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Flawed investigation leads to monetary compensation for former employee

Flawed investigation leads to monetary compensation for former employee
Free Download - Duty of care includes protecting employees from violence outside of work By Jessica Lee
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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.





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employee investigation process About The Author
employee investigation process

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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