Case Study: Why contradictory evidence is important in a workplace investigation

Jodie Fox
March 27, 2019
Jodie Fox

When conducting a workplace investigation, there is often pressure on an investigator to move quickly from allegation to findings. Some of these factors are entirely appropriate: a well-run, timely investigation without unexplained delays is key to minimising any potential harmful impacts on the participants in the investigation and the organisation as a whole.

Sometimes though, an investigator is facing pressure from a manager who has ‘had enough’ of an employee’s behaviour and wants a basis to discipline them or terminate their employment. The manager may consider that there is ample evidence against the employee and that all they need is to have the facts laid out and someone to write up a termination letter. This is dangerous ground for investigators!

A well run investigation that produces robust and defensible findings is one based on procedural fairness. Briefly, there are two main arms to procedural fairness:

  1. The No Bias Rule: the investigator must not be biased or be perceived as biased in the investigation; and
  2. The Fair Hearing Rule: the respondent must be told about the case against them and given an opportunity to respond to the allegations and to any contradictory evidence.

In a recent decision of the Fair Work Commission, Deputy President Anderson was particularly scathing of a decision to terminate an employee’s employment based on an investigation which failed to follow these two foundations of procedural fairness. In that decision he said:

“The proper role of a human resources department is to sit between impulsive managers baying for dismissal and the obligation of an employer to ensure procedural fairness. This role was cast aside.”

The case: Andrew McCouiag v Colliers International

The facts in Andrew McCouaig v Colliers International (SA) Pty Ltd T/A Colliers International [2019] FWC 1517 (8 March 2019) turned on a (literal) dumpster fire at one of the properties managed by Colliers. The fire was put out by the South Australian Metropolitan Fire Service (SAMFS).

The following day Mr McCouaig’s direct manager was concerned that Colliers had been informed of a critical incident by a tenant and that the property manager Mr McCouaig had not performed his role by communicating about the fire. Mr McCouaig was already on a second written warning in relation to issues of lack of communication, among other matters. He was scheduled to attend a performance management meeting on these issues for the following week.

Mr McCouaig’s direct manager contacted the SAMFS who informed him that the log indicated that the incident report about the dumpster fire showed that Mr McCouaig was informed on the evening of the fire. The direct manager spoke to HR and his two senior managers about his concerns about Mr McCouaig’s failure to follow communication protocol and it was agreed between them that a disciplinary meeting would be scheduled without delay.

The meeting was scheduled for the next day. Mr McCouaig was on leave and did not find out about the meeting until one hour before hand. He declined to go to the meeting on the basis that he had not had enough time to bring a support person along and that he had a performance meeting scheduled for the following week.

Colliers continued the disciplinary meeting which was attended by three of Mr McCouaig’s senior managers (including the State Manager as decision maker) and the HR manager. Several calls were made to Mr McCouaig requesting his attendance, which he refused. Mr McCouaig became agitated by this course of events and advised that he was unwell and was going home on stress leave.

The disciplinary meeting continued without him and the senior managers and HR manager recommended to the State Manager that Colliers terminate Mr McCouaig’s employment. At the end of the meeting the State Manager terminated the employment over voicemail.

Failure to allow an opportunity to respond to contradictory evidence

Critically, Colliers had not given Mr McCouaig an opportunity to respond to the evidence from the SAMFS that they had contacted him on the night of the fire.

Mr McCouaig denied that this had happened and an examination of his telephone records showed that no calls were made to his number at the relevant time. He tendered unchallenged evidence from the tenant that he had received a phone call from SAMFS on the night of the fire.

DP Anderson, considering all the facts, found that Mr McCouaig, was not informed about the fire by either the tenant or by SAMFS on the evening of the fire. DP Anderson considered that the most likely explanation for these events was that the SAMFS had called the tenant (who was also Chief Fire Warden) and informed him of the fire and then incorrectly logged the call as going to the property manager.

This failure to allow the respondent to respond to this seemingly incontrovertible contradictory evidence from SAMFS against him was fatal to procedure to terminate Mr McCouaig’s employment. DP Anderson considered that there was not a valid reason for termination.

He considered that it was not reasonable for Mr McCouaig to be called into a disciplinary meeting with one hour’s notice and he did not consider that the discussion of the facts of the dumpster fire or the decision made by the Human Resources Manager or by the three senior managers were at all procedurally fair. He said:

“The meeting went ahead and a decision to dismiss was made without the employer ever informing [Mr McCouaig] of the specific allegations against him, without the employer knowing [Mr McCouaig’s] version of events and without the employer producing to the manager the supposed evidence on which it had made a wrongly formed assumption. [The HR Manager] recommended dismissal for alleged failure of duty without having ever spoken to Mr McCouaig about the fire incident. Her evidence that from 6 August there were “no matters I needed clarification” was prejudgment and patently unreasonable.”

The dismissal of Mr McCouaig was found to be unfair and significant compensation was awarded.

Lessons for employees

This decision highlights the importance of holding firm to a commitment to objectivity and providing procedural fairness when conducting an investigation.

In particular, a respondent must be given the opportunity to respond to the evidence against them, even if it seems that there is no other possible explanation for the evidence.

Operations managers may be convinced of the evidence against an employee and impatient with what they may see as ‘unnecessary delay’ as an investigator proceeds methodically through a procedurally fair investigation. Internal human resources, with close business relationships with operations, are subject to even greater pressure from this direction.

Although the task can be difficult, the investigator (whether they are internal or external to the organisation) needs to bring the business back to the idea that an investigation exists to offer procedural fairness to all participants, to get an accurate understanding of the facts and to provide a sound and defensible basis for decision making.

About Jodie Fox

Jodie Fox brings to Worklogic a wealth of experience gained working with clients from a diverse range of industries. Previously working as an employment lawyer at a top-tier law firm for almost 10 years, Jodie worked closely with a host of large and small clients.

Worklogic works with employers to resolve workplace complaints and create a positive culture at work. Please contact Jodie for an obligation free consultation via email or call (03) 9981 6558.

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