Fumbling Procedural Fairness: The Risks of an Inadequate Investigation

When an employee behaves inappropriately, a quick termination may seem like a no-brainer. However, acting hastily can result in a finding of unfair dismissal if a proper process and procedural fairness is not adhered to.  

Recently, the Fair Work Commission (FWC) found that the sacking of bar attendant to be unfair after being dismissed from his employment for bullying, sexual harassment and swearing at his colleagues. 

Over a period of April 2023 to June 2023, the employer received numerous reports that the bar attendant, Mr Ashburner, was speaking to his colleagues inappropriately including telling them to “get the f*ck out of the way” and “piss off”. The employer spoke to the bar attendant on multiple occasions about the manner in which he spoke to others, however no formal warning was issued.  

Earlier in his employment, Mr Ashburner had a friendship with a female colleague. However, after a bad night out, he reported that the relationship had broken down and the female colleague was spreading “false and degrading sexualised rumours” about him. The conflict escalated into frequent arguments in the workplace until on 13 May 2023, the bar attendant was reported to have told a colleague, “you’re acting like [another female colleague] why don’t you go get molested like her too?” 

On 15 June 2023, the employer met with Mr Ashburner and provided him with a letter detailing his comments and his most recent argument with the colleague and directed him to attend a further meeting on 21 June 2023. Mr Ashburner then applied to the Fair Work Commission for orders to stop bullying, naming the colleague, and submitted his own complaint to HR about the colleague . On 21 June 2023, Mr Ashburner attended the meeting with his employer where he was summarily dismissed and provided with a letter backdating the date of his termination to the previous day.  

Before the FWC, the employer submitted that Mr Ashburner was validly terminated for “ongoing workplace conflict and breaching [their] Sexual Harassment Policy & Bullying and Harassment Policy” and referred to three separate warnings it had issued to Mr Ashburner over the course of his employment regarding his use of inappropriate language.  

The employer raised it had issued warnings to the female colleague and had taken steps to roster the two employees on separate shifts and submitted it had taken reasonable steps to investigate the allegations and having done so, honestly, and genuinely believed it had reasonable grounds to believe the allegations of misconduct had been substantiated.  

Deputy President Alexandra Grayson found that while the bar attendant’s poor behaviour constituted a valid reason for dismissal, the reasons surrounding the dismissal had, “not been transparent or consistent”. Specifically, and in consideration of section 387 of the Fair Work Act 2009, the employer’s contemporaneous records failed to evidence: 

• that Mr Ashburner was provided an opportunity to respond to any valid reasons for dismissal as the decision to terminate his employment had already been made; 
• that the employer failed to put any formal allegations to Mr Ashburner aside from vague assertions regarding several instances of conduct; 
• that Mr Ashburner had not been notified that several instances, outside of the two he was aware of, were being investigated as possible reasons for his dismissal;  
• that no subsequent evidence from the investigation had been provided for him to consider or respond to; and  
• that Mr Ashburner had not been told his behaviour was being viewed as misconduct and in breach of the employer’s policies or that his employment was at risk.  

Ultimately, the employer’s insufficient investigation process and failure to effectively communicate the reasons for dismissal to the employee amounted to “significant procedural fairness deficiencies” rendering the dismissal unfair. The FWC also highlighted that the employer’s inaction toward the escalating tension between Mr Ashburner and the colleague exacerbated the harshness of the dismissal. 

The matter will proceed to a remedy hearing.  

Key takeaways for employers 

For employers, this case highlights that procedural fairness is a significant factor the Fair Work Commission will take into consideration when determining whether a dismissal is harsh, unjust or unreasonable. When managing conflict in the workplace and in undertaking workplace investigations, employers should ensure they:  

1. Actively, not passively, manage conflicts in the workplace and provide support to employees who are experiencing tension or disagreements; 
2. Conduct a comprehensive investigation when complaints about an employee arise; 
3. Invite the accused employee to a meeting and clearly explain what the allegations are with sufficient particularity;  
4. Remain impartial, listen to what the employee has to say and provide them with the opportunity to respond;  
5. Ensure all questions are answered and that each relevant concern has been investigated before determining an outcome;  
6. When disciplining an employee, clearly explain the reasons for decision including the specific conduct or behaviour that led to the decision;  
7. Keep detailed records of any complaints, investigations and outcomes or disciplinary actions; and 
8. Seek legal advice when making significant disciplinary decisions.  

Click here to read our previous article on top tips for effective workplace investigations.  

NRA Legal has an experienced legal team who are well equipped to assist your business with conducting proper workplace investigations. National Retail Association members can also enjoy the benefit of discounted rates. Call NRA Legal for a confidential conversation today on 1800 572 679.  

Scott Matthew Ashburner v St Marys Rugby League Club Ltd [2024] FWC 246 (30 January 2024)