Interviewing the respondent - do you have to?

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.