The Fair Work Commission found an employee's termination for allegedly sleeping on the job unfair due to deficiencies in the workplace investigation.

Although this case is publicly available on the Fair Work Commission (FWC) website, I prefer to protect the privacy of those involved as much as possible, so the participants are referred to as “the Employee” and “the Employer.” In this case, the Employee was involved in conducting inspections at a work site.  The Employee, was alleged to have been uncontactable by radio and asleep at work on two consecutive nights.

On the first occasion, the Employee maintained that he was conducting inspections, during which he parked to fill out a report and inadvertently had his radio on the wrong channel. Witnesses, however, testified to observing the Employee asleep or reclined in his vehicle during work hours.

On the second occasion, the Employee was allegedly found asleep in a room. While a witness claimed to have found him in this state and prompted him back to work, the Employee stated he was merely resting his eyes and promptly resumed work when requested.

The procedural flaws in the investigation into the Employee's dismissal were central to the Fair Work Commission's (FWC) determination of unfair dismissal. Here's a quick look at the criticisms of the investigation:

Lack of Notification and Opportunity to Respond: The FWC noted that the Employee was not provided with written details of the allegations against him before a decision was made. This deprived him of the opportunity to provide a substantive response to the accusations. Furthermore, the decision to substantiate the allegations was made before the Employee could respond adequately.

Failure to Interview Relevant Witnesses: The investigation conducted by the Employer failed to interview key witnesses.  Instead, written evidence from these individuals was sought and received indirectly through the employee’s supervisor, who was himself a witness. This method of evidence collection raised questions about the thoroughness and impartiality of the investigation.

Delay in Evidence Collection: Despite receiving an incident report from the Employee’s supervisor which prompted concerns about the Employee's conduct, the Employer did not retrieve crucial dashcam footage until it was too late. The delay in obtaining this evidence could have provided conclusive proof regarding the allegations against the Employee.

Inadequate Support and Communication: The Employee was not provided with advance notice of the purpose of certain meetings related to the investigation. Additionally, there were discrepancies in communication regarding the availability of a support person during these meetings. These factors contributed to a lack of transparency and fairness in the process.

Unresolved Questions: The FWC highlighted unresolved questions, such as the impact of a fire on site in August 2023, which could have affected the investigation's timeline and findings. Failure to address such pertinent issues further undermined the integrity of the investigation.

In summary, the procedural flaws in the investigation, including insufficient notification, failure to interview witnesses, delays in evidence collection, and inadequate support and communication, collectively raised doubts about the fairness and thoroughness of the process. These shortcomings played a significant role in the FWC's determination that the employee’s dismissal was unjust and unfair.

This case highlights the importance of having an experienced investigator (internal or external) conduct any investigation of allegations that may result in a termination.

I have been conducting workplace investigations for seventeen years. If you or your organisation needs help with an investigation, please do not hesitate to contact me.