Alleged death threat (after a first and final warning) not enough for FWC to uphold a termination.

To protect confidentiality, I’ll refer to the key parties as the complainant, the employee and the employer. #HR; #humanresources; #workplace

The Background

The employee, a tradesperson with over 30 years of service, became the focus of serious allegations in 2023. Previously, the employee had enjoyed an unblemished record. However, that changed when an anonymous complaint was lodged through the employer's internal hotline. The complaint accused the employee of bullying and harassment, specifically targeting a complainant over several months.

The allegations included claims that the employee regularly used abusive language, such as “I hate you” and “Shut up, d***head,” directed at the complainant. Additionally, the employee was accused of threatening physical violence during a morning meeting, where they allegedly leaned forward, pointed a finger at the complainant, and said, “Let’s see what kind of man you are outside the gates.”

These accusations led to an internal investigation. While some of the complaints were found to be unsubstantiated, the employer concluded that enough of the allegations were credible, resulting in the employee receiving a first and final written warning.

In January 2024, the situation escalated when the same complainant accused the employee of threatening them again—this time, while both were driving home from work. The complainant claimed that the employee rolled down their car window and yelled a death threat as they passed at an intersection.

The Investigation

The complainant, visibly shaken, reported the incident to their supervisor immediately after it occurred and later to the HR department. According to the complainant, as they drove by, the employee had shouted, “You’re a dead m**********. I’m gonna get you.”

The HR representative handling the case, who had previously been involved in the investigation that led to the employee’s warning, noted the complainant’s distress. They described the complainant as being “visibly shaken and upset” during their conversation. The complainant also shared concerns that the employee might retaliate against them, suspecting that the employee believed they were responsible for the earlier complaint that led to the initial disciplinary action.

During the investigation, the complainant recounted another experience: a visit to a local pub several months earlier where the employee’s son and his friends allegedly stared at the complainant in an intimidating manner. Although no words were exchanged, the complainant felt threatened by the group’s behavior, which they interpreted as another form of harassment.

When questioned about the alleged incident, the employee consistently denied the accusations. They asserted that they had not yelled any threats, pointing out that their car windows were up due to the hot weather and that they had been on the phone just before the alleged encounter. The employee argued that it would have been impossible for the complainant to hear anything, let alone a detailed threat, as both vehicles were moving.

The employee also raised concerns about the fairness of the investigation. They noted that despite providing an alibi and questioning the plausibility of the complainant’s account, the HR representative did not take steps to validate their story. The HR department did not seek additional witness testimony or review potential video footage from the area, leaving the employee feeling that the investigation was biased.

Moreover, the employee pointed out inconsistencies in the evidence presented by the HR representative. During the investigation, it became clear that the HR notes from the initial interview with the complainant did not fully match the complainant’s later statements, leading to questions about the reliability of the evidence being used to justify the dismissal.

What the Employee’s Defence in the FWC

The employee consistently stated that no such interaction occurred at the intersection. According to the employee, they had stopped briefly at the intersection, looked both ways, and saw the complainant’s car only as it passed by. They insisted that their windows were up, the air conditioning was on, and they were on the phone just before the alleged incident—factors that would have made it impossible for them to shout anything at the complainant.

The employee also questioned the motive behind the allegations, suggesting that the complainant might be using these complaints as a way to avoid working in the same department. They noted that this was not the first time the complainant had been involved in such complaints, referencing past incidents where the complainant had reportedly “pulled stunts” to move out of departments they didn’t like.

The employee expressed frustration with how the investigation was conducted, arguing that it was biased and lacked thoroughness. They highlighted that HR did not investigate their claims about having the windows up or being on the phone, nor did they verify the complainant’s account with potential witnesses or video footage. The employee felt that the investigation was more about validating the complainant’s story than seeking the truth.

Crucially the complainant did not give evidence in the FWC and therefore it was viewed as hearsay by the Commissioner.?

The FWC Decision

When the case was brought before the Fair Work Commission, it became clear that the investigation’s shortcomings would play a critical role in the outcome. The Commission noted several key issues, including the reliance on hearsay evidence, the lack of direct testimony from the complainant, and the procedural flaws in the investigation.

The employee’s consistent and detailed defence, combined with the procedural errors, led the Commission to conclude that the dismissal was harsh, unjust, and unreasonable. The Commission found that the alleged misconduct could not be substantiated by the evidence provided and that the employee had been denied a fair opportunity to challenge the allegations.

As a result, the Commission ordered the employee’s reinstatement, along with continuity of service and back pay for lost wages. This decision underscored the importance of conducting thorough investigations in the workplace.

Lessons Learned

This case provides several critical insights for employers:

1. Thorough and Fair Investigations: Employers must ensure that all allegations are investigated thoroughly and fairly which includes giving consideration to alternative possibilities. In this case the Commissioner was critical of the fact that the complainant was not asked about whether his windows were rolled up on a hot day.
2. The Role of Direct Testimony: The absence of direct testimony from key witnesses can significantly undermine an investigation. Ensuring that all relevant parties are available and willing to provide evidence is essential for a fair outcome, particularly if goes to the Commission.

Contact Insight Investigations & Mediation

Workplace investigations are complex and require a careful balance of thoroughness, fairness, and confidentiality. If your organisation faces similar challenges or if you want to ensure that your investigation processes are robust and just, Insight Investigations & Mediation is here to help. With our expertise in navigating delicate workplace disputes, we can assist in conducting impartial investigations that uphold the highest standards of integrity and fairness. Contact me at [email protected]

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