THE Fair Work Commission (FWC) has warned employers that due diligence is owed when investigating employee misconduct, after ordering a wharf employee be reinstated because an assault allegation that led to her dismissal was not properly investigated.

The tally clerk, employed by logistics firm Patrick Stevedores, was placed under investigation after a colleague alleged she had attempted to choke him in an altercation taking place in November last year.

However, an investigation by the human resources manager encountered significant difficulties when attempting to corroborate employee accounts of the incident, many of whom apparently committed to the Maritime Union of Australia’s ‘code of silence’.

“Obviously, Patrick’s investigation was not assisted by the wharfies’ ‘code of silence’. Indeed, it was positively hampered by it,” Deputy President Sams said.

“It must be noted that whatever be the reality of the existence of the ‘code of silence’ or the union’s unwritten acceptance of such a code within the ranks of wharfies, it is inconsistent with an employee’s obligation to be open, frank and honest with one’s employer when asked about serious issues in the workplace.”

It was found that of six alleged witnesses, only one employee corroborated the accusing employee’s story, but despite the issue, the human resources officer completed a report stating that ‘allegations had all been validated by numerous individuals’.

DP Sams commented that the ‘investigation was flawed for fundamental reasons’, including error in judgement around the dismissal of the tally clerk, but the retention of the employee making the unsubstantiated allegations against her.

“The organisation failed miserably on this occasion to take the necessary steps to ensure the applicant was treated fairly and it failed to ensure that the allegations against her were properly and thoroughly investigated,” DP Sams said.

“In the ordinary course of an investigation concerning conflicting allegations of assault and provocation, involving two employees, the employer would suspend both employees until the investigation revealed more conclusive findings. It is to be regretted that this did not occur in this case.”

The organisation was ordered to reinstate the employee to her former position.

Implications for employers

This case demonstrates the importance of due diligence and proper process in any investigations relating to serious misconduct, particularly if the allegations against the employee may lead to termination.

Implementing clear and communicated policy guidelines that stipulate the investigation process for complaints against employees will ensure all workers are aware of the process, their obligations and their rights relating to these circumstances.

Dismissal and disciplinary action are both very delicate matters in the workplace. AMMA members are encouraged to contact one of AMMA’s workplace relations consultants for advice and guidance in tackling this important area.

For more information, contact your local AMMA office.