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September 2019

Flawed investigation results in unfair dismissal

Rodney Wilkins v Green Gables Express Pty Ltd (2019)

The Case

Green Gables Express Pty Ltd (Green Gables) employed Mr Wilkins. Mr Wilkins crashed his work vehicle into a dead kangaroo, which caused substantial damage to the vehicle.

Green Gables investigated and found Mr Wilkins was speeding at the time he hit the kangaroo. On further investigation of the GPS in the vehicle over the preceding 12 months, it was alleged Mr Wilkins was regularly speeding. Green Gables dismissed Mr Wilkins for failing to comply with its zero tolerance speeding policy.

Mr Wilkins was not informed about the investigation or given an opportunity to respond to the findings prior to dismissal. Mr Wilkins lodged an unfair dismissal claim.

The Verdict

The Fair Work Commission (FWC) found that the investigation was flawed because:

  • relying on the GPS data to establish possible speed was not an accurate measure;
  • Mr Wilkins was denied the opportunity to respond to the allegations; and
  • the other incidences of speeding were brief, few in number and Mr Wilkins may have been able to provide a reasonable explanation, if asked.

The FWC ruled the dismissal was unfair and awarded Mr Wilkins $17,416 in compensation.

The Lessons

This case shows that it is imperative to ensure that a procedurally fair process is followed, particularly for those employees who may be entitled to initiate unfair dismissal proceedings. It is also important to ensure that your investigation findings are not flawed by basing findings on incorrect assumptions.

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