches of the code of conduct and diversity policy. The business took into account the workers first and final written warning received 12 months prior. This warning also noted that further breaches to policy would put his employment in jeopardy.
The Fair Work Commission (the “Commission”) considered whether there was a valid reason for dismissal. The Commission noted the worker had in fact confirmed that both statements were made by him in the workplace, though the exact wording of each was not clear. The Commission assessed each statement made by the worker finding that each was “offensive and discriminatory” and that in particular the first allegation breached the diversity policy given it was “stereotyping on account of race”. It did not matter that the colleague did not take offence to the comment. These breaches to the code of conduct and diversity policy weighed in favour of there being a valid reason for dismissal. The Commission also noted that the failure to follow the business direction was not by itself a valid reason given the circumstances. The investigation and subsequent termination were conducted in a procedurally fair manner. Therefore the Commission found the dismissal was not harsh, unjust or unreasonable.
Even though the worker was absent for around seven weeks, the business was agile and followed a thorough and just process. Businesses need to be proactive and reasonable when going through both investigation proceedings and any subsequent disciplinary processes to ensure a defensible case if challenged.
How we can assist
Internal investigations are important for ensuring reports of bullying, harassment, discrimination and serious misconduct are handled correctly. Our Investigations in the Workplace course will provide knowledge on what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator.
Written by Swendy Hoang, Workplace Relations Advice Line Advisor
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