We have written before about workplace investigations and their utility to help resolve complex disciplinary matters. A recent case has highlighted the potential consequences of an unnecessarily lengthy investigation.

In Antony Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226 a security guard was summarily dismissed for falling asleep while on duty. Senior Deputy President O’Callaghan agreed that there was a valid reason for termination. However the employer took six weeks to complete an investigation into the incident while the employee continued on in his role. The employee was then terminated for serious misconduct six weeks after the incident occurred. It was held that the employer’s response was disproportionate given that it had taken them six weeks to make a decision to terminate during which time the employee continued to work.

An order was made for reinstatement and compensation although the compensation was reduced significantly to take into account the misconduct.

Lesson for employers

Workplace investigations can provide a useful and efficient process to handle a range of different workplace issues. As demonstrated in this case timeliness is clearly an important aspect and the severity of the alleged conduct is likely to make this aspect even more important. It will be problematic to justify a dismissal for serious misconduct where there has been a lengthy delay between the misconduct and the eventual dismissal where the employee has been allowed to remain doing their role during that time.

Sarah Waterhouse

Solicitor

BlandsLaw

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