AREEA principal employee relations consultant Bill FitzGerald examines the implication decision handed down by the Fair Work Commission, in which a flawed investigation process meant an employee’s dismissal was deemed unfair, leading to the payment of $16,128 in compensation.
A former employee of logistics group Sargeant Transport was dismissed after CCTV footage of the driver showed him urinating outside of a Woolworths warehouse just before a delivery.
The employee lodged an unfair dismissal claim seeking compensation in place of reinstatement , arguing that he disclosed to his former employer that he suffered diabetes, of which ‘urinary urgency’ was a side effect.
This, he said, caused him to urinate outside of the Woolworths warehouse, rather than using the toilet facilities inside the gate.
After lodging a complaint to Sargeant Transport, Woolworths imposed a three-month ban on the employee delivering to their warehouses, but this information was never disclosed to the employee.
Commissioner Bissett found that while the employee had disclosed that he suffered diabetes, he had not disclosed information about suffering ‘urinary urgency’. As a result, she ruled that the employee’s conduct was unacceptable and provided a valid reason for his dismissal.
However, Commissioner Bissett voiced concerns about the systematic approach of the employer to the investigation process.
The employee had a four-year clean record with the company, but Sargeant Transport alleged that during investigations into the incident, the driver had lied. In particular, the employee first said the incident had not taken place before being informed that CCTV footage existed of the incident.
“I find it disturbing that neither Ms Jewell nor anyone else from the Respondent sat with the Applicant and explained to him the allegations, the evidence and the potential consequences of the allegations if proven, nor asked him why he should not be subject to a disciplinary outcome, including dismissal,” she said.
The Commissioner said that in utilising only phone calls that ‘would have cumulatively amounted to no more than five minutes in length’, the employer had failed to exercise all options in communicating with the employee about the investigation.
Additionally, she was also concerned that the company had failed to advise the employee of the Woolworths ban.
Likewise, she rejected the company’s argument that the Woolworths ban could not be accommodated with other work, as another driver with a lifetime ban had previously been accommodate.
“The Applicant had a right to be advised of the reason for his dismissal, to be given a right to provide anything he wished to put in mitigation for his actions and to have this considered prior to the decision to dismiss him being made,” Commissioner Bissett said.
The Commissioner calculated that he had lost remuneration of nearly $24,000 but discounted that by 30% to take into account the driver’s misconduct.
To read the decision in full, click here.
Implications for Employers
The investigation/interview process is a critical component in order to sustain a defensible dismissal.
AREEA members are encouraged to clearly state and communicate their disciplinary procedures to employees, covering the interview and investigation processes, as well as possible options for disciplinary action.
It is also very important to address the matter of dismissal delicately and consider the rights of employees to be informed of disciplinary proceedings against them, and to respond to allegations of misconduct.
AREEA, as the national resource employer group, can provide timely advice and guidance from our experienced consultants who can conduct investigations and report on outcomes to enable members to determine an appropriate course of action. Engaging AREEA’s ‘at-arm’s-length’ investigators is of advantageous, particularly in complex circumstances.
For more information, contact your local AREEA office and speak to one of our workplace relations experts.
