ARTICLE
25 September 2024

Protecting the complainant v proving the case: A difficult balance

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Swaab

Contributor

Swaab, established in 1981 in Sydney, Australia, is a law firm that focuses on solving problems and maximizing opportunities for various clients, including entrepreneurs, family businesses, corporations, and high-net-worth individuals. The firm's core values include commitment, integrity, excellence, generosity of spirit, unity, and innovation. Swaab's lawyers have diverse expertise and prioritize building long-term client relationships based on service and empathy.
Discusses recent unfair dismissal case.
Australia Employment and HR

In recent years employers have placed greater importance on the protection of employees who raise allegations of misconduct or wrongdoing. This has been reflected in a range of ways including policies and protocols for dealing with whistleblower disclosures, prohibitions against victimisation or adverse action, the adoption of a trauma-informed approach to workplace complaints and investigations and actively addressing risks from psychosocial hazards. These changes have been driven by both legislative and cultural imperatives.

The recent Fair Work Commission (FWC) decision of Deputy President Cross in Mr Zoran Mojanovski v BlueScope Steel Limited [2024] FWC 1473 (5 July 2024) highlights a difficult balance for employers in unfair dismissal proceedings between protecting a complainant and being in a position to lead the necessary evidence to support submissions that a dismissal arising from the allegations made by a complainant was not unfair.

Background to the Proceedings

Mr Mojanovski (the Applicant) was alleged to have threatened physical violence towards another employee (the Complainant) by yelling out a car window towards the Complainant words to the effect of "You're a dead mother****er. I'm gonna get you" as he drove past the Applicant.

The employment of the Applicant was terminated by letter dated 21 February 2024 (Termination Letter), the following extract of which is set out in the judgment:

"Dear Zoran,

This letter is to advise you of the termination of your employment with BlueScope's ASP Manufacturing business from today, 21 February 2024. This termination is due to your threat of physical violence towards another employee, when you yelled out the car window to him words to the effect of, "You're a dead mother***er. I'm gonna get you." This was a serious breach of our Code of Conduct (How We Work) and Bullying, Discrimination, Harassment and Sexual Harassment Guideline.

The Company has considered all of the information available, including the responses you have provided to the Company on this matter.

The Company considers the substantiated conduct constitutes serious misconduct, and as such, the Company does not consider that you are entitled to the payment of notice. However, the Company will pay you 5 weeks ordinary pay in recognition of your long standing employment with the Company."

The Termination Letter was issued after an investigation by the employer. The preliminary findings of that investigation were (as set out in paragraph 37 of the judgment):

"(a) [The Applicant] did yell out the car window words to the effect of, "You're a dead motherfucker. I'm gonna get you" (sic) to [the Complainant] on 16 January 2024;

(b) This was a threat of physical violence;

(c) It appears to have been an attempt to victimise another employee due to [The Applicant's] belief that [the Complainant] had made previous allegations against him;

(d) The conduct constituted a breach of BlueScope's Code of Conduct (How We Work) (Code of Conduct) and Bullying, Discrimination, Harassment and Sexual Harassment Guideline (Guidelines)."

On the basis of the preliminary findings of the investigation, the employer sent the Applicant a show cause letter, the response to which from the CEPU (the union representing the Applicant) included the following criticism:

"It is also entirely unclear what if anything BlueScope has done to interrogate the factual allegation, including its credibility and/or consistency with other evidence. BlueScope's opacity in this respect does not inspire confidence in any of its factual findings."

Unfair Dismissal Proceedings: The Task of the FWC

The Applicant commenced unfair dismissal proceedings in the FWC.

The role of the FWC in unfair dismissal proceedings is not confined to merely reviewing or critiquing an investigation conducted by the employer. The FWC will receive and consider evidence (including evidence not originally before an investigation) and, on the basis of the evidence before it, make its own findings of fact.

In this regard, at paragraph 66 of the judgment it is noted that:

"In Department of Social Security v Uink, a Full Bench of the Australian Industrial Relations Commission found:

The Commission is bound to consider whether, on the evidence in the proceedings before it, the termination was 'harsh, unjust or unreasonable' provided that the evidence concerns circumstances in existence when the decision to terminate the employment was made.

....

Findings made by an inquiry established by the employer will be relevant to the Commission's determination of the issues before it provided it is established that:

- the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances;

- the employer gave the employee every reasonable opportunity to respond to allegations; and

- the findings were based upon reasonable grounds." (Emphasis added)

At paragraph 67 of the judgment it is further noted:

"In Rode v Burwood Mitsubishi, another Full Bench of the Australian Industrial Relations Commission held:

We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason. " (Emphasis added)

These decisions of the Australian Industrial Relations Commission (the predecessor to the FWC), cited with approval in the judgment, illuminate the nature of task the FWC embarks upon in unfair dismissal matters.

In practice, this will almost always require an employer to call witnesses to provide evidence supporting a conclusion that the reason for termination was valid, particularly in cases of termination on the basis of serious misconduct.

The Complainant as Witness

In this case the employer made a decision not to call the Complainant as a witness. The rationale for this decision is explained in the second statement of the investigator filed in the FWC proceedings, the relevant part of which is extracted in paragraph 44 of the judgment:

"...In consultation with others, Bluescope chose to respect [the Complainant's] wishes by not calling him as a witness. In my discussions with People and Culture at Bluescope, the reasons we decided to respect this position is:

(a) As part of its Speak Up culture, Bluescope encourages employees to come forward with complaints about inappropriate and unsafe workplace behaviour and in doing so, Bluescope represents to employees that they will be safe when they do so and will be protected from victimisation. As an employer, we are concerned that in light of this, if we then require employees to give evidence at hearings which arise because of a decision made by Bluescope, it will undermine this supportive process and act as a deterrent to speaking up, not just for that employee but for others; and

(b) [the Complainant] came across to me at all times as being particularly vulnerable, scared and distressed about the situation and his interactions with [the Applicant].

We did not consider it appropriate to risk his psychological well being any further by requiring him to give evidence."

This statement went on to say that the Complainant later affirmed his unwillingness to give evidence in the FWC proceedings to the investigator.

While the decision to protect the Complainant was seemingly made with laudable intentions, it did mean, as observed by Deputy President Cross at paragraph 41:

"The Applicant was the only witness before the Commission who could assist regarding what did, or did not, occur on 16 January 2024."

The FWC and Evidence

The FWC is not strictly bound by the rules of evidence and, as a tribunal, will sometimes adopt a more liberal approach when it comes to admission and consideration of evidence than a court. Deputy President Cross noted, however, that the hearsay rule in this case had an important role to play, linking it to the cornerstone FWC principle of fairness (at paragraph 49):

"While it is correct to observe that the Commission is not bound by the rules of evidence and procedure, the Commission 'may inform itself in relation to any matter before it in such manner as it considers appropriate'. Further, s.577(a) provides that the Commission must perform its functions and exercise its powers in a manner that 'is fair and just'. The hearsay rule is fundamentally concerned with issues of fairness, and the Commission will give consideration to its application in an appropriate case. In this matter, it was abundantly unfair for the complaint made to be advanced as hearsay evidence without affording the Applicant an opportunity to test its veracity."

In applying the hearsay rule, and considering its exceptions, specifically when a witness is not available for the purpose of the rule, Deputy President Cross noted (at paragraph 47):

"The Complainant was clearly not unavailable. He simply chose not to be involved and the Respondent chose not to seek to compel the Complainant to give evidence, citing a claimed duty of care to the Complainant. Each contact by Ms Tully was by telephone and no medical certification was sought."

The consequences of this were set out by Deputy President Cross at paragraph 48 (setting out an earlier ruling in the proceedings on transcript):

" ...One of the overriding principles of unfair dismissals is a fair go all 'round to all participants and it would be a complete abrogation of that obligation to allow a respondent to rely on a complaint and not call the complainant when the complainant is clearly available and so, in relation to the objection to paragraph 17, I would uphold it.

I note that it remains as Ms Tully's evidence as to what she was told but it cannot be admitted as to the truth of what it is said [the Complainant] complains about. For completeness, I would note that that would also apply to the document that is KT2 (the note of the 16 January 2024 conversation) in so far as that document is relied on to establish the truth of the complaint. ..."

As such, the account of events given by the Complainant to the investigator could not be admitted into evidence before the FWC. Such evidence would be hearsay evidence and, as the Complainant was not "unavailable" (as that term is defined in the Evidence Act), it did not fall into that exception (or any other exception) to the hearsay rule as applied by Deputy President Cross.

The Findings

Deputy President Cross held at paragraph 68:

"While it is trite to observe that were the alleged threat to have been made, there is no doubt it would constitute a serious breach of the Code of Conduct and Bullying, Discrimination, Harassment and Sexual Harassment Guideline, there was a complete absence of evidence before me to substantiate that any threat was made." (Emphasis added)

At paragraph 69 Deputy President Cross held there was no valid reason for termination:

"I have found the Applicant to be consistent, considered and compelling in his denial of the allegations. In accepting the Applicant's evidence I consequently find that there was no threat of physical violence towards another employee, and so no valid reason for dismissal."

The circumstantial evidence advanced by the employer in support of the submission that there was a valid reason was considered and rejected by Deputy President Cross.

The dismissal was found to be unfair with the FWC making orders for reinstatement of the Applicant and an order for lost pay.

Observations

This decision throws into stark relief the potential tension between the protection of a complainant and the evidence likely needed to be adduced by an employer before the FWC to substantiate the allegations made by that complainant and establish a valid reason for dismissing the alleged perpetrator.

While it is important to protect complainants, it is also necessary to consider the grave consequences to employees against whom allegations are made if those allegations are found to be substantiated. In this instance, the Applicant lost his job after 31 years' service. An appropriately high evidentiary bar needs to be set. In this regard, Deputy President Cross approached the hearsay rule not as a technical legal requirement but rather an instrument for facilitating fairness — a bulwark against a possible injustice arising from allegations or claims that are not fully or properly tested.

Speaking generally, whilst complainants may be entitled to anonymity and should receive protection from victimisation, adverse treatment or physical or mental harm, if they are not prepared to give evidence in a court or tribunal (such as the FWC) then there may be limits to the extent to which the allegations they raise can ultimately be relied upon to justify the dismissal of the alleged perpetrator. Balancing the desire to protect complainants with the need to substantiate allegations may place even the most well-intentioned and sophisticated employer on the horns of a dilemma.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

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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