Transparency is key – Fair Work Commission Stress the Importance of Keeping Employees Informed During Investigations

The Fair Work Commission (FWC) have confirmed the need to keep employees informed during workplace investigations.

In the recent case of Zamfir v Thiess Pty Ltd [2024] FWC 1404 (25 June 2024), Mr Zamir launched a general protections claim against Thiess Pty Ltd (Thiess) on the grounds of constructive dismissal alleging that Thiess’ workplace investigation process forced him to resign.

 

The Facts

Mr Zamir was the subject of a workplace investigation by Thiess which alleged that there was a potential conflict of interest between Mr Zamir and his direct report. Thiess’ carried out an investigation into the allegation, however, Mr Zamir alleged that Thiess had failed to keep him duly informed throughout the workplace investigation process.

Mr Zamir claimed that he was left to connect the dots with respect to this investigation and further claimed that there was no opportunity offered to address the alleged relationship.

Interestingly, Thiess did not inform Mr Zamir that it had determined that the allegations were unsubstantiated. Rather, Thiess stated that Mr Zamir needed to “take steps to manage the perceptions by implementing distance between himself and [direct report] or make effort to involve others when socialising with [direct report].”

It was asserted by Mr Zamir that the investigation process was riddled with errors and that the response Thiess provided only further fuelled and propelled rumours in the workplace.

 

Findings

The FWC ultimately found that the workplace investigation process was “far too informal”.

The FWC noted that there were communication failures from Thiess and these failures “likely further tainted [Mr Zamir’s] experience overall at work”. These failures stemmed from the fact that Thiess did not take the time to properly inform Mr Zamir of the outcome of the investigation. Only when asked, did the employer “casually” inform him of the outcome of the investigation.

The FWC went further in highlighting that the employer did little to “quell coworkers’ concerns about the perceived the relationship by management.”

Whilst the FWC did not make a finding on constructive dismissal, the FWC did stress the importance keeping employees informed stating

“[e]mployees subject to allegations that, if substantiated, could result in a breach of policy and jeopardise their ongoing employment should be carefully and thoroughly informed of any investigation and findings. The employee subject to the allegations should not be left wondering about the status or findings of any investigation.”

This case serves as an important reminder for employees that all parties to a workplace investigation must be updated sufficiently as the investigation progresses and finalises. Failing to do so can leave your business exposed to an adverse action claim.

If you have been subject to a workplace investigation and have not been kept in the loop, reach out to the Workplace Team at Chamberlains for advice on your position.

 

* This article was prepared with the assistance of Challita Tahhan