Yesterday, the Fair Work Commission delivered a decision in Hans v QS Law Pty Ltd that seemed to be going well for the employee until it suddenly didn't.

Mr Hans was employed as a solicitor at QS Law. The day before he was going on two weeks' leave he was presented with a letter terminating his employment. Mr Hans accepted that his dismissal was not unexpected. However, he was not given any reasons for the decision and, accordingly, did not have a chance to respond.

After being dismissed, Mr Hans copied a confidential document. He then took his two weeks' leave and set up business in competition with his former employer. 

At the hearing of Mr Hans' unfair dismissal application, the employer presented a range of reasons for his dismissal. They included: poor performance, forwarding confidential documents  to a competitor and failing to follow a lawful and reasonable direction to base himself at the employer's Cleveland office. 

The Commission held that most of these factors did not warrant dismissal. However, the failure to relocate to the Cleveland office as directed was a valid reason for dismissal. Despite this, the "complete lack of procedural fairness" meant that the dismissal was harsh, unjust and unreasonable.
 
Reinstatement was not appropriate, so the Commission considered the issue of compensation. In relation to that, the Commission took into account two factors outside those specifically identified in the legislation.

1. Mr Hans' conduct in sending confidential information to a competitor while he was employed. The Commission observed,

"Such misconduct can be taken into consideration notwithstanding the misconduct was not the basis of a valid reason for dismissal. The decision to forward confidential information … was inappropriate. While I have found it did not constitute a valid reason to dismiss the Applicant, it nevertheless in my view falls short of the judgement and good faith and fidelity required of an employed solicitor."

2. Mr Hans' conduct in copying a confidential document after  he was dismissed. The Commission accepted that this document contained information that would be useful to Mr Hans' new firm.

In light of these two issues in particular, the Commission decided that -

"In my view all the misconduct detailed above, during and post-employment, is relevant in determining any compensation and I would on that basis reduce the compensation payable to zero". 

The role of the person instructing a workplace investigator is not straightforward. While that person is not directly responsible for the investigation itself, there are many things they can do (or not do) to help ensure that the investigation is demonstrably fair and appropriate. Here are some key points to be aware of if you are in that position.

Appoint an appropriate investigator

Finding the right investigator involves identifying a person who is both sufficiently skilled and experienced and sufficiently detached from the subject of the investigation.

In Francis v Patrick Stevedores Holdings Pty Ltd, the Fair Work Commission was critical of the work performed by a relatively junior investigator and especially critical of management’s decision to appoint such an inexperienced investigator. The Commission observed that –

“[The investigator] had never conducted a disciplinary investigation into allegations of physical assault at the workplace. Her inexperience and lack of forensic skills as to the assessment of witness evidence, was a major contributory factor to the weaknesses exposed in the respondent’s evidentiary case. This should not be seen as a criticism, per se of [the investigator], but rather it demonstrates a failure of senior management to recognise the seriousness of the issues and their causes and a failure to independently assess the investigator’s findings and recommendations. [The investigator] should not be blamed for these failures.”

As well as selecting an investigator with the appropriate skills, it is important to select a person who is sufficiently detached form the issues being investigated.

If an allegation of serious misconduct is made against a person, the investigator should not be someone who reports to that person or who deals with them every day. Similarly, the investigator should not be significantly junior to any person whose conduct is being investigated. In other words, a junior member of the human resources function is unlikely to be seen as able to objectively assess the conduct of a more senior manager (even if the senior manager is in a different division).

Significant challenges to finding a suitable internal investigator may arise when allegations involve the CEO of a corporation or someone in the CEO’s executive team. It may be difficult in those situations to identify anyone within the organisation who could be perceived as bringing a fair and objective mind to the investigation.

Give the investigator clear instructions

The objectivity of the investigation can also be demonstrated by looking at the scope of the investigation. The scope should show that the investigator is being asked to look at all relevant information and that no attempt is being made to curtail the investigator’s access to potentially relevant witnesses or materials. Ideally, the investigator should be provided with clear terms of reference or instructions that set out exactly what is to be investigated and what issues are outside the scope of the investigation.

It may be that, as the investigation progresses, the scope of the investigation will change – with the investigation becoming either narrower or broader.

For example, the initial view may be that misconduct occurred on three dates and the investigator may be asked to investigate, and report on, what occurred on each of those dates. After the investigator speaks to the relevant witnesses, it may become clear that the initial scoping was incorrect and the relevant events took place on two different dates. If that happens, then the terms of reference should be amended accordingly. The more common scenario is that the scope of the investigation will expand as evidence is gathered. Again, if that happens, then the terms of reference should be amended. 

If you cannot show that clear instructions are in place from the outset, then there is a risk that the investigation will not be seen as a genuine attempt to find the truth, but as a stage managed activity designed to produce a pre-determined result.

The position of the investigator may be considered analogous to that of the independent expert in civil litigation. In BrisConnections Finance Pty Limited (Receivers and Managers Appointed) v Arup, the Federal Court was very critical of what it is described as a practice that had developed of instructions being issued to experts on the same day as the expert’s final report was issued. The Court suggested that any such instructions could not be taken seriously and observed –

"The integrity of the expert evidence process and the independence of experts is best facilitated by transparency in what is being asked of experts prior to, or at the time, they are forming their opinions and, if the questions need to change because they are misdirected, a record being made by way of supplementary instructions as to what has changed.”

Make any assumptions explicit

In many cases, it will be appropriate to ask the investigator to make some assumptions in conducting the investigation to simplify their task and allow the investigation to be completed more quickly and without the investigator being burdened by uncontroversial issues. For example, it might be appropriate to ask the investigator to make assumptions about the corporate or organisational structure to save the investigator the time, trouble and cost of doing things like conducting ASIC searches.

It is important to set out these assumptions at the outset and to ensure that there is a proper basis for the assumptions. If the investigator is asked to assume things that are not, in fact, accurate then this may well derail the investigation from the outset and make any conclusions reached unreliable. As with transparency of the investigator’s instructions, the point of make assumptions explicit is to avoid any suggestions that the expert has been asked to assume certain matters in order to drive a particular outcome.

Drawing again on the analogy of the independent expert in civil litigation, a court (or any third party) will be wary of the conclusions in any report if it transpires that they have resulted from unstated or unreliable assumptions. As Justice Heydon explained in Dasreef v Hawchar,

“Expert evidence is inadmissible unless the facts on which the opinion is based are stated by the expert – by way of proof if the expert can admissibly prove them, otherwise as assumptions to be proved in other ways.”

Let the investigator investigate

Once the investigator is appointed and issued with instructions, then it is important for the investigator to be given space to conduct the investigation.

That is, in order to be objective – and seen as such – the investigator cannot have their hand held or the activities subject to constant monitoring. If a perception arises that the investigator is not, in fact, conducting an impartial investigation, then that will affect the reliability of any conclusions.

Don’t wordsmith the investigator’s report

It is not uncommon – and it can be good practice – for the investigator to submit their report in draft form before issuing a final version.

This is appropriate provided that the process is only used to correct obvious factual errors, typographical errors or unclear expression. For example, if the draft report states that an office is at 100 Main Street and is later amended to refer to the correct address of 200 Main Street, then that is a reasonable factual correction. Similarly, if the report includes a statement such as “he said to him” and that is corrected to read “Mr Nguyen said to Mr Jones” to clarify which person was the speaker, that is also appropriate.

What is neither useful, nor appropriate, is wordsmithing the report - especially editing the investigator’s findings. Even where suggested amendments are well intentioned and their purpose is only to make the report “read better”, they run the risk of coming across as an attempt to put a convenient spin on the outcome of the investigation. Such amendments may undermine the report and put both the investigator, and those proposing those amendments, in a difficult position.

If you are in any doubt about whether the proposed amendments cross the line between being corrections or clarifications on one hand and putting a gloss on the report on the other, then you should exercise caution.

An example of the issues that can arise in these situations occurred in the recent Financial Services Royal Commission. During evidence from AMP, it emerged that multiple drafts of a key report had been provided to the company before the report was finalised. Both the company’s General Counsel and Chair made comments on the drafts that were adopted, wholly or in part, in the final document. While there was debate about whether the amendments were substantial or purely stylistic, the evidence of redrafting contributed to significant leadership changes at the company.

In our view, the key points in relation to the use of draft reports are –

1. Investigators must check their reports thoroughly before submitting them in draft form for final review. Reports should not be provided in “rough draft” on the basis that mistakes will be fixed up in a review and editing process. In particular, investigators should be clear about the precise findings made and how those findings are worded before circulating any drafts.

2. If there are obvious factual errors that need to be corrected, then they should be raised clearly in correspondence. This will help an external person understand why changes have been made if any draft reports are reviewed and compared to the final version.

3. There should be no attempt made to edit the tone of the report – much less the outcome of the investigation.

An important component of a fair investigation is that the investigator obtain all relevant evidence before forming their conclusions.

Often, obtaining all the relevant evidence is not straightforward. Documents may have been lost or destroyed. And witnesses (including any person accused of misconduct) may be unwilling or unable to participate in an investigation.

In this note we look at 5 reasons why a relevant witness (including any subject of the investigation), can decline to participate in an investigation or answer a question put by an investigator.

Former employees

Often, an investigation will require you – as the investigator – to at least try to speak with people who are no longer with the employer. And often, those people will, for a range of reasons, not want to participate in the investigation.

In general, former employees are not under any obligation to participate in a workplace investigation.

Accordingly, unless there is a specific contractual or statutory obligation that compels them to participate, there are limited avenues for an investigator to obtain their evidence. Typically, all the investigator can do in those situations is to try to understand the reasons why the former employee does not want to take part and to see if there is any means to address those concerns.

In the remainder of this note, we will assume that the person being asked to attend an interview – or being interviewed – is a current employee.

Lack of proper purpose for the investigation 

A precondition to the employer’s ability to direct an employee’s participation in an investigation is that the investigation must be conducted in good faith and for a proper purpose. An employer cannot use the cover of a purported workplace investigation to extract information from an employee.

Further, the test of whether something is being done for a proper purpose is objective. Even though the employer might subjectively believe it is reasonable to investigate an issue, if that belief is objectively unreasonable, then the employee cannot be directed to take part in the investigation. For example, in the recent case of Matthews v San Remo Fisherman’s Co-Operative, the Fair Work Commission considered the question of whether a pelican feeder (yes, you read that right) had been unfairly dismissed after (among other things) failing to provide the employer with certain information about his outside-hours activities. The Commission decided that – as those activities were neither inconsistent with the obligations of the employee’s role nor inconsistent with the employer’s interests – the employee was under no obligation to respond to the request.

Unreasonable conduct of the investigation

The obligation to respond to questions will only arise if the investigation is being conducted in a reasonable way.

In Lamaq v Smerff Electrical, the employer had what ostensibly appeared to be a valid concern that some employees were doing cash jobs for clients (and thus effectively stealing the employer’s revenue). The employer asked one of the apprentices (who was not suspected of receiving any benefit from the cash jobs) for information about what had been going on. The employer’s request for information was made in a long, offensively worded text message that ended with following three sentences –

"Your choice today bro. Info or job by 4pm. I’ll find out about that [expletive] one way or another even if not through you and I will [expletive] him. So you’re (sic) not stopping it from happening by keeping quiet. I’ll give ya till 4.”

The apprentice did not respond to the request for information and was subsequently dismissed for (among other things) failing to provide the information requested. The Commission had no difficulty in finding that the employee’s “silence in the face of a tirade of expletive laden and threatening abuse … is entirely understandable”.

Medical conditions

Sometimes the subject of the investigation, or a witness, may be medically unable to participate in the investigation (whether that medical condition is related or unrelated to their employment or the investigation). Being the subject of – or a witness in – a workplace investigation can be stressful, and it is not uncommon for people to have a stress related medical reason for declining to take part.

It is entirely reasonable for an employee to decline to take part in an interview on medical grounds (provided, of course, that they have appropriate medical evidence to support this position).

When that situation arises, the investigator will need to make a decision about how to proceed. That decision may involve a delicate balancing exercise. Essentially, there are two competing options –

1. Delay the investigation until the person’s condition improves and they can take part. The benefit of this approach is that it avoids finalising the investigation without having all relevant evidence.

2. Continue the investigation (and potentially conclude the investigation) without that witness’ evidence. The benefit of this approach is that it avoids the risk of delay – including the risk of additional stress to other participants in the investigation while the investigation is unresolved.

The privilege against self-incrimination

In some cases witnesses – whether they are the subject of an investigation or not – will refuse to answer questions citing the privilege against self-incrimination.

In Grant v BHP Coal the Full Court of the Federal Court discussed the application of this privilege in the context of workplace investigations. The Full Court accepted that the privilege could apply in workplace investigations. However, the Full Court’s comments suggest that the application of the privilege could be limited.

In particular, the privilege does not apply if the witness is simply concerned that their evidence could contribute to some adverse finding being made against them in the employment context.

The Full Court observed that –

1. “The claimant must show that there is a real and appreciable risk of criminal prosecution if he or she answers, and that he or she has a bona-fide apprehension of that consequence on reasonable grounds.”

2. That situation will not exist “if a witness’ prior statements have already exposed the witness to a risk of prosecution where giving answers will not lead to any increase in jeopardy to which the witness is already exposed”.

Further, the Full Court stated that it is up to the witness “claiming privilege to assert it and to identify its precise basis”.

Other reasons

There are a range of other reasons why employees may not wish to take part – or may not provide full and honest evidence – in a workplace investigation.

They may be concerned about breaking a “code of silence” or “ratting” on fellow employees. Or they may be concerned about some personal consequence for them if they give evidence which is against the interests of someone senior to them in the corporate hierarchy.

The Fair Work Commission has been very clear that these are not proper bases for refusing to participate fully in an investigation.

For example, in Francis v Patrick Stevedores, the Commission stated that, to the extent any “code of silence” exists, “it is inconsistent with an employee’s obligation to be open, frank and honest with one’s employer when asked about serious issues in the workplace”.

Of course, while employees have an obligation to be “open, frank and honest” in any investigation, the employer has clear obligations (at common law, under the employment contract and by statute) to ensure that employees are protected from any adverse consequences of their candour in the investigative process.

Conclusion

Subject to the exceptions discussed above, employees are obliged to take part in any workplace investigation and to answer questions to the best of their abilities.

A final point is to consider what consequence might flow for an employee who refuses to take part in an investigation - or provides intentionally incorrect or incomplete information to an investigator - when none of the relevant exceptions to participation apply.

In short, that conduct may, in itself, amount to serious misconduct by the employee. In extreme cases, the failure to participate in a way that is “open, frank and honest”  may justify dismissal. 

In Vaughan v Anglo Coal an employee was dismissed after failing a workplace drug test which showed he had taken methamphetamine. The reason for the dismissal was not only the test result itself, but the employee’s failure to be open and honest about the test result when he was first interviewed about it. The employee initially claimed that he had only taken cold and flu tablets before later confessing to having taken some pills at a party. The employer said that this dishonesty had broken the relationship of trust and confidence between employer and employee.

The Commission accepted that the failure to initially be open and honest – despite several opportunities – did break the relationship of trust and confidence and, accordingly, was a valid reason for dismissal. 

So you’ve been given the task of investigating a workplace misconduct allegation. Where do you start?

Some recent decisions from the Fair Work Commission have highlighted the need to ask yourself at least 3 questions before you start planning the investigation.

Exactly what is being alleged?

This is an obvious starting point for any workplace investigation, but it can easily be overlooked.

It is important to be as specific as you can be about what the allegation is (or allegations are) before getting underway. In other words, an allegation that X “behaved badly last week” is not a very useful starting point for an investigation. An allegation that X “threatened to punch Y during a team meeting on 1 July” is a much better place to start.

Sometimes it is hard to be specific about the allegation to be investigated at the very start of the process. You may well obtain further details of the allegation – or information that leads to new allegations – once you start collecting evidence. But it is useful to be as specific as you can be at the very outset.  

There are several reasons why –

• Most significantly, it helps you conduct the investigation fairly. The person responding to the allegation deserves to know specifically what is alleged against them - not just that they have been alleged to have engaged in some misconduct in a general sense.
• It helps you clarify for yourself what information or evidence you need to obtain to fairly determine if the allegation is true. The more specific the allegation being investigated, the more usefully you can plan your investigation.
• It may save you a lot of time because it will help you answer the next two questions below.

If you fail to start the investigation process with a properly clarified allegation, then it is much more likely that your investigation will take longer than it needs to, result in irrelevant evidence being obtained and relevant evidence being overlooked and lead to an conclusion that is unreliable.

An example of the issues created by allegation that are not as specific as they could have been arose in the recent decision of Wilkins v Green Gables Express.

In that case, Mr Wilkins was dismissed as a driver for Green Gables for several reasons, including that (according to the termination letter) –

“on several occasions the vehicle you were in control of on your run (BV05LH) was recorded speeding over the legal speed limit through the navigational monitoring system installed in the vehicle.”

In other words, the allegation against Mr Wilkins was put generally (ie “several occasions” of “speeding”). With the benefit of hindsight, it may well have been preferable for the allegations to have been clarified at the outset of the investigation. Precisely how many incidents of speeding were alleged? Precisely when and where did each alleged incident? Precisely how far over the speed limit did the vehicle allegedly go? And for precisely how long?

In that case, the Commission held that Mr Wilkins had been unfairly dismissed. The decision turned on several factors including some unreliability in the GPS data and a lack of procedural fairness in the way that the workplace investigation had been conducted.

If the allegations against Mr Wilkins had been framed more specifically at the outset, then that may have helped Green Gables make sure that they conducted the investigation fairly, that they obtained the right evidence to substantiate or not substantiate each allegation and that they reached a fair decision about what (if any) consequences there should have been for Mr Wilkins.

So what - why does what is being alleged matter?

Once you are clear on what the precise allegation of misconduct, it is then useful to ask yourself, so what? That is, even if the alleged misconduct occurred, is that of any consequence?

Sometimes an allegation may be made against an employee that, in truth, goes nowhere – especially you obtain more details of the allegation.

The classic example of this is the allegation of bullying that – when clarified – is really an allegation of a reasonable performance management process. A much more interesting recent example of the same point arose in Matthews v San Remo Fisherman’s Co Operative. In that case, the Commission determined that Mr Matthews had been unfairly dismissal from his job as a pelican feeder (yes, you read that correctly).

The dismissal arose from several matters, including Mr Matthews’ -

1. Refusal to stop selling badges for a local pelican support group he was a member of after he finished his pelican feeding shifts.

2. Swearing in frustration at a meeting with the Co-Op’s General Manager.

The Commission decided that the Co-Op had no right to regulate Mr Matthews’ lawful conduct, which he undertook outside hours, to raise money for a genuine pelican support group. Similarly, the Commission decided that swearing in frustration (as opposed to in a threatening or aggressive way) at a meeting was not a significant matter.

In other words, the Commission really assessed that, even though Mr Matthews was “guilty” of the alleged misconduct, so what? The alleged misconduct was really no misconduct at all. The selling of badges was the perfectly legitimate conduct of an employee in his private time and it was not inconsistent with the obligations of his role or the interests of his employer. And an isolated incident of swearing in the workplace – while not be encouraged – is not something terribly unusual.

Is the allegation really an allegation of misconduct or poor performance?

The final of the three questions you should ask before starting an investigation into alleged misconduct is whether the allegation really does relate to misconduct or whether it is really an issue that goes to poor performance by the employee.

If the issue is one of performance, there may not need to be any investigation at all (or it may be a very different, and simpler, investigation). Plus, what flows from the investigation may well be very different. That is, even if the allegation is substantiated, the issue should be addressed through a performance management process rather than any other consequence.

This issue arose in the Commission’s recent decision in Zirilli v Start Track Express.

In that case, Mr Zirilli was dismissed following his failure to properly sign off driver run sheets. Star Track took the view that this was a matter of misconduct on the basis that it went to a question of health and safety.

In finding that Mr Zirilli had been unfairly dismissed, the Commission observed -
 
"the applicant’s dismissal was incorrectly treated as a matter of misconduct rather than poor performance. The failures in question were not wilful or deliberate. I am satisfied that they were in the nature of mistakes and were presumably the result of a lack of due diligence, rather than any decision on the part of the applicant not to perform this part of his role. The applicant was not – but should have been - issued with a warning about his unsatisfactory performance ... The respondent should not have dismissed him without giving him a warning and a chance to improve."

Conclusion

Obviously, there is much more to conducting a fair workplace investigation than just considering these three issues. However, making sure you think carefully about these three points at the very start of the process will help set you up for success and also help you avoid some easy-to-make investigative errors.

Two decisions of the Fair Work Commission last week held that dismissals were not unfair even though the relevant workplace investigations had not been conducted fairly.

Liu v Express Interiors 

Mr Liu was dismissed after Express Interiors determined that he had "jeopardized others' safety by not following .. project procedure". In particular, the company found that he had opened a window on a high level of a building under construction on three occasions. On one occasion, something fell from a window Mr Liu was found to have left open (though it did not cause any injury).

The Commission found that Express Interiors had made real efforts to ensure that the building site was safe and that the requirement to keep windows closed had been conveyed multiple times at morning toolbox meetings. The Commission also found that Express Interiors had ensured that toolbox meeting instructions were translated for the benefit of employees like Mr Liu who were not native English speakers.

However, the Commission found that there were procedural failures in the workplace investigation of Mr Liu's alleged misconduct. In particular, Mr Liu had been given limited opportunity to respond to the allegations against him. The Commission accepted that Mr Liu "should have been formally interviewed and asked to respond".

Despite this procedural failing, the Commissioner was satisfied that Mr Liu's dismissal was not harsh, unjust or unreasonable. Two factors contributed significantly to this outcome.

• The Commission found that Mr Liu's behaviour - both prior to, and at, the hearing of his claim - demonstrated "a refusal to accept a most important employer policy and direction"
• The Commission was concerned that if it "were to excuse such breaches this would be condoning a serious threat of injury or worse to employees on building sites, which are dangerous places for workers".

You can read the full decision here.

Hanna v Home Care Assistance

Ms Hanna was dismissed following an incident at the end of a shift with Home Care.

Home Care determined that Ms Hanna had threatened staff during the incident and that this constituted serious misconduct. Home Care then decided to terminate her employment immediately. Home Care came to those conclusions without any careful workplace investigation and certainly without giving Ms Hanna any opportunity to respond to the allegations made against her or provide some explanation for her behaviour.

Though the details of the incident were ultimately unclear, the Commission was satisfied that Ms Hanna had gone to Home Care's office and threatened staff. The Commission was also satisfied that Ms Hanna made further threats the following day. The Commission found that - 

"Upon careful contemplation of all of the evidence that was presented in this case, the serious misconduct of the applicant as was found by the employer, has been established. The nature of the applicant’s misconduct was sufficiently serious such that it did not warrant any further inquiry, and provided sound basis for the immediate dismissal of the applicant."

In relation to the procedural unfairness of the process followed by Home Care, the Commission observed -

"the employer’s move to immediately invoke dismissal meant that the applicant was denied an opportunity to respond or provide some explanation that may have militated against dismissal. Hypothetically, what if the behaviour of the applicant was caused by some unforeseen reaction to prescription medicine? Or what if the applicant was experiencing severe emotional distress as a reaction to the unexpected death of a beloved pet?

In this instance, no evidence has been provided which might have established some reasonable explanation for the applicant’s serious misconduct. However, the absence of due process is a factor that may establish that the dismissal was unreasonable. The procedural defect in this instance must be balanced against all other factors, particularly the existence of valid reason for dismissal." 

You can read the full decision here.

Commentary

Both these cases demonstrate that the failure to conduct a procedurally fair workplace investigation does not - of itself - establish that an employee's dismissal was harsh, unjust or unreasonable.

However, in both cases, the outcome may well have turned on how the dismissed employees presented at the hearing.

Mr Liu did not demonstrate that he understood the significance of the allegations put against him or why the employer (rightly) regarded the issue so seriously. And Ms Hanna apparently failed to apologise or offer any explanation for her behaviour.  

Had they responded differently to their dismissals, the Commission's decisions may well have been reversed.  

A decision from the Fair Work Commission yesterday highlights the importance of asking open questions when conducting an investigation. If you cross-examines witnesses by asking leading questions, there is a real risk of the evidence before you, and consequently your findings, being unreliable.

The decision yesterday in Crowley v  Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn involved an incident that occurred during a school excursion. A number of year 9 students ended up in difficulty after a kayaking trip went wrong. Happily, none of the students suffered any major injuries.  

An external investigator was appointed to investigate the incident and determine whether there had been any misconduct by the teacher supervising the class. The investigator ultimately determined that that misconduct had occurred and the school then decided to dismiss the teacher, Mr Crowley. 

At the hearing of Mr Crowley's unfair dismissal application, evidence was given by Mr Crowley, an assistant teacher who was with the group and many of the students involved. Both Mr Crowley and the assistant teacher gave relatively consistent versions of the events. Perhaps unsurprisingly, the students' recollections varied widely.  

Counsel for Mr Crowley challenged aspects of the investigator's report and the way in which evidence was obtained. He submitted that - 

"The students are led very heavily and often when an answer is given that appears either to support something which the applicant had said or which appears to not really follow the line in which the investigator was tracing in his leading questions, the investigator either shuts down the questioning or steers if off in a different direction. It is regrettable and the only reason I mention it is it will come to explain why some of the students’ evidence in these proceedings was quite different to what was before the employer."

The FWC decided that the evidence did not support a finding of misconduct. In her decision, Deputy President Dean observed that - 

"I have already expressed a concern as to the leading nature of the questions initially asked of the students by the investigator, and which helped inform the decision ... to dismiss Mr Crowley. Given the issues already noted about the veracity of the students’ evidence, I prefer the evidence of Mr Crowley and [the assistant teacher] to the extent there is any inconsistency with the evidence of the students."

In a recent decision, the Fair Work Commission gave useful guidance on how to sensibly conduct a workplace investigation when there is no direct evidence of misconduct.

The case involved a claim by two Virgin baggage handlers who were dismissed after Virgin determined that they had stolen two packets of cigarettes (worth about $50) from a cargo container.

Significantly, there was no direct evidence of the theft either from witnesses or from CCTV. 

This "gap" in the evidentiary trail was the substance of the case put by the employees. They argued that, in the absence of direct evidence and in light of their own denials of the theft, it could not be concluded that they were guilty.

Although the employer had no direct evidence of the theft, there was a good deal of circumstantial evidence to support the conclusion that the theft had occurred and that the dismissed employees were the thieves. In particular, there was evidence from other employees that one of the dismissed employees had behaved in a way that was consistent with his guilt. In addition, the employer had spent days investigating whether the theft could have occurred at any other point in the cargo's journey (including spending hours reviewing CCTV footage of the cargo) and ruled out any alternative explanation for the disappearance of the missing cigarettes.

The Commission observed that it was for Virgin to prove that the cigarettes had been stolen and that the dismissed employees were guilty of the theft. Further, given the serious nature of the allegations against the employees, the Briginshaw principle meant there was a higher burden on the employer to prove the allegation to the Commission's satisfaction than might otherwise be the case.

However, the Commission held that -

"Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied that the applicant’s denials of involvement in the theft, cannot be accepted."

The case highlights the type of careful workplace investigation employers should undertake if allegations of serious misconduct are made against employees. And it also demonstrates that carefully collated and analysed evidence can sustain a finding of serious misconduct even where direct evidence is absent.

A final observation from the Commission concerned the fact that the dismissals stemmed from the theft of goods worth only $50 and where - in relation to at least one of the dismissed employees - the theft might have been put down to a single stupid decision. The Commission observed - 

"Theft is theft - no matter the value. However, had the applicants not been untruthful during their investigation and in their evidence before the Commission … I might have put their conduct … down to a stupid and very bad error of judgment. By not admitting their conduct, I am reminded that it is often not the conduct itself that determines one’s fate, but the subsequent attempt at cover-up. Nevertheless, regrettably, the applicants have ‘made their bed and must now lie in it’. I am satisfied the allegations against the applicants have been proven".

You can find the full decision here.

Yesterday, in a case that could have come from Seinfeld were it not so sad, the Commission rejected an unfair dismissal claim even though many of the grounds for dismissal were not made out or did not warrant dismissal.

The employer was a charitable organisation that provides high support accommodation to vulnerable clients.

The employer alleged that, while on overnight shifts, the employee had: not helped a client who was vocalising and hitting her head against a wall, not changed a client’s incontinence pads, watched movies, not emptied a dishwasher and not kept the doors locked. The Commission found that all of these allegations were either not substantiated or, if they were, the “penalty of dismissal would be disproportionate to the conduct”.

However, the Commission was satisfied that the applicant had set up a camp bed with blankets in a darkened room and spent time there with the door closed. Though the Commission didn’t find that the applicant was asleep in the room, the circumstances were fundamentally inconsistent with the applicant’s role of supporting vulnerable clients. On that basis, the dismissal was not harsh, unjust or unreasonable.

You can read the full decision here.

Workplace diversity is a vexed issue for many Australian organisation.

Management theory extolls the virtues of diverse workplaces – the research is clear that they are more successful on a range of financial and non-financial measures.

Despite this, we still see diversity missing from many parts of public life. An extraordinary percentage of our political and corporate leaders tick all or all but one of these six boxes: full time worker, heterosexual, middle-aged, male, from an Anglo-Saxon background and holds a university degree. We’re still at a point where someone who ticks only four or five of those boxes is seen as adding to workplace diversity.

The obvious question then is – why haven’t we made as much progress on diversity as the research suggests we should have?

We think there are four key reasons.

We are not hard wired to recruit diverse leaders 

Human beings are not like magnets – we are attracted to people like us, not people who are our opposites. That means that if the people doing the recruitment are not diverse, then it is unlikely that they will recruit people who are diverse. They are especially unlikely to do so if one of the important criteria for selection is “cultural fit” – a phrase that almost invariably results in you selecting people like yourself.

We more scared of failure than we are excited about success

Every established organisation has, by definition, enjoyed some success. Almost invariably the people behind that success are people who tick the boxes we’ve listed. There’s an understandable reluctance to look towards diversity because it could put that past success at risk. Of course, that “if it ain’t broke don’t fix it” mentality both introduces risks and limits future opportunities.

We are better at criticising non-conformity than we are at celebrating different perspectives

Diversity, by definition, brings different ideas and ways of doing things to the workplace. It is often easier to see the negative aspects of those differences rather than the positives. Consider a new team member who is more cautious in making decisions than her colleagues. She is more likely, at least initially, to be seen as “uncommercial” than she is to be seen as “prudent”.

Diversity means conflict

This is probably the most significant barrier to increased diversity at work. By definition, diversity brings different perspectives to the workplace. And those different perspectives will result in more tension, more conflict and more issues that need to be resolved. Even comparatively small issues like the frequency, timing and location of team meetings need to be reconsidered in a diverse workplace. If our workplaces have been more homogenous for many years, then we will find it hard to cope with the increased number of issues that having a diverse workforce creates. Increasing the diversity of our workforce means that all we all need to change and get better at resolving the differences that diversity creates.

Conclusion

In our view, the key takeaway is that having a workforce that is diverse at every level creates tremendous benefits for all organisations. However, there are many barriers to diversity happening at all or happening successfully. We think it is important for everyone in an organisation that aims to be diverse to be open about the challenges of diversity and to be willing to make change for their own – and the organisation’s – long term benefit.