Faulty investigation results in compensation for dismissal

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Faulty investigation results in compensation for dismissal

The AIRC has awarded 20 weeks pay in compensation to a bus driver who was dismissed for misconduct after the Commission found that the investigation carried out by the employer was faulty in a number of respects.

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9/03

 

The AIRC has awarded 20 weeks pay in compensation to a bus driver who was dismissed for misconduct after the Commission found that the investigation carried out by the employer was faulty in a number of respects.

Background

Central to the case against the bus driver was an alleged altercation between the driver and management representatives.

The applicant further submitted that there was no or insufficient evidence that the applicant made false representations about the factual events that would justify termination of employment.

Decision

Commissioner Redmond concluded:

‘Central to this case is whether on 7 April 2002 an altercation occurred between the applicant and Mr T, and if so, what form the altercation actually took.

'I have found that the evidence put forward with regard to the altercation has been highly contradictory. It conflicts not only between the version given by the applicant and respondent's witnesses, but more worryingly, there are serious discrepancies between the evidence given by the respondent's own witnesses.

'In making my decision I have been afforded the benefit of thorough submissions from both parties, four days' sworn witness evidence, and an inspection at the Burwood Depot, however, I am still not able to determine the substance of what proceeded between the applicant and Mr T on that day.

'The Concise Oxford Dictionary defines the verb altercate as to 'dispute hotly' or 'wrangle'. At the most, I find that at sometime in between 6.15 p.m. and 6.40 p.m. words were exchanged between the applicant and Mr T.

'Where these words were exchanged, what these words were, whether any physical contact accompanied these words, and who saw these words whilst they were being spoken I am unable to determine. Consequently, I am reluctant to give the exchanging of words that I have found did occur between the applicant and Mr T the status of an altercation.

'I therefore find it highly surprising, and indeed problematic, that the first STA investigation undertaken by Mr N - which was far less exhaustive than these proceedings in the Commission - was able to determine conclusively that firstly, an altercation did occur, and secondly, that it concurred with the version given by Mr T and Mr C. Based on all the evidence put before me, I am certainly none the wiser on either account.

'This brings me to the issue of the second STA investigation undertaken by Mr V. Having decided that it is impossible to absolutely determine the substance and form of the alleged altercation, and indeed whether or not the exchange constituted an altercation, I have grave doubts about the validity of the second investigation.

'It was the evidence of Mr V that he took the findings of the first investigation as fact, and saw it as his role as investigator to only investigate the new charges stemming from the first investigation. As a result of this second investigation the recommendation was made to terminate the applicant's employment.

'The decision to terminate a person's employment is serious, and in the context of an employment relationship has severe consequences, the employment relationship is literally severed, possibly forever. Thus the practices and procedures that are used to decide whether or not someone's employment should be terminated must be beyond reproach. I have not found this to be the case with regard to the practices of STA in this matter.

'In my view, the decision to base the second investigation on the findings of the first investigation, without any further investigation of the incident, as well as the decision not to investigate Mr T, both amount to incurable defaults in STA's process when deciding to end the applicant's employment.

'In addition, STA was made aware of Mr V’s recommendation on the 30 August 2002, however, it waited until the 26 September 2002 to summarily dismiss the applicant.'

The Commission found that there was not a valid reason for the termination of the applicant's employment.

See: S. Dissanayake v State Transit Authority - AIRC - Redmond C - 21 August 2003.

 

 

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