Workplace investigation that leads to a unfair dismissal
In the unfair dismissal decision of MacDonald v Whitehaven Coal Mining Ltd  FWC 838 handed down by Commissioner Riordan, in the Fair work Commission. It was held that an employee dismissed over a flawed and unfair workplace investigation would be dismissed unfairly. This decision has prompted discussion related to workplace investigation procedure. What an adequate investigation process would entail? What should be done to ensure procedural fairness in protecting employees’ rights? Workplace investigation that leads to a unfair dismissal is highly relevant in protecting / understanding your employment rights. Importantly to protect you against an unfair dismissal.
Factual background to unfair investigation
The Applicant, Mr MacDonald, was employed by Whitehaven Coal Mining (the Company) as a mineworker since March 2011. Six months into his employment on 22nd September 2021, Mr MacDonald failed to make positive communication with another water cart operator as he drove a light vehicle in approaching an intersection of a haul road. Mr MacDonald’s actions composed a breach of the Company’s safety hazard rules. Which required Mr MacDonald to communicate with the water cart operator when he became within 50 meters of the cart.
Employee was dismissed, employee argues no valid reason
Mr MacDonald was dismissed six days after the incident, with reasons for his dismissal cited:
In addition to the breach of safety hazard rules, “the Company has lost faith and trust in your ability to remain as a Whitehaven Coal employee due to your lack of contact. Participation in the processes and the core failing outlined above. Which includes a general obligation to the health and safety of yourself and those around you.”
Mr MacDonald submitted that despite his breach of safety rules, his dismissal was not based on a valid reason. This was because particular circumstances surrounding the incident that precluded him from following the safety hazard procedures and he was not at fault at the time.
Shortly after the incident, Mr MacDonald was called into a meeting to provide a statement. During the meeting, he was informed of the Company’s decision to stand him down with pay. The next day, Mr MacDonald received a show cause letter that gave him one day to provide his response.
Investigation did not seek information
The evidence given by the Company also showed that the operations manager only relied on Mr MacDonald’s statement. They did not seek further information before issuing the show cause letter. While Mr MacDonald’s union asked for a four-day extension for Mr MacDonald to submit his response. In order to have the meeting rescheduled so Mr MacDonald would be accompanied by a union representative at the meeting. The Company reject those requests and only decided to grant an extra day of extension. Reason being that they did not want to delay the matter over a weekend.
Based on these facts, Mr MacDonald had also raised a number of concerns regarding the Company’s disciplinary procedures. Including the following:
- Lack of details of the allegation listed in his termination letter;
- That he was not given a reasonable time to respond; and
- That he was not given the opportunity to have a support person with him to attend his disciplinary meetings.
The question then becomes whether the workplace investigation against Mr MacDonald would be fair. Hence would defeat the unfair dismissal claim.
What is workplace investigation and what are the requirements
Employers may initiate an independent investigation about allegations made against an employee’s conduct or behaviour. In the unfair dismissal case of Schaale v Hoeschst Australia Ltd (1993) 47 IR 249. It was held that the workplace investigation conducted must entail the company taking all reasonable steps to examine the allegations. Giving the employee a fair chance of responding to those allegations.
All reasonable steps indicate that the company must have conducted a comprehensive and extensive investigation, taking into account all relevant matters that would be reasonable in the circumstances.
A fair chance means that the employee was given every reasonable opportunity to provide a response to the allegations. This can include a reasonable and adequate time frame allowed for the employee to provide a proper answer. Having a supporting person with the employee to attend any meetings related to the investigation. Procedural fairness should also be complied with in the process of investigation. Including following a just manner and a just process of the dismissal.
The findings of the investigation must also be based on reasonable grounds. If a conclusion is made to confirm the allegations. The decision must be based on an honest and genuine belief held by the employer relying on information being provided. That is, if the employer concludes that the allegations are made out with ill intent or before all relevant evidence has been taken into consideration, the investigation would be corrupted.
The investigation cannot be a cover up for the employer with pre-determined intention to dismiss the employee. A just manner and process also mean that the employer should conduct the investigation within a reasonable period. The employer should not purposely delay the investigation to put pressure on the suspected employee.
Fairness and justice of the workplace investigation
Any failure to comply with the requirements detailed above would render the fairness and justice of the workplace investigation. If an employee is dismissed solely on the ground of serious misconduct without a fair and just workplace investigation, the dismissal would be unfair. It must be noted that small businesses may be precluded from this rule due to the Small Business Dismissal Code.
While most of the heavy burdens are placed on the employer to ensure the investigation is fair and just. Employees would also have the obligation to act honestly. In the unfair dismissal case of Streeter v Telstra Corporation Limited  AIRCFB 15. It was held that Telstra had validly dismissed the employee because the employee acted dishonestly in the disciplinary interview. Leading to the breakdown of the relationship of trust and confidence between Telstra and the employee.
Similarly, a valid reason for dismissal also includes the employee’s failure to follow lawful and reasonable directions by the employer. So if an employee is ordered to participate in the disciplinary action under lawful and reasonable directions, the employee must comply to do so.
Employees Argument, investigation not conducted properly
So, let’s look back at Mr MacDonlad’s case. Mr MacDonald’s argument was that the investigation was not conducted properly by Whitehaven Coal Mining. He claimed that there was no procedural fairness as he was not given a fair chance to respond to his allegation. The Company denied the four-day extension. They refused to reschedule the meeting so that Mr MacDonald could be accompanied by a support person. The Company also did not conduct a comprehensive and extensive investigation with all relevant matters being taken into account.
His operation manager did not obtain further evidence besides Mr MacDonald’s statement. These facts would point against the investigation being fair. The findings of the investigation should not be conclusive of Mr MacDonald’s misconduct. On this note, the dismissal would be harsh, unjust and unfair as the Company dismissed Mr MacDonald on the ground of serious misconduct based on a corrupted investigation.
Fair Work Commission Findings in unfair dismissal claim
Commissioner Riordan held that Mr MacDonald had clearly breached the Company’s safety rules. Which would give rise to a valid reason for the Company to dismiss him. However, Commissioner Riordan concurred with Mr MacDonald’s argument in deciding that the investigation conducted by the Company was “flawed, not inappropriate, or in any way fair”. With respect to workplace investigation, Commissioner Riordan commented at paragraph 112 that:
“An employee is entitled to have a full and thorough investigation conducted, including the interviewing of appropriate personnel, proper consideration of all of the evidence by the relevant management representatives and then have a written list of allegations provided to them. The employee should then be provided with an appropriate amount of time to seek advice and respond in writing to the allegations. The employer should only then consider any findings in relation to any incident.”Commissioner Riordan, commenting on the unfair dismissal case
Participate in the investigation
Mr MacDonald had fulfilled his duty as an employee to participate in the investigation. But on the other hand, the Company had not come to the conclusion on an honest and genuine belief. Commissioner Riordan found that the operations manager of the Company already held predetermined view. That is to terminate Mr MacDonald regardless of the investigation outcome. The lack of procedure fairness made Mr MacDonald’s termination unjust.
The Company was ordered to reinstate Mr MacDonald within 7 days of the decision. Further must compensate Mr MacDonald with 25 weeks of pay for his remuneration loss.
Conclusion: Workplace investigation that leads to a unfair dismissal
The decision handed down by Commissioner Riordan provided a strong statement in protecting employee’s rights with regard to unfair dismissal and workplace investigation. It acts as a warning to employers that they must have complied with their obligations to conduct proper investigations in finding serious misconduct. Despite having valid reasons for dismissal, unfair dismissal can still be found if the employer has not conducted the investigation properly to conclude the misconduct.
Employers also cannot have predetermined view of the employee without relying on evidence and all relevant matters being considered in the investigation. On the other side, employees should be aware of their rights and entitlements when having a workplace investigation against them – including their right to a reasonable opportunity to respond to their allegations, and the right to substantial and procedural fairness.
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One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.