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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.
The investigation was found to be flawed due to several reasons:
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 and way 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 employer also highlights 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 stead-fast 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.
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.