Pro­tect­ing the Com­plainant v Prov­ing the Case: A Dif­fi­cult Balance

In recent years employ­ers have placed greater impor­tance on the pro­tec­tion of employ­ees who raise alle­ga­tions of mis­con­duct or wrong­do­ing. This has been reflect­ed in a range of ways includ­ing poli­cies and pro­to­cols for deal­ing with whistle­blow­er dis­clo­sures, pro­hi­bi­tions against vic­tim­i­sa­tion or adverse action, the adop­tion of a trau­ma-informed approach to work­place com­plaints and inves­ti­ga­tions and active­ly address­ing risks from psy­choso­cial haz­ards. These changes have been dri­ven by both leg­isla­tive and cul­tur­al imperatives. 

The recent Fair Work Com­mis­sion (FWC) deci­sion of Deputy Pres­i­dent Cross in Mr Zoran Mojanovs­ki v BlueScope Steel Lim­it­ed [2024] FWC 1473 (5 July 2024) high­lights a dif­fi­cult bal­ance for employ­ers in unfair dis­missal pro­ceed­ings between pro­tect­ing a com­plainant and being in a posi­tion to lead the nec­es­sary evi­dence to sup­port sub­mis­sions that a dis­missal aris­ing from the alle­ga­tions made by a com­plainant was not unfair. 

Back­ground to the Proceedings

Mr Mojanovs­ki (the Appli­cant) was alleged to have threat­ened phys­i­cal vio­lence towards anoth­er employ­ee (the Com­plainant) by yelling out a car win­dow towards the Com­plainant words to the effect of ​“You’re a dead mother****er. I’m gonna get you” as he drove past the Applicant. 

The employ­ment of the Appli­cant was ter­mi­nat­ed by let­ter dat­ed 21 Feb­ru­ary 2024 (Ter­mi­na­tion Let­ter), the fol­low­ing extract of which is set out in the judgment:

“Dear Zoran,

This let­ter is to advise you of the ter­mi­na­tion of your employ­ment with BlueScope’s ASP Man­u­fac­tur­ing busi­ness from today, 21 Feb­ru­ary 2024. This ter­mi­na­tion is due to your threat of phys­i­cal vio­lence towards anoth­er employ­ee, when you yelled out the car win­dow to him words to the effect of, ​“You’re a dead mother***er. I’m gonna get you.” This was a seri­ous breach of our Code of Con­duct (How We Work) and Bul­ly­ing, Dis­crim­i­na­tion, Harass­ment and Sex­u­al Harass­ment Guideline.

The Com­pa­ny has con­sid­ered all of the infor­ma­tion avail­able, includ­ing the respons­es you have pro­vid­ed to the Com­pa­ny on this matter.

The Com­pa­ny con­sid­ers the sub­stan­ti­at­ed con­duct con­sti­tutes seri­ous mis­con­duct, and as such, the Com­pa­ny does not con­sid­er that you are enti­tled to the pay­ment of notice. How­ev­er, the Com­pa­ny will pay you 5 weeks ordi­nary pay in recog­ni­tion of your long stand­ing employ­ment with the Company.”

The Ter­mi­na­tion Let­ter was issued after an inves­ti­ga­tion by the employ­er. The pre­lim­i­nary find­ings of that inves­ti­ga­tion were (as set out in para­graph 37 of the judgment):

“(a) [The Appli­cant] did yell out the car win­dow words to the effect of, ​“You’re a dead moth­er­fuck­er. I’m gonna get you” (sic) to [the Com­plainant] on 16 Jan­u­ary 2024;

(b) This was a threat of phys­i­cal violence;

(c) It appears to have been an attempt to vic­timise anoth­er employ­ee due to [The Applicant’s] belief that [the Com­plainant] had made pre­vi­ous alle­ga­tions against him;

(d) The con­duct con­sti­tut­ed a breach of BlueScope’s Code of Con­duct (How We Work) (Code of Con­duct) and Bul­ly­ing, Dis­crim­i­na­tion, Harass­ment and Sex­u­al Harass­ment Guide­line (Guide­lines).”

On the basis of the pre­lim­i­nary find­ings of the inves­ti­ga­tion, the employ­er sent the Appli­cant a show cause let­ter, the response to which from the CEPU (the union rep­re­sent­ing the Appli­cant) includ­ed the fol­low­ing criticism:

“It is also entire­ly unclear what if any­thing BlueScope has done to inter­ro­gate the fac­tu­al alle­ga­tion, includ­ing its cred­i­bil­i­ty and/​or con­sis­ten­cy with oth­er evi­dence. BlueScope’s opac­i­ty in this respect does not inspire con­fi­dence in any of its fac­tu­al findings.”

Unfair Dis­missal Pro­ceed­ings: The Task of the FWC

The Appli­cant com­menced unfair dis­missal pro­ceed­ings in the FWC. 

The role of the FWC in unfair dis­missal pro­ceed­ings is not con­fined to mere­ly review­ing or cri­tiquing an inves­ti­ga­tion con­duct­ed by the employ­er. The FWC will receive and con­sid­er evi­dence (includ­ing evi­dence not orig­i­nal­ly before an inves­ti­ga­tion) and, on the basis of the evi­dence before it, make its own find­ings of fact. 

In this regard, at para­graph 66 of the judg­ment it is not­ed that:

“In Depart­ment of Social Secu­ri­ty v Uink, a Full Bench of the Aus­tralian Indus­tri­al Rela­tions Com­mis­sion found:

The Com­mis­sion is bound to con­sid­er whether, on the evi­dence in the pro­ceed­ings before it, the ter­mi­na­tion was ​‘harsh, unjust or unrea­son­able’ pro­vid­ed that the evi­dence con­cerns cir­cum­stances in exis­tence when the deci­sion to ter­mi­nate the employ­ment was made.

.…

Find­ings made by an inquiry estab­lished by the employ­er will be rel­e­vant to the Com­mis­sion’s deter­mi­na­tion of the issues before it pro­vid­ed it is estab­lished that:

- the employ­er con­duct­ed a full and exten­sive inves­ti­ga­tion into all of the rel­e­vant mat­ters as was rea­son­able in the circumstances;

- the employ­er gave the employ­ee every rea­son­able oppor­tu­ni­ty to respond to alle­ga­tions; and

- the find­ings were based upon rea­son­able grounds.” (Empha­sis added)

At para­graph 67 of the judg­ment it is fur­ther noted:

“In Rode v Bur­wood Mit­subishi, anoth­er Full Bench of the Aus­tralian Indus­tri­al Rela­tions Com­mis­sion held:

We agree with the appel­lan­t’s sub­mis­sion that in order to con­sti­tute a valid rea­son with­in the mean­ing of s.170CG(3)(a) the rea­son for ter­mi­na­tion must be defen­si­ble or jus­ti­fi­able on an objec­tive analy­sis of the rel­e­vant facts. It is not suf­fi­cient for an employ­er to sim­ply show that he or she act­ed in the belief that the ter­mi­na­tion was for a valid rea­son. ” (Empha­sis added)

These deci­sions of the Aus­tralian Indus­tri­al Rela­tions Com­mis­sion (the pre­de­ces­sor to the FWC), cit­ed with approval in the judg­ment, illu­mi­nate the nature of task the FWC embarks upon in unfair dis­missal matters. 

In prac­tice, this will almost always require an employ­er to call wit­ness­es to pro­vide evi­dence sup­port­ing a con­clu­sion that the rea­son for ter­mi­na­tion was valid, par­tic­u­lar­ly in cas­es of ter­mi­na­tion on the basis of seri­ous misconduct. 

The Com­plainant as Witness

In this case the employ­er made a deci­sion not to call the Com­plainant as a wit­ness. The ratio­nale for this deci­sion is explained in the sec­ond state­ment of the inves­ti­ga­tor filed in the FWC pro­ceed­ings, the rel­e­vant part of which is extract­ed in para­graph 44 of the judgment:

“…In con­sul­ta­tion with oth­ers, Bluescope chose to respect [the Complainant’s] wish­es by not call­ing him as a wit­ness. In my dis­cus­sions with Peo­ple and Cul­ture at Bluescope, the rea­sons we decid­ed to respect this posi­tion is:

(a) As part of its Speak Up cul­ture, Bluescope encour­ages employ­ees to come for­ward with com­plaints about inap­pro­pri­ate and unsafe work­place behav­iour and in doing so, Bluescope rep­re­sents to employ­ees that they will be safe when they do so and will be pro­tect­ed from vic­tim­i­sa­tion. As an employ­er, we are con­cerned that in light of this, if we then require employ­ees to give evi­dence at hear­ings which arise because of a deci­sion made by Bluescope, it will under­mine this sup­port­ive process and act as a deter­rent to speak­ing up, not just for that employ­ee but for oth­ers; and

(b) [the Com­plainant] came across to me at all times as being par­tic­u­lar­ly vul­ner­a­ble, scared and dis­tressed about the sit­u­a­tion and his inter­ac­tions with [the Applicant].

We did not con­sid­er it appro­pri­ate to risk his psy­cho­log­i­cal well being any fur­ther by requir­ing him to give evidence.”

This state­ment went on to say that the Com­plainant lat­er affirmed his unwill­ing­ness to give evi­dence in the FWC pro­ceed­ings to the investigator. 

While the deci­sion to pro­tect the Com­plainant was seem­ing­ly made with laud­able inten­tions, it did mean, as observed by Deputy Pres­i­dent Cross at para­graph 41:

“The Appli­cant was the only wit­ness before the Com­mis­sion who could assist regard­ing what did, or did not, occur on 16 Jan­u­ary 2024.” 

The FWC and Evidence

The FWC is not strict­ly bound by the rules of evi­dence and, as a tri­bunal, will some­times adopt a more lib­er­al approach when it comes to admis­sion and con­sid­er­a­tion of evi­dence than a court. Deputy Pres­i­dent Cross not­ed, how­ev­er, that the hearsay rule in this case had an impor­tant role to play, link­ing it to the cor­ner­stone FWC prin­ci­ple of fair­ness (at para­graph 49):

“While it is cor­rect to observe that the Com­mis­sion is not bound by the rules of evi­dence and pro­ce­dure, the Com­mis­sion ​‘may inform itself in rela­tion to any mat­ter before it in such man­ner as it con­sid­ers appro­pri­ate’. Fur­ther, s.577(a) pro­vides that the Com­mis­sion must per­form its func­tions and exer­cise its pow­ers in a man­ner that ​‘is fair and just’. The hearsay rule is fun­da­men­tal­ly con­cerned with issues of fair­ness, and the Com­mis­sion will give con­sid­er­a­tion to its appli­ca­tion in an appro­pri­ate case. In this mat­ter, it was abun­dant­ly unfair for the com­plaint made to be advanced as hearsay evi­dence with­out afford­ing the Appli­cant an oppor­tu­ni­ty to test its veracity.” 

In apply­ing the hearsay rule, and con­sid­er­ing its excep­tions, specif­i­cal­ly when a wit­ness is not avail­able for the pur­pose of the rule, Deputy Pres­i­dent Cross not­ed (at para­graph 47):

“The Com­plainant was clear­ly not unavail­able. He sim­ply chose not to be involved and the Respon­dent chose not to seek to com­pel the Com­plainant to give evi­dence, cit­ing a claimed duty of care to the Com­plainant. Each con­tact by Ms Tul­ly was by tele­phone and no med­ical cer­ti­fi­ca­tion was sought.”

The con­se­quences of this were set out by Deputy Pres­i­dent Cross at para­graph 48 (set­ting out an ear­li­er rul­ing in the pro­ceed­ings on transcript):

” …One of the over­rid­ing prin­ci­ples of unfair dis­missals is a fair go all ​’round to all par­tic­i­pants and it would be a com­plete abro­ga­tion of that oblig­a­tion to allow a respon­dent to rely on a com­plaint and not call the com­plainant when the com­plainant is clear­ly avail­able and so, in rela­tion to the objec­tion to para­graph 17, I would uphold it.

I note that it remains as Ms Tul­ly’s evi­dence as to what she was told but it can­not be admit­ted as to the truth of what it is said [the Com­plainant] com­plains about. For com­plete­ness, I would note that that would also apply to the doc­u­ment that is KT2 (the note of the 16 Jan­u­ary 2024 con­ver­sa­tion) in so far as that doc­u­ment is relied on to estab­lish the truth of the complaint. …”

As such, the account of events giv­en by the Com­plainant to the inves­ti­ga­tor could not be admit­ted into evi­dence before the FWC. Such evi­dence would be hearsay evi­dence and, as the Com­plainant was not ​“unavail­able” (as that term is defined in the Evi­dence Act), it did not fall into that excep­tion (or any oth­er excep­tion) to the hearsay rule as applied by Deputy Pres­i­dent Cross. 

The Find­ings

Deputy Pres­i­dent Cross held at para­graph 68:

“While it is trite to observe that were the alleged threat to have been made, there is no doubt it would con­sti­tute a seri­ous breach of the Code of Con­duct and Bul­ly­ing, Dis­crim­i­na­tion, Harass­ment and Sex­u­al Harass­ment Guide­line, there was a com­plete absence of evi­dence before me to sub­stan­ti­ate that any threat was made.” (Empha­sis added)

At para­graph 69 Deputy Pres­i­dent Cross held there was no valid rea­son for termination:

“I have found the Appli­cant to be con­sis­tent, con­sid­ered and com­pelling in his denial of the alle­ga­tions. In accept­ing the Applicant’s evi­dence I con­se­quent­ly find that there was no threat of phys­i­cal vio­lence towards anoth­er employ­ee, and so no valid rea­son for dismissal.”

The cir­cum­stan­tial evi­dence advanced by the employ­er in sup­port of the sub­mis­sion that there was a valid rea­son was con­sid­ered and reject­ed by Deputy Pres­i­dent Cross. 

The dis­missal was found to be unfair with the FWC mak­ing orders for rein­state­ment of the Appli­cant and an order for lost pay. 

Obser­va­tions

This deci­sion throws into stark relief the poten­tial ten­sion between the pro­tec­tion of a com­plainant and the evi­dence like­ly need­ed to be adduced by an employ­er before the FWC to sub­stan­ti­ate the alle­ga­tions made by that com­plainant and estab­lish a valid rea­son for dis­miss­ing the alleged perpetrator.

While it is impor­tant to pro­tect com­plainants, it is also nec­es­sary to con­sid­er the grave con­se­quences to employ­ees against whom alle­ga­tions are made if those alle­ga­tions are found to be sub­stan­ti­at­ed. In this instance, the Appli­cant lost his job after 31 years’ ser­vice. An appro­pri­ate­ly high evi­den­tiary bar needs to be set. In this regard, Deputy Pres­i­dent Cross approached the hearsay rule not as a tech­ni­cal legal require­ment but rather an instru­ment for facil­i­tat­ing fair­ness — a bul­wark against a pos­si­ble injus­tice aris­ing from alle­ga­tions or claims that are not ful­ly or prop­er­ly tested.

Speak­ing gen­er­al­ly, whilst com­plainants may be enti­tled to anonymi­ty and should receive pro­tec­tion from vic­tim­i­sa­tion, adverse treat­ment or phys­i­cal or men­tal harm, if they are not pre­pared to give evi­dence in a court or tri­bunal (such as the FWC) then there may be lim­its to the extent to which the alle­ga­tions they raise can ulti­mate­ly be relied upon to jus­ti­fy the dis­missal of the alleged per­pe­tra­tor. Bal­anc­ing the desire to pro­tect com­plainants with the need to sub­stan­ti­ate alle­ga­tions may place even the most well-inten­tioned and sophis­ti­cat­ed employ­er on the horns of a dilemma.