Tuesday, 7 March 2017

Employee involvement in investigation necessary for procedural fairness

A recent case decided by the Fair Work Commission confirms that while serious safety breaches may be a valid reason for termination of an employee’s employment, there may still be a finding that the dismissal was unfair if fair investigation and termination processes are not followed.

Case Study: Andrew Crawford v BHP Coal Pty Ltd

Mr Crawford was employed by BHP Coal as a diesel fitter and had some prior experience in the mining industry.

Four months before his dismissal, Mr Crawford had received a final warning relating to a serious safety breach when he threw a rattle gun over a high wall at the mine. Mr Crawford was warned that his employment may be terminated if he was involved in any further act of misconduct.

In late March 2016, Mr Crawford was involved in another serious incident where he allegedly breached workplace safety policies while conducting maintenance on a cat dozer vehicle.

Following that incident, BHP conducted an internal investigation, interviewing several witnesses to the incident. Mr Crawford was not interviewed during the course of this investigation, and was instead stood down on pay while the investigation was conducted.

Once the investigation was concluded and the specific allegations against Mr Crawford were formulated, BHP wrote to Mr Crawford and asked him to respond to the allegations in writing. Following Mr Crawford’s response, a meeting with management was convened at which Mr Crawford was provided a final opportunity to respond to the allegations. After taking into account his responses, BHP decided to terminate his employment.

In considering Mr Crawford’s unfair dismissal claim, the Commission found the serious safety breaches were a valid reason for termination and commented that he had a “cavalier approach to workplace safety”. However, the Commission ultimately held that the dismissal was unfair due to the lack of procedural fairness afforded to Mr Crawford because:

  • the decision was affected by allegations that he was rude and dismissive towards his manager at the time of the incident which were not put to him for response;
  • BHP’s policies and procedures regarding acceptable methods of accessing the dozer, use of barriers and working at height risks were too vague; and
  • the investigation conducted by BHP was deficient as it had not made further inquiries of Mr Crawford, but rather he was “frozen out” of the investigation into the incident.

Lessons for Employers

Investigations can be stressful and potentially divisive in the workplace. They can be costly, time-consuming and pose significant risks if not handled correctly. Employers should have up-to-date policies that provide a framework for investigations without being overly prescriptive. An open mind can be key for management to avoid deficiencies in procedural fairness, particularly where an investigation relates to serious safety issues.

HR Legal works with employers to develop comprehensive policies and procedures for handling misconduct and, in more complicated circumstances, can assist to conduct workplace investigations in a fair and reasonable manner. If you require assistance in relation to these areas, please contact us.v

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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