Procedural fairness and full disclosure

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.
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There was some dispute about exactly what occurred during the interview with Mr Kabidi. The Commission accepted the evidence of Metro Trains’ witnesses that:

• Mr Kabidi was asked if the Werribee incident was the first time he had smoked on the track and Mr Kabidi said it was

 

• Mr Kabidi was asked whether an audit would show any previous incidents of a similar nature and Mr Kabidi said it would not.

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.