By Calum Woods and Lindsay Carroll, NRA Legal
The Fair Work Commission (per Deputy President Anderson) stated recently that a workplace investigation “is not a court of law or a quasi-judicial proceeding. It is an internal disciplinary process guided by the principle of fairness.”[1]
There are of course a number of rules posited by industrial relations scholars about what is required by procedural fairness (or ‘natural justice’ as it’s often referred to) when conducting workplace investigations.
The fundamental characteristic of all these rules relate to a simple question: was the person given an opportunity to explain their position and affect the outcome of the investigation?[2]
From this question are concepts derived such as the right to be able to respond to the particulars of an allegation (which necessarily requires the particulars of the allegation to be provided), and the right to an unbiased decision-maker.
However, what happens when someone admits to wrong-doing; surely these rules don’t apply?
The recent decision of Emery v City of Stirling [2018] FWC 6853 is a reminder that sometimes the journey is more important than the destination.
The air-conditioner that only blows hot air
Kevin Emery was a Beach Inspector for the City of Stirling, Western Australia. Earlier in life he had worked as a qualified auto electrician, a skill which would later use to solve the case of the air-conditioner that only blows hot air.
A colleague had complained to him that their ‘Beach Inspector Vehicle’ (a modified 2016 Mazda BT50 specifically designated as a life-saving vehicle) would only blow hot air when the air conditioning was turned on. Given Beach Inspectors would spend the majority of their time in these vehicles (and it being summer in Western Australia), Mr Emery modified two vehicles such that they would continuously blow cold air when the engine was turned on. The modifications were made without permission, using a wiring diagram he had downloaded from the internet dating from 2006.
As a result of the modifications, the compressor on one of the vehicles failed, and there was a possibility that further damage may have occurred rendering the vehicle entirely inoperable.
Mr Emery admitted to making the modifications, and the City determined that the conduct was in breach of its Code of Conduct and ‘Fleet Management Practice’. As such, the City dismissed Mr Emery from his employment without notice.
Commissioner Bissett acknowledged that while Mr Emery’s intention was to protect the health and safety of Beach Inspectors, he had nonetheless breached the City’s policies and caused damage to the vehicle – which may have endangered himself or others. As such, it was held that there was a valid reason for dismissal.
Yet despite this, Mr Emery’s dismissal was ultimately found to be unfair, and the City was ordered to pay him $15,427.59 plus superannuation.
How much time does a confession really save?
The answer’s not much.
When the City commenced its investigation, it notified Mr Emery in writing of the allegations, and invited him to attend an interview with his direct manager and a HR advisor to act as minute-taker.
The City did not speak with any other employees who may have been relevant, or to Mazda to determine the extent of the damage and whether it was covered by warranty.
The only reason why Mr Emery was identified as the culprit was once the modifications were uncovered and raised at a team meeting, another employee suggested that they speak with him. That employee later attended each meeting as Mr Emery’s support person – a procedural flaw in and of itself.
In a sense, there wasn’t an investigation; at least not before Mr Emery had been dismissed.
When Mr Emery was first notified in writing of the allegations, he was told that they related to the “non-approved modification of two of the City’s vehicles resulting in substantial damage including the voiding of the warranty.”
The Commissioner found there were issues with how the allegation had been drafted, specifically:
- what vehicles?
- what modifications?
- what damage?
- what policies did he breach, and how did he breach them?
Without this knowledge, Mr Emery was left to speculate as to the purpose of the meeting (however, he did come prepared to the meeting, and as such Commissioner Bissett noted that he must have had some understanding of its purpose).
The second issue of considerable concern was the involvement of the manager. During the course of the meeting, Mr Emery admitted to making the modifications but stated that his manager had given him permission to do so. The manager denied this allegation during the meeting and at the hearing.
While the Commissioner ultimately preferred the evidence of the manager (that is, that he didn’t give permission for the modifications to be made), it was held that in not recusing himself from investigating the matter, the manager had a conflict of interest and his continued involvement tainted the investigation. The HR advisor was criticised as well for not addressing this issue at the time.
Mr Emery was later dismissed, largely on the basis that he admitted to making the modifications. However, his assertion that he had permission from the manager was dispelled as quickly as it was raised.
Thinking back to procedural fairness/natural justice, was Mr Emery given an opportunity to explain his position and affect the outcome of the investigation?
Interestingly, had the City carried out a proper investigation and determined that Mr Emery had been dishonest in stating that the manager had approved the modifications, this dishonesty may have given rise to an additional ground for discipline.[3]
Should I engage an external investigator?
In considering the manager’s handling of the investigation, Commissioner Bissett noted that there are incentives to dealing with matters internally in the first instance. Often the answer isn’t to carry out (or commission) a workplace investigation, but to seek to resolve the matter at the workplace level. Other times the facts of the case won’t be in dispute, and an investigation will not be necessary.
However, this case illustrates an important point: if you need to investigate, make sure you do it properly.
While a workplace investigation may only be, as Deputy President Anderson stated, an “internal disciplinary process guided by the principle of fairness,” and not subject to the same requirements as a court or the Commission, it is before those bodies that it will be judged.
An external investigator obviates any concerns around conflicts of interest (particularly when complaints are made against HR), and brings a level of knowledge and expertise to identify and address issues of procedural fairness.
Any investigation report or recommendations made by a lawyer engaged as an external investigator may also attract legal professional privilege, as opposed to internal HR investigations or investigations carried out by third parties, which are often disclosed in legal proceedings.
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 RETAIL (738 245).
[1] Brewer v St Columba College Munno Para Inc [2018] FWC 7620 at [214].
[2] Nemcic v Australian Electoral Commission [2018] FWC 2404 at [291].
[3] See for example, Streeter v Telstra Corporation Limited [2008] AIRCFB 15.