Ten years ago (and yes, where did that decade go!), it was noted 1  in dispatches that an employer does not need to conduct a “perfect” workplace investigation. Read out of context, this statement is somewhat alarming for anyone who takes pride in the rigour of their workplace investigations. The observation does not mean, however, that an investigation can be conducted willy-nilly, that is, without regard to the principles of procedural fairness.
If one might draw a comparison with the types and models of aeroplanes populating our skies – there are many variations in size and detail, but they are each designed to do basically the same thing. So it is with investigations; they may differ in terms of scope, issues arising, context and the timeliness of completion, but, they are all undertaken as a method to apply fair process to an alleged workplace injustice.
What is interesting to consider is what degree of procedural unfairness will result in a “flawed” investigation, and therefore, one whose findings cannot be relied on.
Ms M v ECEC Management Pty Ltd T/A Mooroolbark Child Care Centre  FWC 3169 (9 May 2019)
This recent case is an example of where an internal workplace investigation was undertaken and some procedural failings ensued.
The case involved an unfair dismissal application to the Fair Work Commission. In his decision, published on 9 May this year, Commissioner McKinnon needed to carefully examine and weigh up the procedural failings which occurred in that workplace investigation. He did so in order to determine whether the procedural failings which occurred would result in the consequent dismissal of an employee being “harsh, unjust or unreasonable”.
The relevant details of the case were as follows.
Ms M, the individual employee who was dismissed, had been employed as a Child Care Worker by ECEC Management Pty Ltd trading as Mooroolbark Child Care Centre (the Centre). On 23 November 2018, the Centre terminated her employment for serious misconduct following an altercation with another employee, Ms W.
On 26 November 2018, Ms M applied to the Commission for an unfair dismissal remedy. The Commission held that there was a valid reason for the dismissal relating to Ms M’s conduct.
Specifically, it was found that at approximately 3.45pm on 25 October 2018, at the Centre, Ms M had walked aggressively toward Ms W, and said “Well what, do you want to go me?” with her hands in the air, gesturing as if to fight. The apparent context was that this incident occurred in front of a parent and child at the Centre, and that another staff member, Ms F, had to intervene by standing between them whilst herself holding a child.
Ms W though, just prior to Ms M’s aggressive behaviour, had asked, angrily, words to the effect, as to when Ms M would be assisting other staff in another part of the Centre. Ms M’s evidence was that she felt Ms W had spoken rudely to her, and she needed to defend herself.
In summary, the Commissioner considered that Ms M’s response to Ms W was that she was challenging Ms W to a physical fight, and that this behaviour was serious misconduct and therefore a valid reason for termination: “It is entirely conceivable that without intervention, an assault may have occurred. The conduct occurred in the vicinity of a Centre parent and at least one child in care”.
In relation to the incident which was itself internally investigated at the time by the Centre, the evidence provided in the FWC hearing by Ms M included herself noting that she “became fuelled with anger” prior to then acting in the manner above. She also noted that her hands were clenched at that time. It was not found that there was any physical contact between the two staff members.
There had been a previous history of conflict and a “tense relationship” between Ms M and Ms W. The Centre Director, two days earlier, on 23 October 2018, had conducted a mediation. Interestingly, and as the Commissioner noted, it was to Ms M’s credit that she had requested this mediation. The outcome of the mediation was in fact an agreement to resolve issues directly in a professional manner and not listen to rumours or allow issues to escalate.
Whilst it was therefore described as “superficially…a success” by the Commissioner, “the reality was quite different” as, according to the Director, Ms M was angry during the mediation and was focused more on controlling her emotions than expressing her “true feelings“. It also appears that Ms W was herself relieved when the mediation was over and wanted to move on and put everything behind her. This was because she stated that she could feel Ms M’s tension during the meeting, and so chose to apologise for making Ms M feel upset or hurt by anything she had done rather than to aggravate the situation.
In essence, the mediation process, whilst arranged as a pro-active “circuit breaker” to the conflict did not enable the unresolved emotions between the two employees to be effectively resolved. As the Commissioner noted, such emotions “were easily triggered by a sharp exchange”, which “helps to explain, but does not excuse, Ms M’s decision to threaten violence toward another staff member”, which was the subject matter of the investigation.
By way of the broader context, the Commissioner noted that Ms M felt that Ms W was out to “get her”. Ms W lived nearby to the parents of Ms M’s former partner, with whom she had a history of domestic violence including court intervention orders. Ms M and Ms W had different (and it seems, strongly held) views about professional child care and safety standards. Their relationship at work was competitive and not friendly. Centre gossip fanned the flames of this tension from time to time and caused unnecessary misunderstandings between them. Ms W’s children were in care at the Centre, in the room where Ms M worked. This also caused tension between Ms M and Ms W and her husband and there had been a recent ‘nappy changing incident’.
The Commissioner noted that, after hearing about the alleged incident of threatened violence on 25 October, the Director advised that there would be an investigation. She advised Ms M that she was being investigated for making an apparent violent threat towards Ms W, and asked to write a detailed statement of the events so that her continued employment could be considered.
The investigation continued with Ms M complying with the request for a statement in a comprehensive way, and then formally interviewed, and a support person was allowed. Accordingly, the Commissioner considered that the investigation was “orthodox”.
At the same time, however, the Commissioner noted that there was no dedicated HR at the Centre, and that at the time of the dismissal, the business employed approximately 30 employees at its two child care centres. Given it was a relatively small business, the Commissioner noted that this was both likely to, and did, have an impact on the procedures followed in effecting the dismissal.
Specifically, the Commissioner noted that the investigation and disciplinary process was deficient in that it was not “a balanced one”:
“The focus of the investigation was primarily on Ms Ms conduct toward Ms W. Certainly that was a matter which warranted investigation, and the Centre took its obligations in this regard seriously. However, other matters that arose during the course of the investigation – that is, Ms W’s contributory conduct and the well-intentioned but unsafe conduct of Ms F in putting a child in harms’ way, do not appear to have been dealt with on an equal footing, as the conduct in each case was not considered serious enough to warrant a disciplinary response. Ms W was not warned for her part in the incident that resulted in Ms M’s dismissal.”
The Commissioner considered that this lack of balance, and hence fairness, in how Ms M was treated compared to Ms W and Ms F, needed to be weighed against the Centre’s size and related lack of dedicated human resources management or expertise.
Whilst the Centre noted that Ms M’s history of domestic violence and related mental health were matters that were taken into account by the Centre in reaching the conclusion that dismissal was warranted, as part of its duty of care to staff, the Commissioner noted that, “The premise of the submission is inherently problematic”. This is because it fails to recognise the necessary causal link which should exist between one’s prior history and present employment circumstances in order for that to be a relevant consideration relating to dismissal.
Even more relevantly for any procedurally fair investigation, there was no evidence by the Centre that it put Ms M on notice that this matter of the history of her mental health and domestic violence was considered relevant to the investigation of her conduct, and subsequent findings. Given that it did not give Ms M an opportunity to help put her past in context, or even to object to the matter being relied upon in connection with her dismissal, this resulted in a denial of procedural fairness to Ms M. It was not fair to consider this information without input from Ms M.
Overall, whilst having notified the procedural failings above in the conduct of the investigation, they were found not to mitigate the seriousness of Ms M’s conduct on 25 October, and noting to all of the relevant facts and circumstances above, “on balance”, Ms M’s dismissal was not harsh, unjust or unreasonable. Accordingly, the Commissioner find that Ms M was not unfairly dismissed.
Learnings from the case
The take home is clear. Depending on how serious the breach being examined, that is, a verbal threat of violence and where children are present being a serious occupation health and safety risk, it may be a significant factor to consider when noting that an investigation was not comprehensive in its scope, or relevant contradictory evidence not provided for comment to the respondent.
Interestingly, there is no comment on the internal mediator then investigating the matter. This again may be useful to consider where one individual manager is attempting to solely juggle and provide a comprehensive complaint resolution process.
An externally appointed investigator, generally speaking, can provide a fresh perspective to the subject matter and scope of an investigation. This is also the case with an externally appointed mediator, and in the above scenario, whilst noting too, that adage that hindsight is a wonderful thing, an external mediator would have brought an external perspective to the conflict and tense relationship between Ms M and Ms W.
Whilst not discussed, it is interesting to also reflect whether Ms M had ever requested an investigation of Ms W’s anger towards her on 25 October. If this has occurred, this may also have possibly influenced further whether there were mitigating circumstances. Rogers v Millennium Inorganic Chemicals Limited Anor  FMCA 1 (9 January 2009)