Two recent decisions of the Fair Work Commission (FCW) highlight the importance of procedural fairness in the disciplinary process. In the event of serious misconduct such as sexual harassment, it is crucial that employers conduct a fair and thorough process to ensure that the allegations can be substantiated.
Ratchapol Pewsukngem v Choc Dee Thai Restaurant [2023] FWC 2493 (27 September 2023)
In this case, the FWC ordered compensation of $16,245 for the wrongly dismissed worker. The “openly gay” head chef was terminated after his employer determined he had sexually harassed six female co-workers. The chef had lodged an application with the FWC seeking anti-bullying orders against his manager. Shortly after, the owner of the restaurant and partner of the manager, created a survey which he sent to 8 female employees asking them to respond within 24 hours due to the chef lodging this application. The survey asked whether they had witnessed the chef being sexually harassed or other forms of bullying towards him, or whether they witnessed the chef bullying other employees. The results revealed that 6 of the employees complained that the chef had sexually harassed them, such as inappropriate touching and body shaming. The owner dismissed the worker immediately citing serious misconduct and did not allow them an opportunity to respond.
The employer maintained that they adhered to the Small Business Fair Dismissal Code by holding a belief on reasonable grounds that the conduct warranted immediate dismissal. The FWC held that this could not have been the case, as the process was flawed and the employer manufactured the circumstances in order to terminate. The survey was not developed in response to any complaint of sexual harassment, the employees surveyed knew the reason for the survey and all had a close relationship to the manager who the chef sought the anti-bullying order against. There was also no investigation following the survey results and the chef was not given an opportunity to respond. The FWC was not satisfied on the evidence that the conduct occurred, or that there was a valid reason made out to justify the employer’s belief that termination was required. There was also no evidence that the serious misconduct posed an imminent risk to the health and safety or profitability of the business. There was evidence that the chef and the employees surveyed had continuing workplace friendships and limited evidence to support that the alleged sexual harassment caused any detriment to the employees or to the reputation or profitability of the business.
Mr Robert Crook v CITIC Pacific Mining Management Pty Ltd [2023] FWC 2446 (22 September 2023)
A dump truck driver was reinstated to his position as the FWC determined that the process which led to his dismissal was flawed and unfair. A female trainee complained that she was exposed twice to a sexually explicit image when the driver passed his phone over to a colleague. She also claimed that he looked her up and down and said “look at that” to his co-workers. The business’ manager conducted an investigation by interviewing the trainee and a female co-worker at the same time and then the driver. The FWC held the investigation processed “lacked rigour” as the business did not conduct the interviews separately and the corroborating evidence of the female co-worker was in the form of general agreement after hearing the trainee’s version of events. They did not follow up with witnesses that the driver had named or attempt to interview witnesses that may have been present regarding the alleged comment made by the driver. It was determined that there was insufficient evidence based on the investigation conducted to determine that the driver was guilty of the alleged behaviour.
Both these cases demonstrate the importance of conducting the investigation process rigorously. An employer cannot fabricate a reason to terminate an employee by conducting an investigation without cause. Further, employers must also ensure they conduct the investigation process in a fair manner by interviewing all relevant witnesses separately so that they can provide independent accounts. If further information or allegations come to light during an investigation process, we recommend giving the employee under investigation an opportunity to respond to relevant new information to provide them with procedural fairness. It is important to demonstrate that a decision has been made on the balance of probabilities that the alleged behaviour did occur by taking into account the evidence of all possible witnesses.
For assistance and the most updated information, please contact the MTA Workplace Relations Team on 8291 2000, or at wr@mtasant.com.au.
