Does a respondent employee need to know a complainant’s identity to respond to an allegation of misconduct?

In a discipline process leading to a dismissal, employees protected from unfair dismissal by the Fair Work Act 2009 (Cth) (the Act) must be provided with an opportunity to respond to the reason for their possible/proposed dismissal before a decision to dismiss is made.¹ But how much detail needs to be provided to enable an employee to adequately respond?

This is a vexed issue for employers who are required to balance the need to keep certain information confidential (for example, the name of a complainant who requests anonymity as they are concerned for their safety) with providing a respondent employee enough details to allow them to understand the allegations and evidence against them so that they can sufficiently respond.

This issue was addressed in the recent unfair dismissal case of Bridge v Globe Bottleshops Pty Ltd where the dismissal process was held to be “nothing less than procedurally disastrous”.² Helpfully though, the case provides some indication of what the Fair Work Commission (the Commission) considers should be provided to an employee responding to allegations of misconduct.

The facts

Mr Bridge had been the full-time manager at Globe Bottleshops (the Employer) for almost six years when a regular female customer complained that she had been sexually harassed by him. The complainant alleged that Mr Bridge had said, “would you like a root he he he receipt?” and laughed and leered at her, making her feel uncomfortable.  The complaint was not a ‘whistleblowing’ complaint under the Corporations Act 2001 (Cth).³  

The complaint was made on 15 March 2021 and by email at 7:07pm that same day Mr Bridge was stood down on full pay pending an investigation into the matter.  In that email, Mr Bridge was told of the allegation as outlined above, but with no further detail.  He was required to provide a response to the allegation by 9am on 17 March 2021.

After receiving a very brief initial response from Mr Bridge denying the allegations, on 17 March 2021 the Employer sent a further email to Mr Bridge for his response, which provided him with the date and time of the incident, but did not divulge the name of the customer, or the CCTV footage, as she had reported feeling ‘unsafe and intimidated’. 

Mr Bridge’s response early on 19 March 2021 complained that he needed to know the complainant’s name, or see the CCTV footage, in order to respond and be able to clear his name. He also stated that he was going on stress leave, and that he was awaiting a medical appointment. 

Later on 19 March 2021, the Employer advised Mr Bridge that they were satisfied he had breached his duty of care obligations and so he was dismissed for serious misconduct. Whilst the Employer interviewed the customer complainant during the investigation, Mr Bridge was not interviewed. 

The findings

The Commission was satisfied that Mr Bridge made unwelcome comments of a sexual nature to the customer, and that this was a valid reason for dismissal.

Nonetheless, the dismissal was found to be unfair because the Employer’s process was procedurally unfair. Under the Act, the Commission must consider a number of factors in determining if a dismissal is “harsh, unjust or unreasonable”, including whether the employee was notified of the reason for dismissal and whether they were given an opportunity to respond to that reason.  

Whilst Mr Bridge was ‘on paper’ given an opportunity to respond and seemingly told of the complaint against him (without detail), the Commission found that because he was not given the complainant’s details, the CCTV footage or details of what the complainant had purchased, he was unable to adequately respond to the complaint. 

Adding to the unfairness, Mr Bridge was not interviewed during the investigation but the complainant customer was. The Commissioner considered that the Employer had “made up his mind” before even commencing an investigation and was “hasty” in dismissing Mr Bridge once he announced he was going on stress leave, which further denied him an opportunity to respond.

Key takeaways

• Whilst it may be important to protect a complainant’s identity at times, this cannot be at the expense of the requirement to provide an employee with sufficient details to ensure they understand the allegations against them and have an opportunity to respond. There may be times where it is possible to withhold the name of a complainant or witness but usually this will only be where there is other evidence supporting the alleged misconduct – for example, where the misconduct occurred in front of numerous witnesses. Where the alleged misconduct involves a one-on-one interaction, it will almost always be necessary to provide the employee with the complainant's identity so that they can fully understand the allegations, and to ensure there is a procedurally fair opportunity to respond.
• Disclosing the complainant’s identity does not mean that nothing can be done to protect the complainant’s safety. At the least, we recommend clearly directing the employee under suspicion not to contact the complainant (or other witnesses if necessary), under threat of disciplinary action and possible dismissal. If the employee considers that they need to speak with the complainant (or witnesses) in order to prepare their response, they should direct these enquiries to management who can consider the request and make safe arrangements if absolutely necessary. Other safety adjustments should be considered on a case-by-case basis. In all cases, the complainant should be consulted about the need to disclose their identity and any necessary safety and support arrangements.
• Where possible, it is best practice to provide an opportunity for an employee to respond to allegations in person as well as in writing – allowing the employee to choose their medium. Where an investigation is conducted (prior to a show cause process), it is preferable that the respondent employee is interviewed during the investigation. 
• In most situations, any relevant CCTV footage (or other independent evidence) should be made available for respondent employees to view, particularly if they request it. 
• Where an employee states that they are unwell during a misconduct investigation, and that this is affecting their ability to respond, great care should be taken in proceeding without appropriate medical advice. See our previous alert on Workplace investigations when a key player is on sick leave for more information.
• Where a whistleblower’s complaint is made under the Corporations Act 2001 (Cth) special protections apply to the complainant, particularly in relation to anonymity and protection against detriment with possible financial penalties for non-compliance.  If an employer suspects that a complaint may be a whistleblowing complaint, caution needs to be exercised and legal advice should be obtained.  For further general information about the whistleblower’s regime, see our previous alerts Does your whistleblower policy comply with the Corporations Act 2001? and Whistleblower reforms now passed: what you need to know.

If you require any further information or advice on the discipline process and unfair dismissal protections, please contact our Workplace and Employment team at HopgoodGanim Lawyers. 

Footnotes

¹ Section 387(c) of the Fair Work Act 2009 (Cth).

² Bridge v Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits [2021] FWC 3153.

³ True ‘whistleblowing’ complaints under the Corporations Act must meet certain criteria.  Where these apply, the recipient of the complaint has strict obligations to protect the anonymity of the complainant whistleblower, amongst other protections.  For further information, see our previous alerts Does your whistleblower policy comply with the Corporations Act 2001? and Whistleblower reforms now passed: what you need to know.