Australia: Failure to adequately investigate workplace fight renders dismissal unfair

Last Updated: 10 October 2013
Article by Paul Hardman and Ben Keenan

Most Read Contributor in Australia, September 2016

Employers of all sizes must ensure they conduct a genuine investigation into allegations of serious misconduct before dismissing an employee, as demonstrated by a recent decision of the Fair Work Commission involving a fight in the workplace.

The facts

In Sheng He v Peacock Brothers & Wilson Lac v Peacock Brothers (2013) FWC 7541, 2 long-serving employees of a printing business were summarily dismissed for their involvement in an altercation with a supervisor earlier that day that had resulted in both men punching the supervisor in the head.

The Commission heard that the altercation was started by Mr He when he verbally abused his supervisor, Mr Petrucci, for the manner in which he had retrieved a roll of printing paper for Mr He. Both men then entered into a heated argument, during which Mr Petrucci repeatedly swore at Mr He, as well as pushing him. Mr He then punched Mr Petrucci in the head. Mr Lac joined the altercation at this point, also punching Mr Petrucci in the head, before he and Mr He were restrained by Mr Steenveld, another supervisor who witnessed the incident.

Mr Petrucci and Mr Steenveld then reported the incident to Ms Kaplan, Peacock's Joint Managing Director. After speaking with Peacock's Financial Controller, Ms Kaplan asked Mr He and Mr Lac to meet with her to discuss the incident. Mr Petrucci and Mr Steenveld were also present at both meetings.

During the meeting with Mr He, Ms Kaplan recounted the version of the incident told to her by Mr Petrucci and Mr Steenveld and asked Mr He for his response. When Mr He had very little to say, Ms Kaplan informed him that he was summarily dismissed for engaging in serious misconduct.

At the meeting with Mr Lac, Mr Lac demanded an opportunity to tell his account of the incident, which Ms Kaplan allowed him to do. He complained that Mr Petrucci had been verbally abusive towards he and Mr He and had swung a punch at Mr Lac. He also demanded that Ms Kaplan interview other witnesses to the incident before taking any disciplinary action against him. Notwithstanding these complaints, Ms Kaplan concluded the meeting by summarily dismissing Mr Lac for engaging in serious misconduct.

The decision

The Commission found as follows in respect of the dismissal of Mr He and Mr Luc:

  1. There was a valid reason for the dismissals, being the physical assault of Mr Petrucci, which was not an act of self defence, or a reasonable reaction to Mr Petrucci's conduct;
  2. Neither employee was provided with a meaningful opportunity to respond to the allegations against them;
  3. The responses provided by Mr He and Mr Lac were not taken into account by Ms Kaplan before making the decision to summarily dismiss them;
  4. Ms Kaplan failed to take into account that both employees had difficulties with the English language, both of whom were of Vietnamese decent and required the assistance of an interpreter to give evidence at the hearing; and
  5. Although Peacock employed a total of 97 staff at the time of the dismissal, Ms Kaplan had no human resources training and limited experience at managing such workplace issues.

As a result of the significant failings in the investigation process, the Commission ruled that the dismissals were unjust, unreasonable and therefore unfair. Accepting that reinstatement was inappropriate in this case, the Commission awarded each employee 2 weeks' wages, based on the probable period of further employment Mr He and Mr Lac would have enjoyed, had an adequate investigation been conducted by Peacock.

Lessons for employers

The manner in which Peacock conducted its investigation into the incident is a cautionary example to employers of all sizes when dealing with allegations of misconduct in the workplace.

When conducting a workplace investigation, employers should:

  1. Obtain written statements from all parties involved;
  2. Allow the employee/s against which allegations have been made an opportunity to respond in some detail;
  3. Do not allow the employee/s who have made a complaint to be present when interviewing the employee/s against whom the complaint is made;
  4. Interview any witnesses to the incident;
  5. Offer the assistance of an interpreter to employees with language difficulties; and
  6. Consider all evidence gathered before deciding on the appropriate disciplinary action to implement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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