Mr Musson was dismissed from Mitre 10 Mega in Warkworth, after threatening violence against a former employee.
A manager claimed to have heard Mr Musson “ranting on” to a colleague and within earshot of others about a former employee, JP, saying “that if he [JP] came back to work here he would f***ing punch his face in, knock his f***ing lights out”. Mr Musson was dismissed and he raised a personal grievance claiming the investigation was not sufficiently thorough, and the allegation was not sufficiently serious to warrant dismissal.
At first glance the disciplinary process followed appears to be a good one. The allegations were put to Mr Musson in writing, and he was given the opportunity to respond to them. The decision maker was changed twice by the company because Mr Musson protested they were too involved in the allegations. Witness statements were taken and provided to Mr Musson to respond to, and he was represented by his union. However, on closer examination the investigation had significant flaws.
The incident happened on 29 September, the allegations were put to Mr Musson on 20 October, and after two abandoned meetings, the disciplinary meeting finally happened on 23 November. This delay in proceeding was not the issue in itself. However, throughout this period Mr Musson continue to work alongside the people who were witnesses to the incident, despite the company subsequently claiming they didn’t take statements from them out of concern that Mr Musson would retaliate.
The colleague Mr Musson had spoken to, RH, declined to give a statement about the incident saying she didn’t want to get involved. Mr Musson was not told this. A statement was given by the manager who overheard the conversation and this was provided to Mr Musson.
In response to the allegations Mr Musson claimed he had been in a “rather big incident” with JP that was never resolved by the company and that JP frequently threatened staff. The investigator didn’t ask anything further about this history, saying the investigation was about the 29 September incident, not about the past. Mr Musson also denied saying JP “needed … a hiding”. He said he could not recall exactly what he had said but “what I think I said was that someone should give him a hiding, not that I should be one to give him one.”
Mr Musson’s third explanation was another manager had previously said there wasn’t a problem with colleagues swearing and venting to each other, and that although he had been accused of serious misconduct he had been allowed to continue working with the same people for nearly two months.
On 27 November the investigation meeting was reconvened to give the decision. In the intervening period no further investigation was undertaken to test or check the explanations given by Mr Musson with the witnesses.
When dismissal was proposed Mr Musson’s union representative asked that a final warning be considered and said there was disparity of treatment in view of JP’s previous verbal abuse, who was not disciplined over the matter.
The Authority determined the investigation was not sufficiently thorough. The first issue was the failure to take a statement from RH, and simply accepted she didn’t want to provide one. The explanation by the company that they were protecting RH from possible retaliation by Mr Musson if she gave a statement was not accepted by the Authority, saying that even if that risk existed, it did not override the requirement to conduct a thorough investigation.
The Authority commented that the allegation was a serious one, with the potential of an employee losing their job. RH had a good faith obligation to be communicative and responsive, and to provide a statement. The employer should have required it. ”In a matter as serious as a disciplinary investigation, where another employee faces the potentially life-changing and damaging prospect of losing their job, an employee’s preference to “not be involved” does not trump the right of an employer to seek honest and frank information from that reluctant employee, the employer’s obligation to conduct a full and fair inquiry or the right of an employee under disciplinary investigation to expect their employer will fairly gather all relevant information from other employees who may have it. “
The company further justified their actions by stating they had two witness statements that corroborated each other, in contrast to Mr Musson’s statement, and therefore this was sufficient. Again the Authority disagreed stating, “Such an approach risks an employer stopping simply at the point where there are two accusers and not seeking out what might be positive or different information from other people. If the matter was serious enough for RHHL to be conducting its inquiry about Mr Musson’s conduct, it must have been of sufficient gravity for the company to require RH to tell its investigators what she knew, whether that ultimately proved favourable or unfavourable to Mr Musson. She was the person he was talking to on 30 September and whatever comments he made about JP were triggered by questions she asked. She could reasonably be expected to have some useful recall of what was said that day. “
Other witnesses were also not spoken to, and this was similarly criticised by the Authority. The final flaw in the investigation was the failure to consider Mr Musson’s explanation that there was a history between himself and JP which contributed to comments he made. This was material information, and although the employer could have concluded it did not excuse the behaviour, they failed to even consider it.
Ultimately the Authority determined the investigation was so flawed a decision to dismiss Mr Musson was unjustified. He awarded just over $12,000 in lost wages and compensation which had been reduced because of Mr Musson’s contribution to the dismissal. This case is a reminder of the importance of a genuinely thorough investigation.