FWC finds lack of procedural fairness in dismissal for sharing explicit images

A worker’s dismissal for sharing explicit images with his colleagues has been overturned by the FWC due to a lack of procedural fairness. What can HR learn from this case?

An employee who was terminated for allegedly exposing colleagues to “p*rnographic” media was recently reinstated by the Fair Work Commission (FWC), after it found the evidence against him was insufficient and his employer’s investigation process was “deeply flawed”.

In its ruling, the FWC emphasised the distinct lack of procedural fairness in the employer’s handling of the situation.

“[This case] is a reminder of everything that can go wrong if you don’t comply with procedural fairness,” says Amy Zhang, Team Leader and Executive Counsel at Harmers Workplace Lawyers. “[HR] can basically use it as a checklist of the things not to do.”

The incident in question: lack of procedural fairness

The worker in this case, a truck operator who’d been working at his employer’s mine site for three years, was accused by a female colleague of harassment and inappropriate behaviour.

The incident that prompted her to report his alleged misconduct occurred in January this year when they were sitting close to one another during an end-of-shift bus ride. 

In her complaint, she claims he instigated a conversation with a number of male colleagues about sexually explicit scenarios. She further alleges they were passing around explicit images in a way that made it easy for her to see.

At this point, she had only been employed at the mine for a matter of days, and said his behaviour made her feel “unsafe, embarrassed, humiliated and belittled in front of other employees”.

It was her short tenure at the company that deterred her from reporting the incident immediately, she said; her complaint was lodged in March 2023, over three months after these events took place.

In response, the truck driver was called into a meeting with his supervisors and asked to write an immediate written response to the allegations. The employee denied the allegations, claiming he “had never had explicit images on his phone at work”, and he and his crew “did not and would not engage in the alleged conversations”. 

Following the meeting, he was stood down pending further investigation, and his employment was terminated shortly afterwards.

According to Zhang, the supervisors’ failure to adhere to procedural fairness in the meetings with the employee would have been one of the most significant shortcomings of their approach in the eyes of the FWC.

“What really comes out from the decision is [the importance of] giving people who are accused of misconduct the opportunity to put forward their version of events, and really listening to them. You need to take on board what they’re saying and show you have given it thought.

“As part of procedural fairness, you should [also] give them advance notice, put in writing why you’re having this meeting and give them an opportunity to [prepare] their response.”

This is especially true in this instance given that the meeting took place months after the alleged incident, she says.

They should also be given the opportunity to bring a support person to that meeting.

Employer’s investigation was “inadequate”

During its investigation, the employer interviewed a number of witnesses to determine the veracity of the accusations. The accused employee provided witness statements from two colleagues present when the incident occurred, both of whom corroborated his version of events. 

His accuser also nominated a witness during the investigation, who confirmed behaviour like this was not uncommon at the site; this witness recalled seeing what she suspected to be p*rnographic material being passed around, but said she was not able to confirm the culprits as she had been wearing headphones and trying to stay disengaged at the time.

The employer took the word of this witness as confirmation of the allegations, disregarding the witnesses nominated by the accused as “simply being mates who were standing up for him”.

However, the FWC later discovered that the witness brought forward by the complainant had been present during the initial interview about the incident, which was likely to have tainted the witness’s recollection of events. 

Interviewing witnesses separately to avoid the risk of contaminating evidence is a key aspect of procedural fairness that was overlooked by the employer, says Zhang.

“Investigators also need to be unbiased, independent and have an open mind going into the investigation – they shouldn’t start off by believing one side or the other,” she says.

“What really comes out from the decision is [the importance of] giving people who are accused of misconduct the opportunity to put forward their version of events, and really listening to them.” – Amy Zhang, Team Leader and Executive Counsel, Harmers Workplace Lawyers.

“Their job is to gather all the evidence, interview everyone and then consider at the very end who was right and who was wrong.”

To eliminate the risk of bias, Zhang recommends considering an external investigator in cases like this.

“That’s a really important step that people don’t often think about. Because they normally think [they] need to rush to start an investigation. But you should really step back and ask yourself, ‘Who is the most appropriate person to do this?’”

The employer in this case also failed to gather sufficient documentation to establish that the incident could have occurred in the first place; for instance, the Commission’s later investigations into employee swipe card records cast doubt as to whether his accuser’s recollection of events was entirely reliable.

“[The evidence you’ll need] will depend on the nature of the particular allegations,” says Zhang.

“It might simply be a matter of interviewing the people involved and then taking very good notes. But you may have other sources of data beyond witnesses. 

“For example, if the allegation is that people were writing nasty messages in a group chat, that’s where written and electronic communications will be very important to look at. If it’s an allegation of sexual harassment, at [a certain time], then you might have to look at swipe card and CCTV records to show whether they were there at the time.”

Ensuring procedural fairness during a dismissal

When allegations of misconduct arise at work, there are a number of questions employers should ask themselves before deciding how to go about the investigation, says Zhang.

“First of all, they should consider [whether] there are any issues with the employee remaining in the workplace. Are there any restrictions that need to be imposed? Should they be separated from the workplace?

“Then, they should look at policies. Are there any policies directing the employer that they need to do certain things – whether that’s an investigation policy, a sexual harassment policy or a bullying policy?”

Clear and compliant policies are HR’s best friend in cases like this, she says, as they will define the structure of the investigation process to help minimise mistakes that could expose the employer to an unfair dismissal claim.

It’s a good idea to issue clear directions to all parties involved about the importance of keeping the investigation confidential and not victimising other employees for being a part of it, she says.

Handling misconduct allegations can be a delicate and taxing process for HR, particularly in cases like this which involve very sensitive topics. Zhang recommends taking a preventive approach to avoid having to launch an investigation strewn with potential pitfalls in the first place. 

She says one of the best ways to do this is regular training on compliance with company policies and legal requirements.

“[This includes] training of those who might be asking you for an investigation as well as those who might be doing investigations or relying on the outcome of investigations, so that everyone’s on the same page on what they need to keep in mind,” she says.

By ensuring that both employees and supervisors are appropriately informed about aspects of procedural fairness such as the show-cause process and compliant witness statements, HR can mitigate the chance of misconduct investigations turning into court cases.

In its final ruling on this case, the FWC said it was persuaded there was “a culture of inappropriate activity” on the work buses, but was not convinced of the particular allegations against the dismissed employee and therefore there was “no valid reason for termination”.

The FWC consequently ordered his employer to reinstate him within seven days of the decision. The ruling also stated that a separate order specifying the amount of lost remuneration payable to the employee for unfair dismissal would be issued at a later date.

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