In another unfair dismissal case, the importance of conducting prompt and thorough workplace investigations into workplace incidents has again been highlighted.
On 5 June 2011, a physical altercation occurred in the workplace car park between two employees of a stevedoring company (a clerk and a supervisor). The Company dismissed both employees for the incident, citing their “zero tolerance” policy to verbal and physical altercations in the workplace. Both employees filed unfair dismissal proceedings with Fair Work Australia, however the supervisor reached a confidential settlement with the Company and withdrew his claim.
The employee’s claim was that he was provoked and “set up”, and that the evidence supporting his dismissal (largely CCTV footage) had been tampered with. He claimed the dismissal was unfair as a result.
The clerk had worked for DP World and its predecessor entity, Container Terminals Australia, since 1981. This employee gave evidence that he had never had an altercation with anyone or even a disagreement with a co-worker, apart from the supervisor in question who “went out of his way to make things difficult”.
It was submitted that the supervisor had “set-up” the fight and arranged for it to be captured on the CCTV cameras.
The HR Manager gave evidence that the clerk’s behaviour was completely out of character, however conceded that they did not investigate further his claims that he had been “pushed beyond all limits of tolerance”. After both employees were dismissed, the HR Manager conceded that she had made enquiries and discovered that the supervisor had behaved unreasonably for a long time. However she submitted that due to the zero tolerance policy towards workplace violence, their only option was to dismiss both employees.
Deputy President Sams said he was prepared to believe the fight had been “set up” by the supervisor. He found the dismissal of the clerk to be unfair and went on to say “The most significant evidence was the extraordinary CCTV footage. There is no doubt it was manually manipulated by an unknown person who followed the altercation and zoomed in at relevant times which would seem to indicate that someone had been enlisted to ensure clear coverage of the event.”
DP Sams was also critical of the Company’s response, saying they had “taken the easy way out” by dismissing both employees.
The clerk was reinstated and the Company was ordered to pay compensation in the form of the full seven month’s wages the employee had missed whilst out of work.
Lessons for employers...
- Conduct immediate and thorough investigations when any workplace incidents arise.
- Investigations should be impartial and objective
- Investigations must record evidence pertinent to the incident.
- Investigations must be conducted prior to any disciplinary action being undertaken.
EFFISION HR is able to undertake investigations into all types of workplace incidents and accidents. Contact Elisabeth Rasul on 1300 739 790 should you require assistance in this area.