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Perspective

Contradictory evidence during workplace investigations

When conducting a workplace investigation, all witnesses must be interviewed and where there are inconsistencies, the evidence must be tested.

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In the case of Benjamin Hatch v Wes Trac Pty Ltd, FWC, 27 October 2020, Mr Hatch’s employment was terminated because his employer believed he intended to steal from the workplace.

The allegation of theft was put to Mr Hatch and he was given the opportunity to respond to the allegations. The employer’s Counselling and Disciplinary Procedure emphasised the importance of ensuring “a thorough and comprehensive investigation is carried out as soon as is practicably possible”.

The Fair Work Commission held the summary termination of Mr Hatch was harsh, unjust and unreasonable. It was critical of the employer’s investigation process for the following reasons:

  1. Two contractors provided written statements of what they say occurred at the time Mr Hatch took the items in question, which contradicted the evidence of Mr Hatch. The employer should have spoken directly with those contractors as part of its investigation to test the inconsistencies between their evidence and that of Mr Hatch, instead of simply relying on their written statements.
  2. Assumptions were made about the plausibility of Mr Hatch’s account of events. Those assumptions should have been put to Mr Hatch for his response.
  3. The person who made the decision to terminate Mr Hatch was provided with, and relied on, information that was provided by the investigator which was not accurate.

Lessons for employers

  1. When conducting an investigation, the investigator must interview all witnesses and test the evidence where there are inconsistencies, by putting the witness’ version of events to the complainant and seeking a response.
  2. If a company has a policy in place setting out the procedure to follow in the event of alleged misconduct, it must follow that policy. To do otherwise, will expose the company to a successful:
    • unfair dismissal claim; and
    • workers compensation claim, as it would not be reasonable management action.

Written by Kim McLagan

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Our team is here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Andrew Douglas.

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