In this edition, we review a recent Fair Work Commission case where an organisation that dismissed an employee for breaching policy, didn’t follow their own policy when undertaking the investigation.

Emery vs City of Stirling

Mr Emery was terminated from City of Stirling for modifying the air conditioning unit on two
council vehicles. Mr Emery maintained that he had received approval to undertake these
works and that they were part of his job description. Mr Emery was then investigated (by
one of the key witnesses in the case) and terminated for misconduct. Mr Emery then filed
an unfair dismissal case.

In a rather ironic turn of events, the commissions found that the City of Stirling had not
followed its own policies in regard to the investigation. In particular, they had allowed the
manager “whose evidence was central to the issues in dispute, was not only permitted to be
present when [the employee] gave his evidence but in fact [he] was given carriage of the
entire investigation.

According to Associate Director Jason Clark, the investigator did not “forensically examine that evidence that was put to him, which gives the perception that there is a potential for bias.”

Furthermore when Mr Emery stated that it was the Manager (the one conducting the investigation) who gave him permission to undertake the car modifications, the manager simply denied this was the case and moved on.

More alarmingly, the investigator did not take any statements or records of any interviews
conducted, and didn’t even write a report. This was in clear violation of their own grievance
management policy.

The commission held that Mr Emery should be reinstated and that he should be back paid
since the date of termination. However the City of Stirling has filed to appeal the findings on
12 grounds which will be determined later in the year.

Lessons for employers

This is another case highlighting the importance of two main things; firstly, it is important
that all workplaces have a workplace investigations or grievance management policy in
place so they know what to do if (and when) a complaint is made against an employee.

Furthermore, it is even more imperative that these policies are actually followed in the
event of a complaint being made. As the deputy president stated, the employer displayed
considerable irony’ for dismissing an employee for breaching a policy, whilst also failing to
follow its own policy.

Worklogic will keep you up-to- date on the outcome of the appeal.

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