Overview of the facts 

A bottle shop manager was summarily dismissed on 19 March 2021 for serious misconduct after a customer complained he had made inappropriate comments of a sexual nature towards her. 

The employee was stood down with pay while the business conducted an investigation. Prior to interviewing the customer, the employee was given an opportunity to respond to the allegation - however, he stated that while the complainant was interviewed, he was never interviewed as part of the investigation process, was given no clear information about the allegation and not provided any proof for him to challenge, refute or clear his name. He stated he only found out more details during the hearing, which was the first time he could put a face to the name of the customer who had reported him. 

The business interviewed the customer, considered prior customer complaints of a similar nature and formal warnings previously issued to the employee. Following the finalisation of the investigation, the store manager was advised the business was satisfied he had breached his duty of care obligations and his employment was terminated for serious misconduct, effective immediately.  

The decision 

Describing the dismissal as “procedurally disastrous” the Commission found the employee had not been afforded procedural fairness in the lead up to his dismissal. 

The store manager had not been interviewed by the business, nor had he been provided with sufficient details about the incident. The employee was not given the opportunity to view the CCTV footage which the Commission considered would have allowed him to appropriately respond to the allegations.  

The Commission was satisfied the employee had engaged in inappropriate conduct which met the definition of sexual harassment; however, ultimately, it considered the dismissal was procedurally unfair.  

The employee was awarded two weeks’ wages plus superannuation payments as compensation. He did not seek reinstatement.  

Learnings for business 

This case highlights the importance of carefully investigating allegations of misconduct and considering all available information. It is crucial that details of the allegation are clearly presented to the employee to allow them an opportunity to respond. As evidenced in this case, a failure to do so can unravel an entire investigation. Mistakes in the investigation process can lead to costly outcomes and wasted time and effort for the business.  How the Victorian Chamber can help 

Investigations can be tricky to navigate and get right. Before you take any action, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222 to discuss processes and your obligations. Our experienced Workplace Relations Consultants can also provide you with practical support and guidance to ensure your investigation has been conducted in a fair and timely manner.  

[2021] FWC 3153