Employee accused of misconduct reinstated following 'deeply flawed' investigation

Dump truck operator couldn't provide evidence; questionable selection of witnesses

BY Jonathon Hadley 08 Feb 2024

The Fair Work Commission (FWC) has reinstated an employee of a mining company after his employer failed to conduct a thorough investigation into allegations of misconduct. The decision is a reminder for employers to ensure that they have the necessary expertise and procedures in place before conducting internal workplace investigations, particularly when there is conflicting witness accounts and limited documentary evidence.

In Robert Crook v. CITIC Pacific Mining Management Pty Ltd [2023] FWC 2446, Robert Crook (applicant) was employed as a dump truck operator at CITIC Pacific Mining Management Pty Ltd (respondent), from 20 August 2020 until 6 April 2023.

In March of 2023, the applicant was accused of instigating sexually explicit conversations with other male colleagues and sharing pornography on his mobile phone on a bus ride at the end of a work shift.

Investigation process for investigation

After the complaint was made, the applicant was called into meetings with his supervisors and senior managers, where he denied any wrongdoing. Notwithstanding, the respondent stood down the applicant from his role so that it could fully investigate the complaint.

During the investigation, the respondent only interviewed one investigation participant who was a witness to the event as a part of its investigation into the complaint. This colleague sat next to the complainant during the bus ride and partially supported her version of events. The respondent heavily relied upon this colleague’s interview statement as its justification for terminating the applicant’s employment. The respondent chose not to interview any employees who supported the applicant as it believed they would only do so “out of loyalty to a mate.”

Following its investigation, the respondent terminated the applicant’s employment on the basis that he had engaged in “inappropriate conduct of a sexual nature towards new female trainees.”

The respondent justified this decision for the following reasons:

The applicant failed to provide evidence which showed he was not guilty of the conduct the subject of the Complaint.
The demeanour of the complainant was difficult to reconcile with a falsified complaint.
The complainant was able to name another employee who corroborated parts of her complaint.
At least two other employees allegedly viewed the explicit material.

Following the decision to terminate his employment, the Applicant made an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) seeking reinstatement and restoration of lost pay.

Evidence presented to FWC

When this matter came before the FWC, both the applicant and respondent called on numerous witnesses in the proceedings to give evidence as to what happened during the bus ride. The majority of these witnesses supported the applicant’s narrative; this being that the complaint was unfounded. However, the Commission found these witnesses gave evidence which were “essentially character references for the Applicant.” As a result, the FWC did not rely upon those parts of the witness evidence.

The FWC also heard from the witness who supported the complainant during the respondent’s investigation. Whilst this participant was deemed credible by the FWC, her evidence was “tainted” as:

The respondent originally questioned her with the complainant present
She was only asked to confirm or deny the complainant’s allegations, rather than providing her own independent statement as to what took place during the bus ride.

Commission’s findings on misconduct investigation

Notwithstanding the FWC determining there was an opportunity for the applicant to engage in the alleged conduct, due to a lack of evidence and the applicant’s continued denial of the complaint, the FWC was unable to find that he was guilty of any misconduct. Moreover, the FWC found the investigation conducted by the respondent to be deeply flawed and lacking rigour.

In particular, the commission took issue with the following conduct in relation to the investigation:

Not providing the applicant with an opportunity to present evidence as to his innocence.
The respondent did not properly consider the evidence of employees who were present during the bus ride, and incorrectly labelling them as “mates” of the applicant (when it had not actually gathered any evidence to confirm if this was true).
Interviewing the one participant who supported the complainant with the complainant present, rather than separately.
Failing to consider the available objective evidence, such as the swipe card records.
Judging the applicant’s guilt in part on the complainant’s demeanour.
Making no effort to interview the two employees who had the potential to corroborate the complainant’s version of events.

The FWC held that the respondent did not have a valid basis for dismissing the applicant and ordered that he be reinstated with backpay.

Employers must ensure that they conduct a workplace investigation that is procedurally fair. This involves interviewing all witnesses and ensuring those accused of misconduct have an opportunity to respond. As this case shows, the FWC may order reinstatement of an employee who has been dismissed following a poorly conducted investigation.

Jonathon Hadley is a partner in the corporate advisory group at Gadens in Brisbane.