Conflict, allegation, or misconduct: you should always investigate

By Courtney West

A workplace investigation should be initiated whenever a serious conflict or allegation of misconduct arises in the workplace. However, understanding how workplace investigations should be conducted has proven to be an important aspect of dismissing an employee based on allegations of serious misconduct. Recent decisions from the Fair Work Commission (FWC) have highlighted that even with compelling evidence if a workplace investigation is found to be flawed, this could undermine any decision to take disciplinary action.

In this article, I share an example of how getting it wrong can result in significant financial repercussions for a business, and I explain the four integral steps to conducting a fair and compliant workplace investigation.

How a missing laptop cost one employer $25k

Employers often feel that they’re well within their rights to terminate an employee who’s been caught on camera stealing from the workplace. While employee theft is certainly a valid reason for dismissal, recent cases demonstrate how jumping to conclusions can end up costing you thousands.

In a case brought before the FWC, one employer was ordered to pay a former truck driver more than $25,000 in compensation because the employer relied on flimsy CCTV footage in dismissing the employee.

The employee was accused of stealing a laptop that went undelivered to a Harvey Norman store. According to the employer, CCTV footage showed that the driver’s behaviour and general manner was suspect while he was handling the missing package. The employer believed that the worker had stolen the laptop and he was subsequently dismissed for serious misconduct.

In supporting his claim for unfair dismissal, the driver argued that he should’ve been shown the CCTV footage as part of the investigation process. The Commission agreed, finding that the employer had speculated in relying solely on the CCTV footage and that there was no clear or cogent evidence that the laptop had been stolen by the driver.

How to conduct an investigation in the workplace?

When dealing with an allegation of serious misconduct, you should always conduct an objective workplace investigation. Procedural fairness is an important aspect of ensuring that an investigation is conducted objectively. To ensure that an investigation is compliant with the standards of procedural fairness, employers are strongly urged to adopt the following process:

1. Formulate the allegation

The first and most important step is to have a clear understanding of what exactly is being alleged. This may require that you speak with the complainant to gather further details of what, when and how the alleged misconduct occurred.

2. Gather supporting evidence

The second step is to gather supporting evidence. As documented by the case referred to above, evidence plays an important role in establishing serious allegations of misconduct. This may involve speaking to any witnesses or reviewing any CCTV footage. Evidence that supports a finding that the employee did not engage in misconduct must also be considered.

3. Provide the employee with an opportunity to respond formally

In the interests of procedural fairness, you should put the allegation and any supporting evidence to the employee and allow them time to consider their response. This should occur in a formal meeting environment. To minimise the risk of the employee arguing that procedural fairness wasn’t followed, it’s recommended that the employer allows the employee to have a support person with them during the meeting. This will support the notion that you investigated in a procedurally fair way.

4. Where appropriate, take disciplinary action

Where it’s appropriate and supported by any available evidence, disciplinary action may be taken against the employee; this may range from verbal or even written warnings to termination of employment. Regardless, you must ensure that any disciplinary action taken against the employee is reasonable and proportionate to the employee’s misconduct.

The way you handle workplace investigations can have far-reaching repercussions, so it’s important that the process is procedurally fair and is conducted reasonably. If this article has raised questions about workplace investigations or dealing with misconduct in the workplace, please contact our expert employment relations and WHS advisors via our 24/7 Telephone Advisory Service.

Courtney West is a Workplace Relations Advisor and assists a variety of clients via the Telephone Advisory Service. She is currently studying for a Bachelor of Laws/Bachelor of Arts.