It was on this basis the FWC reinstated a dump truck driver who was accused by a co-worker of separate instances of sexual harassment.

The male employee denied accusations that he had shown his coworkers an explicit image on his phone, engaged in an inappropriate discussion about women’s genitals and gender reassignment surgeries, and made a lewd comment towards a female co-worker.

The mine’s employee relations manager investigated the claims but the FWC found the investigation was ‘deeply flawed’ and ‘lacked rigour’.

The investigator failed to interview key witnesses, interviewed two employees together, failed to obtain appropriate evidence and provided ‘somewhat vague’ allegations to the worker, meaning he was unable to properly respond.

Despite the inadequate investigation process, the male employee was terminated from his employment for conduct of a sexual nature.

The decision

The truck driver submitted an unfair dismissal claim to the FWC where it was found that there was no valid reason for the dismissal due to the poor process and limited opportunity for the worker to provide his version of events.

Although the Deputy President was persuaded by the evidence that “there was a culture of inappropriate activity” in this workplace, the evidence did not support that the worker was guilty of the allegations made against him.

The FWC ordered that the truck driver be reinstated to his previous job with continuity of employment and compensation for lost earnings.

Learnings for business

This case emphasises the significance of following a fair and reasonable investigation process when incidents arise in the workplace.

Even if there is a valid reason to dismiss, poorly handled investigations or disciplinary processes can undermine the dismissal decision, leading to potential compensation and/or reinstating the worker.

It is important that the investigator and decision maker are free from bias, and that everyone involved in the process is treated fairly. Taking these steps can be crucial when defending a decision at the FWC.

How the Victorian Chamber can help

It is important to manage the termination of an employment relationship carefully to ensure you meet your legislative obligations, regardless of whether the employment contract is terminated by the employer or employee.

Our Investigations in the Workplace training provides knowledge on what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator.

Workplace Relations Advice Line

Trying to deal with workplace issues alone but don’t know where to start? Before you take any action, call our Workplace Relations Advice Line on 8662 5222.

Our experienced team are here to give you over-the-phone advice about human resources or workplace relations issues.

Fair Work representation

Managing claims in the Fair Work Commission (FWC) can be one of the most stressful and costly issues for your business. With help from our Workplace Relations Consultants, you can rest assured our expertise is on your side.