Investigating employee misconduct? This unfair dismissal case explains what you shouldn’t do

Small businesses have once again been warned to make sure investigations leading to a termination of employment are conducted immediately after the transgression occurs, and by an objective party – or risk exposing themselves to an unfair dismissal case.

The warning comes after the Fair Work Commission ruled a Victorian school bus driver was unfairly dismissed not only because the report investigating an altercation with a student was flawed, but that the incident itself wasn’t serious enough to warrant dismissal.

The problem is common among unfair dismissal cases. Many are successful not because the company has necessarily made the wrong decision in terminating an employee, but that the investigation or procedure leading up to the firing was not sufficient.

Legal and industrial relations expert Peter Vitale told SmartCompany this morning there is no set amount of rules which need to be followed when conducting an internal investigation – it just needs to be fair.

“You must ensure the investigation has been objective,” he says. “That it has looked at the relevant evidence, and that it hasn’t taken anything irrelevant into consideration.

“The employee must also be afforded the opportunity to take part and answer the allegations.”

The case concerns Andrea Greenland, who was employed as a school bus driver for Bacchus Marsh Coaches since 2006. Earlier this year, she had an altercation with a student, who then reported the incident to her parents.

But the subsequent investigation conducted by the school was flawed. The Fair Work Commission pointed out the deputy principal was “not present at any significant event”, and relied on information from students for his evidence.

This information was provided in separate sets of meetings “some months apart”.

The FWC said the investigation method conducted by the school was “seriously flawed”.

“It allowed a group narrative of the complaints to be developed over several meetings, held at two sets of time some months apart. The meetings had the potential, at the least, to be tainted by social norms within the group.

“Even after making allowances for what might be a desire on the part of the school or parents to keep students away from the intrusive nature of a formal investigation or giving evidence to the Commission, there was no means by which the Applicant could either have known in detail of what was said about her, or through which she could test what was said.”

The FWC found that not only was the dismissal out of proportion with the incident, but that the report was flawed. When Greenland was terminated, the school provided her with a letter saying she was being fired based on “new information”, but there wasn’t any evidence this information was given to her.

The case is yet another substantial warning businesses must conduct objective investigations, and put accusations to the employee in question before deciding on termination.

Vitale says giving the employee an opportunity to respond is key, but more importantly, investigations need to occur immediately after the incident in question.

“It may get to a stage where an employee might be led to believe they’re secure in their employment,” he says. “It depends on the seriousness of the conduct as well.

“If the concern about performance is allowed to stale because of an extensive and excessively lengthy investigation, the tribunal might say the fact employment has been allowed to continue is indicative of the fact the incident was not that serious to the employer.”