Defective workplace investigations

Fair Work Commission losing patience over defective workplace investigations

By Lucy Harper and Calum Woods, NRA Legal

Please note, this decision was quashed by the Full Bench of the Commission on 11 November 2019. The Full Bench found that the Commissioner did not take into account Ms Murphy’s history of domestic violence and associated psychological injuries when deciding whether the dismissal was harsh in the circumstances. In any event, the Full Bench held that there was insufficient evidence of any mental health issues. As such, the outcome was the same and the application was dismissed.

The line between employees’ work and personal lives is becoming increasingly fine. While in some cases conduct at office Christmas parties or sending offensive messages to colleagues on Instagram can have a sufficient connection to the workplace to justify dismissal, in others the boundary is less clear.

Take for example an employee of a child care centre threatens a co-worker with violence in front of a parent and a child. This conduct in and of itself is extremely serious, and no doubt has a sufficient connection to the workplace to warrant disciplinary action.

What if that same employee had a history of domestic violence, including relevant court orders? Could the conduct be considered to be even more serious in the context of that history?

A recent decision of the Fair Work Commission considers just that.[1]

Threatening violence in the workplace

Ms Courtney Murphy was employed by Mooroolbark Child Care Centre until 23 November 2018, with a relatively short length of service of just 10 months. On 25 October 2018, there was an altercation between Ms Murphy and another worker at the centre.

There was some dispute between the relevant witnesses about what actually occurred. For present purposes, the evidence was that Ms Murphy walked towards her co-worker, “with her hands in the air, gesturing as if to fight and using words to the effect of “What, you want to go me?” It was held that Ms Murphy was challenging her co-worker to a physical fight.

Commissioner McKinnon ruled that the evidence was enough to show the employee had committed serious misconduct, and held that there is no distinction between actual violence and threatened violence. The threat of violence was enough reason for her dismissal, even though the threat was not carried out.

However, despite these circumstances, the outcome in this case was very nearly different.

Setting the record straight

In an increasing number of cases involving defective workplace investigations, the Commissioner was extremely critical of the process used by the centre to review the incident.

In particular, there were three matters that gave the Commissioner cause for concern:

• the centre’s use of Ms Murphy’s history of domestic violence to support the dismissal;
• the fact that Ms Murphy was not notified that this history was being used, and wasn’t provided an opportunity to provide any input; and
• the centre did not consider the conduct of any other employees involved in the incident.

The centre alleged that one of the reasons for the dismissal was because it did not wish to find itself in a position where it had failed to act to protect staff from a person that is was aware had a history of violence.

The Commissioner however, appeared unconvinced by that submission, and held that this premise “fails to recognise the necessary causal link between one’s prior history and present employment circumstances.”

Plainly, Ms Murphy’s history of domestic violence was entirely irrelevant in this case, and relying on it did not advance the centre’s argument; quite the opposite in fact.

To make matters worse, the centre had not put Ms Murphy on notice that it was relying on her past, and did not provide her with an opportunity to put this in context.

The centre also failed to investigate the conduct of the other employees involved in the incident. One such employee allegedly stood between Ms Murphy and her co-worker, all while holding a child in her hands. The Commissioner noted that there didn’t appear to be fairness between employees, and that other conduct ought to have been considered serious enough to warrant disciplinary action.

In reaching her conclusion, Commissioner McKinnon weighed the investigation’s failures against the inexperience and small size of the organisation. The Commissioner highlighted “both the importance of objectivity and the difficulty for inexperienced employers in ensuring procedural fairness for employees absent specialist advice and support,” indicating that there is a fine balance between the two.

Unfairness can be fatal

The centre in this case was fortunate that the seriousness of the conduct overcame issues in the investigation. However, this is far from an isolated incident.

More recently, Deputy President Sams labelled an early childhood learning centre’s sacking of a teacher the product of a “hopelessly flawed investigation.” In that case, the teacher was alleged to have mistreated a child, and despite inconsistent witness evidence and not providing the teacher with an opportunity to provide her response, the centre nonetheless considered the allegations to be substantiated.

The Deputy President however, disagreed and ordered that the teacher be paid $11,860 in compensation for being unfairly dismissed.

With workplace investigations being placed under increased scrutiny, they are now becoming the difference in unfair dismissal cases.

If you need further information or if you are considering carrying out a workplace investigation and require advice on process and procedure, or need to engage an external investigator, contact NRA Legal on 1800 572 679.

[1] Courtney Murphy v ECEC Management Pty Ltd T/A Mooroolbark Child Care Centre [2019] FWC 3169.