Four witnesses made complaints in writing on 30 March 2017. The employee was stood down on pay while the employer investigated the allegations. The employer provided the allegations to the employee and asked him to respond in writing. In addition, the employee attended meetings with his support person where he was given the opportunity to view and comment upon CCTV footage of the 29 March incident.

Having concluded the internal investigation, the employer conducted a show cause process. The employer concluded the employee did engage in serious misconduct and rejected the employee’s version of events, particularly his explanation of the CCTV footage.

The employer was satisfied misconduct had been established and provided a basis for summary dismissal.  The employee’s employment was terminated for serious misconduct. However, the employer decided to provide a payment in lieu of notice equal to 5 weeks’ pay.  The employee submitted an unfair dismissal claim seeking reinstatement.

The employee argued he was dismissed unfairly because he was “innocent” and did not “expose any private parts to his body to any other worker”. The employee believed the CCTV footage proved the allegations were false and were an attempt to taint his reputation so someone could take his job.

The employer submitted three of the four complainants were already in supervisor positions and whilst the fourth complainant was in the employee’s role, it was only because another worker declined the offer.

The Fair Work Commission (“Commission”) noted whilst not conclusive “[t]he CCTV footage shows the [employee] reaching with his hands to the area of his crotch, and then he clearly arches his back as he moves his back as he moves his hips with a forward thrusting motion”.  The employee tried to argue the CCTV footage was evidence of him walking with a limp. The Commission considered this explanation was “unbelievable” and “may be a result of an attempt to overcome more fundamental problems with the [employee’s] explanation of why he was making a rude gesture in the first place.”

The Commission determined the employee’s evidence was “inconsistent, incongruous, and generally unbelievable”.  The Commission was satisfied the employer had carefully analysed the findings of serious misconduct and there was a valid reason for dismissal.

The Commissioner did recognise the employee was obtaining help from a psychiatrist and his mental health issues may provide some explanation for his actions, however, it did not justify the misconduct.

The employee’s application for an unfair dismissal remedy was dismissed.

Employers should be aware of the process to follow when investigating misconduct in the workplace as well as the disciplinary processes in the event allegations are substantiated. Internal investigations are important for ensuring reports of bullying, harassment, discrimination and serious misconduct are handled correctly. Investigations in the Workplace will provide knowledge on what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator.

Written by Laura Quinlan

Fair Work Commission Decision [2017] FWC 4914