Code of conduct investigations: Is your evidence water-tight?

In a recent decision the Fair Work Commission (‘Commission’) has reinstated former Patrick Stevedores Holdings Pty Ltd (‘Patrick’) employee, Susan Francis, after she was dismissed following a flawed investigation.

Paul Nichol alleged that Ms Francis assaulted him at work. Patrick investigated Ms Francis’ conduct and found that the allegations were substantiated. Patrick dismissed Ms Francis on 13 January 2014. Shortly after, Ms Francis made an application for unfair dismissal.

Ms Francis’ counsel criticised Patrick because it did not investigate her claim adequately. Patrick did not give any weight to the 6 witnesses who did not corroborate Mr Nichol’s version of events. Rather, it preferred the evidence from 1 witness which supported Mr Nichol’s allegations. Patrick’s investigator, Ms Green, recommended to the decision-maker that Mr Nichol’s allegations had been corroborated by a ‘number’ of other employees. Ms Francis’ counsel summarised Patrick’s investigation by stating:

The respondent has not objectively examined the material before it; rather it had identified parts they felt supported Mr Nichol’s claims and ignored the rest.”

The Commission said that Patrick was required to prove on the balance of probabilities that the conduct had occurred. It also said that Ms Francis was entitled to procedural fairness. The Commission found in favour of Ms Francis because the allegations against her could not be substantiated. In assessing contradictory witness testimony, the Commission took into account the objective facts; including the size of the lunch room and how likely it would be that witnesses would be able to hear and see the alleged confrontation described by Mr Nichol. On this basis, the Commission found that Patrick’s investigation was flawed.

The Commission awarded Ms Francis payment for all lost remuneration whilst she was unemployed (she had since found suitable alternative employment). She was also reinstated.

Tips for workplace investigations:

  • Interview witnesses and ask open-ended questions;
  • Keep an open mind, consider the circumstances of the witnesses and weigh evidence accordingly (for example, if there is a culture of not to ‘dob on’ other employees);
  • Consider asking an independent person or specialist to conduct the investigation;
  • Consider and investigate allegations made during the investigation of the primary complaint (for example, retaliation);
  • Make recommendations to decision-makers based on corroborated evidence (as far as possible, rely on documents, recordings and knowledge of the workplace rather than witness testimony); and
  • Remember to apply the balance of probabilities test.

If your organisation needs help with workplace investigations please contact our employment law team at enquiries@griffinlegal.com.au

Francis v Patrick Stevedores Holdings Pty Ltd [2014] FWC 7775

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