By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

The employer was dismissed after a female co-worker complained he had made a lewd comment to her and that she had been exposed to explicit images on his phone.

However, the Fair Work Commission ordered the worker be reinstated after it found the employer's investigation process was 'deeply flawed'.

Facts of case

The female co-worker was a trainee who had only been employed for a few days. The truck driver allegedly:

  • Passed his phone over her shoulder to a co-worker while sitting on a work bus after initiating a conversation about women’s vaginas and transgender surgery – there was an explicit image on the phone that she saw twice
  • About three months later, and in front of other co-workers, the driver stared at her body and commented “[cor] look at that”.

After the second incident, the employee made a complaint and, following an investigation, the driver was dismissed.

The phone incident occurred in the company of both male and female co-workers, so each party had witnesses. The lewd comment occurred when co-workers were nearby, but the employer did not attempt to identify or interview them.

The FWC identified the following flaws in the employer’s investigation process:

  • The IR manager’s recommendation of dismissal was based on a single interview with the driver and a joint interview with the trainee and a female witness.
  • The female witness had agreed with the trainee only in general terms, and given her evidence in the presence of the trainee at the joint interview. The IR manager should have investigated this evidence further and interviewed the two of them separately. When the co-worker later gave a witness statement to the FWC, it emerged that the manager had misunderstood her evidence.
  • The manager had not checked swipe card records that would have shown who was present during the first alleged incident and where they were sitting on the bus at the time.
  • He had not clearly identified who was present when the second alleged incident occurred.
  • The interview with the driver was too superficial and the manager did not investigate the evidence offered by his witnesses.
  • At a final “show cause” meeting, the IR manager prevented the driver from providing further evidence.
  • The mine manager made the decision to dismiss, based on the IR manager’s recommendation.

Decision

The FWC concluded that the employer did not have a valid reason for dismissal. The investigation process was flawed in many respects. It described the trainee as “not untruthful” but said that on balance it could not be proved that the alleged incidents occurred.

The FWC ordered the employee be reinstated.

What this means for employers

The employer lost this case because its investigation process was not robust enough to clearly establish that the alleged misconduct occurred. The judgment provides insights into the correct procedures to use when collecting evidence and interviewing employees and witnesses.

It is also possible for an employer to have a valid reason for dismissal, but for an employee to successfully claim unfair dismissal because the investigation process was defective.

Read the judgment

Crook v CITIC Pacific Mining Management Pty Ltd [2022} FWC 2446, 22 September 2023

Need help?

My Business Workplace has templates and policies to assist you with managing workplace investigations, including a: