Unfair Dismissal: Employer’s Failure To Provide Evidence Of Misconduct Leads To Reinstatement

An employee who was accused by a co-worker of yelling threats at him has found to be unfairly dismissed. The co-worker did not provide formal evidence due to fears for his safety and retribution, and the employer claimed it had a duty of care to protect the co-worker by not involving him in proceedings. The Fair Work Commission (FWC) ruled that the employer’s acceptance of the co-worker’s request not to be involved was a voluntary choice by the co-worker that denied fairness to the dismissed employee, who was reinstated.

FACTS OF CASE

The co-worker claimed that the dismissed employee, an electrician, had yelled threats at him through a car window outside the entry to the employer’s premises. He claimed that he said, "You're a dead motherf*cker, I'm gonna get you." The employee was already on a final warning after the employer received an anonymous complaint that he was bullying younger employees, including the co-worker.

The co-worker reported the incident to a manager immediately and lodged a statement by email the next day. He also contacted the police and said that the dismissed employee believed that he was the one who made the previous anonymous complaint. The manager concluded that the co-worker showed “clear distress” about the incident and that the employer had sufficient evidence to dismiss the electrician. Therefore, the manager did not seek to involve the co-worker in the investigation, out of concern to protect his wellbeing and safety, and because he made it clear he did not wish to be involved. He was not asked to make a formal statement or attend any interview. The employer also claimed that it did not want to deter other employees from speaking up if they felt threatened or victimised.

The reasons given for dismissal were serious misconduct and breaches of the employer’s Code of Conduct and other policies.

The dismissed electrician denied making any threats and claimed before the FWC that his car window was closed because the air conditioning was on and he had just finished a phone call. The employer did not give him an opportunity to make that defence.

DECISION

The FWC found the electrician was unfairly dismissed and ordered his reinstatement. The employer had relied on hearsay evidence from the complainant that was not properly investigated and did not seek the dismissed employee’s version of events.

Reinstatement was awarded because the FWC found no evidence that the employee had threatened the co-worker, and therefore there was no valid reason for dismissing him.

WHAT THIS MEANS FOR EMPLOYERS

If one employee makes a complaint about another, you should require the complaint to be made formally and in writing. You then need to investigate carefully what actually happened, which includes allowing to alleged wrongdoer to present his/her version of events and respond to any allegations. Do not dismiss an employee without following those steps first.

READ THE JUDGMENT

Mojanovski v BlueScope Steel Limited [2024] FWC 1473 (5 July 2024)