Workplace investigations can take many forms and play an important role in employers’ complaint and disciplinary processes. In situations which could constitute a serious incident and could lead to dismissal, the importance of a proper and sufficient investigation process is heightened. Ensuring your workplace has sufficient investigation procedures can be the difference between the Fair Work Commission (the “FWC”) deciding a case in your favour or not.

Background

The FWC recently determined an unfair dismissal case which involved an employee dismissed following a forklift incident where the employee (as the driver) collided with a drum, resulting in significant damage including a gas line being cut and a fire door being sent flying.

The central issue to the dispute was the cause of the incident. The employee maintained at all times that the brakes were faulty, while the employer blamed the employee for accidentally pressing the accelerator instead of the brake.

In determination of the unfair dismissal claim, and whether the employer had a valid reason for dismissal, the FWC heard a significant amount evidence about the forklift and specifically it’s operating condition, service history, the possibility of the brakes malfunctioning and the steps the employer took in its investigation of the incident.

The employee argued the brakes were faulty due to the employer’s failure to appropriately service the forklift when required. This resulted in contamination of the brake fluid, leading to what is known as a “soft pedal” causing the brakes to malfunction and the reason for the incident. The employee referred to his 25 years’ experience as a forklift driver, and this being his first serious incident.

The employer sought to rely on their obligation to ensure the safety of their employees as a ground to establish a valid reason for the dismissal. The employer stated the forklift incident was inherently dangerous and accused the employee of being untruthful in saying the brakes failed.  The employer asserted this demonstrated untrustworthiness and warranted dismissal.

Findings

The FWC was satisfied that if the employer’s arguments were found to be true then it amounted to gross negligence on the part of the employee. For the purposes of dismissal, gross negligence causing serious or imminent risk to the health and safety of a person is serious misconduct and is something which would be a valid reason for dismissal.

For there to be a valid reason, the employer must establish that the conduct occurred and that it justified termination. After hearing the evidence, the FWC determined that the flaws in the employer’s investigation and the employee’s consistent and adamant account of the incident resulted in the FWC being unable to be satisfied on the balance of probabilities about which of the two theories were the actual cause of the incident. Because of this, the FWC was also unable to be satisfied that the employee had been untruthful.

Given the employer bears the onus of proving the misconduct, the employer had failed to prove either of the allegations against the employee and was unable to satisfy the FWC that there was a valid reason for dismissal.

With the employer lacking a valid reason, the FWC determined that the dismissal was harsh and unreasonable, ordering reinstatement, continuity of service and backpay to the employee.

The investigation’s flaws

While the investigation appeared to consist of a complete operational test of the forklift which concluded there was no malfunction, the employer’s case failed due to “serious deficiencies” in the process.

The FWC found that, among other things, the employer was immediately dismissive of the employee’s account. This led to the employee’s “soft pedal” theory never being explored within the investigation as a possible explanation for the incident. The employer never tested for possible brake fluid contamination as the cause for the incident and the forklift was put back to work later that night.

Expert evidence was led that, while unlikely, due to there being a considerable period between the incident and when testing occurred, there was a more than remote possibility that the employee’s theory could be what occurred.

While the FWC confirmed the employer was required to prove its allegations on the balance of the probabilities, given the allegation was that the employee had engaged in serious misconduct, the strength of evidence required to meet that standard was higher. Put more simply, the employer should have investigated the employee’s version of events more completely, to properly determine whether it was a possible cause of the incident, or not.

Important takeaways for employers

When dealing with a serious incident or any situation where termination of the employment is a potential outcome, it is important that a thorough investigation (including of the employee’s theory) takes place before reaching any conclusions or taking any significant disciplinary action.

As evidenced in the above case, consequences of making a hasty or pre-determined decision can ultimately lead to a dismissal being found to be unfair, and the FWC making an order to reinstate or compensate the employee.

Engaging an independent investigator is one way to ensure a more complete and neutral investigation occurs.  PCS provides both assistance to employers preparing for and undertaking internal investigations, and undertakes investigations where independence is necessary, or where internal resourcing and expertise makes an external investigation preferable.

Mr Pece Calovski v Opal Packaging Australia Pty Ltd [2024] FWC 1717 (3 July 2024)

Harri Deacon, Graduate Associate