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Excerpt from this article first published in Human Resources Magazine, Issue 141 - 13 November
2007
In a recent unfair dismissal case an employee was reinstated after the AIRC found that the company failed to conduct a proper investigation into complaints made against the employee. The company had sacked the employee after it determined that he accused another employee of "sucking off" the company's supply chain manager and on the basis of a previous first and final warning that the employee had received regarding an alleged breach of the company's harassment policy.
The incident surrounding the first and final warning allegedly involved the employee whispering into the ear of a female employee he supervised that he had noticed that she had taken off her stockings. In addition, it was also alleged that the employee had put his hand on her chin and closed her mouth. While the employee had admitted to making a comment about the female employee changing her clothes, he claimed that he hadn't commented on her stockings. The employee admitted to touching the female employee on the face, but said that it was a gesture of friendship and that the female employee regularly touched him on the shoulders when he was sitting at the computer.
The AIRC found that the incident surrounding the first and final warning "could not be characterised as harassment" and did not warrant a warning. The AIRC found that the company had investigated the incident in a "cavalier fashion" and failed to conduct a proper interview with the female employee, failed to put the precise nature of the female employee's allegations to the employee and failed to make findings of fact.
In addition, the AIRC found that the alleged comment triggering the termination did not warrant the dismissal of the employee. This incident involved a comment that the employee made to another employee that he was supervising. It was alleged that he said to the employee that he was “sucking off” the company’s supply chain manager. The AIRC found that the employee had said that he was “sucking up to” the company’s supply chain manager and that this was said in the context of the other employee making jovial remarks and swearing at him. Again, the AIRC found that the company had failed to conduct a proper investigation by failing to put the exact nature of the allegations to the employee and that they had already determined the facts prior to speaking to the employee.
Overall, the AIRC was highly critical of the company’s pattern of accepting complaints about the employee without any attempt to obtain the employee's version of events and failure to investigate in a proper manner.
This case shows that employers must be extremely careful when investigating matters. In addition, it highlights that the basis of prior warnings that employers rely upon to terminate an employee may come under scrutiny in legal proceedings.
Jessica Lee - Lawyer
Australian Business Lawyers
