Purpose of meeting must be provided but detail can be limited

Purpose of meeting must be provided but detail can be limited

Employers undertaking misconduct investigations always need to consider what details are provided to workers prior to interviews taking place. Vice-President Ingrid Asbury provided some guidance in a recent FWC dispute hearing.

The dispute concerned a coal mine worker engaged at BHP’s BMA Coal Alliance Goonyella River Mine in the Bowen basin region of Central Queensland. Both parties agreed in evidence that the worker had been contacted by management to attend a meeting on 15 May 2020, but few other details had been provided to him concerning the nature of the meeting.

At the hearing, the CFMMEU, on behalf of the worker, claimed the employer’s actions were in breach of the current enterprise bargaining agreement’s provisions covering the worker. Section 38.4 of the agreement provides:

“Where the Company calls a meeting requiring the attendance of a particular Employee (other than for the purposes of an Individual Development and Performance Review under Clause 36), the Company will advise the Employee of the purpose of the meeting to allow the Employee to nominate an Employee Representative. The Company will consult the Employee and their Employee Representative as early as possible to attempt to identify a mutually convenient time.

Management had contacted the worker, informed him of the meeting time, indicated that his preferred representative could not attend, and invited him to nominate a substitute. When the worker asked for further details of the meeting, he was told that it would be discussed at the meeting itself.

He wasn’t told until the meeting took place later the same day that the Company was investigating allegations of misconduct against his preferred representative. The Company’s position was that they felt it would place undue pressure on the worker and potentially compromise the integrity of the investigation to provide him with further details prior to the meeting.

The Company was investigating allegations that the representative had made false comments about COVID-19 temperature settings and believed that the worker might have been a witness to those comments.

In Vice President Asbury’s decision, the Company’s approach prior to the meeting fell short of the requirements for notification consistent with the agreement provisions. In her view, the worker should have least been told that the purpose of the meeting was to assess whether he may have been a witness to another employee’s misconduct. However, as she states,

“I do not accept that BHP was required to tell Mr Duthie the name of the person or persons against whom the allegations were made. Nor do I accept that Mr Duthie was required to be informed about the location of the alleged misconduct and the time at which it occurred”.

The Vice-President also commented,

“What was required was for Mr Duthie to be informed whether he was the subject of the investigation or whether he was a possible witness to alleged misconduct or a safety breach or similar. Mr Duthie was also entitled to be informed that disciplinary action against the person of the investigation would be a possible outcome”.

Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty (C2020/5375) (8 March 2021)

For queries about misconduct investigations or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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