Reinstated: Worker accused of sharing pornographic media

What did the employer get wrong in its investigation?

Reinstated: Worker accused of sharing pornographic media

The Fair Work Commission (FWC) recently dealt with a worker’s unfair dismissal claim, alleging that his employer fired him for “vague” accusations that he shared pornographic material with his co-workers while at the workplace.

The worker was employed as a dump truck operator at the employer's mine site from August 2020 until April 2023. In March 2023, a colleague raised a complaint with the employer concerning the worker's conduct.

Specifically, she alleged that in late December 2022 or early January 2023, during a bus ride at the end of a shift, the worker initiated a sexually explicit conversation with several other employees, and this conversation happened around the seat where she was seated.

Meeting with supervisors about explicit images

During this exchange, the colleague said that the worker displayed a mobile phone containing explicit images between herself and the passenger beside her in a manner that allowed others to clearly view them.

In response to this complaint, the worker was summoned to a meeting with his supervisors. During this meeting, he was requested to promptly provide a written response addressing the allegations raised by the colleague. Subsequently, he was placed on suspension pending further investigation.

Later on, the worker attended another meeting with the area manager and the manager of employee relations to discuss the allegations against him.

During this meeting, the worker was accompanied by an organizer for the Australian Workers' Union (AWU). The outcome of this meeting led to the employer committing to conduct a more comprehensive investigation. While the worker remained suspended, he was transported back to Perth.

A month after, a third meeting took place at the employer's Perth offices. In attendance were the worker, his spouse, the mining manager, and the manager of industrial relations for the employer.

The AWU also participated via telephone. Ultimately, the employer made the decision to terminate the worker's employment.

Worker contends the allegations against him were ‘vague’

The worker said there was no valid reason for the dismissal related to his capacity or conduct because he “was not guilty of the accusations made against him.”

Additionally, he said the employer’s “investigations were not conducted with sufficient diligence, resulting in the allegations against [him] being somewhat vague to the point where it was difficult for him to make a proper response.”

The worker also said that some of the explanations he provided “were not properly investigated, and as such could not have been properly considered in the process of making a decision regarding his guilt.”

Furthermore, the worker said the employer was wrong when it placed the burden on him “to prove that he did not engage in the alleged activities, rather than discharging its own [burden] to prove to a reasonable standard that he did.”

Essentially, the worker said the investigation was “flawed,” and he was “not given a fair chance to answer the allegations against him.”

Was there a flawed investigation?

In its decision, the Commission found that "there was a culture of inappropriate activity on the work buses," but it said the "particular allegations against [him] have [not] been made out."

"The process followed by the [employer] was deficient. The initial complainant was interviewed in front of the other witness she named. Then, based on assumed information about certain elements of the claim, for example, that the complainant’s witness had seen pornography, the [employer] interviewed the [worker] and put some accusations to him which were somewhat imprecise."

"When [the worker] offered up some witnesses to support his version of events, they were not interviewed. Nor was there a review of other data, such [relevant] records,” it added.

“The site employee relations manager proceeded instead to recommend termination, and when the recommendation was received at the head office, the evidence suggests there was an assumption that a proper investigation had taken place at [the] site." 

"The lack of adequate rigour in the process followed by the [employer] contributes to the unjustness of the termination,” the FWC said. Thus, it ruled that the worker was unjustly dismissed and ordered his reinstatement.

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