16 December 2020
On 27 October 2020, Deputy President Saunders of the Fair Work Commission held that the termination of an employee, Mr Hatch, of WesTrac Pty Ltd (a Caterpillar equipment dealer) was harsh, unjust and unreasonable.
Reinstatement was not ordered but a compensation exceeding $28,000 was ordered.
Mr Hatch was dismissed “because WesTrac believed that he had an intent to steal from the workplace” some metal struts. Mr Hatch denied having had that intention.
The principal issue
The Deputy President stated that he was required to consider whether WesTrac had proved that Mr Hatch had an intent to steal. In doing so, he was required to take into account the seriousness of the allegation and the gravity of the consequences that could follow if the allegation were to be accepted.
It was held that it had not been proved.
Did the employer comply with its “Counselling and Disciplinary Procedure”?
This required that:
“… a thorough and comprehensive investigation is carried out as soon as is practicably possible.”
There were three major issues considered.
The first resulted from the fact that there were significant inconsistencies between witnesses. This meant that the employer was required to make reasonable attempts to speak to relevant witnesses to clarify evidence, and put the main inconsistencies to them for their response. The employer did not do so.
The second was that the employer had acted on assumptions which had not been put to Mr Hatch for his response.
The third was that inaccurate information had been given to the employer that Mr Hatch had not provided any explanation for his actions. He had in fact done so, but the decision-maker did not know this.
Accordingly, the employee succeeded (to the extent, in respect of remedy, set out above) though the Deputy President was troubled by some of the employee’s evidence.
Significance of this decision
Unfair dismissal tribunals will examine carefully disciplinary investigation processes. This is particularly true where criminal conduct is alleged.
As a senior English judge put it some decades ago:
“ …. the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”
Hence the need for great care.
Where employers have limited experience in investigating such matters, skilled external advice at the outset can minimise the risk of litigation expense and distraction, and reputational damage.
Author: Andrew Knott
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