Are your HR investigation procedures up to scratch?

by Stephanie Zillman13 Dec 2012

An employee who was sacked after his employer ruled he had breached its no smoking policy has won an unfair dismissal appeal – the Fair Work tribunal ruled the investigation that led to his summary dismissal did not, on the balance of probabilities, prove the breach had occurred.

The worker in question was employed as an industrial spray painter and due to the nature of the work, smoking on site was prohibited. At the tribunal hearing of Mr Jukka Nyrhinen v Becker Vale Pty Ltd (U2011/12413), the arbitrator was told that the employee had been observed holding a cigarette by another employee who had looked around the site investigating a “cigarette-like smell”.

The employee who observed the incident made a report to management, and an investigation was conducted. In response to the allegations, the painter argued he had been using an electronic cigarette to aid his effort to quit smoking and that his supervisor and co-workers were aware he had been using an electronic cigarette for a number of months. However, the explanation was rejected and the employee was summarily dismissed for serious misconduct.

At the subsequent unfair dismissal hearing, Fair Work overturned the sacking because the employer failed in its obligation to prove on the balance of probabilities, as per the onus on employers in these instances, that the employee’s claims were false.

It was found that the employer had not found enough evidence to suggest the painter was smoking a real cigarette, and failed to investigate whether the electronic cigarette was capable of emitting an odour, which the painter raised as a defence in a meeting held at the time of the internal investigation. “That was regrettable in the sense that had the [employer] asked for a demonstration (for odour purposes) from the [painter], then [the other employee’s] claim that he smelt cigarette smoke could have been tested there and then,” Commissioner Ian Macdonald wrote in his judgment. “The evidence goes to the [painter’s] knowledge as to the consequences for lighting up in a spray paint booth as opposed to lighting up outside. Thus, he said of the spray paint booth: “… I’m working in an explosive environment. The last thing I want to do is blow myself up, right?” Macdonald commented, ordering that the employee be reinstated to his position.

According to the Victorian Chamber of Commerce, this case highlights the need to investigate matters thoroughly and fully, particularly where there are conflicting statements as to what has occurred. Where an employer seeks to rely on certain facts, they must be substantiated ‘on the balance of probabilities’. In practical terms, this means thoroughly testing the evidence on which the employer may rely before coming to a decision regarding substantiation.

For more information on conducting workplace investigations, and when to conduct internally or externally, click here.


  • by Michael Cosgrove 13/12/2012 1:01:46 PM

    HR should not be doing investigations. They should be done by external, neutral 3rd parties who have the experience in undertaking investigations regularly. This case highlights that conducting investigations "now and then" is not sufficient.

  • by David Jefferies 13/12/2012 4:28:50 PM

    I agree with Michael that HR should not be doing investigations, but I disagree that they should be done by 3rd party organisations. Provided that managers are trained on how to conduct investigations and are supported by HR practitioners why would an organisation pay for another organisation to conduct these? I agree that conducting investigations now and then leads to such poor decision making but HR professionals need to have the expertise to manage these processes internally.

  • by Dale Wiese, Behaviours at Work 14/12/2012 2:18:21 PM

    Further highlighting the issue of HR conducting investigations is the role that HR frequently plays in the processes that take place post investigation, including, but not limited to, disciplinary processes (even if only from an advisory standpoint). Investigations must be conducted impartially, and just as importantly, must be seen to be conducted impartially.

    HR conducting an investigation and then being involved in processes which may be unfavourable, detrimental, or adverse to any party involved in the investigation is not a good look, and will be difficult to defend if any action is subsequently brought by the person/s so affected.

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