Unfair Dismissal Exposed: FWC Highlights Procedural Failures and Investigation Flaws

In a 2024 case, the Fair Work Commission highlighted the importance of balancing misconduct with procedural fairness during dismissals. The investigation was criticised for flaws including witness interviews, impartiality concerns, leading questions and a rushed timeframe.

In a case at the end of 2024, the Fair Work Commission (FWC) emphasised the importance of balancing misconduct with procedural fairness during dismissals. The case involved a long-serving employee of a major coal mining company who was dismissed after being accused of sexual harassment by two female contract cleaners.

Key takeaways

Issues with the Investigation

The investigation was found to be flawed due to several reasons:

  1. Lack of thoroughness: The investigator failed to interview a key witness and conducted videoconferencing and phone interviews with the complainants rather than face-to-face meetings.
  2. Impartiality concerns: The investigator maintained regular contact with senior company staff and provided a draft report for the employer's review before finalising it.
  3. Leading questions: The investigator asked leading questions during the interviews, which could have influenced the responses.
  4. Speed of investigation: The investigation was completed within seven days, which the Commissioner considered unusually fast, especially given the nature of the allegations involved and the evidence available.

Specific Criticisms from the FWC

  1. Procedural fairness: The FWC ruled the dismissal unfair due to a lack of procedural fairness. The employee had not been given a full opportunity to respond to the accusations before the termination decision was made.
  2. Modern workplace standards: The Commissioner remarked that the employee had not adapted to modern workplace standards, and while such comments might have been perceived as jokes decades ago, they are no longer acceptable.
  3. Compensation: Despite acknowledging that there was a valid reason for dismissal, the FWC ordered the employer to pay the employee one week's wages as compensation, reflecting the time that should have been allotted for a proper response to the allegations.

Case reflections

This case reflects a number of interesting comments and findings from the FWC. In particular, we find the Commissioner's concerns with interviews being conducted via videoconferencing and phone interviews interesting in the post-COVID world that we live in. In fact, it can even seem unreasonable at face value. However, the lesson and key take-away is considering the availability of the parties, the ability to scrutinise evidence, in this case the reliability of a witness, and the importance of getting the interview conducted to ensure a timely, but not rushed, investigation. Phone interviews can in particular present issues as an investigator has no way to view and read body language of the interviewee.

In addition, the importance and value of having a skilled interviewer is highlighted in this case as it is often easy to fall into the trap of asking witnesses and complainants, especially, leading questions. To maintain the integrity and credibility of a witness's or complainant's evidence, it is critical that an investigator not only ask leading questions. Questions should be constructed in a manner that allows the individual to provide the evidence as they recall it, not a simple yes or no answer to a question which suggests to the interviewee that one response is preferred over another.

Finally, the comments from the Commissioner about the concerns with the draft report being provided to the employer also highlight an interesting scenario. Often external investigators will provide draft reports to their clients to allow the client to consider the findings in light of the available evidence. While this has been criticised in this scenario, the key is whether an investigator is swayed or unduly influenced into changing findings based on the wishes of the client. External investigators need to be steadfast in their resolve in relation to their findings and be sure of their evaluation of the evidence when submitting reports, whether draft or final. This can ensure robust discussions with clients as to why a particular finding was reached.

Final thoughts

This case highlights the importance of having a skilled and thorough investigator, whether internal or external, undertake an investigation, especially when the outcome could be dismissal. The FWC and our courts are becoming increasingly less tolerant in respect of investigations that are not undertaken appropriately and with the right consideration and approach. There is nothing worse, as in this case, when an employee is found to have committed serious misconduct, however, due to a flawed procedure, the employer is still punished as a result of dismissing the employee.

FAQ

Why was the dismissal found to be unfair?

The FWC found the dismissal unfair because the employee was not given a full opportunity to respond before the termination decision was made. The case turned on procedural fairness, even though a valid reason for dismissal was acknowledged.

What were the main investigation flaws?

The main flaws were the lack of a key witness interview, the use of videoconferencing and phone interviews, impartiality concerns, leading questions and a very fast investigation timeframe.

Why do interview methods matter in an investigation?

Interview methods matter because investigators need to properly test evidence and observe responses. Poor questioning or limited interview formats can weaken the credibility of the evidence.

What should external investigators be careful about?

External investigators should be careful not to let client preferences influence findings. They need to remain steadfast in their evaluation of the evidence and be able to explain why a particular finding was reached.