The Company, Downer EDI Rail Pty Ltd, terminated the employee over an incident involving a rail car rolling 100 metres under its own momentum into a rail car workshop and crashed into another rail car cashing it to move approximate 14 metres. It was found that the incident could have had fatal consequences particularly in light of the fact that the rail car could have rolled into a public space in the middle of a city and, had the employee been performing his job properly, the incident would not have occurred.
The Company interviewed the employee three times after the incident and allowed him to provide a witness statement. Whilst the employee was given the opportunity to amend his witness statement, he was under the belief that the interviews were part of the investigation process rather than a disciplinary process. The AIRC found that the Company had not, throughout the three interviews, accused the employee personally of any misconduct. The AIRC found that the interview process had morphed into a disciplinary process without the knowledge of the employee, with evidence from the investigation being used to reach conclusions about the employee's conduct.
In addition, the AIRC concluded that while notice of the reasons for the termination were given to the employee, they were not valid because the employee had no concrete indiscretions for which he knew that the Company was finding him accountable for as the Company had not articulated the particulars of the employee’s breach of the Company’s policies and procedures.
The AIRC ordered that the Company pay to the employee three weeks salary in lieu of reinstatement.
HR Tip:
This case shows that employers must be careful when investigating matters and ensuring that both management and employees are aware of the distinction between the investigation process and the disciplinary process. Where an employee is alleged to have participated in misconduct the employee should be made aware of the allegations of the investigation.
Flawed investigation leads to monetary compensation for former employee - To learn more about this author, visit Jessica Lee's Website.
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Jessica Lee
(Visit Jessica's Website)
Jessica joined Australian Business Lawyers
in March 2004 and is a Senior Associate
with the firm. She regularly provides
advice and represents clients ina wide
range of employment and industrial law
matters including industrial disputes,
unfair contracts and unfair dismissals.
Jessica has also represented the interests
of various emplyoers in a number of
different tribunals and Courts.
Jessica’s achievements in discrimination
law were awarded with the NSW Bar
Association Prize for excellence in the
subject Anti-Discrimination Law after her
studies at University. Since then, Jessica
has provided advice to clients in relation
to discrimination matters and assisted in
preparing responses to the relevant
government bodies in the event that a
discrimination claim is made.
Jessica has conducted numerous independent
investigations into complaints of
bullying, harassment and sexual harassment
and provides assistance to employers that
are conducting investigations into
workplace grievances and complaints.
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