In Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30, the New South Wales Court of Appeal found that an employee had failed to prove that an employee had actually breached his employment contract prior to summarily terminating his employment.

The decision is an excellent refresher on the key principles of workplace investigations.

Summary Termination Requires Actual Misconduct

The relevant clause of Mr Bartlett’s employment contract provided that employees may be terminated ‘if [they] fail to comply with the provisions of [their] employment contract’. Macfarlan JA held that this clause required there to have been an actual or objective breach of the employment contract by the employee. It was not sufficient for the employer simply to be of the opinion that such a breach occurred.

Accordingly, if an employer wants to summarily terminate an employee, it must be able to prove that the employee actually breached the employment contract or engaged in serious misconduct.

Workplace Investigations

An employer will only be able to prove that the employee actually breached the employment contract or engaged in serious misconduct if it carries out a thorough workplace investigation. Macfarlan JA’s judgment contains three suggestions as to how a workplace investigation should be carried out:

  • The investigator should be satisfied ‘on the balance of probabilities’ that the relevant misconduct or breach actually occurred.
  • The investigator should apply the Briginshaw doctrine and not rely on inexact or unclear evidence.
  • The investigator and the employer must act reasonably and honestly.

 The Balance of Probabilities

The workplace investigator should be asked to determine whether the employee engaged in the relevant misconduct ‘on the balance of probabilities’. Put simply, if the workplace investigator is not satisfied that the facts suggest that the employee more probably than not engaged in misconduct or breached his or her employment contract, employers should not proceed to termination.

 The Briginshaw Doctrine

Secondly, as the consequences of an adverse finding are particularly serious for an employee, the workplace investigator should be asked to be careful about what sort of evidence he or she relies upon. He or she should not rely on inexact or unclear evidence or uncertain inferences that are open to doubt.

Honesty and Reasonableness

The employer must be satisfied that the decision made by the workplace investigator is honest and reasonable. As the Supreme Court of the United Kingdom explained last year, this requirement focuses on the ‘rationality of the decision-making process,’ rather than on the actual outcome.

Employers will be able to ensure that they meet this requirement by:

Engaging an experienced external workplace investigator.

  • Requiring the workplace investigator to conduct a thorough examination of all the relevant evidence.
  • Instructing the workplace investigator to reach a decision ‘on the balance of probabilities’ and after applying the Briginshaw
  • Reviewing the findings of the workplace investigator to ensure that the decision made was not one which ‘no reasonable decision maker could have made’

How can JFM Law help?

If you are an employer looking to dismiss an employee for misconduct or an employee feeling as though your employer has breached the employment contract in summarily dismissing you for misconduct, please email me atclowe@johnfmorrissey.com.au or give me a call on (02) 9331 0266 for a free of charge phone conference.

Chris Lowe

Chris Lowe

Chris focuses on complex litigation involving employment law matters for both employers and employees, particularly matters relating to disputes in respect of restraints of trade and breaches of contract. He also acts for both employers and employees in unfair dismissal matters and general protection claims with significant experience in appearing before the Fair Work Commission.
Chris Lowe

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