15 Feb CCTV Evidence isn’t foolproof
Case highlights the importance of procedural fairness and effective risk management for Employers
An employer has recently been ordered to pay more than $25,000 compensation to an employee terminated for ‘serious misconduct’, after it relied on ‘flimsy’ CCTV footage. This case highlights the costly implications when an employer fails to provide procedural fairness and consequently must defend an unfair dismissal action in the Fair Work Commission (FWC). It is imperative that employers guard against risks of legal actions through appropriate management of disciplinary procedures.
The recent case of Peter Mulhall v Direct Freight (Qld) Pty Ltd T/A Direct Freight Express (29 January 2016) serves as a warning that employers must afford employees procedural fairness and provide full opportunity to respond to allegations, before making a decision. In this case, a truck driver was terminated for the alleged theft of a box containing a laptop that went undelivered to a store last year. The FWC subsequently deemed that the termination of employment was unfair.
In summary, the Commission found that the employer had committed a number of costly errors during the disciplinary investigation procedure. These errors included as follows:
- The employer had relied on CCTV footage which had allegedly revealed the employee’s ‘movements & general manner’ were questionable and suspect. During its investigation, the employee requested to view the footage, however, the employer failed to show him the footage at any time. The FWC found that the truck driver was denied procedural fairness when the employer failed to show him the CCTV footage which it relied upon, in making the decision to terminate his employment.
- The employer had arranged a disciplinary interview for the driver to respond to the allegation. The employee stated that he had been unfit to attend the meeting and provided a medical certificate regarding his absence from work. The employer subsequently wrote to the driver, advising him that he had been dismissed summarily from his position. The FWC found that the termination of employment was unreasonable. It was noted that the employee was not afforded an opportunity to respond to the allegation, given his inability to attend the meeting was based on medical grounds.
- The FWC further found that there was no ‘clear or cogent evidence’ to support that the driver had engaged in theft, and that the CCTV footage was ‘flimsy’ and did not support the allegation. On this basis, the dismissal was also found to be ‘unjust’.
The employer has been ordered to pay the driver over $25,000 in compensation for the unfair dismissal.
PHR has arranged a training session on Friday 18 March 2016 on the effective management of Disciplinary Procedures, and an overview of the Unfair Dismissal & Adverse Action processes. Please click here for further information: 1603_18 PHR – Managing Disciplinary Procedures Unfair Dismissals Adverse Action claims
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In order to avoid costly litigation and employee claims, employers are well advised to provide employees with procedural fairness throughout an investigation process. Even where serious misconduct is alleged against an employee, the onus is on the employer to prove the allegation and provide procedural fairness in the investigation. Even if there is a valid reason for termination (which in this case, the FWC found there wasn’t), a breach of procedural fairness may significantly undermine the fairness of any outcome.
It is vital that a thorough investigation is undertaken in accordance with disciplinary & performance management procedures. It is equally important that employers comply with procedural fairness requirements to avert any potential action, such as unfair dismissal.
PHR has arranged a training session on Friday 18 March 2016 on the effective management of Disciplinary Procedures, and an overview of the Unfair Dismissal & Adverse Action processes. Please click here for further information:1603_18 PHR – Managing Disciplinary Procedures Unfair Dismissals Adverse Action claims