Missteps can cost more than money: why workplace investigations must be fair

The thought of undertaking a workplace investigation can be overwhelming for many employers, and for good reason. Without the right expertise and processes, critical missteps can compromise the investigation’s integrity, leaving employers vulnerable to legal claims. However, the risks extend far beyond potential lawsuits – errors in the process can severely damage employee trust, leading to a cascade of negative impacts on workplace morale and productivity.

Whether it’s your first investigation or your hundredth, the stakes are high, and without proper procedures, the risks increase significantly. The recent Scott Matthew Ashburner v St Marys Rugby League Club Ltd [2024] FWC 246 (the case) case highlights how an employer’s flawed investigation and decision-making process led to an unfavourable outcome despite having valid grounds to dismiss a former employee for inappropriate conduct.

The facts of the case: Scott Matthew Ashburner v St Marys Rugby League Club Ltd [2024] FWC 246

The case concerns an employee who held roles as a bar attendant, quality assurer, and cashier at a not-for-profit registered club in New South Wales. While initially maintaining a friendly relationship with colleagues, the employee’s behaviour quickly deteriorated, leading to ongoing arguments and inappropriate, offensive comments. On multiple occasions, the employee directed profanities at co-workers, such as “f**k out of the way” and “piss off.” Most disturbingly,  during a verbal altercation, the employee told a colleague, “Why don’t you go get molested.”

On 21 June 2023, the employee was terminated for repeated misconduct involving sexually inappropriate and disrespectful comments. The employer emphasised that the employee’s actions posed a serious threat to the health and safety of other staff members.

What was the outcome?

In a detailed 53-page decision, the Fair Work Commission (FWC) closely examined whether the employer had a valid reason to terminate the employee’s employment and considered whether the dismissal was harsh, unjust, or unreasonable.

The FWC found that due to repeated instances of inappropriate conduct, the employer’s decision to dismiss the employee was “a proportionate response to the gravity of the [employee’s] conduct.” Despite there being a valid reason for the employee’s dismissal, the FWC ultimately found that the dismissal was harsh, unjust, or unreasonable.

When determining whether the dismissal was harsh, unjust, or unreasonable, the FWC considers the criteria in s.387 of the Fair Work Act 2009 (Cth) (FW Act). In this case, the FWC identified that the dismissal was harsh, unjust, or unreasonable because of the following reasons:

• A failure of the employer to notify the employee of the reason for dismissal. Specifically, the letters provided to the employee on 30 May 2023 and 15 June 2023 didn’t specify in explicit and clear terms what the conduct being investigated was, and neither of the letters gave the employee a warning that his employment was at risk or that his conduct constituted misconduct. Furthermore, during the meetings held with the employee on 1 June 2023 and 15 June 2023, the employee wasn’t notified that his employment was at risk of being terminated.
• The evidence revealed that the decision to terminate the employee had been made before the meeting on 21 June 2023 (termination meeting), effectively denying the employee an opportunity to respond to any valid grounds for dismissal. Additionally, the employer failed to present specific allegations in either of the preceding letters, instead relying on vague assertions about various conduct concerns, leaving the employee unable to adequately address or refute the claims.
• The employee wasn’t provided with appropriate particulars of the allegations before the dismissal meeting.
• The employer failed to investigate the conduct concerns before the employee’s dismissal.

In addition to the above, the FWC also found that the employer’s failure to manage the escalating tension between the employee and his colleague played a role in the final altercation between the pair which led to the Applicant’s dismissal.

The FWC ultimately concluded that, while there were several valid reasons to terminate the employee’s employment, the procedural handling of the case was so flawed that the dismissal was deemed unfair.

The deficiencies in the employer’s approach, ranging from inadequate communication and investigation to the lack of policy clarity, highlighted the importance of adhering to proper procedures in workplace investigations and disciplinary actions.

The key lessons for employers

So, what can employers learn from this case? This case is a stern reminder for employers about the importance of conducting proper and thorough workplace investigations and how, even with substantial reasons for dismissals, compliant processes are a must.

Ensuring a fair and transparent disciplinary process starts with conducting thorough and impartial investigations that prioritise clear and effective communication regarding specific allegations and policy breaches, maintaining detailed documentation, providing fair and reasonable opportunity for an employee response, and consistently adhering to established procedures. These steps not only support procedural fairness but also help protect the integrity of your workplace culture and minimise legal risks.

By prioritising thorough and fair investigations, employers can create a workplace built on trust, accountability, and legal compliance – strengthening employee confidence and driving long-term organisational success.

If any of the information in this article has raised questions or concerns about workplace investigations or you have another workplace mater you need assistance with, please reach out to our experts here.

About our author

Amanda Curatore is a qualified Senior Associate at Citation Legal and Citation HR. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations and managing risk. Amanda is also a Nationally Accredited Mediator through the Australian Mediation Association.