In this edition of Investigations Insight, Worklogic Director and Co-Founder, Grevis Beard explores a recent Fair Work Commission (FWC) unfair dismissal case and outlines four key steps employers should follow to minimise the risk of an investigation being challenged as unfairly conducted.
Frank Natoli v Envision Employment Services 2018 [FWC 4034 – 6 July 2018]
In this case, Mr Natoli was dismissed by Envision, his employer, following substantiation by the employer of five allegations that had been made in relation to Mr Natoli’s conduct. The dismissal followed an initial, informal investigation by the Director of Envision, Mr Teer and then the commencement and conclusion of an independent investigation by Mr Raines, an external investigator.
In the ensuing unfair dismissal proceedings brought by Mr Natoli, the Commission needed to consider whether there were grounds for his dismissal, and, regardless of that, whether the investigation process (by Mr Teer, and then Mr Raines) had been conducted in a procedurally fair way.
There were five allegations in total:
- The first allegation was that, on 22 June 2017 and 27 June 2017, Mr Natoli had interactions with a client which Envision described as harassment: asking her out for lunch, and insisting she drink his “proper coffee”, and that he was sitting too close to the client.
- The second allegation concerned Mr Natoli, on 27 June 2017 and 29 June 2017, calling the female employees in the sewing room “witches” (27 June 2017) and calling “one of the women in the sewing room a witch” (29 June 2017). Furthermore, it was alleged that, on 29 June 2017, after a complaint about this was made to a supervisor, Mr Collins, Mr Natoli had “stormed into the sewing room and confronted the employees” and “made an offensive gesture towards the women”.
- The third allegation was that Mr Natoli had intimidated one of the employees who had raised concerns about his behaviour, and, when Mr Collins attempted to challenge him, a violent argument had ensued. Another supervisor had then removed both Mr Natoli and Mr Collins to the tearoom.
- It was also alleged, as allegation four, that Mr Natoli had challenged Mr Collins and suggested to Mr Collins that they both step outside.
- The final and fifth allegation was that Mr Natoli had refused to apologise for any offense or distress he had caused the employees. Envision alleged that Mr Natoli’s follow-up actions towards the employees demonstrated a lack of empathy and understanding of the work Envision did.
The internal investigation
Although there were five allegations, not all of these (or all aspects of these allegations) were put by Mr Teer, the internal investigator, to Mr Natoli. During a walk/talk on 10 July 2017, Mr Teer had only put some aspects of the allegations to Mr Natoli for a verbal response.
These allegations were one aspect of the bullying and harassment of a client (part of Allegation 1 above, that is, inviting the client out to lunch), the potential violence towards another staff member, Mr Collins (Allegation 4 above), and, the subsequent statements they had received from other staff that Mr Natoli had called one of the women a witch on 27 June 2017 (part of Allegation 2). Based on Mr Natoli’s response, Mr Teer informed Mr Natoli that the allegations would be further investigated.
The external investigation
Subsequently, an external investigator was appointed, who set out, in essence, aspects of the five allegations in a letter for Mr Natali to respond to. This external investigation commenced on 12 July 2017, and Mr Natoli failed to respond to the allegations. Mr Napoli was given two opportunities to meet the investigator, but did not do so. The employer appears to have taken the view, when the further request from Mr Natoli was received to delay the meeting to the following day, that the investigation process could have dragged on for ever. That had then prompted the decision to dismiss Mr Natoli.
The Fair Work Commission findings
In relation to whether the investigation was therefore conducted in a procedurally fair way, the Commission noted, that, on the face of it, Mr Natoli was dismissed before he had an opportunity to respond to the letter of allegations he was sent.
The Commission found that whilst some of the allegations, as noted above, had been put to Mr Natoli, and that he had responded verbally at the time, others had not been. In particular, it would seem that Mr Natoli was not given an opportunity by Mr Teer to respond to “proper coffee” (part of Allegation 1) and the “sitting too close” allegation (another part of allegation 1), nor the allegation that he had stormed in and out of the sewing room and made the two finger gesture (part of Allegation 2). From a procedural fairness perspective, the Commission stated that it was a serious failure that Mr Natoli was not given an opportunity to respond to the “proper coffee” allegation and the two finger gesture allegation.
In addition, the Commission had concerns about the description of the allegations as set out in the letter provided to Mr Natoli on 19 July 2017 as part of the independent investigation. The allegations in this letter were not all clear statements of alleged facts (for example, Allegation 2) and some lack specificity in terms of dates (for example, Allegation 3).
The Commission also noted that the headings for each of the allegations (such as “Allegation 2: Bullying”) seemed to suggest a conclusion, when the purpose of setting out allegations is to get a response to alleged factual occurrences. Such a conclusion that the substantiated facts amounted to bullying needs to occur only after a response has been received from the employee and such a characterisation should only form part of the conclusion reached by the employer, once a decision about the facts has been made. The Commission suggested that the very fact that this language was used when setting out the allegations could lead to a conclusion that the process was biased against Mr Natoli.
Taking all of this into account, the Commission found that there were serious flaws in the disciplinary process used by the employer. These included Mr Natoli not being given an opportunity to respond to at least two allegations which were later relied on for the dismissal. Specifically, there were some allegations or aspects of allegations which were not discussed with Mr Natoli either prior to him being stood down and/or as a result of the decision by the employer not to agree to reschedule the formal response meeting for a third time.
A decision was made instead by the employer on the basis of the material currently before it, which only considered the initial verbal response by Mr Natoli to Mr Teer, made prior to the external investigation commencing.
On fine balance, the Commission found that Mr Natoli’s dismissal was not harsh, unjust or unreasonable. This was because there was a valid reason for the dismissal based on Mr Natoli’s conduct in the workplace: Mr Natoli exhibited highly inappropriate behaviour towards vulnerable and disadvantaged female participants together, with the verbal altercation with Mr Collins. That altercation included Mr Natoli physically threatening Mr Collins by punching his fist into his palm and feinting towards Mr Collins whilst asking him if he wanted to go out(side).
On the other hand, there were procedural flaws in the process followed by the employer that resulted in Mr Natoli’s dismissal. These included Mr Natoli not having been given the opportunity to respond at any time to at least two of the alleged incidents, and, that some of the allegations, as set out in the letter of 19 July 2017, were unclear and lacking in detail. As well, the allegations were also described in emotional terms and not as objective alleged facts.
The lessons for employers
The above case illustrates four key steps which must be followed in order to minimise the risk that an investigation could be challenged as unfairly conducted:
4 Steps to Minimise the risk of an investigation being challenged as unfairly conducted
- Particularise all allegations before providing them to a respondent.
- Be clear about how and what the investigation process is, and when it will commence. Whilst it may have seemed a quick and informal way to commence the investigation, taking a respondent for a walk/talk in order to obtain a response verbally to allegations, by way of an initial triage, is not recommended. Conducting an external investigation from the outset may also avoid the complications later regarding what was said to whom in the investigation process by way of a response to allegations.
- Do not use any language which suggests a conclusion already reached in the allegations document (e.g. “bullying”). Use the term “allegation of alleged bullying”.
- Always weigh up the need for timeliness in an investigation against the provision of an opportunity to respond to allegations.
To learn more about how to conduct a fair and effective investigation, we recommend undertaking our instensive one day “Effective Investigations” training course, which includes a complimentary copy of our book “Workplace Investigations“.