A recent unfair dismissal decision highlights the risks to employers in relying on a poorly conducted workplace investigation or following defective disciplinary processes when seeking to dismiss an employee, writes AMMA’s Workplace Relations Advisor, Tegan Morris (pictured).
The Fair Work Commission (FWC) has ordered Whitehaven Coal Mining Ltd (Whitehaven) to reinstate an employee who was dismissed over a safety incident, after finding the miner’s disciplinary and investigation processes were ‘flawed’ and ‘hasty’.
In his decision of 25 March 2021, Commissioner Bernie Riordan found Whitehaven had a valid reason to terminate the mineworker, who had failed to follow positive communication requirements in breach of the company’s safety hazard rules.
However, the inadequate investigation process meant the dismissal lacked procedural fairness.
Background and evidence
On 22 September 2020, the mineworker failed to make positive communication (signalling of driver intentions via two way radio) with a water cart operator as he approached the intersection of a haul road whilst driving a light vehicle.
He conceded this was in breach of the company’s ‘Safehaven’ safety hazard rule, which required him to communicate with the water cart operator when entering inside 50 metres proximity.
In his unfair dismissal claim, the employee submitted the water cart had unexpectedly stopped as it was making a right turn through the intersection which resulted in him entering the 50-metre safe distance. He said the water cart operator’s evasive action did not provide him with sufficient time to communicate and was at fault.
Other mitigating factors, such as his unblemished disciplinary record, meant the dismissal was harsh, he argued. Further, the mineworker also claimed he had been treated inconsistently with other employees involved in similar incidents.
In his claim the employee also raised a number of issues with the disciplinary process including that the ‘show cause’ letter lacked details of the allegations, he was not given a reasonable time to respond, and he was prevented from having a support person.
In evidence before the FWC, the mineworker said he was asked to attend a meeting shortly after the incident to give a statement. He was told during the meeting that he had been stood down on full pay for breaching the Safehaven rule. The following day Whitehaven issued the mineworker a show cause letter and gave him one day to respond.
Whitehaven gave evidence that the operations manager who conducted the investigation had not sought further information from the employee before the show cause letter was issued and simply relied on the employee’s earlier statement. The operations manager claimed he expected to be provided with more information from the mineworker during the show cause process.
The employee’s union representative sought a four-day extension to respond to the show cause letter and asked Whitehaven to reschedule the outcome meeting to allow the union representative to attend.
Whitehaven gave evidence that it decided to grant an extension of only one day for the employee to respond because it was concerned about the employee’s wellbeing and did not want to drag the matter out over the weekend.
The mineworker did not respond to the show cause notice. He was summarily dismissed six days after the incident via email.
FWC finds process ‘hasty’ and ‘flawed’
Cmr Riordan found the mineworker clearly breached the Safehaven rule and therefore Whitehaven had a valid reason to dismiss him.
However, he also found the investigation process was flawed, and that it was inappropriate for Whitehaven to issue the employee a show cause letter when the investigation was incomplete and the findings had not been concluded.
Cmr Riordan found no evidence that the employee failed or refused to participate in the investigation.
Rather, he concluded the operations manager had a predetermined view that termination was the only outcome irrespective of how the employee might respond to the show cause process.
Regarding the extension sought, the Cmr said: “The Applicant was entitled to an appropriate period of time to respond to the show cause letter, particularly when the Respondent’s investigation had not yet concluded and when the Respondent was seeking additional information from the Applicant in relation to the incident.”
“How an employee gets their statutory right to a “fair go” is beyond my contemplation if they do not have the time to seek assistance from their union representative…. for the Respondent to unilaterally proceed to terminate the Applicant without a response to the show cause letter based on the unavailability of the Applicant’s legal representative displays a lack of procedural fairness.”
This was in breach of s 387(d) of the Fair Work Act regarding the right to request a support person, he found.
Cmr Riordan found it “difficult to believe” that the operations manager did not interview relevant employees as part of the investigation and could not understand how the mineworker was issued with a show cause letter if the findings against him had only been “partially made out” at that point.
He was also satisfied the mineworker had been treated differently to colleagues involved in similar incidents and pointed out it was well established that an employer should not notify an employee of their termination via email.
He concluded that the disciplinary process adopted by Whitehaven was ‘inadequate’ and there was no justification for the ‘hastiness’ of the investigation, which was not in accordance with its own policy.
Cmr Riordan ordered Whitehaven to reinstate the mineworker and provide 25 weeks’ back pay discounted by three days as a penalty similar to that of his peers involved in a similar breach.
In its decision the FWC concluded that the actions of the employer effectively turned a very strong case, with a valid safety-related reason for dismissal, to one with little or no procedural fairness.
What is apparent from this decision is that the outcome of a matter can turn on the procedures followed by an employer when responding to breaches of company policies.
Numerous matters have shown that despite having a valid reason for dismissal, deficiencies in employer’s investigation and disciplinary processes can lead to a remedy being granted – including in some cases reinstatement.
With discretion and the option for reinstatement at the hands of the Fair Work Commission, it is vitally important for employers to have watertight policies and procedures in place.
Regular training around safety management, workplace conduct, disciplinary procedures and effective investigations can ensure managers and supervisors follow these fastidiously when incidents occur.
AMMA’s Workplace Relations Advisory team has extensive experience in both conducting effective workplace investigations that meet the test of procedural fairness and advising on all aspects of a disciplinary process up to and including termination of employment.
Investigations into complaints, particularly relating to allegations of inappropriate workplace behaviours, can be challenging, even for the most seasoned leaders and HR professionals. AMMA’s ‘Managing Workplace Investigations’ training program provides managers and HR professionals with the knowledge and skills required to ensure workplace investigations are sound, defensible and procedurally fair.
For advice on any of the themes or matters within this decision, contact a workplace relations specialist at your local AMMA office.