A recent case before the Fair Work Commission shows how handling a workplace investigation properly will almost always result in a win for the employer in any subsequent claim for unfair dismissal.
The case involved a Coles duty manager who was sacked after being accused of workplace bullying and sexual harassment.
His claim for unfair dismissal was rejected by the Fair Work Commission, which found the dismissal was fair, because the company had conducted a thorough investigation and ensured due process before sacking the employee.
George Calderon, employment lawyer and seconded consultant at Employer Advisors, said all incidents of serious misconduct must be investigated properly, and the employee or employees involved must be given a chance to respond to any allegations.
“All too often we see cases where any employer has a legitimate reason to sack someone, but because they didn’t follow proper processes, they end up facing an unfair dismissal claim and paying compensation to the worker,” he said.
The details of the Coles case
Peter Angelakos was a duty manager at a Coles supermarket in Queensland, when he was accused of multiple incidents of sexual harassment and workplace bullying.
Here are the steps that Coles took in handling the matter:
1. Allegations made
In late January 2018, two separate complaints were made by young female employees alleging that Mr Angelakos had acted inappropriately towards them. The employers were aged 17 and 23. Mr Angelokos is 52 years old.
During the course of the subsequent investigation, two more female employees of school age made similar allegations.
Following those complaints, more employees came forward.
2. Manager contacts head office
The store manager contacted Coles’ Advisory Services department at head office on 1 February 2018.
Ms Mo Mulenga is a Senior Consultant providing employee relations advice, support to managers during disciplinary matters, undertaking workplace investigations and representing Coles at conciliation conferences.
Ms Mulenga reviewed the complaints and formed the view that if substantiated, the allegations may amount to workplace bullying, victimisation and/or sexual harassment in breach of Coles’ Code of Conduct and the Equal Opportunity Policy.
3. Employee stood down
On February 1 2018, Mr Angelakos was asked to attend a meeting with the store manager who informed him that several allegations had been made against him in relation to alleged sexual harassment, unwanted comments and inappropriate behaviour.
Mr Angelakos was put on paid suspension while Coles began an investigation into the complaints.
Mr Angelakos was told not to attend for work until he was otherwise informed, and he was directed to take his personal belongings home and to leave the premises quietly, which he did.
4. Employee informed of investigation process and offered support
On 7 February 2018, Ms Mulenga telephoned Mr Angelakos and introduced herself, informed him of the investigation process, inquired as to his wellbeing, and encouraged him to utilise Coles’ Employee Assistance Program.
She followed up the call with the following email:
Thank you for speaking with me today.
As we discussed, I have been appointed to investigate the complaints made against you. The investigation will involve a period of information gathering, then you will be provided details of the allegations and an opportunity to respond.
Due to the seriousness of the allegations, you will remain on a period of paid suspension while this matter is investigated. Your absence from the workplace has been communicated as ‘leave’ as this matter is strictly confidential. I will be in regular contact with you to provide updates regarding the progress of this investigation.
I understand from our conversation today that this is a challenging time for you, and I encourage you to contact the Employee Assistance Program for confidential counselling support. To speak directly to one of the team at Converge and schedule an appointment, please call [phone number].
If you have any further queries, please contact me via email or on the number below.
5. Coles speaks with each complainant
Ms Mulenga then contacted each complainant taking statements and details of each allegation, including dates and times and any witnesses to specific incidents.
At the end of this process, she had established that there were 39 formal allegations to be put to Mr Angelakos.
6. Coles meets with employee to put allegations to him
Ms Mulenga emailed Mr Angelakos to confirm a meeting on 23 February 2018.
She also sent copies of the company’s Code and Equal Opportunity policy that Mr Angelakos was alleged to have breached.
Ms Mulenga told him that during the meeting, she would provide him with specific information about all the allegations against him, and that he would have an opportunity to respond – either verbally at the time, or later in writing.
He was told he could have a support person with him.
He was also told he could take notes of the meeting, but would not be allowed to make a recording of the meeting.
Finally she told Mr Angelakos that she would follow up the meeting with an email summary of the discussion to review before the investigation proceeds.
During the meeting, Mr Angelakos declined to respond to the allegations put to him, and requested that he be allowed to put his responses in writing at a later date.
He stated that he wished to obtain legal advice, and Ms Mulenga permitted a period of time to allow Mr Angelakos to obtain legal advice.
7. Employee given time to provide written responses
Mr Angelakos emailed his written responses to 11 of the allegations on 1 March 2018, and the rest in an email sent the following day.
Ms Mulenga organised a telephone meeting with him within the hour to go through his responses.
Mr Angelakos was becoming flustered, so Ms Mulenga agreed to call him later in the day, which she did.
8. Coles completes its investigation
On 7 March 2018, Ms Mulenga completed her report into her investigation, finding that 19 allegations had been substantially or partially substantiated on Mr Angelakos’ admissions and witness evidence, and a further 14 had been substantiated on the balance of probabilities.
9. Coles meets with employee to ask for ‘show cause’
The store manager met with Mr Angelakos on 9 March 2018 to discuss his future employment following Ms Mulenga’s investigation of the allegations against him.
During the meeting, the manager went through each allegation from Ms Mulenga’s findings, and asked Mr Angelakos for his response.
He was given time to provide written responses to the allegations.
After a short meeting with another senior member of staff, the manager returned and told Mr Angelakos that he was considering terminating his employment, and asked if there was anything further he wanted considered.
10. Coles dismisses employee
After another brief meeting, the manager returned and told Mr Angelakos that his employment would be terminated.
Following the meeting, the manager sent the employee the following email:
This letter is to confirm your employment with Coles Supermarkets Australia Pty Ltd is summarily terminated effective 9 March 2018. Your final pay will be made to you as soon as practicable.
The reason for this termination is due to serious misconduct, as detailed to you in our discussion of 9 March 2018.
Store Manager, Coles Moranbah”
Fair Work Commission rejects unfair dismissal application
Mr Angelakos lodged an unfair dismissal claim in the Fair Work Commission.
During the hearing, Coles was able to show that it had offered a fair process to the employee, including allowing him to respond to the allegations, and to have a support person present during interviews.
Commissioner Jennifer Hunt found that Coles had a valid reason to dismiss the employee, and rejected his application.
“I am not satisfied the dismissal of Mr Angelakos was harsh, unjust or unreasonable. Accordingly, I find that Angelakos’ dismissal was not unfair,” she said.
Mr Calderon from Employer Advisors said the case showed the importance of handling workplace investigations and dismissal processes properly.
“An employer might think that they have an ‘open and shut’ case against a worker who has engaged in serious misconduct, but if they don’t take the right steps, and ensure the worker is provided with a fair process, including having an opportunity to respond to allegations, it can all go pear shaped,” he said.
Mr Calderon suggests any business that is considering dismissing an employee to seek expert legal advice first.
“If you want to avoid a costly and time consuming unfair dismissal claim in the Fair Work Commission, I suggest you engage the services of professional workplace lawyers and consultants, who can conduct an investigation for you, and manage any subsequent dismissal action,” he said.
George Calderon is one of our specialist team who can help your business manage a termination process properly to reduce the chances of a claim in the Fair Work Commission.
If you need assistance managing a difficult employee, or are planning to dismiss a worker, we can help.
Please call our team at Employer Advisors today on
1300 853 837
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