A workplace investigation is a process where an external investigator conducts an impartial analysis of the facts and circumstances in relation to a workplace complaint. The importance of conducting a detailed workplace investigation prior to dismissing an employee is underestimated. A workplace investigation when conducted thoroughly, and with the necessary element of confidence, can ensure that employers do not become the subject of unfair dismissal claims that leave them out of pocket.
Andrew Gillmore v South Oakleigh Club
The importance of conducting a workplace investigation has recently been reiterated in the case of Andrew Gillmore v South Oakleigh Club. Mr Gilmore was employed by the South Oakleigh Club (Club) for 4 and a half years before his employment was terminated by his employer based on the following six allegations, that:
1. he told customers of the Club that the business “had no money”;
2. he had passed on the confidential information a staff member to a club member;
3. he had been disrespectful to the management of the Club, including the Operations Manager and General Manager;
4. he did not abide by a direction made by the General Manager to ensure that staff did not leave the Club alone;
5. he had engaged in an open conversation with a male Club member where sexual remarks were made; and
6. his behaviour towards the Head Chef of the Club had been aggressive and unprofessional.
After becoming aware of the allegations made against him, Mr Gillmore sought a copy of the Club’s policy to determine what he had breached. The Club then made a without prejudice offer to Mr Gillmore, which he rejected and a week later, Mr Gillmore received a letter from the Club stating that:
1. they rejected his counter offer;
2. the Club had determined his conduct was a breach of Club’s Sexual Harassment/Bullying prevention policy and as such was constituted as “serious misconduct”;
3. he had breached company policy on standards of conduct;
4. he had breached confidentiality provided in the Club’s Induction Manual; and
5. he had breached the implied duty of confidentiality.
Consequently, the Club terminated Mr Gillmore’s employment on the grounds of serious misconduct.
Mr Gillmore then filed an unfair dismissal claim with the Fair Work Commission. The Commission proceeded to hear evidence from several staff members to determine whether the six allegations made by the Club that formed the basis of Mr Gillmore’s termination could be substantiated. Based on the evidence provided by employees of the Club, the Commissioner was of the view that the evidence as a whole was “not compelling enough” to substantiate the said allegations. The Commissioner considered that the accounts provided by the staff members instead appeared to be “hearsay” and “not believable”. The Commissioner determined that the financial difficulties of the club were well known, and whilst the employee may have displayed aggressive behaviour to the Head Chef, neither of the allegations warranted the employee’s dismissal. A more appropriate penalty would have been training or counselling the employee on acting more professionally. Thus, the Commission ordered the Club compensate Mr Gilmore a sum of $27,000 in accordance with section 390 of the Fair Work Act 2009 (Cth) for his unfair dismissal.
Workplace Investigation Benefits
This case shows the importance of employers carefully considering the facts before terminating employment. It is likely that if the Club had ordered that a workplace investigation be conducted in relation to the allegations prior to dismissing Mr Gillmore, they may not have had to compensate him. This is because a workplace investigation would have ensured procedural fairness and indicated to the Commission that the Club valued achieving industrial justice by considering all the facts and circumstances before deciding to terminate Mr Gillmore’s employment.
Cube Workplace Solutions conducts workplace investigations. We aim to establish the facts by interviewing relevant parties and make our determinations based on the available evidence as to where the allegations are substantiated. We provide detailed investigation reports, and our independent recommendations based on your business’ circumstances.
If your workplace is currently experiencing grievances or unease because of an employee’s conduct, it is fundamental that you act by undertaking a workplace investigation. Contact our team today on 1300 122 823 to discuss your matter with a member of our professional team.