On 2 August 2019, the Fair Work Commission delivered a decision in Boris v Metcash that includes some useful lessons for workplace investigators.
Boris – who has just one name – was employed by Metcash as a store person. He worked for Metcash for nearly 15 years. The relationship between Boris and Metcash took a turn for the worse in around 2014. Things came to a head in late 2018. Following two workplace investigations, Boris was dismissed for his conduct in the last week of November 2018, which Metcash described as violating its Code of Conduct. Among the issues that contributed to that decision were findings that Boris: refused to attend meetings with his supervisor, swore in performance discussions, made offensive comments about his supervisor’s mother and recorded conversations on his mobile phone when he had been asked not to. In considering Boris’ application for an unfair dismissal remedy, the Fair Work Commission addressed three issues that may be relevant to other cases. Flaws in the investigation Boris pointed to alleged flaws in the investigation process and said that these meant the ultimate decision to dismiss was unfair. The Commission rejected what it described as a “jeremiad” about the investigative process. The Commission accepted that some concerns about the first investigation “appeared to be solidly grounded”. Metcash had sought to address those concerns by appointing a new investigator and conducting a second investigation. While the investigation process may not have been perfect, the Commission stated: “there is no obligation on an employer to conduct a perfect workplace investigation … The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. While Boris was not interviewed as part of the investigative process, I do not find that this in turn meant that Boris was not accorded an opportunity to respond to any reason related to his conduct, or that otherwise there was a reason to doubt that procedural fairness had been provided.” A colleague as the investigator Boris argued that the investigation conducted by Metcash was also procedurally unfair because the investigator appointed to conduct the second investigation was not sufficiently independent. The workplace investigator was an employee of Metcash. She was a colleague of one of the key witnesses against Boris and employed at the same level as the witness. Boris argued that, “it was unrealistic to expect [the investigator] to press and challenge [the witness] … on [the witness’] evidence to the standard required in an objective and arm's length investigation”. The Commission rejected this argument. It found that the allegations of bias - “impugned the integrity of [the investigator] absent any cogent evidence to support what was said. Such assertions are given no weight.” “Conversational swearing” Boris argued that his swearing in the meetings in issue was “conversational” in nature. That is, Boris’ position was that he sometimes interspersed swear words in what he said, but that he used those words in an ordinary conversational tone, as opposed to an angry or aggressive tone. Deputy President Beaumont described the concept of “conversational swearing” as being, in her experience - “a new concept not previously broached in the context of a formal meeting in the workplace milieu”. While it was not central to her decision, the Deputy President noted - “I do not accept that ‘conversational swearing’, such as that which was engaged in by Boris, is acceptable conduct in a meeting where conduct issues are being discussed, or allegations are being traversed, or a person has been asked to show cause”. Comments Investigators may take some heart from the decision in this case. It is another case that shows that the requisite standard for investigators is not the standard of perfection. It also suggests that - at least in some cases - a flawed first investigation can be corrected by conducting further work to address those flaws. Finally, it is an another interesting case about the importance of swearing in the workplace. While some recent decisions have suggested that swearing may not be a significant issue - see for example our note of the decision in Matthews v San Remo Fisherman's Co Operative - this decision points in another direction.
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