Unfair dismissal and workplace investigations

In this passage from a Fair Work Commission case decision, issues about the way in which workplace investigations should be conducted are discussed.

“In respect of Ground 2, we agree with the Appellant’s submission that the Commissioner mischaracterised the investigation process into the events of 31 January 2021. The evidence establishes that the Respondent’s colleagues raised concerns about her conduct on that date and in response, were asked to submit reports and accounts of the events. This is an orthodox process in circumstances where an employer receives reports of concerns in relation to the conduct of an employee and decides that an investigation is required. The conduct in the present case was of sufficient gravity to warrant an investigation. When serious allegations are made against an employee, it is entirely appropriate that a proper investigation of those allegations be conducted. To make findings without interviewing relevant witnesses would be procedurally unfair. There was no evidence before the Commission upon which a conclusion could have been based that the Appellant asked leading questions or in some way sought a particular outcome to justify a finding that the evidence was solicited. This finding was central to the Commissioner’s overall conclusions about the Respondent’s dismissal, and we agree that it constituted a significant error of fact. It follows that Ground 2 is upheld.”

Virgin Australia Airlines Pty Ltd v Blackburn (2022) FWCFB 232 delivered 12 December 2022 per Catanzariti VP, Dobson DP and Simpson C