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Workplace Investigation

A recent matter dealt with by the FWC in June sends a clear reminder of the need to be fair, transparent and consistent with policy and procedures when undertaking workplace investigations – whether conducted internally or when contracted out to an external provider.

A multinational company bungled what could otherwise have been a fairly straightforward dismissal of a detention officer who slept on the job, the FWC finding that "blindsiding" her with photographic evidence at the second of two meetings denied the otherwise exemplary employee procedural fairness.

Serco Australia Pty Ltd in November last year dismissed the immigration detention officer for serious misconduct, a key element of which was her supposed "dishonesty" in telling an operations manager at the first disciplinary meeting that she only nodded off during the night shift when mobile phone images taken by a colleague suggested otherwise.

In criticising Serco for only showing the detention officer the photographs at the second, more formal disciplinary meeting, Deputy President Ingrid Asbury observed that the casual employee of more than six years had also been caught off guard when told the source of the complaint was her colleague and not, as initially informed, a nurse at the hospital where she worked that night.

"Had Serco dealt appropriately and fairly with [the detention officer] in relation to the investigation and disciplinary process, the outcome may have been the same and Serco may have been entitled to dismiss [her] on the basis of her conduct and dishonesty in the investigation," the deputy president said.

Instead, Serco did not have a reasonable basis for asserting dishonesty when it could not produce a report from the first meeting showing the detention officer denied the allegations and failed to apologise for her conduct, said Deputy President Asbury.

"[The detention officer] was blindsided at [the second] meeting by the manner in which Serco dealt with the allegations [of sleeping on shift and using an iPad].

"[The detention officer's] uncontested evidence, which I accept, is that [the operation manager] told her that a nurse had reported that [she] was sleeping on shift.

"This was not correct. [She] had been reported by her colleague.

"Further, Serco had photographic evidence of [the detention officer] sleeping during her shift at the time that [the operation manager] held the discussion with [her].

"Regardless of what [the operation manager] told [the detention officer] at the meeting. . . it is clear that the photographs were not shown to [her] . . . and she was not informed of their existence.

"This was procedurally unfair."

More than fact-finding exercise

Serco's procedures further failed when it came to notifying the detention officer of the reasons for her dismissal, said the deputy president.

The notes of the second meeting, said Deputy President Asbury, showed that the detention officer wasn't given an opportunity to respond to any allegation of dishonesty arising from supposed inconsistencies in her responses between the two meetings.

"The [first] meeting. . . was said to be a fact finding exercise at which findings of misconduct would not be made.

"There is no evidence that [the detention officer] was informed that her comments at that meeting could be used as a basis for a later finding of dishonesty.

"[Serco's HR manager's] evidence establishes that the [first] meeting. . . was more than a simple fact finding exercise.

"In those circumstances any alleged discrepancies between what [the detention officer] told [the operations manager] and what she said at the [second] meeting. . . should have been put to her so that she had an opportunity to respond."

The deputy president noted that Serco submitted it had afforded the detention officer "ample" procedural fairness.

Nevertheless, while she accepted that the "potential repercussions of a [detention officer] sleeping while on shift. . . are extremely serious" and that denying it "will generally be a valid reason for dismissal", the deputy president said "the manner in which Serco conducted the investigation and the dismissal denied [the detention officer] an opportunity to properly respond to the allegations and to defend herself".

"The process followed by Serco also adversely impacted on [her] ability to put any mitigating factors to the company.

"Accordingly, [her] dismissal was also unreasonable because it was decided on the basis of inferences that could not reasonably have been drawn from the material before the employer."

Determining reinstatement inappropriate, Deputy President Asbury awarded compensation of $6758.

Jacqueline Waite v Serco Australia Pty Ltd T/A Serco Australia Pty Ltd [2018] FWC 3113 (1 June 2018)


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