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Workplace investigations – How can they protect your business?

Caitlin Meers

06 May 2019

Topics

  • Business Law

When employees are accused of misconduct, employers are often required to conduct an investigation to determine if any misconduct has taken place and what penalty, if any, is appropriate. In this article, Caitlin Meers looks at a recent Fair Work Commission (‘Commission’) decision involving a former Qantas employee. The decision shows the importance of having clear policies for investigations and following the correct process.

The case

On 4 April 2019 the Commission handed down its decision on an unfair dismissal application brought by a former Qantas employee. Qantas had terminated the employee’s employment after she’d been found to have consumed alcohol while on duty.

Alleged misconduct

During a flight from Sydney to Johannesburg, the Qantas employee was on duty as a flight attendant. After a colleague raised concerns about her behaviour during the flight, the employee was breath tested. She returned a positive result for alcohol in her system.

The process

Immediately after the incident, the employee was returned to Sydney. She was instructed not to return to work while Qantas conducted an internal investigation.

During the investigation, the employee said that she’d consumed vodka that she’d bought from a duty-free shop at Sydney International Airport before boarding the plane. She said that she tipped the remaining vodka down the drain before disposing of the bottle.

After reviewing the records of the duty-free store, it became clear to Qantas that the reported purchase never happened.

Qantas provided the employee with those findings and advised her that it believed that the vodka she’d consumed had been taken from the stock held by Qantas on the plane while she was working. The employee denied this.

The employee was given an opportunity to respond in writing to show why she shouldn’t be dismissed. She admitted that she’d misled her employer about the origins of the alcohol but didn’t explain how she was able to access and consume the alcohol while on duty. During cross examination at the hearing the employee disclosed that she’d had an argument with her family the night before her flight to Johannesburg and was upset about that.

The decision

The Commission found that the dismissal was fair.

Employment history

When the incident occurred, the employee had been employed by Qantas for 31 years. Deputy President of the Commission, Geoff Bull, found that the misconduct was serious because of the significant safety requirements of flight attendants.

Deputy President Bull also noted that, because of her repeated dishonesty, Qantas had conducted an unnecessarily long investigation.

He said that if the employee had been honest when first confronted with the allegations, his decision as to whether the termination was fair or not might have been different as she’d otherwise had a ‘long and exemplary record of service…’.

Conducting a thorough investigation

In this case, Qantas followed a number of steps that were critical to its ultimate success at the Commission, including:

  1. notifying the employee that she would be stood down while an investigation took place
  2. reviewing independent sources of information
  3. providing the employee with numerous opportunities to provide the relevant facts relating to the offence
  4. providing the employee with an opportunity to ‘show cause’ in writing as to why she shouldn’t be dismissed and putting her on notice of the likely penalty
  5. notifying the employee of its findings after completing the investigation.

This decision shows that a thorough investigation may be the difference between the Commission finding in an employer’s favour and a finding in the employee’s favour. While investigations may present a cost for employers initially, it far outweighs the potential legal costs and/or damages that may be ordered by the Commission.

How can Snedden Hall & Gallop help?

It’s critical that employers or all sized businesses understand the importance of fair and thorough investigations. Having a clear investigation policy in place and ensuring that the correct procedure is followed can be the difference between a fair and an unfair dismissal of an employee.

We can assist employers to ensure that they conduct high-quality workplace investigations. We can also help employees who are participating in a workplace investigation. Please contact our Business Law team on 02 6285 8000 or by email.