Fair Work highlights importance of storing evidence in unfair dismissal investigations
The Fair Work Commission (FWC) recently dealt with a case involving an employee who claimed that he was unfairly dismissed for “sleeping.” However, the employer failed to provide video footage and presented contradicting witnesses from other staff.
Gardner worked as a Production Supervisor with Piacentini & Son Pty from January 26, 2022, until his dismissal on September 14, 2023. Piacentini alleged that Gardner was found asleep at work on August 7 and 8, 2023, and was uncontactable by two-way radio.
Gardner denied all the allegations and contended that his dismissal was unfair.
Employer’s evidence and witness accounts
Gardner and several witnesses from Piacentini provided evidence regarding the events of August 7 and 8, 2023. The accounts differed, with Gardner maintaining that he was not asleep but was filling out a pit inspection report on August 7 and was merely resting his eyes in the crib room on August 8.
Meanwhile, Piacentini's witnesses, including Gardner's supervisor, Daniel Brazier, claimed that Gardner was found asleep in his vehicle on August 7 and in the crib room on August 8.
Piacentini conducted an investigation into the allegations against Gardner. On September 6, 2023, Gardner attended a meeting where he was informed of the allegations and stood down.
Gardner requested that dashcam footage from his vehicle be retrieved to exonerate him. On September 7, 2023, Gardner received a show-cause letter detailing the allegations and requiring him to explain why disciplinary action, up to and including termination, should not be taken against him.
At the show cause meeting on September 11, 2023, Gardner denied the allegations and again requested that the dashcam footage be retrieved.
When the footage was checked, it only went back to August 14, 2023. On September 14, 2023, Piacentini informed Gardner via email that his employment was being terminated, citing breaches of company policies and procedures, a pattern of behaviour that impacted the company's ability to trust him, and a lack of accountability and remorse.
One of the employer’s staff wrote to Gardner, informing him that the dashcam footage “was not used in making the decision to terminate his employment, as the footage can only be stored for two to three weeks.”
Employer’s failure to store evidence
Gardner submitted to the FWC that “there were deficiencies in the [employer’s] investigation.” He noted “how long the investigation took and the fact that the [employer] did not retrieve the dashcam footage from 7 August 2023 until it was too late.”
“In particular, it is a poor reflection on the integrity of the investigation that the [employer] substantiated the allegations before Gardner even received the detail of the allegations in writing, let alone before he had the opportunity to respond to them,” the FWC said.
“[Its] failure to interview [other staff], and the failure to pull the dashcam footage from 7 August 2023 in time despite receiving [the] incident report on 24 August 2023, affected the outcome of the investigation.”
“The issues with the way the investigation was conducted are so significant that even if there was a valid reason for Gardner’s dismissal, Gardner [would still be found] unfairly dismissed,” it added.
Thus, the FWC said the dismissal was harsh, unjust, and unreasonable. It then directed the parties to have another hearing set for remedies.
