The decision of the Industrial Relations Commission of NSW (IRC) in Silsbury v Health Secretary in respect of Western Sydney Local Health District (WSLHD) is an example of how complex and multi-faceted a workplace investigation can become.
Dr Silsbury was the subject of a workplace investigation in relation to preparing and issuing a letter of apology to a patient. In 2020, Dr Silsbury issued proceedings in the IRC in relation to the potential disciplinary consequences of the investigation (First Proceeding). On 15 October 2020, the IRC made an order preventing WSLHD from dismissing Dr Silsbury pending the resolution of that proceeding. On 19 November 2020. Dr Silsbury issued an application for Relief from Victimisation (Second Proceeding). In the Second Proceeding, Dr Silsbury alleged that, among other things, WSLHD had taken steps in the workplace investigation as a result of the First Proceeding. WSLHD applied to have the Second Proceeding summarily dismissed. One of the arguments made in support of that application was that the First and Second Proceedings were, in effect, duplicate proceedings and allowing both to proceed would result in “further unnecessary costs being incurred by both parties.” The IRC rejected the summary dismissal application. It emphasised the high threshold for summary dismissal and found that threshold had not been reached in this case. The case highlights the complex litigation environment that may arise from a workplace investigation. The important takeaway for employers is to act fairly through any disciplinary or investigative process and to accept that the process may not always run smoothly. In our view, the worst thing an employer can do is to become frustrated by the litigation and then act unfairly.
1 Comment
The decision in Hajazi v Calvary Health Care ACT Limited addresses a number of interesting issues in relation to allegations of bullying.
Mr Hijazi held a senior role as the Director of Medical Imaging at Calvary. Part of Mr Hajazi’s role involved carrying out medical imaging procedures on patients. On 3 March 2019, Mr Hajazi nearly carried out the wrong procedure on a patient. An incident report was lodged that blamed both Mr Hajazi and a junior staff member from another team, Mr Bull, for failing to properly identify the patient. After the report was lodged, Mr Hajazi admitted he repeatedly spoke to Mr Bull about patient identification – sometimes in a heated tone. Mr Bull spoke to his supervisor about Mr Hajazi’s behaviour. The supervisor filed a further incident report about Mr Hajazi’s conduct. Mr Hajazi admitted that he spoke to Mr Bull about the second incident report and that he also “withdrew from” or “limited interactions with” with junior staff. Mr Grime, an external investigator, was appointed to investigate Mr Hajazi’s conduct. He found that Mr Hajazi had engaged in misconduct. Calvary dismissed Mr Hijazi on 10 February 2020. Mr Hajazi then made an unfair dismissal claim in the Fair Work Commission. On 6 January 2021, the Commission dismissed Mr Hijazi’s application. Several aspects of the decision are noteworthy. Performance discussions and bullying Mr Hijazi agreed that he “did question Mr Bull more than once as to whether he had brought the correct patient to the radiography department, because he felt Mr Bull had been involved in a number of incidents of bringing incorrectly identified patients to the radiography department”. Mr Hijazi said it was reasonable for him to do this “given the errors made by Mr Bull in the past”. However, Mr Hijazi admitted that he was not Mr Bull’s supervisor and he did not raise these issues with Mr Bull’s supervisor. Those two factors were relevant to Deputy Commissioner Dean’s decision that, "repeatedly raising the issue with Mr Bull remained plainly unwarranted”. If Mr Hijazi had raised his concerns about Mr Bull’s performance with Mr Bull’s supervisor (whether or not he also raised them with Mr Bull directly) then the position may have been different. Power imbalances and bullying It was not disputed that, “There was a significant power differential between Mr Hijazi as the director of the Department and Mr Bull, an unqualified wardsman who took instructions from qualified staff.” This power imbalance was significant in Deputy Commissioner’s Dean’s assessment of Mr Hijazi’s conduct in speaking with Mr Bull about the second incident report then being withdrawn and limiting interactions with Mr Bull and other junior staff. Deputy Commissioner Dean found that Mr Hijazi “was not free” to behave in this way and “a reasonable person would consider [his behaviour] to be humiliating and intimidating”. The case is a useful example of the higher expectations on those in more senior roles and the recognition by the Commission that behaviour between peers that falls short of bullying might nevertheless amount to bullying if it involves conduct by more senior team member towards a more junior team member. An interesting comparison is the decision in Gary Matthews v San Remo Fisherman's Co Operative. In that case, the Commission decided that a subordinate did not engage in misconduct by swearing at a manager during a conversation. Commissioner Gregory noted, “The conversation can also be seen as a robust discussion between two mature and experienced individuals, who had known each other for some time, and previously had a good relationship." Reliance on the investigator’s report In this case, Calvary’s case relied on showing that Mr Hijazi’s conduct towards Mr Bull was unreasonable. However, Calvary did not call Mr Bull to give evidence of Mr Hijazi’s conduct. Instead, it relied on admissions made by Mr Hijazi and the findings made by Mr Grime. Mr Hajazi argued the Commission should exclude Mr Grime’s evidence, or give it little weight, as it was hearsay. Deputy President Dean decided, “The Grime Investigation is in my view relevant to the Commission’s determination of the issues which need to be decided. I am satisfied in this regard that the Grime Investigation constituted a full and extensive investigation, that Mr Hijazi was given a reasonable opportunity to respond, and that the findings were based upon reasonable grounds. It is, however, appropriate to place less weight on the Grime Investigation than might otherwise be the case because it is hearsay, which I have done. This is particularly so given Mr Hijazi was unable to test the evidence by way of cross examining those who complained about his conduct.” Make haste slowly The investigation of the allegations against Mr Hijazi took considerable time. One reason for this was that there was an error early in the process that resulted in Calvary giving conflicting letters to Mr Hijazi. Sensibly, Calvary chose to restart the process and restart the time Mr Hijazi had to respond to the allegations against him. This approach was ultimately relevant to both the Commission’s preparedness to place to reliance on the Grime report and the finding that Mr Hijazi had been afforded procedural fairness. It is another case example that shows the importance of proceeding methodically and without any rush to judgment. The Fair Work Commission’s decision in Kabidi v Metro Trains Melbourne Pty Ltd is an interesting case study of a dismissal resulting from the employee’s conduct during an investigation.
Mr Kabidi started working for Metro Trains as a train driver in 2006. On 3 June 2020, Metro Trains sent Mr Kabidi a letter asking him to respond to an allegation that he had breached Metro Trains’ safety procedures by smoking a cigarette on the tracks at Werribee station without a safety vest on. In the course of investigating the Werribee incident, Metro Trains reviewed CCTV footage to see if Mr Kabidi had engaged in similar behaviour previously. The CCTV footage revealed two similar – but not identical – incidents, one at Pakenham station and one at Frankston station. On 9 June 2020, Metro Trains interviewed Mr Kabidi about the Werribee incident. At that point Metro Trains had CCTV footage of the Pakenham and Frankston incidents but they had neither given that footage to Mr Kabidi nor told him that it existed. There was some dispute about exactly what occurred during the interview with Mr Kabidi. The Commission accepted the evidence of Metro Trains’ witnesses that:
Metro Trains then issued a "show cause" letter referring to both the safety breach as a result of the Werribee incident and dishonesty during the investigation of the Werribee incident. After hearing Mr Kabidi's response to the show cause letter, Metro Trains terminated his employment. Mr Kabidi then issued an unfair dismissal application. A central question in the case was whether Mr Kabidi had been afforded procedural fairness. Mr Kabidi raised two issues in relation to the process followed by Metro. First, Mr Kabidi argued that it was unfair for Metro Trains not to have disclosed the CCTV footage of the Pakenham and Frankston incidents to him before the 9 June 2020 interview. Deputy President Young rejected that argument. She stated: “I reject any suggestion that by asking Mr Kabidi whether he had smoked on track before, the allegations regarding the Frankston Incident and the Pakenham Incident were, in fact, put to him on another basis or in another form or the he was in any way “ambushed”. The questions asked of Mr Kabidi involved no allegation. They were open questions that he was required to answer honestly. He did not. Accordingly, I do not consider that Mr Kabidi was denied an opportunity to respond to the allegations against him as a result of the further incidents not being put to him at the 9 June Meeting.” Second, Mr Kabidi argued that the combination of both the safety and dishonesty issues in the show cause letter was unfair. Deputy President Young also rejected that argument. She stated: "I have considered whether the inclusion of the Dishonesty Allegations in the [show cause letter] and Metro seeking Mr Kabidi’s response to those allegations at the same time as seeking that he show cause as to why his employment ought not be terminated denied Mr Kabidi an opportunity to respond to the allegations against him. Whilst I do not consider this is the preferred approach, I do not consider any unfairness arose from this in the present circumstances. Mr Kabidi’s evidence was that he understood it was alleged that he had been dishonest and that the Frankston Incident and the Pakenham Incident were now being considered. He also agreed under cross examination that he understood that he was being asked to tell Metro why he should remain employed." In our view the case is an example of two important lessons for investigators. The decision highlights the importance of preparing thoughtfully for witness interviews. In this case, Metro Trains decided not to put any specific allegations to Mr Kabidi about the Packenham and Frankston incidents at the 9 June interview and instead simply ask about his previous behaviour. The Commission accepted that there was nothing unfair in this approach. While Deputy President Young rejected Mr Kabidi’s unfair dismissal application, she did note that conflating the dishonesty allegation and the safety allegation was not “the preferred approach”. We agree with that observation. In our view, it usually preferable to maintain a clear split between the investigation (and findings) in relation to the initial misconduct allegations and the investigation (and findings) in relation to any dishonesty in relation to the first investigation. The related decisions in Chambers v Toll Transport Pty Ltd and Newton v Toll Transport Pty Ltd are useful examples of where it will be appropriate to investigate conduct that occurs outside the workplace.
Mr Chambers and Mr Newton were both truck drivers employed by Toll and were both TWU delegates. In mid 2019, they travelled separately to Melbourne to attend two days of TWU meetings. They were both on paid “delegates’ leave” for the two days and Toll arranged their transport and accommodation for the trip. After the first day of meetings ended, Mr Chambers and Mr Newton both went to a hotel with other Toll TWU delegates. However, this was not part of a formal function organised by Toll or TWU. At around 10.30pm, Mr Chambers and Mr Newton had a fight outside the hotel. Mr Chambers was the clear winner of the fight. Mr Newton was quite badly injured. There were no witnesses to the fight. Police attended the hotel but did not take any action against either party. Toll also decided to investigate the fight. Mr Chambers and Mr Newton provided radically different accounts of the fight to Toll and then in their evidence to the Commission. On Mr Chambers’ version of events, Mr Newton was the aggressor and Mr Chambers had been forced to act in self-defence. On Mr Newton’s version of events, he was king-hit and glassed by Mr Chambers. After the investigation, Toll decided to dismiss both Mr Chambers and Mr Newton for fighting. Both Mr Chambers and Mr Newton then brought unfair dismissal claims in the Commission. A central argument made by both men was that there was no valid reason for the dismissals as the fight occurred outside work and there was no relevant nexus with their employment. The Commission found in favour of both men on that point. Deputy President Boyce found there “was no evidence … that sufficiently tethers the circumstances” to the men’s employment – the fight occurred while the men were on paid leave, away from the workplace and after they attended meetings organised by TWU (not Toll). This resulted in the Commission finding in favour of Mr Chambers in relation to his claim. However, the Mr Newton’s claim was assessed differently. Critically, Deputy President Boyce did not accept Mr Newton’s version of events. He found the evidence given by Mr Newton to the Toll investigator and to the Commission was false. He was particularly scathing of the claims made by Mr Newton that he had been king-hit and glassed. He described these allegations as, “sinister conduct that can never be justified. I infer that a core purpose for Mr Newton in making such false assertions against Mr Chambers was not only to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce, but to also suggest to other colleagues that whilst Mr Newton had “lost” the Fight, it was never a “fair” fight to begin with.” Deputy President Boyce found that – although the fight was not connected to either man’s employment – it was nevertheless reasonable for Toll to investigate what happened. He observed, “in the facts and circumstances of this case, it would be wrong of Toll to have simply ignored or cast aside the conduct of Mr Newton and Mr Chambers simply because such interactions did not take place at work. In many cases, interactions between employees outside of the workplace require careful management back at the workplace, so as to eliminate potential future risk and/or liability. At the very least, Toll needed to inquire as to what had happened in relation to the Fight and the Verbal Altercation, and whether any issues arising from same would flow back into the workplace (and thus need to be managed).” He continued, “whilst an employee may engage in conduct or behaviour that does not occur at work, or does not have a requisite connection with work, if such matters are investigated by their employer, such an investigation will occur at work. It equally follows that any answers provided by an employee to questions put to him or her by their employer during such an investigation fall within the scope of the employment relationship. And in so falling within the scope of the employment relationship in this case, Mr Newton had a duty to answer questions and/or give his version of events honestly.” Accordingly, the Commission fount that Mr Newton’s dishonesty during the investigation did provide a valid reason for his dismissal – albeit that this was not the reason provided by Toll at the time of the dismissal. The decision highlights that courts and tribunals will give employers some latitude in investigating conduct that occurs outside work. It also shows that employees are required to answer any questions put to them in such investigations honestly and that they may suffer employment consequences if they do not. The decision in Hatch v WesTrac Pty Ltd provides a valuable example of the importance of the Briginshaw standard in a workplace investigation.
Mr Hatch worked a Field Services Technician with WesTrac. Part of his role involved managing the “return to store” bench at the Bengala coal mine. From time to time, workers at the mine will replace worn or broken equipment – when that happens the used parts are taken back to the return to store bench. One day, four gas struts were returned as a bundle to the return to store bench. Mr Hatch took the struts to his ute – which was parked at the mine. He then returned two of the struts and left two in his ute. At this point he was confronted by Mr Matthews - another contractor at the mine. Mr Matthews noticed that only two struts had been returned. He asked Mr Hatch what had happened to the other two struts. Mr Hatch said he had left the two structs in his ute because he wanted to compare them to the struts that were fitted to the ute. He said he wanted to check if the two parts were interchangeable and – if they were – he intended to look into buying two struts of the same model as the ones used in the mine because he could see they were better quality. Later in the day, Mr Hatch returned the final two struts. After conducting a workplace investigation, WesTrac dismissed Mr Hatch for attempted theft of the two struts. WesTrac’s position was that Mr Hatch had intended to steal the struts and the theft would have occurred if Mr Matthews had not intervened. Mr Hatch said that his conduct was unusual but innocent. He said he had problems with the struts on his ute for some years and had replaced the standard struts several times. In support of his argument, he produced an invoice from Amazon which verified that he had purchased replacement struts for his ute shortly before the day of the incident. This was consistent with his account of having had problems with the struts on his ute previously. Deputy President Saunders stated, “I accept that it is possible that Mr Hatch intended to steal the struts on 11 April 2020. The troubling aspects of the evidence … support such a conclusion. However, having carefully observed and listened to Mr Hatch give evidence in these proceedings, I have not reached a state of satisfaction or an actual persuasion that Mr Hatch had an intention to steal the struts.” Accordingly, the Fair Work Commission found that there was no valid reason for the dismissal and awarded compensation (but did not order reinstatement). The case is an excellent example of how Briginshaw operates in practice. In this case, the evidence in support of the alleged attempted theft was limited. To reach the conclusion that Mr Hatch was trying to steal the struts, it was necessary to engage in inference and speculation about conduct that was (as the Commission accepted) “troubling” in some respects. That is not sufficient to meet the Briginshaw standard. The Federal Court’s decision in Singh v Sydney Trains provides useful guidance for employers and those investigating misconduct allegations.
In November 2016, Mr Singh was dismissed after an investigation into two safety incidents. Since then, there has been protracted litigation between the parties and Mr Singh’s claims for an unfair dismissal remedy have been dismissed by the Fair Work Commission. In June 2020, Mr Singh applied to the Federal Court for an order setting aside the decision of the Fair Work Commission on the basis that the Commission had failed to properly exercise its jurisdiction. As Justice Flick neatly summarised, “The failure was said to arise by reason of the Commission not properly addressing a number of “clearly articulated” submissions which had been advanced.” Justice Flick dismissed the application. He concluded (among other things), that, “there was no duty upon the Commission to resolve each of the submissions advanced on behalf of Mr Singh, the duty being to resolve the gist of the substantive allegation being made against him”. The approach taken by His Honour serves a useful guide to those investigating allegations of misconduct. It highlights the importance of engaging with the “gist of the substantive allegation” being investigated. It also supports the view that it is not always necessary to specifically address every issue raised. As Justice Flick stated, “There remains no duty upon an administrative decision-maker to expressly refer in its reasons to every submission and every piece of evidence that may be available for consideration. In resolving the gist of a submission, there is no necessity for a decision-maker to address each and every piece of evidence or conflicting evidence of relevance to the gist of the submission.” The Fair Work Commission’s decision in Jason Hutton v ACFS Port Logistics Pty Ltd shows that sometimes it is not necessary to interview an employee in the course of a workplace investigation.
Mr Hutton was an experienced truck driver. In late 2019, he was employed by ACFS Port Logistics. In May 2020, he hit a stationary object while manoeuvring to load freight at a port. The collision caused about $13,000 dollars damage to the truck and the truck was out of operation for about two months. Mr Hutton reported the accident immediately. He explained the circumstances of the accident to the company’s Controller (Mr Hughes) and completed an incident report shortly after the accident. The company then conducted an investigation into the event. Mr Hutton was not interviewed as part of that investigation and no allegations of misconduct were provided to him. At the conclusion of the investigation, the company met with Mr Hutton (and a support person) and provided him with a ‘Show Cause’ letter. He was told that he was required to attend a meeting to give reasons why his employment should not be terminated. After hearing from Mr Hutton, the company decided to terminate his employment. Mr Hutton then issued an unfair dismissal claim. Mr Hutton argued there was no valid reason for his dismissal. He argued that the collision was accidental and he ought not be dismissed for making an honest mistake. The Commission rejected this argument. The Commission found there were a number of flaws in the way Mr Hutton approached the task and he failed to take several basic safety precautions that would have prevented the collision. It concluded that, taken as a whole, “Mr Hutton’s conduct constituted a breach of his duty to act with requisite care and diligence, and in the circumstances constitutes a valid reason for dismissal.” Mr Hutton also argued that the company’s investigation had been unfair as he had not been interviewed about the collision after speaking to the Controller and completing the incident report. Deputy Commissioner Beaumont stated: “In pursuing this line of argument, the Representative drew attention to Mr Hughes’ discussion with Mr Hutton having taken place before the enquiry actually started. It was an artificial boundary to draw. I am of the view that the information garnered by Mr Hughes during the course of his conversation with Mr Hutton on [the date of the collision] was able to be relied upon by the Respondent. There was no evidence to suggest that the information proffered by Mr Hutton was not provided voluntarily.” Two issues are noteworthy about the decision. First, this a relatively rare case where a single honest error with substantial (but not overwhelming) consequences constituted a valid reason for dismissal. In our view, an important factor in this outcome was that the employer established that Mr Hutton did not take a series of basic safety precautions that an experienced truck driver would be expected to take. Second, this also a relatively rare case where the process followed was judged to be fair even though the Mr Hutton was not interviewed as part of the company’s investigation. In our view, employers ought be cautious about taking this case as a precedent on this point as the outcome is fact specific. However, if an employee has provided their version of events through an incident reporting process, then it may not be necessary to interview them again as part of the investigation process. The Fair Work Commission’s decision in Chandler v Bed Bath ‘N Table is an example of a hasty disciplinary process contributing to an unfair outcome.
Ms Chandler was a casual sales assistant at the Essendon Ben Bath ‘N Table store who was the subject of several misconduct allegations. She was invited to attend a disciplinary meeting about those allegations and told she could bring a support person with her. A series of communications then took place by phone and email between the employer’s HR team and Ms Chandler. Significantly:
The Commission observed that, “the reasonable response would have been to delay the meeting … This would have allowed the Applicant time to get another support person.” This, and other, factors led the Commission to find that Ms Chandler had been unfairly dismissed. The decision is another example that, in misconduct investigations, more haste can often lead to less speed. While investigations should be completed promptly, rescheduling meetings is often appropriate. In most cases the delay can be minor (as little as a day or two) and it will often save time in the long run. The decision of the Full Bench of the Fair Work Commission in Central Queensland Services Pty Ltd v Odgers [2020] FWCFB 304 will be welcomed by employers.
At first instance, Ms Odgers was successful in her unfair dismissal claim. Commissioner Hunt found that there was a valid reason for Ms Odger’s dismissal and that Ms Odgers was given the opportunity to respond to the reasons for dismissal before any decision was made about her employment. However, she found the employer’s “abject failure” to follow its own disciplinary process meant the dismissal was unfair. Our note of that decision is here. The Full Bench set aside the decision. The Full Bench held that the question posed by section 387(c) of the Act is “whether the person was given an opportunity to respond to any reason” for the dismissal. They found that the Commissioner had incorrectly focused, not on that question, but on whether the employer had followed its internal processes. The Full Bench stated: “Section 387(c) is concerned with whether an employee was, in substance, afforded an opportunity to respond to the reasons for the dismissal. It does not mandate rigid compliance with any specified procedure. It is sufficient that the employee is made aware of the precise nature of the concern held about their conduct or performance and given a full opportunity to respond to it. The Commissioner’s conclusion that Ms Odgers was given, through the show cause process, an opportunity to respond and advance mitigation to the matters constituting a valid reason for her dismissal, appears, in our view, to satisfy the opportunity contemplated by the authorities. We therefore consider that the Commissioner misapprehended the statutory task under s.387(c). This gives rise to appealable error. Further, the Appellant was not required to consciously consider or discuss with Ms Odgers the appropriateness (or otherwise) of possible alternative disciplinary outcomes in order to comply with s.387(c). Nor does s.387(c) require this. In any case, in her show cause response, Ms Odgers explained why she considered she should remain in employment. By concluding as the Commissioner did … the Commissioner acted on a wrong principle. This too gives rise to appealable error.” The Full Bench remitted the case for rehearing. In our view, the decision supports the view that the failure to follow an internal disciplinary process will not necessarily (or perhaps even usually) give the employee a basis for an unfair dismissal claim. The Fair Work Commission’s decision in Boyle v BHP Coal Pty Ltd is another example that it’s often not the crime that matters most, it’s the cover up.
On 2 November 2018, Mr Boyle and three colleagues were travelling together in a car at a mine site. At one point on the journey, Mr Boyle said words to the effect, “If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it orally or anally.” A complaint was later made and BHP investigated what occurred. During that investigation, Mr Boyle admitted making the statement – and repeated it several times to BHP’s investigators. He also said it was made in response to sexualised talk from the two women in the car. Mr Boyle eventually apologised for his conduct, promised that it would not be repeated and offered to attend a mediation. BHP decided to terminate Mr Boyle’s employment and he then made an unfair dismissal claim. Commissioner Hunt rejected Mr Boyle’s claim – but not for the reasons you might expect. There are several interesting aspects of the decision. A single joke will not normally be a valid reason for dismissal The Commissioner found that Mr Boyle’s conduct in telling the “joke” was not a valid reason for his dismissal. She stated, “A workplace devoid of some humour and the occasional joke is, I consider, to be a very sad, dull and oppressive workplace. For many employees spending approximately 38 hours per week at work, light-hearted bantering and the occasional joke will make their workplace, and for those within it, a better, more productive and fulfilling workplace. I do not consider, in most circumstances, that an employee should lose their job on account of the telling of a single joke.” A workplace investigator can’t be a “wilting flower” Commissioner found there was nothing untoward in Mr Boyle repeating his comments to the two workplace investigators. She found that the evidence from the investigators that they were offended by the comments to be overstated. Further, she stated, “In my view, as an investigator of workplace conduct, it is an investigator’s role to be able to hear everything that is put without personally taking offence with what is said during the investigation. An investigator should be strong and impartial, not prone to being a wilting flower upon hearing difficult or potentially offensive matters during an investigation. If they are easily offended, they should not be in the role of investigator.” Follow your internal processes Commissioner Hunt was critical of BHP’s failure to follow its internal processes during the investigation (though her comments may need to be considered in the context of the Full Bench decision in BHP v Odgers). She stated: “In my view, the Respondent expects its employees to abide by the Respondent’s numerous policies, but its own senior management have a complete lack of knowledge as to the application of the Fair Play Guidelines, a policy of the Respondent’s creation. The hypocrisy is astounding and unacceptable. It is not even a terribly complex issue to address. Simply, all sites where the Fair Play Guidelines are stated to apply by virtue of it being within the site’s enterprise agreement, or by statement of scope and application within the Fair Play Guidelines, should promulgate its existence at those sites and train the relevant personnel. It is my observation that in a number of unfair dismissal matters that have come before me on this issue with the same Respondent or associated entity, there is ignorance as to the application of the Fair Play Guidelines. There has been no satisfactory explanation provided to me as to why the Respondent and its associated entities are not able to properly address this issue.” Commissioner Hunt concluded that the investigator had failed to follow the appropriate process, and that this had infected the ultimate decision to dismiss Mr Boyle. Conduct during an investigation Commissioner Hunt was highly critical of Mr Boyle’s attempt to put his comment into context by claiming to the investigators that it was said in response to his two female colleagues, Ms Ramirez and Ms Barden, talking about “rooting”. Commissioner Hunt stated, “I do find, however, that Mr Boyle’s assertions relevant to the context of the conversation were false, and made by him in an effort to substantiate why he made the joke. Throughout all of the investigation period he maintained the line that Ms Barden and Ms Ramirez had been engaging in sexualised talk. On the evidence before the Commission, I do not accept this to be true, and I consider that Mr Boyle falsely led the Respondent on a wild goose chase in an attempt to downplay his misconduct.” Commissioner Hunt held that, “Even though it was not the reason provided by the Respondent as a reason for the dismissal, I find that Mr Boyle’s false assertions against Ms Barden and Ms Ramirez constitutes a valid reason for the dismissal. … Mr Boyle was, in my view, prepared to take Ms Barden and Ms Ramirez with him ‘under the bus’. He ought to have known that his repeated assertions against them would cause the investigation to be extended, allowing for further statements to be made. As I have stated above, the slur on the women that they were discussing sexual matters when they were not, is completely unfair. It is abhorrent that Mr Boyle would make such false assertions against the two women.” The Commissioner found that, in all the circumstances, Mr Boyle had not been unfairly dismissed. |
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