In a Fair Work Australia (FWA) hearing, the workplace arbitrator has found that a HR manager who dismissed an employee did so in ‘grossly unfair’ circumstances and relied on bizarre and unexplained CCTV footage in the decision.
An employee at a stevedoring company has had his employment reinstated after he was sacked for assaulting another staff member, and the FWA arbitrator said in all likelihood the sacked employee was set up by his foreman, who he allegedly attacked.
CCTV footage which was relied on in the investigation by HR, and later given to FWA, verified the employee’s account of the incident – but the footage was manually controlled, “jumpy” and skipped seconds of footage at a time. Critically, it did not capture an alleged swing by the other person, or a swing at a third person who tried to intervene in the dispute.
Having ascertained that a large number of people (as many as 50) had access to the clerical control room where the CCTV controls were located, FWA Deputy President Peter Sams said it was “open to conclude” that the foreman had organised someone to operate the camera, and was likely part of a ploy to get the employee sacked. “It is curious that (the foreman) would goad (the employee) to hit him, then throw no punches and end up on the ground... (The foreman’s) feigned passivity is entirely consistent with his ‘set up’ of the (employee) as the aggressor, in order to falsely portray himself as the innocent victim,” he said.
As a result, FWA found that HR conducted a flawed investigation of the circumstances surrounding the incident. Sams cited evidence from the company’s HR manager (who conducted the initial investigation) that the foreman’s history of bullying and intimidation wasn’t considered as a contributing factor to the employee’s decision to fight, and neither was the unwillingness of others to cooperate with the investigation for fear of recriminations. “It seems plain enough to me that the (employer’s) procedures as to protecting employees from bullying were not able to stymie, let alone stop, (the foreman’s) ongoing unacceptable conduct,” he said.
Although FWA deemed there to be a valid reason for the employee’s dismissal, as he had ample opportunities not to participate in the fight, the facts and circumstances of the resulted in the employee’s “manifestly unjust” dismissal, the FWA arbitrator said.
Deputy President Sams ordered the employee to be immediately reinstated along with the payment of two months’ wages as compensation.