Workplace investigations when a key player is on sick leave

Key issues

• An employee on sick leave was asked to participate in workplace investigations, even though they had stated they were unfit to participate
• The employee made it known (through email) that they had recordings of workplace harassment, however, refused to submit them to the employer when repeatedly requested to do so
• As a result, the employer terminated the employee’s employment
• The employee claimed that the dismissal was unfair and made an unfair dismissal claim with the Fair Work Commission
• The Fair Work Commission concluded that the employee was deliberately frustrating an investigation which could have serious implications for the accused parties, which constituted serious misconduct. The dismissal was upheld and the claim dismissed.

Can employers require a sick employee to participate in workplace investigations? In certain circumstances, the answer will be yes - but it will depend on the situation, including the investigation requirements and the employee’s illness.

The recent unfair dismissal case of Mocanu v Kone Elevators Pty Ltd provides some guidance in this complex area. Mr Mocanu went on approved sick (personal) leave around the same time that he made a formal bullying complaint against two of his managers. Initially, Mr Mocanu indicated that he was not in the right frame of mind to discuss the complaint, but three months into his sick leave, he emailed the HR Manager saying he had full (covert) recordings of meetings with the accused managers that proved he had been bullied, and provided transcript extracts of the meetings.

The HR Manager requested copies of the full covert recordings to assist in the investigation of the bullying complaints. Over the following months, by email, Mr Mocanu raised various questions and made demands of the conduct of the investigation (which were responded to) but he did not provide the covert recordings. 

Eventually, the HR Manager directed Mr Mocanu, in writing (on two occasions), to provide the recordings and informed him that he would be dismissed if he refused. Mr Mocanu refused to provide the recordings, and Kone Elevators subsequently dismissed him for failing to follow a lawful direction.

Mr Mocanu made an unfair dismissal application to the Fair Work Commission, making various claims to support his application, including that (1) he was unable to comply with the direction because of his illness; and (2) he was not on paid time (due to his personal leave running out) so should not have to hand over the recordings. Neither of these claims had been raised prior to his dismissal, despite there being opportunity to do so.

In relation to the first claim, the Commissioner noted that Mr Mocanu was clearly able to operate a computer and draft emails, leading to the conclusion that his illness was not preventing him from complying with the requests. Further, Kone Elevators went to the particular effort to arrange for a courier to collect the recordings, leaving the Commissioner to conclude that there were no obstacles preventing him from complying with the request. 

The Commissioner also quickly disposed of the second argument, stating that the employment contract remained on foot regardless of whether Mr Mocanu was being paid, and that Kone Elevator’s request was not illegal or unreasonable.

The Commissioner concluded that Mr Mocanu was deliberately frustrating an investigation which could have serious implications for the two managers accused, amounting to serious misconduct. The dismissal was upheld and the application dismissed.

Important points moving forward

• While Mr Mocanu did inform his employer early in the process that he was not in the “right frame of mind” to discuss the investigation, he subsequently indicated that he was keen and able to participate (at least to some extent) by engaging in email correspondence with the HR manager. In the absence of any specific medical evidence or suspicion to the contrary, it is reasonable for an employer to accept an employee’s participation as evidence that they are fit to do so.
• As far as possible, ensure that all impediments to an ill employee participating in the investigation are removed. In this case, that meant engaging a courier to collect the recordings, but other options may be to conduct an interview in a different location or allowing responses to be in writing rather than in person (at least in the first instance).
• Of itself, an employee being on unpaid leave is no impediment to an employer requiring an employee to comply with a reasonable and lawful direction, as the contract of employment remains on foot. 

Even if an employee does state they are too unwell to participate in an investigation (or the employer has reason to suspect as much due to unusual behaviour), if the matter is serious and pressing, it may be open to an employer to request specific medical evidence to support or clarify this contention. Whilst often simply allowing an employee time to recover from illness or incapacity might be the best (or first) option, the backup plan might be to require an employee to provide a medical report (paid for by the employer) from their treating practitioner in relation to the illness which addresses whether:

• the employee is well enough to participate in the investigation - or if there are reasonable adjustments that could be made to enable participation; and
• if not, when the employee might be well enough to participate.  

If there is an extended period of time before the employee will be able to participate, further consideration and advice might be required on managing the employee’s illness and capacity for work.

For further advice on the interrelationship between workplace investigations and employee illness, please contact the Workplace and Employment team at HopgoodGanim Lawyers. Other articles relevant to this topic include:

• What evidence is required to take sick leave? 
• Support persons and disciplinary meetings - employers' top questions answered 
• Do employees have a "right to remain silent" in employment investigations? 
• Managing ill employees – can you guarantee a stress/conflict-free environment for a staff member? 
• Misconduct investigations: our top tips